India, a mix of multiple cultural traditions, has been a salad-bowl-like society where each culture combines with others while maintaining its contrasting yet distinct identity. Its beauty is in its dominant culture’s undisputed Hindu bearings accepting the values and practices of other social groups with diverse cultural identities and enabling cultural pluralism to flourish. India has been truly a uniquely multicultural country.
In the political sphere, India, applying the best attributes of pluralism, has witnessed bargaining between the contrastive and divergent groups while striving to maintain a dynamic working balance between all of them. This has entailed an interplay between the government and non-governmental actors for the distribution of influence across the political process so as to concede a voice to different outlooks, orientations, and perspectives.
The controversy surrounding the uniform civil code (UCC) today and the polemics around it are a result of the confrontation between two competing views of moral judgment, both of which have play in the social and political milieu of pluralism in which we have an abiding faith. On the one side is moral universalism or the belief that a system of ethics applies universally to all similarly situated individuals regardless of culture and religion. On the other side is moral relativism, which concedes differences in moral judgments across people of different cultures. While both sides of the issue invoke the principle of justice, their conception of justice is different.
The proponents of the UCC invoke the principle of equality and treat it as moral judgment valid across all cultures, while those objecting to it claim a right to disagree on the grounds that no one can ever be objectively right or wrong and that matters of faith cannot be given an inferior position and deserve as much respect. There is, therefore, no overlapping consensus on the subject. The Supreme Court has evolved the concept of constitutional morality and held that while the Constitution recognises religious belief and faith, its purpose is to ensure wide acceptance of human dignity and liberty as the ultimate founding faith of the fundamental text of governance, and in the event of conflict, human dignity, liberty, and equality must prevail.
However, the question the Supreme Court has not addressed is whether a version of liberty can be imposed upon one who does not feel oppressed by any restriction. Or whether a different conception of dignity than one derived from a person wanting to be valued and respected for what the person is and believes in would be a value which the Constitution wanted to reign supreme. In any event, I have serious misgivings about including personal laws within Article 13 of the Constitution, which declares that all laws inconsistent with the fundamental rights shall to the extent of inconsistency be declared void. This is because the Constitution itself contemplated both the existence and the continuance of personal laws in Article 44, which provides for an endeavour to secure a UCC throughout the territory of India.
The Constitution and personal laws
The endeavour to secure it in the future, by its very tenor, allows the continuation of personal laws till a UCC is formulated. Personal laws that existed when the Constitution was enacted and were allowed to continue could not simultaneously be held void for violating the fundamental rights. In other words, notwithstanding their violation of fundamental rights, personal laws based on their respective religious text and distinctive backgrounds could yet operate under the Constitution. This would be in consonance with the multiculturalism accepted by the Constitution. How does one then reconcile the promise of equality guaranteed in the Constitution with the freedom of personal laws to operate even when their aspects infringe on the principles of equality and justice?
After all, moral relativism cannot be stretched into moral nihilism. This would require an overlapping consensus, where a particular conception of justice is agreed to be shared across all heterogeneous groups. This consensus cannot be reached by a forced imposition of one view, as that would be an instance of radical politics intending to de-nature and remodel the existing architecture of inter-relationships and would require instead a reform movement involving group action of several agents to achieve a common goal.
This is recognised by the Constitution itself when it gives concurrent power both to the Parliament and to the States to deal with different aspects of personal laws. I refer to Entry 5 in the Concurrent List of the Seventh Schedule of the Constitution dealing with marriage and divorce, adoption, succession, and all matters subject to personal law immediately before the commencement of the Constitution.
In other words, the Constitution contemplated gradual change, progressing step by step in a piecemeal manner, addressing the flaws and abuses in personal laws. The reform of Hindu Law manifested in the legislations of 1955 and 1956 had in fact begun more than a hundred years earlier in the early part of the 19th century and took more than a decade, even after the formulation of the Hindu Code by the Rau Committee. Even then, Section 7 of the Hindu Marriage Act permitted the solemnisation of marriages in accordance with customary rites and ceremonies of either party. Giving daughters a right in coparcenary property had to wait till 2005.
Making the Law Commission revisit its own recommendation [2018 report], and then making the revisited consideration a hasty exercise, that too in an election year, discredits the venture being undertaken as a vigorous pursuit of a partisan objective intolerant of, if not hostile to, rival views which, in a participatory democracy, are equally capable of vying for attention. This makes the attempt to introduce the UCC seem coercive and intimidatory instead of being well-intentioned and necessary and denies the movement of the key elements necessary for it to be seen as an acceptable measure of reform.
Importantly, a top-down effort to alter attitudes and behaviour on a large scale to create a new social construct, while permissible, cannot afford to be seen as paternalistic, as that would be misconstrued as proceeding from an attitude of superiority and intended only to override the will of the affected. It will not be seen as an honest attempt to refashion society in an innately just manner, which alone can legitimise any measure of social reform.
The government’s advocacy of the UCC cannot be seen merely as an intention to promote social advancement when the general discourse in which it is framed aggravates cleavages and sharpens social divide. A reform measure will then be seen as an assertion of dominance and make the outcome one of victory over the other, denigrating it in prestige and rank. It would then, unfortunately, give obscurantists credibility, and empower them to deprecate education and reform and generate hostility towards and mistrust for measures that can actually enhance the health, happiness, prosperity, and general well-being of the community.
