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With Prime Minister Narendra Modi making a strong case for the Uniform Civil Code (UCC) in a recent speech, and states like Uttarakhand getting ready to implement the code, the debate on the issue has received a new lease of life.
In an interview, attorney and author J Sai Deepak detailed sticking points about the UCC. Edited excerpts:
Q) Is the debate about the Unified Civil Code progressing appropriately, given its focus on Islamic personal status law? Shouldn’t the implementation of the UCC law include a comprehensive analysis of existing laws in all societies, keeping in mind the empowerment of women rather than simply banning practices such as polygamy, bearing in mind that practices such as triple talaq have already been declared unconstitutional by the Supreme Court?
a.) Frankly, in 2011-12 I would have taken the position that we needed the Unified Civil Code. Over the years, thanks to more reading and collecting opinions, my current position is that it is best to have a discussion on such issues in the background of a specific proposal or document that defines the goal to be achieved.
I know Mr. Kapil Sibal had said the same thing a few days ago but this has been my position at least for the last 3 years. In many of my public interactions where I’ve been asked about my stance on UCC, I’ve said that, as a lawyer, I’d rather agree or disagree with something on the basis of a document than launch shares in the dark. Most importantly, the absence of a document or draft proposal makes it possible for every mischievous party to claim that this is one of the largest practices of minority persecution that the so-called Indian state has embarked upon. I don’t think this helps.
However, notwithstanding this considered agnosticism, if I were to be expected to take a broad position, it would be as follows: On such a sensitive topic, I am more concerned about what UCC might mean for Hindus given my sober and informed position that the Indian state Taking Hindu interests, traditions and customs for granted, regardless of who is in power.
Now, if the idea to address the stark reality of Muslim exceptionalism, which is reflected in the form of polygamy and the like, has energized Indian political discourse for at least 100 years, then this does not require Hindu or non-Muslim minorities to forgo their right to follow their customs and their traditions. If the Indian state, after all these years of independence, still lacks the courage to bring up the problem of Muslim exceptionalism, then why would the Hindus and non-Muslim minorities agree to abandon their customs and traditions just to address the issue of optics. Simply put, if issues such as polygamy and unequal treatment of the sexes in matters of succession afflict a particular group, why should everyone be expected to join the bandwagon in the name of monotheism as if the same problems exist equally in the rest of the groups? Communities?
Q) The implementation of the Union Carbide Act means that besides Muslims, other minorities such as Christians and Persians will lose their existing right to apply to their civil courts or their own family matters laws. This includes marriage, divorce, and inheritance. However, the strongest opposition comes from the Islamic Personal Law Board (MPLB)…
a.) Perhaps because neither the Persian nor the Jewish communities live in Bharat with a sense of “conquest” triumph, they do not see permanent oppression of minorities in everything the Bharatian state does. Also, there are two other important aspects – first, treating personal laws as purely civil issues may not be correct because personal laws are rooted in either faith or religious customs.
This logic largely applies to the personal status laws of every society. Thus, it would be disingenuous to say that personal laws are “secular matters.” This position applies equally to the institution of marriage and to questions of succession and this is precisely why the position is different in every society.
Secondly, over the years, Islamic exceptionalism has been championed and legitimized in the name of “protection of minorities” which makes it very difficult to have an honest conversation, without bearing the possibility of those voices from within the community who might be open to participation and dialogue. This takes us to a slightly different but related angle. As long as the Islamic exception is not dealt with in a comprehensive and constructive manner, it is very difficult to expect that this phenomenon will not rear its head in the context of personal status laws that directly affect the application of Sharia.
Unfortunately, it is my humble and honest opinion that no exemption has taken away from the policy of encouraging this exceptional. If anything, it only seems to have increased. What else could explain the continued existence of the Ministry of Minority Affairs created in 2006 under the previous dispensation and the ever-increasing allocation of community budgets? There are clearly some steps that I think the government should initiate to address these larger issues before they directly touch UCC’s hot potato.
Q) Arif Muhammad Khan, who has taken a very strong stand against the ‘discriminatory practices’ enshrined in Islamic Personal Law while commenting on UCC and his work on MPLB, writes that the Imrana case, along with many others, including the famous Shah case Banu, are merely symptoms of a much deeper malice; Desire to preserve and perpetuate gender inequality. MLPB, since its inception has been a voter of this trend. Do you think MPLB will succeed in stifling any attempt at UCC enforcement this time as well?
a.) I don’t doubt it one bit. You have to realize that there are multiple factors involved here. The first is to preserve what they believe in or what is the true position of Sharia. Secondly, it is a non-Muslim country, especially a Hindu-majority country even if it is secular, that seeks to intervene in a subject occupied by Sharia law. Therefore, such interference would not be acceptable to the Islamic Personal Status Law Council. Had it been an Islamic or Islamic country, perhaps interference with Islamic personal status laws would have been acceptable.
