Mathematical equality can’t be the goal of UCC

UCC could have implications for freedom of religion. Reasonable classification and unity in diversity are important considerations in this debate.

The spectre of a uniform civil code (UCC) has hovered on the horizon of Indian law and politics for several decades, and is now back on the government’s political agenda. The 22nd Law Commission has sought public responses on the subject, Uttarakhand has already announced that it is close to finalising a model draft law. Strong disapprovals have been voiced by certain political parties and organisations. The Bharatiya Janata Party (BJP) has underscored its intention through none other than the Prime Minister himself. It is important to separate the strands and reflect on the political reasons for the positions being taken. The Congress and some of its allies have divergent views, just as there are diverse views within the National Democratic Alliance and potential allies (the northeastern parties and the Akali Dal, for example).

But first, does UCC mean all religious laws will be set aside and a separate legal code be applicable to all? (Shutterstock)

The Congress has expressed its reservations, principally on the grounds that no specific explanation is forthcoming for revisiting a matter settled by the 21st Law Commission. The party has decided to wait for a draft, but this may be counterproductive if a narrative is carefully put in place. Instead, it might be necessary to deal with the subject step-by-step so as neither to lose the initiative nor play into the hands of the BJP and forces that wish to cause polarisation.

Let us be clear. UCC cannot be against minorities alone, particularly Muslims. Many Hindu sects and their customary law practices will be directly affected, not to mention the tribal cultures.

But first, does UCC mean all religious laws will be set aside and a separate legal code be applicable to all? Will the ritual pheras around the holy fire or the signing of the nikahnama by Muslims become obsolete? Will kanyadan be obliterated by Article 14 provisions? Will prenup, maintenance, and matrimonial property concepts obviate post-divorce arrangements? Will Hindus no longer have access to Hindu Unified Family benefits and Muslims be entitled to constitute Waqf-al-aulad? In other words, will the model of the Special Marriages Act, optional at present, become mandatory? If this happens, we will have uniformity in social institutions and practices, but will continue to be faithful to what is left of religion, minus all these dimensions.

Such uniformity may be endorsed by the Directive Principles of State Policy but it will make a serious dent in Article 25 (freedom of religion) and directly question the basic structure of the Constitution. The essential features of religion doctrine will have to be modified by the Supreme Court, along with the basic structure of the Constitution, laid down by a 13-judge bench in the Keshavananda Bharti judgment. Some dimensions of UCC, therefore, will need more than a brute majority in Parliament to implement. Attempts to enforce it without consultation and consensus building could be more disruptive than many ill-thought policies of this government whose consequences we continue to suffer.

There may well be another way of looking at UCC, through the lens of ensuring gender justice in each religion. Many reforms have been carried out since the days of the Hindu Code Bill, and not in Hindu law alone. For instance, Islam offers ijtihad (a process of legal reasoning), ijma (the process of deriving a consensus on an aspect of Islamic law), and qiyas (the process of deductive analogy to apply religious teachings to a new situation). Islamic law also offers a raft of rights to the wife, not limited to financial independence. These may have been mutilated by some orthodox followers, but a distorted version of Islam merely requires a fresh statement of law rather than ad nauseam demonising. For a proposition to be equitable within followers of a religion, it need not have to satisfy uniformity with people of another faith.

Reasonable classification is an intrinsic part of our constitutional equality that allows periodic departures from mathematical equality between persons of varying circumstances. The high moral principle of non-discrimination cannot be blind to adjustments and accommodation to keep diverse personae together. One might argue as to what extent diversity is legitimate, but one cannot question the precept of unity in diversity.

Salman Khurshid is former foreign minister of India. The views expressed are personal