Rohit Dhankar
The current UCC debate is as divided and vicious as everything else in our politics. Prof. Amartya Sen calls implementation of UCC a stupid idea, says The Hindu, “I saw in the papers today that there should not be any further delay in implementation of Uniform Civil Code. Where did such a stupid thing come from? We have been without UCC for thousands of years and can also be without it in future,” as quoted in The Hindu. Most other liberal intellectuals also oppose the idea of UCC.
However, they continuously talk of secularism, equal rights and democracy. According to one of our most prominent intellectual Prof. Romila Thapar secularism begins with uniform civil code, “Secularising India has to begin with a uniform civil code that ensures equal rights to all citizens without exceptions according to eminent historian Romila Thapar. “Religion impinges on every human rights in the civil law — whether its birth, death, marriage, divorce, — the religions have laws on all of these,” and so making India secular necessarily means demarcating religion out of our social institutions.” That was in 2015, I have not seen Prof. Thapar’s recent statements on implementation of UCC, but do hope that she is capable of maintaining consistency in her views.
In this piece I am trying to understand why Prof. Thapar might have said that secularism begins with UCC and religions impinge on civil rights, therefore, making India secular necessarily means demarcating religion out of our social institutions. And at the same time why people who share her ideology and democratic concern are opposing the UCC today.
Debate on principles
Let’s start with commonly known basic principles. The constitution of India guarantees in the preamble to all its citizens justice, liberty, equality and assurance of safeguarding their human dignity.
The constitution also guarantees equality before the law in article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” In article 15 it further states that “15.(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Further in the directive principles the constitution directs the state that it “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Therefore, as far as the Constitution of India is concerned the Uniform Civil Code is a must, and the fact that it is still not in place is just a failure of the state, an unfinished business of secular constitution making. Let’s note that those who are opposing the UCC are all opposing the above-mentioned articles of the constitution of India which we are duty bound to upheld, respect and follow; because we gave it to ourselves.
Let’s further examine why the constitution makes such provisions? What are the fundamental humanitarian principles which form basis for such guarantees and stipulations in the constitution?
Democracy is premised on the assumption that each individual is worthwhile in herself (I am using “her”, “herself” “she” etc. as all-inclusive pronoun here. That is, all genders and sexes are included, be they male, female or trance or whatever). In a democracy wellbeing of each individual is important, and she herself is the best judge of her own wellbeing. Which means she is autonomous in choices made in goals, relationships to be cherished or avoided, carriers to be pursued, and all other aspects of her personal life. With the only proviso that she must allow the same right of free choice to all others as well, and be prepared to regulate her life according to the principles derived from universal acceptance of these principles.
The idea that all humans are alike in some respects, and is important enough to base our morality on, is an old one. A glimpse of this universal (withing the citizens’ group) principle can be discerned in many age-old texts, for example in the Mahabharata principle of
न तत्परस्य संदाद्यातात्प्रतिकूलम यदात्मन: ।
एष संक्षिप्तो धर्मेर्ततवप्र: यन्दामकः ॥ (Mahabharata 13.114.08)
Which means “[O]ne should never do that to another which one regards as injurious to one’s own self. This, in brief, is the rule of Righteousness. One by acting in a different way by yielding to desire, becomes guilty of unrighteousness.” (Translation Pratap Chandra Roy, The Mahabharata of Krishna-Dwaipayana Vyasa, published by Oriental Publishing Co., Calcutta.)
A close reading of this principle will make it clear that it is recommending accepting all humans as yourself, that is as far as moral principle goes, “equal to you”. It also accepts “your” autonomy in choice of your behaviour with others. Autonomy granted to “you” coupled with the principle of equality leads to autonomy to all others as well. Mahabharata does not give this interpretation, nor have I seen it anywhere. But that is how I interpret it, and quoting here with this meaning.
In modern age a more sophisticated and better argued similar principle is given by Kant:
“act only in accordance with that maxim through which you can at the same time will that it become a universal law. (Kant, Groundwork of the Metaphysics of Morals, page 31. Cambridge Edition)
For the purpose of this short piece no further detailed arguments are required to take that the equality and autonomy of all are two fundamental values in a democracy.
These twin values indicate that a democracy which does not safeguard these values fails to safeguard human dignity and is flawed in degree exactly proportional to the violation of these values. And that demands that the citizens of a democracy must be governed by one law, and all must be given equal protection of that law. Also, implied is that all must be mated out equal punishment for equal breach of that law.
