The controversy around the enactment of a uniform civil code (UCC) is once again occupying centrestage and bound to be raised in the next session of parliament.
Hence, there is a need to revisit this extremely contentious issue. In the six decades since the constitution was adopted, the Congress governments have been accused of shirking their responsibilities of bringing about a UCC, as mandated by Article 44. This time around, however, given that those who accused the Congress-led United Progressive Alliance government of ‘minority appeasement’ are at the helm of affairs, the terms of discourse are bound to be different.
At the time of drafting the constitution, in the wake of the partition and the riots that gripped the country, it was believed that the time was not right to enact a UCC. Article 44 was placed as a directive principle of state policy, mandating the government to endeavour to bring in a political climate that would be conducive to enacting the code. Successive governments had to create a political climate in which the minorities – Muslims, in particular – felt secure enough to entrust the government with the tempering of their personal laws.
A strained silence
In the wake of repeated discussion on Prime Minister Narendra Modi’s role in the 2002 Gujarat riots, the more recent beef controversy and the lynching of a Muslim man in Dadri, and in context of the fact that the current parliament has the lowest Muslim presence, it is logical to assume that the ruling government has refrained from any effort towards creating a harmonious political climate that would allow for a debate on the UCC.
The secular lobbies place gender on a neutral terrain distinct from contemporary political events. There is a tendency to project the demand for an all-encompassing UCC as a magic wand that will eliminate the woes and sufferings of Indian women in general, and minority women in particular. At another level, within a communally vitiated political climate, the demand carries an agenda of ‘national integration’. The demand is also laden with the moral subtext of abolishing polygamy and other ‘barbaric’ customs of the minorities and extending to them the egalitarian code of the ‘enlightened majority’.
Surprisingly, among the ‘Modi-supporter youth brigade’, there is a feeling that the government will not be able to enact a UCC because this might derail the ‘economic development’ agenda. But the blame for posing obstacles is, as usual, placed on the the Congress and the Left parties. Another reasons cited is that opposition from the Muslim religious leadership may result in riots and, with the Uttar Pradesh (UP) assembly elections around the corner, the Bharatiya Janata Party (BJP) should not take the risk.
“Without abolishing caste among Hindus, how can we proceed towards a UCC?” one reflective individual questioned, turning the mirror inwards. This line of reflection brings up the issue of honour killings, which involve a girl being killed by her own parents for transgressing caste boundaries, a reality captured in the recent popular Marathi movie Sairat.
So, rather than the high decibel voice of the BJP in the opposition, there seems to be a restrained and cautious tone to the debate this time around.
Although the enactment of the UCC has been an important political plank for the BJP and was one of the three key issues in its election manifesto (along with the Ayodhya Ram Mandir issue and the abolishment of Article 370), in its first five years in power, during Atal Bihari Vajpayee’s rule, it did not broach the subject.
This time too, the government’s response to the Supreme Court’s call for the enactment of the UCC is restrained. It is highly likely, as recent media reports point out, that the government may file an affidavit-in-reply as an escape route, stating that the matter is being referred to the law commission.
This would happen because the issue at hand is far more complex than what meets the eye. It is one thing to raise the demand as a stick with which to beat the Muslim minority, in the context of Muslim polygamy and ‘triple talaq’, in a clichéd manner, and an entirely different ballgame to get down to the brass tracks and draft a family law applicable to all Indians, choosing the best and most gender-just elements from all personal laws.
Pushing the limits
Tested against this grain, how will the Hindu law applicable to the majority fare?
The BJP-led government is aware that initiating a debate on the UCC will be highly unpopular among its Hindu mass base. Doing so will stir up several controversial gender discriminatory aspects of Hindu law that are generally not addressed by our media, even while it generates hype around them.
As a first step, the UCC would necessarily mean abolishing the legal institution of the Hindu undivided family, which awards special tax benefits only to Hindus and thus discriminates against all other minorities. The provisions of the egalitarian, gender-just Indian Succession Act, 1925, applicable to Christians and Parsis, would have to be made applicable to all, with a few amendments.
Further, from the perspective of gender justice, the lawmakers would have to place restrictions on the unbridled power of testamentary disposition of property through will, as in Islamic law, and stipulate that while only a certain share of the property (one third, for instance) may be willed away, the rest must essentially be bestowed upon legal heirs in equal measure.
The sacramental character of the Hindu marriage, which renders Brahminical rituals such as saptapadi (seven steps round the sacred fire) and kanya dan (offering the girl as a gift to the groom in marriage, a point of no return for the girl) as essential, and accept the Islamic concept of marriage as a contractual obligation between two consenting parties, where, as a means of safeguarding women, conditions can be stipulated within the contract itself. Dowry would have to be replaced with mehr, a concept integral to Muslim marriages.
Even more critical, the UCC would have to deal with the issue of Hindu polygamy, which, unlike Muslim polygamy, lowers the women concerned to a second-class status and denies them their fundamental right to a life with dignity. This issue is seldom discussed in public while focusing on Muslim polygamy, but recent Supreme Court rulings have diluted the concept of a strict Hindu monogamy by accepting the claims of second wives to maintenance, residence and protective injunction against domestic violence. Sixty years after enacting the Hindu Marriage Act, it has dawned upon our judiciary that Hindu males have been the ones to gain from rendering Hindu marriages monogamous, while women have been left to pay the price. The courts have denied them their right to not only maintenance, but also dignity, by referring to them in derogatory terms as “mistress” and “concubine” – terms entrenched in Brahminical patriarchy, in which lower-class women could be ‘kept’ as mistresses.
While these will be key concerns for the legislative drafting team, the main concern for the BJP will be that the UCC will derail the RSS agenda of creating a ‘Hindu rashtra‘ and its ‘love jihad‘ propaganda. The ‘love jihad’ campaign diligently perpetuates the myth of the insatiably lustful Muslim man. Hindu women, in contrast, are made out to be helpless damsels, prone to seduction. This venomous propaganda has been wreaking havoc in the lives of young couples, with women denied their agency to choose their marriage partners. Within this communally vitiated atmosphere, where every interfaith marriage is viewed as a political conspiracy and every effort is made to keep Hindu girls ‘pure’ from contamination from Muslim boys, can the political party fuelling such an atmosphere spearhead a campaign to enforce the UCC?
Beyond the superficiality of the stated agenda of ‘national integration’, the campaigns of ‘Hindu rashtra’ and ‘love jihad’ are interwoven thanks to their anti-Muslim ideology – entailing a fear of an increase in the Muslim population, either through ensnaring Hindu women or through the practice of polygamy.
How can the enforcement of a UCC applicable to all Indians help the campaigners opposing ‘love jihad’, if the code is meant to erase religious identities and merge them into a composite national identity? How will the BJP solve this riddle?
Perhaps to tide over this tricky situation, the UCC will have a rider that no Muslim man (or a man from other minority communities) will be permitted to marry a Hindu woman under the proposed UCC applicable to all Indians.
Flavia Agnes is a women’s rights lawyer based in Mumbai.