Indian Constitution and legal jurisprudence almost inevitably carry a reflection of British coloniality. Political thinker Partha Chatterjee notes that “the values of modernity…were historically established in India in the period of colonial rule and in the process of the colonial impact.” This idea of modernity is evident in the nation-building process post-independence, most conspicuously, through the making of our Constitution.
While British in India continue to be associated with modernity, it is striking to note that even they understood how vital the element of religiosity and personal laws were to both Hindus and Muslims. The British were motivated to create a lex loci for British India and simultaneously give Hindus and Muslims autonomy over matters of marriage, inheritance, and divorce. This colonial precedent now found itself percolating in the constituent assembly where a Uniform Civil Code (UCC) was being debated.
On 23 November 1948, Mohammad Ismail Khan, a Muslim member from Madras (now Chennai) moved that the UCC should also include that “section or community of people shall not be obliged to give up its own personal law in case it has such a law”. The most striking argument was posited by Dr B.R. Ambedkar. The reasons he set at that time carried a legal heft. He said, “We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code”, and thus established the need for a UCC.
Though Ambedkar touched upon the idea of justice and equality, it was only later, in the 1950s, that the issue of gender justice emerged through the Hindu Code Bill. These acts merely codified and homogenised the personal laws and were not ‘reformative’. Surprisingly, however, the Hindu Right has always supported and pressed on the need for a UCC overlooks this argument—that the Hindu Code Bill by no standard provides justice to Hindu women—concerning Hindu women. They do so by upholding that ‘their’ women have been given equal status (via the Hindu Code Bill), and it is the women of the minority community who need protection.
Debate on Uniform Civil Code
The Shah Bano case has almost become a cliche, and yet, somehow remains central to the dispute on a civil code. The case became a part of quotidian public discourse. The Supreme court held that Shah Bano, an old Muslim woman had the right to claim maintenance from her husband. The central government passed a legislation overturning the judgment of the Supreme court to supposedly placate the Muslim (men) minority. Parallelly, the Hindu right condemned the central government for unwanted minority appeasement. An intriguing question arises, where does the Shah Bano debate stand in the light of gender equality? Again, predictably enough, the issue of women’s rights, gender justice, and individual agency escaped mainstream discourse.
However, it is not only governments and political parties who are complicit in politicising and polarising the UCC. Justice Singh, in the Sarla Mudgal case of 1995, stated: “The Hindus along with Sikhs, Buddhists, and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities [Muslims] would not, [for] the establishment of a ‘common’ civil Code”.
One feels tempted to ask then, why would an institution that should ideally remain neutral make such a remark?
Analysing what a BJP-sponsored UCC could look like becomes a very hesitant task for two reasons. Electorally, there’s enough trust to establish the legitimacy of any UCC, regardless of its content. However, an element of ‘democratic’ trust is missing when it comes to drafting and implementing a UCC by the BJP. The absence of this trust is believable because how can you trust a force whose very raison d’être is to establish a Hindu Rashtra. Second, the absence of a proper legal case by way of a draft uniform code is missing. In other words, though the BJP has ardently rallied for the cause, it has never drafted or at least made public a tangible blueprint for a UCC. Since a robust legal plan is missing, the most fitting thing one can do is to tie loose ends and come up with a bare-bones structure of the UCC.
At the core of this perceivably majoritarian civil code lies a provocative question that needs to be answered by the government itself—how can it parallelly disseminate two ideas that are in confrontation, viz., the ‘love jihad’ narrative and a ‘gender just’ UCC that aims at national integration? This effectively means that a UCC modeled around this narrative will give third-party consenting rights to the government on interfaith marriages. Additionally, since the story is all about a Hindu woman marrying a Muslim man, it will significantly curb individual agency, more so of the Hindu woman.
The author is a student at Ashoka University, Sonipat. Views are personal