Civil Law deals with property, money, housing, divorce, custody of a child in the event of divorce, succession, etc. All these are perhaps most important matters in an individual’s life and have profound effect on her wellbeing. Autonomy and equality in all these matters are directly implied by the above-mentioned fundamental principles of democracy, and the constitution of India.
Another aspect of the civil law is that it must be initiated by the aggrieved individual or organisation to become operational. No civil suite can be automatically initiated, a party has to approach the court to claim that her rights are violated. The object of civil law is to safeguard rights of the individual citizens.
Let’s take an example. From legal perspective Hindu daughters are granted a share equal to their brothers in their father’s property. But in reality, particularly in rural farming families, the daughters do not claim their share. Neither in the landed and immovable property nor in the bank accounts etc. Some of them follow the customs of their castes, which may involves all that belonged to the mother goes to the daughters, and in lieu of the landed property a system of customary gifts over a long time, actually till the daughters’ children are married are given by the brothers. All this may be for whatever reasons or may be good or bad, important point here is that the legal system does not interfere in all this till a daughter invokes the law and goes to the court. Which means the law basically grants the daughter equal share of property, but leaves it on her judgment to claim it or not. The law does not automatically punish the brothers who do not give equal share to her. This empowers the daughter and grants her autonomy in the matter, without making brothers automatically liable to share their property.
Therefore, anyone who opposes Uniform Civil Code in principle opposes democracy. She disallows autonomy, freedom and dignity to some or other section of the citizens. And simultaneously grants more rights than others to some sections of the citizens. This is an untenable position for anyone who professes democracy and declares herself a defender of it.
Debate on particulars
In the raging debate on UCC one argument is that the particular provisions of UCC will go against the minorities, particularly the Muslims. This fallacious form of argumentation is very popular among a section of Indian intelligentsia. This moves on some obnoxious unfounded assumptions they take as proven facts. For example, in the debate around National Register of Citizens (NRC) it was assumed that if such a process comes into effect it will disenfranchise the Muslims because: (a) it will demand papers to prove citizenship, (b) many Muslims will not be able to provide the papers, (c) even if they do, the government officials will harass them. They refused to believe that there could be safeguards against such problems.
They have the same argument against laws that prohibit religious conversions by fraud, force and allurements. If one accepts these arguments, then there can be no laws to protect people’s rights and national interest. Consider laws concerning rape, atrocities on SC/ST and laws against harassment for dowery. There are many instances of misuse of some of these laws, but the double-standard allows the same people to push for making these laws even more strict, while the previous ones are opposed on the basis of this fallacious argument of possible misuse. The law per se and it’s misuse in a corrupt system are two different issues. There can be no law that cannot be misused by a corrupt system. That does not lead to the conclusion that there should be no laws at all.
The issues on particular provisions of the UCC can be debated only when a draft of the proposed law is available. If one opposes UCC on the pretext of it becoming majoritarian or against Muslims or other minorities without referring to particular provisions, she is actually opposing it in principle and is guilty of arguing against autonomy, equality and dignity of some citizens; and bestowing special rights over and above other citizens to some chosen ones.
It would be useful if some reader suggested even a hypothetically possible provision in the future UCC that will go against any community but at the same time will not violate any rights given by the constitution to individual citizens.
Where do these unproven assumptions come from?
Most of the arguments against UCC seem to fall in this last discussed category. The issue for the people who advance such arguments is not to gather evidence and then draw their conclusion logically from that. It is other way round: arrive at a conclusion, and then cherry pick evidence for it. They seem to have already arrived at their conclusion: “UCC is bad and against Muslims”. Now their job is to convince everyone else to accept this conclusion and produce seemingly sound arguments for this.
In the above mentioned quote of Prof. Sen, he calls the idea of implementation “stupid” and connects it with Hindu Rashtra. He is talking against the constitution, against the claim made about secularism by Prof. Thapar in 2015, and against basic humanitarian principles that form the foundation of the constitution. His followers want no arguments from him, no evidence is needed; his proclamation is enough for them. And of course, they are the most prominent ‘intellectuals and guardians’ of democracy!
As an illustrative example of this kind of writing one can take Prof. Apoorvanand’s article published in The Wire titled “Muslims and the UCC: The Fear of Majoritarianism Is Real and Can’t Be Brushed Aside”.
The whole article says absolutely nothing about the merits or demerits of UCC in principle. Makes no claim whatsoever regarding particular provisions it might have that may hurt Muslim interests or feelings or restrict their religious practices. Nothing at all on these counts. And still, it makes an argument against UCC! On what basis? The article trades in fear, as the subtitle declares according to Prof. Apoorvanand this fear “Can’t Be Brushed Aside”.
