The BJP is Promising a Uniform Civil Code, But How About a Uniform Moral Code First?

 The BJP is Promising a Uniform Civil Code, But How About a Uniform Moral Code First?

The BJP's purpose behind promising a uniform civil code is to win elections in Gujarat and Himachal Pradesh by causing a Hindu-Muslim divide.

The BJP is Promising a Uniform Civil Code, But How About a Uniform Moral Code First?

'This call for a uniform civil code has to be seen for what it is: a constitutional call for equality in all walks of life. The proposed UCC would be effective if, and only if, it is truly a new civil code and not just a mere declaration of rights.'

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GOVERNMENTPOLITICSRIGHTS

19 HOURS AGO

One of the most cherry-picked (especially by the right-wing) segments of the Indian constitution is Part IV. This sets out what is called the ‘Directive Principles of State Policy’.

Although not enforceable by any court, the various clauses of this part encapsulate the egalitarian vision of its drafters, enunciated with the purpose to obtain full “economic, social, and political justice” for every citizen of the republic-to-be.

From the standpoint of economic justice envisioned in the Directive Principles, the heart of the constitution lies in provisions inscribed in Articles 38 and 39.

As can be seen from the text, the ideals of equity enshrined in these Articles are indeed breathtaking.

They speak of all material resources belonging fundamentally to the people; of the injunction to the state that its objective “shall” be to ensure that concentration of wealth in a few hands does not happen; that inequalities of income shall be reduced to the minimum; that measures shall be taken to make a dignified livelihood available to all men and women; that there shall be equal pay for equal work; that citizens shall have the right to food, to work, and to health, and indeed, a great deal more.

Also read: What the Proposed Uniform Civil Code Should – and Shouldn’t – Be

Read that and look around you at the economic philosophy of the right-wing now ruling the stipulated republic – characterised by the rampant transfer of public resources to private hands, yawning disparity in incomes and purchasing power, centralisation of wealth to an obscene degree, denial of the fundamental rights of livelihood as set out in these Articles as mere calls to “freebies”, etc.

This is the reason why Articles 38 and 39 of the Directive Principles of State Policy are never invoked by the right wing especially, or indeed have not been invoked by any governments post the declaration of the Washington Consensus of 1990 which, in effect let loose the reign of hot money worldwide in a “neo-liberal” package that made national boundaries secondary to the prerogatives of global finance.

The Articles that, however, are invoked by the right wing are 46 which speaks to the desirability of proscribing the slaughter of cows and calves, and, you guessed it, Article 44, which contemplates a “Uniform  Civil Code”.

Although the Article does not provide any elaboration whatsoever about what that code should be like, or how it might be arrived at, the idea was that just as all Indian citizens, regardless of religion, class, caste, gender, or any other form of discrete identity is subject equally to the provisions of the Criminal Code, so also a uniformity might be achieved in the civil aspects of all community living, such as those that pertain to marriage, divorce, property rights, rights of inheritance, rights of married or unmarried women thereof, matters affecting joint family structures, etc.

The common perception has been that the right-wing insistence on enforcing through legislation this idea of a UCC is primarily yet another ploy to polarise the polity and target Indian Muslims, besides seeking, at the bottom, to obtain the suggested uniformity on principles practised by (caste) Hindus.

Those that see some merit in Article 44 have often proposed that the government of the day, if it wishes to activate this Article, had best formulate a draft that could be circulated and debated by Indians of all denominations; and that, perhaps, the most rational and equitous practices of various religions could be then put together as an agreed text, although how that may then be enforced on India’s Scheduled Tribe communities will still remain an intractable conundrum.

But, no, this is not what any right-wing government wishes to do; to a point where most recently the ruling party has declared that it will put in place a UCC if it wins the Gujarat and Himachal Pradesh assembly elections.

BJP national president J.P. Nadda along with Union minister Anurag Thakur, Himachal Pradesh chief minister Jai Ram Thakur and others release the BJP’s manifesto for the upcoming Himachal Pradesh assembly elections, in Shimla, November 6, 2022. Photo: PTI

Never mind that such powers rest only in the Union government via parliament and not in any state government. But who is listening?

The purpose straightforwardly is to win these states by causing a Hindu-Muslim divide. Given this backdrop, one wonders how about a uniform political and moral code first?