So, there are two layers to it. The first is to protect their religious beliefs and the second is to protect their religious beliefs from the interference of the “infidel” state. And I think this is the most problematic, delicate and sensitive aspect of the discussion and one that most people shy away from. Shri Arif Muhammad Khan made in the mold of Shri Abdul Kalam. These exceptions, unfortunately, are not the rule, and therefore I am not sure whether his voice and views will be heard by those who wish to maintain the status quo of exception. I hope we will get more of these votes, and I hope we will indeed have a very clear debate about the radical mentality that is keeping Bharatiya from coming into the picture.
Q) The BJP got three big promises. Number one was 370, second was Ram Mandir and third was UCC. Do you think the first two issues were relatively easy to implement and the BJP government would find it very difficult to implement UCC?
a.) Frankly speaking, the Ram Janmbumi movement was a movement that predated the founding of any political party or cultural organization by at least several centuries. Moreover, the issue was resolved through the Supreme Court ruling and it was based on an earlier ruling of the Allahabad High Court. The credit for the outcome, therefore, goes to all stakeholders in the movement.
Regarding the issue of Article 370, its amendment changed some perceptual barriers and removed some interests and pressure groups within the Valley. I do not deny it. However, there are two important aspects: did it translate into better conditions for the return of the Kashmiri Pandits? I’m not sure, given the killing spree we’ve seen over the past two years. Second, as we continue to focus on Kashmir, Jammu and Ladakh are undergoing demographic change. It is clear that amending Article 370 was not an end in itself.
Compared to the Ram Janmabhoomi case and Article 370, the UCC will not be a walk in the park as it directly touches on the issue of personal and Sharia laws. Given the stimulating and well-coordinated response to the yet to be implemented CAA and Farm Laws, greater preparation and clearer messaging will be requested on the subject of UCC.
Q) It has been said that UCC should be part effort through judicial degrees on a case by case basis. What do you think should be done all at once or in stages?
a.) I don’t know if a judicial approach is the way to go about it, because the Supreme Court itself has raised some questions in the context of the Sabarimala case about the power of the judiciary and the ability of the judiciary to enter into a field of faith. These questions are framed in the context of rights under Articles 25 and 26.
In this case, I do not want to open the door to judicial intervention considering the limits of the application of secular rationality in the realm of faith. Moreover, to refer such an important issue which lies exclusively in the domain of the legislative power to the judicial power, would reflect that neither the legislature nor the executive power had the confidence to undertake the initiative. I hope the executive and the legislature will have the civilized confidence to have an open conversation at least for now.
Q) Is the Unified Competition Commission really as claimed by the BJP to improve the status of women or is it being used as a ‘prahastra’ in the run-up to the 2024 elections?
a.) I don’t know what kind of Brahmastra it would be because we Hindus are more interested in preserving our lives, our dignity and our property from the kind of carnage suffered by the Hindus in Kashmir, Bengal and Manipur, than drawing some kind of shallow and indirect satisfaction that was applied at UCC. I would be most interested to know what kind of concrete steps the government is taking to curb illegal immigration that poses a greater threat. These are the issues I care about more from a Hindu perspective than UCC.
s) Do you think that if the UCC were implemented, would it be able to pass the test of proportionality, as it would certainly be challenged on grounds of violation of fundamental rights?
a.) Proportionality must always be tested on the anvil of the object to be achieved, the scale proposed and how the procedure is to be carried out. This requires a document. We don’t have a document to discuss proportionality. Of course, the UCC, if and when it is enacted, will be challenged beyond any doubt. Whatever this government does will be challenged. This is my intention. Whether, however, the Government’s initiative will throw light on a constitutional anvil, is a question which needs to be answered precisely and without a definite document or clause, I am certainly not in a position to answer.
Q) As a society, do you think we are ready to accept UCC because we have diverse cultural practices and with so much pluralism?
a.) Unfortunately, we are clearly not one community. We are a nation with multiple communities within it, and if the two-state theory turns into a very different creature after independence, you’re looking at the two-state community at least. Therefore, I do not think that we are one society as long as a part of the society believes that it is living in the House of War. Therefore, the unanimous acceptance of the UCC seems to be a pipe dream.
Q) Do you think UCC might lead to another RRC/CAA-like movement?
a.) I would say so.
The opinions expressed in the above piece are personal. They do not reflect the views of News18.
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