Over the past few months, there has been a revival in the demand for a Uniform Civil Code with the prime minister himself weighing in on its necessity.
But we need to be clear that this demand from the Bharatiya Janata Party and its collaborators such as the Rashtriya Swayamsevak Sangh and Vishwa Hindu Parishad is neither based on its mention in the constitution’s Directive Principles nor driven by altruistic intentions. Much like the question of cow protection, the periodic revival of the Uniform Civil Code targets the Muslims of India; a weapon to spread hatred, false information and consolidate their anti-Muslim Hindu vote bank.
The Uniform Civil Code issue cannot be spoken of in a vacuum.
The words and actions of the ruling dispensation have to be factored. It is disingenuous for political commentators to demand that non-BJP aligned political parties and citizens must respond to this proposal with good faith. Muslims and Dalits have been attacked over the past nine years, not just by vigilante groups but also by the state itself through the promulgation of anti-conversion laws under the garb of protecting Hindus from ‘love jihad’. This fear mongering has led to an increasing number of assaults against Muslims.
After the Supreme Court verdict, the government passed an ordinance and then the parliament passed a Bill declaring triple talaq as illegal. There can be no doubt that this was a much-needed move. But, the government showed its true colours by criminalising the offence. No Hindu can be jailed for abandoning his wife! The words indicated by innumerable BJP politicians from the prime minister downwards only further the obvious point that this government is not interested in equality of any sort. Every step taken is to demonstrate to their faithful that they will put Muslims in their place.
Quite glaring is also the contradiction at display in the Supreme Court. The government on one side pushes for a Uniform Civil Code in the name of ensuring equal rights to all citizens and, at the same time, opposes same-sex marriage in the Supreme Court.
In 2017, a group of us including Bezwada Wilson, lawyer Dushyant, actor Gul Panag, academic-author Mukul Kesavan, author Nilanjana Roy, scholar S. Irfan Habib, and Major General S. Vombetkere (Retd.) presented a proposal to the Chairman of the Law Commission Justice B.S. Chauhan who had been appointed to look into this matter.
We proposed legalising marriages between individuals of various genders and sexual orientations, giving them all the same rights in adoption, similar procedures with regard to divorce, succession and inheritance rights. We also proposed the legitimising of partnerships between individuals. Identities such religion, gender and sexual orientation that distinguish one citizen from another were removed from the ambit of the Civil Code. Everyone campaigning for an Uniform Civil Code has been harping on the gender bias in all religion-based civil codes. But with all the learning we have today with regard to gender, sex and sexuality, these votaries will have to move beyond their binary vision of gender.
There is a deeper philosophical problem with the way this discussion has been framed. The implied meaning in the repeated use of the term ‘uniform ‘is that at present there is disorder. The stress is on uniformity, because that, it is said will bring about discipline! The presumption here is that uniformity ensures equality. In our subconscious mind, uniformity registers as a synonym of equality. But, uniformity only means the same rules will be applicable to all. The nature of the change is not central to the contemplation.
We could then have a legislation that is discriminative in its intention and, though applicable to all, unequal, privileging a section and disempowering others. We need to secure for all citizens freedom, life, privacy, justice, equality and dignity. We must move towards a civil code that gives every citizen the right to live life as per their beliefs and choices with their head held high.
Another word needs to be present in these discussions: equity.
This shift will bring to the table other related issues. The asymmetry in our society is stark. The lack of education, rights and equality among so many have to be factored in when we make drastic changes in social laws. Even the most necessary ethical laws can turn into oppressive tools in an intrinsically feudal society. There is very little effort put into changing our socio-religious mindsets. In many parts of the country, homes, schools, colleges and communities operate in a parallel violent universe. Caste, gender, religion are all used to control and oppress the weak.
Laws are also so complicated and difficult to access for the illiterate and persecuted. A person from a small town is unable to even get a death certificate with ease and here we are speaking of complex changes to our civil codes. In such an environment, even progressive laws will be discarded due to a lack of social evolution, parochial-ness or they will be weaponised by the dominant.
Political parties use religion, caste, sex and gender to abuse citizens, courts perpetuate discriminative norms, and the police force is hand in glove with the dominants. In such a situation, a Uniform Civil Code, however progressive, can even be harmful because it will challenge the power of the socially prepotent. This will leave the minorities who attempt to use the new provisions more vulnerable to the threat of violence.
We need ideals such as rights, liberties and justice to become everyday conversations. This can then bring about a grassroots level demand for changes in our civil codes. Governments and law makers must create a social environment that allows everyone to raise their voice fearlessly.
This is not to say that laws will need to wait for society to change. Laws can come first and nudge us to transform. This will happen if laws are framed with social consciousness and in order to further democratic spirit. But to create a more enlightened society we do not need a uniform civil code. The problem is not that we have diverse set of civil laws. It is their degrees of restrictiveness and discrimination. Unlike what is being portrayed, bringing about sameness should not be the thrust.
It is also far more difficult. An individualised approach to every set of civil laws will be more sensible and specific, especially in a diverse country such as India. Each community also needs to be involved in any such move. Changes cannot be a top-down dictum forced upon people via an entry in our constitution. It has to be a participatory process that comes from within the concerned communities. This will indeed be consultative and slower, but the nuance and strength it will gain will make the changes creative, robust and flexible.
T.M. Krishna is a musician, author and activist.