olitical consensus might jeopardise the process of social harmony and disrupt stability
Fr. John Felix Raj,
Prabhat Kumar Datta
The issue of the implementation of a Uniform Civil Code mentioned in the Directive Principles of State Policy of the Constitution of India has, of late, become a matter of high-pitched debate. There is a view that the ball was set rolling by Prime Minister Narendra Modi on June 27 in Bhopal where he underscored the need for a UCC. The matter has assumed a new dimension because the 22nd Law Commission recently requested the members of the public and religious organisations to share their opinions on a UCC within a month.
The idea of the codification of diverse Indian laws, particularly with reference to crimes, evidence and contract, owes its origin to the initiative of the British government in 1835. The personal laws of Hindus and Muslims find their source and authority in their ancient religious texts. The 1835 report stressed the need for keeping the personal laws of Hindus and Muslims outside the purview of codification. As there were many legislations dealing with personal laws, the colonial government felt the need to appoint the B.N. Rau Committee to codify Hindu laws. Significantly, it did not touch Muslim personal laws or tribal laws.
Incidentally, before the commencement of British rule, we had multiple systems of law. The British government tried to develop a uniform law, the classic example being the Indian Penal Code, 1860. Some of the Muslim personal laws were also codified, as is evident from the Muslim Personal Law (Shariat) Application Act of 1937 and the Dissolution of Muslim Marriages Act, 1939. But they had to proceed cautiously, carefully and wisely as they had to calculate the potential political fallouts and social consequences of such action.
The idea of a UCC generated some political heat in 1940 when the final report of the Sub-Committee on Women’s Role in Planned Economy was presented before the National Planning Committee. The Sub-Committee pleaded for enacting a UCC for all, taking equality, not uniformity, as the guiding cardinal principle.
The UCC issue figured prominently in the discussions in the Constituent Assembly. While heavyweights like B.R. Ambedkar, Jawaharlal Nehru, and Vallabhbhai Patel extended their support, voices of dissent and concerns were expressed by some eminent members as well. K.T. Shah voiced his apprehensions about the possible violations of religious freedom and minority rights. He proposed to adopt a gradual and reformist approach which was supported by J.B. Kripalani. Voices of concern were also expressed by members like Frank Anthony. He emphasised the need for respecting the cultural dignity and pluralism of India. He argued for safeguarding the rights of minorities and allowing them to maintain their distinct identities. Members like Begum Aizaz Rasul suggested that religious beliefs and traditions of all communities need to be accommodated.
While supporting the proposal for a UCC, T. Prakasam emphasised the need for protecting religious autonomy. His suggestion was to address the issues of gender disparity while respecting cultural and religious diversity. Significantly, this has assumed a new dimension in our country following the acceptance of gender quota as a means of promoting gender justice through constitutional amendments in 1992.
Kamalapati Tripathi drew the attention of the members to the potential disruptions and conflicts resulting from the abolition of the personal laws. Like many others, including Alladi Krishnaswami Ayyar, Tripathi pleaded for addressing issues of gender inequalities and promoting social harmony. Mahavir Tyagi endorsed Tripathi’s stance. He also underscored the need for taking all possible precautions while reforming personal laws.
The debates in the Constituent Assembly tend to demonstrate that there had emerged different perspectives and that the general consensus appeared to be one of cautious, sensible and gradualist approach. Many of them emphasised the need for reforming the existing legal arrangements in light of gender justice, national unity and the like. The opponents highlighted the need to maintain religious autonomy, minority rights, cultural traditions and so on.
The key lesson from the debates in the Constituent Assembly is that an attempt to uniformise any aspect of law having a bearing on social life needs to be made cautiously and gradually. We should learn some lessons from what had happened while implementing uniform local government throughout the country by amending the Constitution in 1992. The diversity of our society has survived many stresses and strains and it is the lifeblood of our resilient community.
Leading Muslim organisations have already raised alarms against the attempt to uniformise civil codes. The Law Commission’s move to consult the stakeholders has been termed contrary to ‘the spirit of the Constitution’ and ‘religious freedom enjoyed by all citizens’. The Jamiat Ulama-i-Hind and the Jamaat-e-Islami Hind have referred to the personal laws of the Sikhs, Hindus and tribals to argue that such a proposal will be affecting many other communities. The All India Muslim Personal Law Board finds in this endeavour an attempt at ‘polarisation’ and has called it “a diversionary tactic of the government”.
The confederation of civil society organisations known as Save the Nation has also opposed the proposal. In a letter to the Law Commission of India, the convener, C.J. Rajan, has observed that implementing the UCC will have significant negative consequences on society and will undermine the principles of cultural diversity, religious freedom and gender equality. Going a little further, Rajan says that it might be perceived by the minority communities as an attempt to impose mainstream cultural norms on their ways of life.
It is true that in the Shah Bano case, the apex court pleaded for the introduction of the UCC for ensuring gender equality and reducing the influence of religion on public life. In the Sarla Mudgal case, the Supreme Court requested the State to retrieve an article from the cold storage. But the fact remains that the issue is very sensitive. After the demolition of the Babri Masjid, Muslims, in particular, seem to have developed a feeling of insecurity.
Thus, the matter merits serious consideration. Let a draft code be prepared by experts drawn from different stakeholders for circulation in the public domain and, after eliciting public feedback, let it be redrafted and circulated for finalisation. For churning the nation, there should be a nationwide conscientisation programme in different forms. We need to create an atmosphere of mutual trust and confidence before embarking on such a radical programme. It seems necessary to take insights from the debates and the discussions in the Constituent Assembly.
Religious and cultural autonomy constitute the core of democratic values. The protection of the rights of the minorities is regarded as an innate and inalienable aspect of modern democratic theory and good governance. Besides, our economy is now one of the fastest-growing economies in the world. For sustaining the level of growth, we need social and political stability. Introducing a UCC without arriving at social and political consensus might jeopardise the process of social harmony and disrupt stability. This may have an adverse impact on our economy, polity and society.
Fr. John Felix Raj is Vice-Chancellor of St. Xavier’s University, Calcutta. Prabhat Kumar Datta is Adjunct Professor of Political Science, Xavier Law School, St. Xavier’s University, Calcutta