Well, if the fear is the issue, then there are several questions:
- Does such a fear really exist or is it only a pretension?
- If it exists, it is fear of what? Of some interference in their essential religious practices or “banning their supposed privilege” to trample on other citizens legitimate democratic rights? Or banning having a state within a state?
- If it exists, and of whatever it might be, does it have any rational grounds or imagined as a result of some victimhood mentality supported by illogical theories?
- And finally, even if such a fear exists, should the legal system of a country run on the basis of such fear or on the rational humanitarian democratic principles?
Let’s examine how the wise professor established legitimacy of grounds of such a fear. In support of his contention the professor gives example of political movements and states that “[Wh]ether it was Ram Manohar Lohia or JP or Vishwanath Pratap Singh, Muslims supported each one of them, knowing well that they were all taking the support of the majoritarian Jana Sangh or the Bharatiya Janata Party.” May be, in politics people do take support from various factions of the population. The real issue is whether JP, Lohia and VP Singh campaigned for any majoritarian demand? He sighted none. His problem is Jana Sangh and BJP. Every one who supported anti-CAA, anti-NRC protests and farmers protests actively sought support of communal and divisive elements, for example Khalistan movement and radical Muslim groups. Would the professor therefore consider these movements anti-Hindu, anti-Nation, divisive, and demanding Minority domination?
He proclaims that “[M]ajoritarianism will never cause Hindus to suffer the way Muslims and Christians do.” And in support of this contention lists several charges. “Hindu is not forced to sing Vande Mataram or chant ‘Jai Shri Ram’. A Hindu is not beaten up for carrying meat or cooking and eating it at home.” He is right. But this is rift in the population, not a legal sanction. And in response a Hindu can say that “a Muslim does not run the risk of getting his throat slitted because he said something that Hindu scriptures themselves admit”. “Muslims do not face the danger of bomb blasts in their areas because of some disgruntled Hindu”. These tensions in the people are unfortunate and should be dealt with appropriate sternness. But the Muslims are no less a cause in this tension than the Hindus are.
The professor goes on “A Hindu man is not arrested for marrying a Muslim girl. A Hindu husband does not face jail for deserting his wife. A Hindu’s house is not demolished with bulldozers for participating in an agitation.” In these three charges there is involvement of the state. I am doubtful if a Muslim man is arrested for marrying a Hindu unless the girl or her parents seek justice against some wrong doing by the Muslim man. And exactly the same thing happens when a Hindu man marries a Muslim girl and either the girl or per parents go to the police complaining fraud or torture or forcible conversion.
Yes, its is true a Hindu husband does not face jail for deserting his wife. But his wife can go to the court and demand restoration of conjugal rights. Failing that can demand alimony. A Muslim wife does not have this option after triple talaq. A Muslim man does not face jail term ranging up to 10 years for marrying a second or a third of a fourth wife, or not telling his future wife before hand that he is already married. A Hindu man does. Does that make this state a Minority-dominated state?
Demolishing houses for any crime or agitation can not be supported or condoned. But there are always counter claims that only those properties are demolished which were constructed on illegally occupied land. This requires much more objective research than simply believing one sided report.
He declares Hindus as “[T]he actual victims of a siege mentality”. Well, are not Christians and Muslims making all out efforts to convert Hindus by fraud and allurements? Are not lakhs of illegal immigrants in India coming from Bangladesh and Myanmar? Are not there regular alarming news reports of Hindu girls murdered or forcibly converted by Muslim men?
So, there are accusations and counter accusations from both sides. Is there any serious attempt to investigate the reality of these; and either corroborating and addressing these allegations; or alternatively debunking them on the basis of evidence rather than pontificating opinions?
And finally: what does all this has to do with the UCC? How does the professor know that the UCC is going to be a majoritarian law? Has he seen the draft? Can anyone, including Professor Apoorvanand give even a possible imaginary example of a provision which will be anti-Muslim and simultaneously will not violate any of the fundamental rights of citizens? A law being against the sentiments of this or that section of population is no argument against it; as long as it does not curtail any fundamental rights of citizens. And such arguments are even more unacceptable if the law in question also empowers some citizens to take better control of their own lives. In other words, if a law empowers some citizens and does not violate legitimate freedoms of any other, there can be no reasonable grounds to oppose it. And those who do oppose such possible laws are working against democracy and secularism. Their stand becomes even more vicious if in the past they have been themselves arguing for equality and autonomy in the laws, but opposed it now just because they hate the party which wants to bring this law. They fail to understand that BJP just by emphasizing it’s long standing demand is making them oppose equality, freedom of choice and democracy.
****** 8th July 2023
Thinking Aloud 