Secularism, the separation of the public social sphere from the private religious sphere, was a straight import of European intra-Christian ideas battling their religious issues. The debate on the relationship between the state and religion ranged widely in the Nehruvian period. It was a vaguely defined concoction of ‘indifference’ to religion. However, Nehru’s state, claiming all the rights in its relations with the Hindus, took liberties. Nehru objected to the President inaugurating the rejuvenated Somnath temple; objected to Bande Mataram because of religious connotations; allowed the Hindu Code Bill; and insisted on debating religious issues such as the Hindu personal law and cow slaughter in secular terms. But he dared not touch the Muslim personal law, despite his anxiety to have a uniform civil code. In claiming the rights of a Hindu state, Nehru’s government’s refusal to accept the obligations of defending Hinduism incurred charges of inconsistency in applying secularism, says eminent scholar Bhikhu Parekh.
After independence, India became a peculiar liberal democracy with uniform criminal but not civil laws. The Indian state thus recognises both individuals and communities as bearers of rights. The criminal law recognises only individuals, whereas the civil law recognises most minority communities as distinct legal subjects. Article 44 of the Constitution mandates that the State endeavour to secure for the citizens a uniform civil code throughout the territory of India. The summary of the arguments against a Uniform Civil Code in all circles is that India is not a homogenous country, and therefore legislative uniformity in personal and family matters cannot be at the expense of diversity as it obliterates the differences.
However, this argument has multiple fallacies and inherent contradictions:
- A secular democratic republic under a written Constitution guarantees equality before the law and equal protection of the law to all citizens. This argument that UCC obliterated differences logically leads to different Constitutions catering to the huge regional differences in not only religions but also languages, cultures, and customs.
- Hindu society itself is not homogenous, with so many languages, cultures, and customs, yet there is a forcibly uniform set of personal laws for all Hindus. This again leads to the logic of repealing the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act, and the Hindu Adoption and Maintenance Act and allowing various segments of Hindu society to follow their own customary personal laws.
In the face of the ridiculous proposition of having multiple Constitutions catering to various segments, the UCC is necessary for the country. As one scholar points out, a Uniform Civil Code covers matters relating to marriage, divorce, inheritance, succession, adoption, maintenance, guardianship, and other family and personal matters. It would be prudent to progress gradually through piecemeal legislation by initially taking up the most important issues that are against constitutional principles.
This includes a uniform age of consent for marriage between all citizens, irrespective of both religion and gender, and the banning of polygamy as first steps. Polygamy is illegal for Hindus (section 494 of the IPC), but legal for Muslims and certain tribal populations. A secular country guaranteeing equality before the law, parity between sexes, and gender justice cannot allow polygamy. There also arises a gender imbalance in matrimony with excessive unmarried men in the sexually active age group, which creates extraordinary social, familial, criminological, and psychological stress on the population.
Polygamous societies are more prone to violence and instability, as empirically noticed. Polygamy only for select religious groups can lead to the destabilisation of religious demographic balance, causing disturbances and anxieties detrimental to national unity and integrity. It would be great if Muslim intellectuals, without bowing to the pressure of the clergy, engaged in larger debates. The Uniform Civil Code is not an attack on Muslim brethren in the country, but in some places, they should be willing to seek reforms pro-actively for the greater sake of the nation. The initiative for UCC should come from their side.
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