Also read: A Hindutva Model of Uniform Civil Code May Make It Even Worse for Women

While the best constitutional and community minds may well deliberate on how a common civil code may be achieved, albeit with the best cosmopolitan intentions, would it not be first more desirable to strive to arrive at a uniform political and moral code for the nation’s public agents?

What might that entail?

That all poltical forces who participate in Indian democracy have a level playing field in terms of funds commensurate with their voting strength; that similarly commensurate media time is available to them; that excesses committed allegedly by political agents in differently ruled states are named and prosecuted uniformly; that hate speech uttered by one is the same as hate speech by another; that when bridges collapse in two different states run by two different political parties, one is not called an act of god and the other an act of fraud; that the investigative agencies of the state do not discriminate between one accused and another based on their political affiliations; that when parliament is in session, motions moved by the opposition on genuine grounds under legitimate provisions are not rejected one hundred percent; that if is made known to the voting public as to who is buying electoral bonds and for whose benefit; that the numero uno of the executive does not uniformly castigate state governments run by opposition parties on visits to states and uniformly praise governments run by his own party; that the unconstitutional slogan “double engine ki sarkar” implying that states run by the party ruling at the Centre will receive special favours as against those run by opposition parties, be jettisoned forthwith; that a covenant is reached among parties that never shall any ducks and drakes be played with data of any kind bearing on the performance of the state or of individuals, no matter who they be; that just as Article 44 of the Directive Principles is sought to be invoked, all, but all, stipulations of the constitution of India shall be honoured by any and all governments and their agencies with transparent accountability to public scrutiny.

Indeed, the desirable list of uniformities here is far more extended than may be codified in a column.

But can there be any disagreement that were such desirable political/moral uniformities to be codified and practised, the need for resistance to a Uniform Civil Code might of its own gradually wither.

Any provision of the constitution is only as credible to the public mind as the quality of the men and women charged with the responsibility to operate the same.

Thus any demand for uniformity in one sector must remain a matter of dissension should other more urgently required uniformities not only not be envisaged but positively discouraged by rulers who aim brazenly to rule not in uniform but in sectarian ways.

Unless sauce for the goose is seen to be sauce for the gander as well in all matters of governance, the motivated call for a Uniform Civil Code cannot but only lead to further fracturing of the national psyche, rather than obtaining any uniformity.

What the Proposed Uniform Civil Code Should – and Shouldn't – Be

While the reform of laws for the cause of gender justice is welcome, the proposed new civil code can't be another avenue to further communal agenda and narrowly focus on personal laws.

What the Proposed Uniform Civil Code Should – and Shouldn't – Be

'This call for a uniform civil code has to be seen for what it is: a constitutional call for equality in all walks of life. The proposed UCC would be effective if, and only if, it is truly a new civil code and not just a mere declaration of rights.'

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COMMUNALISMGOVERNMENTRELIGIONRIGHTS

04/MAY/2022

What does the proposed Uniform Civil Code (UCC) look like?

In the popular imagination, the UCC will do away with personal laws. The votaries of the UCC within the Bharatiya Janata Party posit it as a necessary step towards gender equality. This is a thinly veiled reference to personal laws, which have not kept pace with modern times.

Hindu laws have, of course, been updated since the Hindu Code reforms of the 1950s to the extent that Hindu succession and divorce laws are now in a position to be called gender just. On the other hand, Muslim personal laws provided women a much fairer deal than traditional Hindu law, but with the Hindu Code reforms, culminating in the 2005 amendments to the Hindu Succession Act, they are a step behind in terms of gender justice regarding the law of succession.

While the reform of laws for the cause of gender justice is welcome, the form of the proposed UCC remains a mystery, unaddressed by polemical speakers.

What is required to make our laws gender just? A declaration of equal property rights and equal rights to seek divorce, to seek maintenance and adoption are definitely a good start, but are not sufficient by themselves to achieve gender justice. These are reforms to personal laws alone.

Article 44 of the constitution reads as follows: “Uniform civil code for the citizens – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

This mandate is not restricted to personal laws at all.

This call for a uniform civil code has to be seen for what it is: a constitutional call for equality in all walks of life. The proposed UCC would be effective if, and only if, it is truly a new civil code and not just a mere declaration of rights.

