The moon in the mirror

Independent India’s aspiration to a modern State, anchored in the idea of a Uniform Civil Code (UCC), concerns a predicament faced by all plurality-conscious societies. What is the relationship between personal laws and State-made laws? To what extent should the formal law allow for, or seek to restrain, the legal implications of religious and socio-cultural diversity? To what extent does a State, whether secular or not, actually have the power and legitimacy to legislate and enforce legal uniformity?

After considerable debate in the Constituent Assembly in 1948, the Constitution privileged legal uniformity and seeded the idea that there should eventually be a UCC. This overarching policy aim, as an ambition for the future, was laid down in Article 44 of the Constitution as a Directive Principle of State Policy: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

In the Indian context, the imperative for UCC centres on the gender equality question — regardless of whether Hindu, Muslim, Christian or Parsi. There is a need to think through the question of women's position in relation to the State and to religious communities, a position that invariably plays out as a conflict between the exercise of women's citizenship rights and the claims of the religious communities they belong to. This is central to the discourse on a UCC for India and is at once contentious — intellectually and politically — concerning as it does the desirability of instituting a set of laws to replace the current personal laws, the manner of doing it, and the content of such laws.

Personal law, since it is envisaged as a means of securing community identity and respecting religious differences, therefore, operates within rather than despite the constitutional commitment to the secularism of the Indian State. Yet, any proposed reform or removal of personal laws becomes a fraught issue and is perceived as a threat to community identity and/or traditional patriarchal arrangements. Following the Shah Bano case, which in 1986 resulted in the passage of the regressive Muslim Women's Protection of Rights on Divorce Act, the movement towards a UCC became an imperative.

Developments in the last three decades in Indian law suggest that we are tending towards situation-sensitive methods of handling complex socio-legal issues, often responding specifically in terms of managing cultural diversity through plurality-conscious legal intervention, rather than the ‘rule of law’ principled and constitutionally anchored legal uniformity.

Little wonder then that the Supreme Court, after repeated urging on a UCC, has asked the Government of India to make clear its stand. This is ironic because India’s early lawmakers, notably B R Ambedkar, followed the clarion call for nation-building and the achievement of legal modernity through top-down State-driven secularising reforms. But, over half a century later, India’s socio-legal reality has evidently taken a different trajectory: the jungle of legal plurality is still there; there is more State law, but no UCC, which politics seemingly has rendered akin to asking for the moon.

India’s lawmakers appear to have mimicked a mythological parable: the child-god Krishna asks his mother Yashodha to give him the moon as a toy, and the doting mother hands him a mirror with a reflection of the moon. In post-modern India, the political thinking of this kind has now resulted in the production of a legal system that is but a mirage of the desired object of the UCC. A paternal State, a powerful Supreme Court and a Parliament not incapable of speedy action, in that order, have perhaps by default rather than design contributed to this particular outcome. While the boundaries of personal laws have thus become ever fuzzier, neither Hindu law nor Muslim law, nor indeed any of the various other, seriously outdated minority personal laws, have been abolished by these new legal developments.

Much is becoming certain, however: India does require a modern non-denominational positivism-centred legal trajectory; therefore a set of uniform laws to replace religion-based personal laws if it must develop as a viable nation; and the legal system cannot ignore persistent internal diversities and the socio-legal predicaments of hundreds of millions of disadvantaged people, especially women.

Four religious communities — the majority Hindu, and the minority Muslim, Christian, and Parsi communities — have their own personal laws. No one is exempt from or may opt out of a religious identity. Personal laws operate in matters relating to inheritance, marriage, divorce, maintenance, and adoption, which are regarded as ‘personal’ issues, understood to be matters that relate to the family or the ‘personal’ sphere. Despite differences among them, the personal laws of all communities are equally discriminatory toward women.

Indian law has certainly not been static over the last seven decades. But the various subtle movements, often highly politicised, have had several deeper agendas that have not been abandoned despite communal conflict and accusations of fundamentalism. Most Indians today, common citizens and academics alike, look with bewilderment at a mirror image of the original conception of a UCC, a far cry from what Ambedkar, in particular, wanted to see: a secular, modern India with the same laws for all.

Ambedkar vigorously argued for a UCC as a secularising device. The question, therefore, is whether it is constitutionally valid to maintain such distinctions between Indian citizens merely on the basis of religion? Should women have vastly different rights and duties merely because they belong to a particular religious community? Since the law cannot abolish communities, could and should Indian law at least remove the discriminatory legal consequences of social and religious differences?

The advocacy for a UCC must be led by women’s organisations and civil rights groups committed to advancing the constitutional mandate for equality between men and women. Indian personal laws are still defined by ‘religious’ identities — Hindu, Muslim, Parsi, and Christian — not just by their titles, but in substance. As long as oppressive personal laws continue to prevail, the ‘rule of law’ and gender equality will remain mirages. It is time for a UCC.

(The writer is Director, Public Affairs Centre, Bengaluru)