Mohan Guruswamy | The Need For A Common And Secular Civil Code

Prime Minister Narendra Modi came to power nine years ago. The BJP manifesto promised a Uniform Civil Code. He slept for this entire duration without a word of a move towards a common or uniform civil code. He even ignored a Supreme Court directive to wake up and act on enacting it. But now that another Lok Sabha election soon looms, given his dismal track record of inept and corrupt governance, Mr Modi needs an incendiary issue to arouse his army of “bhakts” to have a “Hindus vs Others” issue, such as the uniform civil code. He will now traipse around the country abusing and insulting Muslims over their anti-women personal laws such as multiple wives and easy divorces still endemic despite of a law against the triple talaq.

I have no doubt that the Muslim leadership, by and large, will also take the bait and describe it as an assault on secularism. All personal laws in India are misogynistic and medieval. But that will not be discussed. Mr Modi and his cohort will turn it into a Muslim-bashing fest.

The Supreme Court in October 2015 gave the Union government three weeks to come up with a proposal to amend the Christian divorce law while asking it to take a quick decision on a uniform civil code to end the confusion over personal laws.

“If you want to have a uniform civil code, have it. If you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by Justice Vikramjit Sen told then solicitor-general Ranjit Kumar.

With the National Democratic Alliance government, and with the BJP alone having a majority in the Lok Sabha with 282 seats, the excuse for shelving the discussion for a common civil code had evaporated. But, did the Narendra Modi government even think it was time for a debate once again? That it was time that we are no longer separated by law? Now that 2024 is around the corner, he has found utility in the proposition.

The cornerstone of a democratic society is equality. Without equality, there can be no justice, just as without justice there can be no equality. True justice cannot be based on unjust laws, though it is possible to have a law-abiding society with the most unjust laws in place.

Just laws are a pre-requisite for a democratic society and, therefore, a just and orderly society. The concept of justice also changes with the dynamics of the times. Laws evolved and deemed sacred in more primitive times cannot continue to be considered so, if they do not satisfy the conditionalities of the doctrine of equality.

In his celebrated work A Theory of Justice, John Rawls said that every person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. As such, justice denies that this loss of freedom for a few is made right by the greater good shared by others.

It does not allow that the sacrifice imposed on a few is outweighed by the larger sum of advantages enjoyed by the many. Therefore, it follows that in a just society, the liberties of equal citizenship are taken as settled. The rights secured by justice are not subject to political bargaining or to the calculus of social interest.

Much of the legal argument by those still in favour of the existing system of separate personal laws on the basis of religion and custom derive from the premise that personal laws are a part and parcel of the freedom of religion guaranteed by Article 25 of the Constitution of India. This is despite the fact that Clause 2 of the same article specifically saves secular activities associated with religious practices from the guarantee of religious freedom.

The task of modernisation entails the destabilisation of a large number of institutions. Our founding fathers, Hindus, Muslims and Christians alike, in the process of seeking to modernise India, had destabilised and uprooted many traditional institutions. They destabilised the manner in which much of Hindu society was organised. They destabilised the hierarchy of castes. They also outlawed many discriminatory practices, apparently ordained by Hindu religion and custom.

The traditional objections of a uniform civil code hark back to the argument posed when the matter was debated in the Constituent Assembly. The two main objections then were that it would infringe on the fundamental right to freedom of religion guaranteed by Article 25, and that it would constitute tyranny of the majority.

The second objection would be valid, if the laws of one community were made incumbent on the rest. However, if a common set of laws for inheritance, marriage, divorce, custody, adoption and guardianship were to be framed with a special emphasis on gender equality, which neither resembled any existing personal law nor sought to impose any one personal law on the rest, it would simply be a common and secular civil code.

Such a common and secular civil code, while not interfering with any of the rituals and many practices of the various religious and caste groups, would seek to merely legitimise the larger precepts of law that are being made secular. Under a common and secular civil code, the validity of a marriage would begin with the age of consent and end with a legitimate registration or certification by any authorised person or body such as a priest or locally elected officials or even traditional village elders.

By applying the doctrine of equality, all grounds of divorce, like adultery, desertion and cruelty, will be equally available to husband and wife. Thus, if a concealed pregnancy by another man before marriage is a ground, so will the concealed pregnancy of another woman by the man. If bigamy is to be a ground for divorce, so will polyandry. Naturally, divorce by mutual consent will be allowed to the husband and the wife jointly. A common and secular civil code will also then address the issues that make marriages void or voidable in a uniform manner.

When the equality doctrine prevails, it will entail that in matters of maintenance and alimony, it will become the duty of the spouse with the greater or only income to maintain the other. A similar application of the doctrine on the questions of inheritance, maintenance of children, custody and guardianship and adoption will result in a dramatically different and more egalitarian social scenario.