Need for a comprehensive civil code 

A Joint Hindu family, which is a bit of an anomaly in the current times, is already on its way out owing to the 2005 Hindu Succession Act reforms. Property is now being inherited by women, and they are now equally capable of disposing it off as the men in their families. As such, the family unit continually changes within the rules of the patriarchal system where the woman is supposed to go and live with her husband and his family. A ‘joint family’ is now more relevant to the tax law than property law. Yet, the vast majority of Indians are not heirs to any appreciable amount of property.

Issues of tenancy, access to housing, and access to stable and equal employment are more pressing issues for the vast majority of people than a Joint Hindu family or the proportion in which properties are to be divided under Hanafi jurisprudence.

It is fairly well-known how difficult it is for a single woman to rent a house. It only gets complicated when it is a single mother, or if the woman in question is a Dalit, Muslim, or from northeast India. In the case of such women, the process of leasing a house can further prove to be difficult. Opportunities of employment are heavily slanted against women as is the wage gap.

Women in India at an anti-harassment protest. Photo: Reuters

 

A gender-just UCC has to address such issues, by which landlords are penalised for denying a house to woman, and making our society pay for its bigotry and discrimination against women. An employer practicing discrimination ought to be punished. These are indeed the reforms the proposed UCC ought to focus upon.

Also read: A Hindutva Model of Uniform Civil Code May Make It Even Worse for Women

On the other hand, it should address other inequalities as well. Similar to the law protecting transgender persons was enacted to end discrimination against them in the matter of housing, access to services, employment, among others, a similar raft of protections ought to be extended to other protected categories of people, including women, Dalits, minorities and Adivasis.

Sexual minorities are also a category that deserves special protection, and the present dispensation has been markedly more sympathetic to their cause than to other disadvantaged groups. Some of the challenges faced by them are also faced by other groups as well.

Developing a new code grounded in progressive justice

The political pitch for the UCC seems to be a blatant communal one, albeit one couched in the language of progressive gender justice.

The framers of the constitution included Article 44 as a guarantee of equal citizenship, not in furtherance of any majoritarian principles. The communal pitch has to be countered by a progressive one, which not only exposes the hollowness of the communal demand but shows with clarity the true purpose and benefit of constitutionalism and the rule of law.

A new UCC, aimed at clearing the functional bottlenecks that choke the lived experiences of so many Indians, could be as revolutionary as the reforms brought in by Jawaharlal Nehru and Dr. Ambedkar with the Hindu Code.

The Hindu law reforms were an act of imagination that fundamentally changed the nature of Hindu, and consequently, Indian society. Nehru especially faced opposition from within the Congress and had to politically manoeuvre a diluted version of the Hindu Code, which over the decades has expanded its scope to incorporate all that was envisaged originally.

Even this diluted version has set in motion social processes that changed the country. Even for Muslims, the laws have become increasingly gender-just by giving Muslim women an option to adopt remedies under secular laws if they wish.

These reforms opened up possibilities for so many Indians, women in particular, which would otherwise have been unthinkable. An imaginative new UCC aimed at real reform than furthering a communal agenda will be a seminal event in the history of the Republic.

Sarim Naved is a Delhi-based lawyer.

A Hindutva Model of Uniform Civil Code May Make It Even Worse for Women

The hope of a unifying UCC as envisaged by the Delhi high court is absolutely at odds with the Hindutva narrative of ‘love jihad’, which seeks to disempower women. We do need gender justice, and we need it now.

A Hindutva Model of Uniform Civil Code May Make It Even Worse for Women

Representational image. Photo: Khadija Yousaf/Unsplash, (CC BY-SA)

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GOVERNMENTRIGHTSWOMEN

10/JUL/2021

It is a strange phenomenon that the votaries of Uniform Civil Code (UCC) are often great believers in the ‘love jihad’ myth. That ‘love jihad’ is an untruth, is surely known even to those who fulminate most angrily about it. What lies at the foundation of the ‘love jihad’ lie is a fundamental discomfort with modernity. Endogamy is, of course, the backbone of sectarianism. Inter-faith marriages are one of the natural threats to sectarianism.

‘Love jihad’ laws seek to criminalise the act of ‘forced’ religious conversion for marriage. The UCC would bring an end to such laws. Presumably, when the process and legalities of marriage are common to all, there would be no rationale for conversion, no need for 30 days advance notice under the Special Marriages Act or for confusion regarding religious rites necessary for a valid marriage. Into that heaven of freedom, let my country awake. Surely, concerns regarding ‘love jihad’ and the laws designed to prevent this mythical evil would no longer be necessary.