Democratic social engineering has to move step by step so as to address the most urgent of evils rather than fight for the greatest ultimate good. Making the UCC the central point of attention and activity and turning away from and overlooking other areas of concern which may require more immediate attention seems autocratic and authoritarian, unfit for a deliberative democracy.
Laïcité, the constitutional principle of secularism in France, is wholly unsuited to India. This is because a clear division between private life and public sphere that excludes religion from the latter is impossible to apply here. Religious symbols, till they are not weaponised, have a welcome presence in India and are a celebration of its cultural ethos, India being at its best in its variousness, which is simultaneously its most distinctive attribute. This is the emotional bond that unites us. India lives in the comfortable consciousness of diversity and not in the cognitive recognition of differences. India is not and has never been a country of timid spirit. There is, therefore, no reason to be wary of any kind of heterogeneity.
Yet, heterogeneity cannot be an excuse to perpetuate inequality or injustice. And no practice should be beyond the reach of reform. Much in the manner that differences cannot create apprehensions, maintaining differences for the sake of keeping differences alive is equally misguided. A mindless defence of established institutions and a reluctance to question traditional orthodoxies create an illiberal mindset that privileges a prejudiced and bigoted mind over one receptive to new ideas that strengthen and reinforce autonomy and equality. Prejudice reinforces divisions and spawns pigeon-holed beliefs that render a vision of the country’s destiny which is shallow, narrow-minded, and inconsequential.
Religion is a reference to one’s views of one’s relation to a creator and to the obligations they impose of reverence for the creator’s being and character and obedience to the creator’s will. It should not be confounded with the form that the worship takes. Matters of marriage and succession are always regulated by law as from them spring social relations and obligations that are necessarily the concern of the government. The regulation of secular activities is permitted by the Constitution and personal law has never been recognised as sacrosanct. Divorcing religion from rights with which religion has little concern will not violate any constitutional injunction.
What Ambedkar said
It is instructive here to refer to what B.R. Ambedkar said on the possibility and desirability of a uniform code of laws for the country. Referring to enumerable enactments uniform in their content and applicable to the country, Ambedkar said that it proved that the country has, practically, a civil code that is uniform in content and applicable to the whole country. “The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have Article 35 as part of the Constitution to bring about that change. Therefore the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have as a matter of fact covered the whole lot of the field which is covered by the uniform civil code.”
Ambedkar did not, however, favour “enforcing it on all citizens” and contemplated Parliament making a beginning “that the Code shall apply only to those making a declaration”. The initial postponement of bringing in a UCC has been indefinitely extended. And the prospect of immediate imposition has caused disaffection and resentment. The obvious reason both for the delay in imposition and for the reaction to the prospect of imposition in the immediate future is distrust of the motive behind the move. The UCC is seen by its doubters as a political device, not a social measure. It is, therefore, necessary to frame the debate around the UCC and devise the manner of its implementation wisely and with discretion. The consequentialist argument of the ends justifying the means would be wholly inappropriate in this context, as the end itself is seen as questionable.
In any event, the Machiavellian comment “for although the act condemns the doer, the end may justify him” removes all limitations on actions, and has a natural tendency for abuse. The question that stares at us then is this: is it an ill-advised move or is it advisedly imprudent? In either case, it is the idea of the UCC that becomes a casualty. A reformative movement towards progress is replaced by a regressive, retrograde retreat into extreme conservatism, with no dialogue between the constituent groups. Is there an inversion of the meaning of “unified” here, and is the UCC intended only as political doublespeak?
Appendix: Uniform Civil Code: How it began
The UCC calls for the formulation of one law for India, applicable across religions, in matters of marriage, divorce, inheritance, and adoption.
- While the criminal laws in India are uniformly applicable on all, regardless of religion, the civil laws are influenced by religious texts and cultural mores. The British government first mooted a UCC in a report submitted in 1856.
- It was included in Article 44 of the Constitution as one of the Directive Principles of State Policy.
- Granville Austin’s The Indian Constitution: Cornerstone of a Nation details how the proposal for a UCC was mooted in the Constituent Assembly’s Fundamental Rights Sub-Committee. “The framing of the provision regarding a uniform civil code provides an interesting aside to the sub-committee’s work. In India in 1947, despite the inroads on personal law during the British period, many Indians lived their lives untouched by secular law, whether civil or criminal. The idea of a uniform civil code, therefore, struck at the heart of custom and orthodoxy, Hindu, Muslim, and Sikh. During the days when the Principles were to be justiciable, Minoo Masani moved in a sub-committee meeting that it was the state’s responsibility to establish a uniform code, in order to get rid of these water-tight compartments, as he called them. The members voted against the recommendation, five to four, on the ground that it was beyond the sub-committee’s competence. Yet, two days later the members approved the inclusion of the provision, but only after it had been decided to create a non-justiciable section of the rights where the clause could be put.”
- Article 44 figured as Article 35 in the draft Constitution. It was debated in the Constituent Assembly on November 23, 1948.
(Aman Lekhi is a Senior Advocate in the Supreme Court of India and is the former Additional Solicitor General of India. Courtesy: Frontline magazine.)
