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A democracy presupposes equality of citizens before the law. As such, since there is one criminal code, there should ideally also be one civil code. Most western democracies fit this model, although as their societies have become increasingly multi-cultural, they have been forced into making innovations that dilute the code’s original rigidity. The case of India is somewhat distinct.
When it comes to family matters like marriage, divorce, inheritance, adoption, and maintenance, Indians are governed by their respective personal laws. But personal law does not signify private or individual law; rather, it means individual rights exercised by virtue of belonging to a particular community. For nearly a century now, many have demanded that India too ought to adopt a Uniform Civil Code (UCC), which will replace existing personal (i.e. community-based) laws and adjudicate all family matters under uniform rules.
A question many ask is why did the British, who ruled India for two centuries and gave us the Indian Penal Code of 1861, not promulgate a similar civil code. Overwhelmed by India’s mindboggling cultural diversity, they quickly discovered that the justice system they had inherited from the Mughals was quite efficient. This system relied upon religious laws, mainly Hindu and Muslim, to settle family matters. Accordingly, the British undertook a massive project to translate Hindu and Muslim religious texts into English. These translations provided the bases on which judges delivered justice.
Following Partition, it was thought unwise to fiddle with Muslim personal law and threaten an identity.
Over the years, judges came to depend more on their predecessors’ interpretations of the translated texts, i.e. on case laws, than on the original translated texts. In due course, compilations of these case laws came to be known as the Anglo-Hindu Law and the Anglo-Mohammedan Law. The British legal project thus was fundamentally conservative, invested in maintaining the existing social order so that their commercial interests were protected. Any potential desire to institute social reform was further discouraged in the wake of the revolt of 1857.
It was during India’s nationalist movement, which had a distinctly progressive thrust, that the idea of a UCC gained momentum as an independent India’s motto. The Constituent Assembly debated the issue threadbare, but the maximum it could achieve was to list a UCC among the Directive Principles of State Policy. Since nothing in those directive principles is justiciable, the matter has not moved an inch forward since. Those who refer to this commitment at every drop of the hat should remind themselves that the directive principles contain many other lofty ideals too, but seldom has even a tear been shed for their non-implementation.
India’s leaders were faced with two possible routes forward after 1947: reform and codify existing personal laws, or, draft a model UCC to be debated and enacted. They chose the first and the results are before us. It was in Nehru’s first cabinet itself that the idea was broached. Given the fact that despite devastating Hindu-Muslim riots millions of Muslims had preferred to remain in Hindu-majority India, it was thought unwise to fiddle with their personal law and further threaten their sense of identity. Both Gandhi and Nehru supported this idea.
But, in keeping with his commitment to the UCC, and because Hindus were the predominant majority, Nehru also pushed for the reform and codification of Hindu personal law. B.R. Ambedkar, as first law minister, prepared the necessary draft. But Nehru should have anticipated that a draft Hindu reform code prepared by a Dalit would be too much for caste Hindus to swallow. Not just the Hindu Mahasabha and the RSS, but many eminent Hindu leaders within the Congress stridently opposed it. In the end, the draft was approved by the cabinet, but never brought before Parliament.
More codification means more lawsuits, more courts, more expenses and more delays.
Realising his political miscalculation, Nehru devised a two-stage strategy. In the first stage was passed the Special Marriage Act, 1954, which allowed any two adult citizens to register their marriage in court irrespective of, and free from, the requirements of their religions. The law had one shortcoming though, as I have learned from esteemed legal scholar Tahir Mahmood. As many of its provisions were lifted from Hindu personal law, it disallowed inter-cousin marriage, a practice permitted among Muslims. In the second stage, Nehru relied upon his Brahmin law minister, H.V. Pataskar, to present Hindu law reforms not en masse, but piecemeal. Pataskar made persuasive speeches to convince the legislators. Generally progressive, the Hindu Code (1955-56) did generate some collateral damage. For example, the gender-just systems of the Nairs in Kerala, Meiteis in Manipur, Meenas in Rajasthan, and the Jains got neutralised.
The political importance of the Hindu Code, however, lay elsewhere. That an elected parliament had interfered in matters of personal law signalled a radical step. When such a question had arisen in the Constituent Assembly a few years earlier, some Muslim members had argued that Parliament should have no authority to legislate over personal law. Ambedkar had at that time ruled in favour of Parliament’s authority to do so. The passage of the Hindu Code marked the first instance of such legislative assertion.
There have been two other instances since. The second was when the Rajiv Gandhi government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. Although Gandhi is criticised by both secularist and Hindutva forces, if interpreted in democratic terms, it was a progressive move. The recent passage of the Muslim Women (Protection of Rights on Marriage) Act, 2019, signals the third instance. But a critical difference marks the first two from the last: community concerns were summarily rubbished while passing the 2019 law.
The lesson here is that Parliament is powerful enough to usher in a Uniform Cvil Code. The Hindutva forces think that reforming Muslim personal law and a UCC are one and the same thing. They are not. Certain basic facts, therefore, bear reiteration, again and again. One, personal law reforms do not lead to a UCC, they instead come in the way of one; two, UCC is a political matter for which consensus is needed, the legal nitty-gritties are peripheral; three, all religious and tribal communities, Hindus included, oppose the UCC; four, no political party is serious about the UCC and that includes the BJP; and five, there must be a draft UCC to start with. If the recent recommendation of the law commission is any indication, such a draft is still light years away.
Under these circumstances, it is not Parliament but the judiciary that is stealthily making progress; not towards a UCC, but towards, to use Werner Menski’s phrase, the ‘uniformisation’ of personal law. According to Menski, events in India seem to be following a two-pronged path. On the one hand, we see the harmonious management of age-old cultural diversities by effectively allowing a plurality of personal laws. On the other hand, we see attempts to address the pressures of real and potential gender and cross-community inequality ‘through the intricate process of gradual harmonisation of all Indian personal laws and [their] supervision by criminal and constitutional laws.’
Let the devil have the last point. Is a uniform civil code really necessary? More codification means more lawsuits, more courts, more expenses, and more delays. Already there are more than 30 million cases pending in Indian courts. In 1987, the law commission had recommended that there should be at least 50 judges for every 1,000,000 people. As recently as 2016, the law ministry revealed that there were just 18 judges per million. Upendra Baxi argues forcefully in favour of a non-state legal system where most poor people have traditionally got their justice. I think he makes sense.
(The writer is senior fellow at the Institute of Social Sciences, New Delhi)