The proponents of the ‘love jihad’ myth, of course, would not be happy with this version of the UCC. The ideas behind the pernicious ‘love jihad’ myth are patriarchal, sectarian, communal and regressive. The Delhi high court has recently observed that “the traditional barriers of religion, community and caste are slowly dissipating” and that the time for the UCC may very well have come. However, the kind of progressive UCC envisaged by the Delhi high court does not seem to be on the horizon.

Also read: For the BJP, ‘Women’s Rights’ Are Really All about the Men

There are views for and against the UCC. The Union government has the UCC as part of its agenda, declared in its manifesto in advance of the 2019 elections. Supporters of the government claim that the UCC is inevitable. Religious minorities largely and some strands of secular thought oppose the UCC, as it would tend to violate the constitutional guarantees given to religious practices of minorities and their personal laws. The debate is well known and need not be rehashed. Assuming that the UCC is coming, what would it look like?

While the supporters of the UCC want to clamour for it rather enthusiastically, there is little, if any, clarity as to what this UCC will be like. From public pronouncements and the general Hindutva tendencies of these supporters, the UCC seems to be taking on shades of Shastric law. Yet, are there takers for traditional Shastric law in modern India?

The pre-1955 position in India, before the Hindu Code was brought in to reform Hindu laws, meant that women largely did not have the right to divorce, to property, or to personal freedoms which have now become irreversible. Considering the fact that the most prominent Bharatiya Janata Party (BJP) chief minister Yogi Adityanath has publicly stated that women ‘need protection’ and not independence, and another recently removed chief minister expressed great dismay over the national security threat posed by women wearing torn jeans, the BJP does seem to be singularly comfortable with misogynists amongst its ranks.

The BJP’s ideological parent, the Rashtriya Swayamsevak Sangh (RSS), still does not admit women into its ranks, preferring to maintain a separate women’s wing which does not in any way rival its male counterpart in influence, standing or visibility. The BJP’s women leaders only speak out about violence against women when it is politically expedient, and certainly not when such violence takes place in BJP-ruled states. The possibilities of a gender-just UCC under the BJP are slim to none.

However, assuming that the BJP’s conception of the UCC is indeed gender just and obliterates the realities of religious identity in matters of matrimonial law, succession, maintenance, guardianship and adoption. What does it do to the ‘love jihad’ narrative? Can the ‘love jihad’ myth coexist with a nation under a UCC where inter-faith marriages will just be marriages, without the State recognising any distinction between marriages within a faith or without.

Women in India at an anti-harassment protest. Photo: Reuters

Will the Hindutva model of UCC pass the constitutional legal test?

The UCC as envisaged by the votaries of Hindutva is doomed to fail. It will certainly not pass the constitutional legal test. One can hope that it will not even pass the popular democratic test of elections. We do need gender justice, and we need it now. It is non-negotiable. Yet, we are faced with a government which restricts free speech in the name of freedom, makes us insecure in the name of national security and divides us in the name of unity. This government cannot be trusted with an initiative like the UCC.

Also read: The Modi Cult Is Far from Finished

Under Indian family law, the issue of maintenance, child support and adoption have essentially been secularised. All women are free to claim maintenance and custody under the Domestic Violence Act. All are free to adopt under the Juvenile Justice Act. The lack of uniformity is restricted to certain areas of family law, namely, rites of marriage, proceedings for divorce and matters of succession. These are intimate matters of lived experience, and it may not be desirable or possible to seek to change them at the mere stroke of a pen, especially when the pen is likely to be wielded by a government which has a worldview at odds with progressive principles. It seems facile to expect gender justice from a government where threats of abuse and rape are rained on vocal women on social media every day. The kind of sexual violence against women seen in India, especially in Uttar Pradesh, is debilitatingly terrifying.

The hope of a unifying UCC as envisaged by the Delhi high court, for empowered independent women, is absolutely at odds with the popular Hindutva myth of ‘love jihad’ which seeks to infantilise and disempower women. Women, in India, in any community have it worse than men. The danger posed by the present government and its ruling ideology is that the 66-year-march of steady increase in women’s rights and independence, may yet be reversed. The situation we are in is far from ideal. The Hindutva UCC narrative may end up making it worse.

Sarim Naved is a Delhi-based advocate.