Liberals must support a common civil code, writes Ramachandra Guha
Left-wing intellectuals who oppose a common civil code disavow the progressive heritage of socialist and feminist movements in India and across the world. They are — whether they sense it or not — apologists for the status quoUpdated: Nov 21, 2016 10:30 IST
In the conventional wisdom, the Right stands for Order, the Left for Change. The Right defends Hierarchy and Authority, the Left demands Justice and Equality. The Right is for and of the Establishment, the Left is for and of the Aaam Admi (and Aaam Aurat).
These stereotypes are not entirely without foundation. The abolition of aristocratic distinctions; the challenging of patriarchy; the defence of individual liberties against the arbitrary exercise of state or clerical power; voting rights for peasants, workers, and women; these were all the handiwork, largely, of what we call the Left.
Given these historical legacies, it is puzzling to see the Indian Left oppose the push for a common civil code for all citizens, which the Constitution had promised but which successive governments have failed to enact. Back in the 1940s and 50s, Ambedkar and Nehru thought it prudent to first change personal laws in favour of Hindu women, since there was a vigorous reform movement among Hindus (but not however among Muslims). However, they certainly hoped that, in the not too distant future, a gender-just code of personal and family law that applied to all citizens of the Republic, would come to be enacted.
From time to time, the demand for a common civil code is renewed. This happened 30 years ago, at the time of the Shah Bano case, and it is now happening again in response to the case of Shayara Bano, who appealed to the Supreme Court to have the pernicious practice of ‘triple talaq’ abolished.
This fresh debate on a common civil code has brought forth a torrent of commentary in the liberal and left-wing press. Virtually all of it, to my surprise (not to say shock), has been against the idea that, in our Republic, the same laws must apply to all citizens regardless of caste, community, class or gender. There have been several articles attacking a common civil code in the widely read websites Scroll and The Wire, as well as in the staid and respected Economic and Political Weekly.
From reading this flood of articles, one can identify seven arguments that Indian leftists offer in opposition to a common civil code:
1) The reforms of Hindu personal law in the 1950s were not as progressive as they are made out to be, since they were tainted by Brahmanical rituals and prejudices;
2) The customary laws and practices of the Hindus today are often very reactionary, as for example in the khap panchayats;
3) The unreformed Muslim personal laws are not as reactionary as made out to be, and sometimes or often give women reasonable rights;
4) The customary practices of Muslims are also not as bad as claimed; thus Muslim polygamy does not discriminate against second or third wives in the manner that Hindu polygamy does or did;
5) The demand for a uniform civil code is motivated by the political agenda of the BJP (and by their desire to win the Uttar Pradesh assembly election, in particular);
6) Article 44 of the Constitution, asking for a Uniform Civil Code, clashes with Article 25, assuring the freedom to propagate religion;
7) There are many other Articles of the Constitution that remain unfulfilled; why then harp on this one?
Those making these claims would consider themselves liberals, if not leftists. What is striking in these apologias is the note of defensiveness. For instance, the personal law reforms of the 1950s gave Hindu women, for the first time, the right to choose their marriage partners (regardless of caste), to divorce a brutal husband, and to inherit ancestral property. If these laws remain imperfect, surely one must work to improve them further, rather than disparage them?
Likewise, even if Muslim personal law is not as awful as charged, surely both polygamy and triple talaq are repugnant practices, which must be abolished at once? And just because the RSS or the BJP supports a policy, does that make it wrong? I myself know Hindu patriarchs who support a uniform civil code purely out of spitefulness; they are angered by privileges that Muslim men still have (such as the taking of multiple wives), but which Ambedkar and Nehru took away from them.
The task, indeed duty, of progressive thinkers is to go beyond both political expediency and religious prejudice, and support a right policy for the right reasons. They must analyse, and articulate, the ethical principles behind the search for a civil code that does not discriminate between individual citizens on the basis of caste, community, religion, or gender.
No one has ever claimed that a common civil code is a magic wand that will make discrimination against women disappear overnight. But it is a necessary first step towards the creation of a Republic whose citizens are equal before the law. This common code must draw not on ‘Hindu’ or ‘Muslim’ ideas, but on the fundamental principles of individual dignity and gender equality. Legal scholars beyond party lines — and of all religious affiliations or none — must be involved in its framing. And the law itself needs to be complemented by the steady, patient, work of grassroots social reform. For one can and must advocate a common civil code and work for the abolition of caste panchayats at the same time.
In my opinion, left-wing intellectuals who oppose a common civil code disavow the progressive heritage of socialist and feminist movements in India and across the world. They are — whether they sense it or not — apologists for the status quo, whose tortured and convoluted arguments only serve the interests of Muslim patriarchs and the Islamic clergy.
Ramachandra Guha’s most recent book is Gandhi Before India
The views expressed are personal