A common civil code spelling equality for every Indian (GS Paper 2, Social Justice)
Context:
- The 22nd Law Commission has called for responses to a proposal for a Uniform Civil Code in India.
- This has set off a debate, but the debate itself is much needed as Indians have never been consulted on the personal laws they are governed by.
Colonial laws:
- These laws were instituted by the British colonial government by giving a cursory hearing to the clergy, or religious scholars in the case of religions without one. The result was a religion-based set of personal laws for Hindus, Muslims and Christians.
- Whether the colonisers did this out of a deep concern for the sentiments of the natives or it was intended as another instrument in a strategy of divide and rule in order to hold India is irrelevant.
Shortcomings in Personal laws:
- Personal laws in India are boxed according to the religion or social origins of the citizen. However, it does not take much to see a fearful symmetry between them. This is their unmistakably patriarchal framing, whereby men are privileged at every turn.
- Thus, only a man can be the ‘karta’ or head of a Hindu Undivided Family, a divorced Muslim woman is not entitled to maintenance beyond a certain period, among some tribes of India, the custom is that women do not inherit ancestral property, and a Parsi woman who marries outside the community is excommunicated. So, from the point of view of women’s empowerment, India’s civil code is uniform already.
- As for the LGBT community, the British colonialists ignored them altogether. Not only did they not even merit a personal law but their actions deserved to be criminalised, even when they were consensual.
Matter of diversity:
- Opponents of reform seem to be unaware that they are extolling a diversity based on religion. Here it is worth recalling political scientist Pratap Bhanu Mehta’s reminder that India was not conceived of as “a federation of religions”.
- Similarly, during the deliberations of the Constituent Assembly, B.R. Ambedkar is said to have expressed surprise that religion was being given as much importance when choosing India’s political arrangements. These observations have a bearing on what is being debated today.
- Whether India’s civil code accords with the diktats of all religions is irrelevant. What matters is that it must be in accord with the democratic principles of liberty, equality and dignity.
- It is entirely possible to draft a civil code that preserves these ideals without any reference to religious practices. This would have the merit of being secular, in keeping with the defining character of India’s constitution.
Religious freedom:
- Self-appointed heads of religious groups have resisted calls for a common civil code by resorting to the argument that it infringes upon religious freedom. They fail to see that religious freedom means the freedom to adopt the faith of one’s choice.
- In the domain of expression of faith, such as public worship, Indian courts have declared that it should conform to constitutional principles.
- In what may be considered one of the most significant social changes in India, restriction of temple entry to the avarna was discontinued almost a century ago. Much later, the Supreme Court of India struck down the practice of restricting women’s entry to the Sabarimala temple.
- These milestones point to an understanding of the right to religion as being confined to choice of one’s faith and not to extra-constitutional expressions of it, such as the regulation of women’s autonomy by men.
Rights of women:
- What is relevant here is not parity among men of different religious groups when it comes to marriage, it is the rights of women within every religious grouping.
- The demand that sections of the population, whether tribal or Muslim, are entitled to separate personal laws even when they are gender unjust fails to acknowledge that they are equal beneficiaries of India’s democracy.
- Democracy guarantees them liberty and equality in all spheres of life, including access to the rule of law, freeing them from arbitrary governance.
- A reform of their personal laws to end gender discrimination, rendering them compatible with democracy, would be no more than to seek a balance between their rights and their responsibilities.
Rights of LGBT Community:
- The obsession with parity among males across India’s religion-based personal codes blanks out the issue of the rights of its LGBT community. No amount of reform of the Hindu, Muslim and Christian personal codes can reach them, for they have been rendered invisible by these colonial-era constructions.
- If there were to be a common civil code applicable to all Indians irrespective of faith, gender and sexual orientation, the LGBT population could be accommodated within it. In its absence, an alternative would have to be conceived of.
- Given the recognition implicitly granted to them with the reading down of Section 377 of the Indian Penal Code in 2018 and a highly visible hearing of a petition in the Supreme Court to allow same-sex marriage, which concluded only recently, the question of a personal law for this group can no longer be postponed.
Way Forward:
- On Independence Day in 1947, Prime Minister Jawaharlal Nehru had, in a message to the nation, stated that the task before India was to “create social, economic and political institutions which will ensure justice and fullness of life to every man and woman”. No social cleavage has been imagined in this vision. A universal civil code would be a step in that direction.
