For as long as I can remember, the Uniform Civil Code has been the BJP’s equivalent of a nuclear option: a deadly strike but one with a worrying fallout. In fact, even before the BJP was formed, the Jana Sangh maintained that India needed a uniform (or common) civil code.
But though the issue featured in manifestos, no BJP government (not even the Narendra Modi government during its first term) has ever seriously considered imposing a common civil code.
They have been conscious of the fallout; of warnings that the UCC would cause a deep schism in Indian society and alienate millions of Indian Muslims.
But judging by his remarks in Bhopal this week, the Prime Minister is ready to take that chance. His finger is already reaching for the nuclear button.
While the arguments for adopting a common code are strong, the political reality is also powerful. Muslims have been told, over the years, that one guarantee of their position in a secular India is the right of the community to have its own Personal Law. It helps Indian Muslims protect their religious identity, or so it is said, and it prevents them from being swamped by the ways of the much bigger and more powerful Hindu majority.
When the Constitution was being written, many of its framers made the commonsensical point that if India was going to be a secular state, where matters of governance would be kept separate from religion, then there should be one law for all citizens. This was also the view of BR Ambedkar and Jawaharlal Nehru.
Not everyone agreed. There was resistance across communities, including Hindus. For instance, some Hindu organisations complained about interference in the practices of the community when polygamy was finally abolished for Hindus in 1955.
In the case of Muslims, one of the original objections was based on Partition, then fresh in the minds of the framers of the Constitution. If the Muslim Personal Law (Shariat) Application Act 1937 was abolished, then it would add substance to the Pakistani claim that those Muslims who had opted to stay on in India would have to sacrifice their religious identity.
Faced with these arguments, Nehru and Ambedkar gave in, India would have one criminal code but on personal matters (marriage, divorce, adoption, inheritance, etc.) there would be many religious laws. The need for a Uniform Civil Code was put into the Constitution’s Directive Principles of State Policy, which are not binding.
Since then, the need for a common civil code has often been discussed. Essentially, there are two approaches and one practical reality.
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Arguments for and against UCC
The first approach focuses on the position of women under Muslim Personal Law. It argues that Muslim women are worse off than, say, Hindu women because of the inequities in their religious law. This view gained traction after the Shah Bano judgment in the 1980s when many prominent Muslim women also opposed the provisions of their Personal Law.
And it is this approach that Hindu communalists repeatedly rely on: portraying Muslims as a primitive people who have the legal right to mistreat their women and to take many wives. Though statistics suggest that very few Muslim men are polygamists, this provision remains an obsession with some Hindus who perhaps regard it as unfair that Muslims still have a right to polygamy even though Hindus lost it in 1955. (Though, of course, when polygamy was a Hindu practice, it was not considered primitive at all, judging by Hindu attitudes then.)
As an argument for a common civil code, this is the weakest: you can amend Muslim Personal Law to make it more equitable. This is no reason to abolish it entirely, or to introduce a common law.
A second argument is a version of the one that appealed to many of the framers of the Constitution: the overwhelming majority of liberal democracies have a single personal law. In the UK and much of Europe, which are multi-religious societies now, Christians, Muslims, Jews, Hindus, etc. have to follow the same laws: criminal, civil, and personal.
It has now been several decades since the Indian Constitution was framed. Why are we still so unwilling to adopt a single civil code? Surely, there has been enough time for the concept of a secular nation with one secular law to take hold?
And then, there is the qualification based on political reality. Though many liberals (beginning with Ramachandra Guha) argue that India needs one civil law for everyone, there are others who question the timing. Some liberal Muslim intellectuals will tell you that while they recognise the need for a common civil law, they believe that there is no pressing need for it. To impose one now would needlessly alienate the Muslim minority.
And it is true that Muslims have been made to believe that Personal Law is central to their religion. This view has been encouraged by Muslim religious leaders. The last time I wrote about Muslim Personal Law here (and I have been writing different versions of essentially the same column for over three decades now!), was when a mega-gathering of Muslim religious organisations was held in Deoband and passed a resolution opposing a common code.
The resolution stated that the tenets of Muslim Personal Law “have not been created by some society, community or person or group but come from religious texts… They are part of our religious directives.” Any attempt to do away with Personal Law “is a clear interference with Islam.”
It is this kind of stuff that worries me. Not just because it is nonsense but because In a secular country, we shouldn’t allow marriage, inheritance, etc. to be decided by some ancient religious text on the grounds that the laws were revealed to us by God. But also because it plays into the Hindu communalist caricature of Indian Muslims as primitive people in thrall to the mullahs.
It is this caricature that we will see more of in the coming months as the BJP’s move towards its ‘nuclear option’ gathers momentum. We have already had the Law Commission raising the issue recently and PM Modi’s remarks in Bhopal on Tuesday suggest that he has his finger on the nuclear button.
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The ‘nuclear’ road to 2024
Why is Modi raising the issue now, after nearly nine years of ruling India, during which he could easily have encouraged a serious debate and reassured Muslims that Islam would not be in any danger from a uniform, equitable law?
It is difficult to avoid the cynical conclusion that the BJP is preparing for the 2024 Lok Sabha election. I wrote here a few weeks ago that Modi would make Hindutva a larger part of his platform. His rhetoric in Bhopal fits in with that kind of campaign.
On the one hand, you will have the inauguration of the Ram Mandir in Ayodhya. A Hindutva-led campaign will be bolstered by a controversy over a common civil code. Muslims will, of course, oppose it. The opposition parties will say that it is unnecessary to impose one just before the election.
The BJP will then portray the opposition as Hindu-haters and Muslim-appeasers. In Bhopal, Modi has already talked about Muslim vote-banks in this context.
The BJP’s appeal to its Hindu vote bank will portray the Prime Minister as the champion of Lord Ram and the upholder of the Hindu civilisational legacy. The opposition will be caricatured as third-rate, vote-hungry politicians who want only to cater to their primitive Muslim constituency at the expense of Hindus.
That, at least, is the theory. In the past, the BJP, under Atal Bihari Vajpayee, resisted going down this road because of the damage that would be done to the social fabric of the country if Muslims were made to feel (rightly or wrongly) that their religious beliefs were being targeted. But I don’t think Narendra Modi shares this concern.
If he does press the button, the big question is this: will it work? Will Hindus be willing to vote for the BJP again on the basis of religious issues? So far at least, the evidence suggests that in some key states, they might well. I imagine that the choice of Bhopal for the Prime Minister’s remarks was deliberate: he will try out this campaign in the assembly election there.
The rest of India, however, remains a question mark. If the Modi government does press the button in the next few months, then the nuclear winter that will follow should give us the answer.
Vir Sanghvi is a print and television journalist, and talk show host. He tweets @virsanghvi. Views are personal.
(Edited by Prashant)