Uniform Civil Code critics consider it a capitulation to the Hindu Civil Code. Yet, the Hindu code, when introduced, was a huge departure from existing Hindu personal laws. But it was pushed through to guarantee equal rights to all citizens
Following the BJP’s resounding electoral win, the Uniform Civil Code is back into the debate. The UCC has always been a polarising topic and evokes a lot of emotion. Even in this season, the code has seen strong opposition from many quarters. There are two primary arguments against the UCC. First, a UCC would mean subjugation of Muslims to the existing ‘Hindu Civil Code’; and thus, potentially, threaten Muslim culture. Second, because of the diversity of our country, it is acceptable to have religion-based disparity in personal laws. Both these arguments are rooted in assumptions; assumptions that might have stemmed partly from taxonomy and nomenclature —and not from facts and reason.
The nay-sayers argue that the UCC would effectively force the Muslims (and other minorities) to follow the existing Hindu Civil Code, as presented in the four Hindu Code Bills passed in 1955-1956. This in turn, they say, would pose a grave threat to Muslim culture and amount to ‘Hinduisation’ of the minorities. In making this argument, there seems to be an assumption that the adjective ‘Hindu’ automatically makes the ethos of the existing Hindu Civil Code. In fact, the Hindu prefix is meant to signify that the code applies to Hindus, and nothing more. (In fact, even that is a misnomer, as the code also applies to Sikhs, Buddhists and Jains)
The Hindu Civil Code, when it was tabled, marked a massive departure from existing Hindu laws, particularly in the field of succession and marriage. For example, the new code awarded the widow or daughter an equal share in the property in an intestate succession. Previously, only the sons or other male legal heirs had right over the deceased man’s property. Similarly, polygamy was abolished and women were given equal rights in the divorce process. These changes were radical and in complete opposition to Hindu orthodoxy, of those times. As, HV Pataskar, the Union law Minister who presented these Bills to the 1st lok Sabha, noted, these codes were based on “the dignity of person, irrespective of any distinction of sex” (and not on Hindu orthodoxy or scriptures)
The vocal and mighty opposition to the Bill also shows how far removed the new code was from the accepted Hindu personal law of the times. The leader of the Anti-Hindu Code Bill Movement, Swami Karpatriji Maharaj, regularly quoted from the smritis (scriptures) and other Hindu religious texts (sometimes selectively) to impress upon his audience that the new rules were not in accordance to Hindu scriptures. The Swami termed the codes as “forcibly defying the laws of God”.
Additionally, it is fairly certain that if and when a UCC is indeed drafted, it will be rationalised to take into consideration the unique social situation of the religious groups being brought under the Bill. Even the Hindu Code Bill had to be rationalised to account for caste-based variations in existing laws and also for the two, then prevalent, primary schools of Hindu law — Dayabhaga and Mitakshara. However, without doubt, the UCC, when drafted, is bound to be guided, in large measure, by the current Hindu Code Bill, rather than the Muslim Personal law, or any other religious laws — and that does not imply a ‘Hinduisation’ of Muslims, by any stretch of imagination.
Regrettably, the existing common civil code for Hindus, Buddhists, Sikhs and Jains, has been presented, by a section of critics, as a code inspired by Hindu customs and orthodox law; nothing could be further from the truth. Blame the interpretation on vested interests, religious fanaticism or genuine foolishness — the nomenclature does contribute to this misinterpretation.
The second point, used by the opposition to the UCC, is to argue for a ‘non-uniform’ civil code, justified by the diversity of the country. Unfortunately, this argument entirely misses the primary ethos of the proposed UCC. Unlike what the name suggests, the primary purpose of the UCC is not religious uniformity, it is gender equality. Regrettably, the taxonomy that is currently used, allows the opposition to put the issue of women’s rights and status on the backburner, while arguing against the ‘uniformity’ of religious personal laws.
While, there might be a scope for debate on the need for ‘religious equality’ in laws, there is very little scope to argue for differing standards of gender equality for the women of India.
The primary ethos of the Hindu Civil Code passed in 1955-1956 was not at all different from the purpose of the UCC. The debates on the Hindu Code Bill, in the Constituent Assembly and Parliament, make for a very interesting reading. There are colourful analogies and precedents quoted by both sides in the debate. However, the champions of the new code, Jawaharlal Nehru and BR Ambedkar, clearly articulated the purpose of the Bill, several times to guarantee everyone equal rights, irrespective of caste or gender.
While arguing for passing the law, Nehru wrote to one of his orthodox colleagues: “There were two codes (in India), one for the man and other for the woman. The woman got the worst of it always.” There is also ample evidence of him wanting to prioritise the marriage and divorce Bills and the duccession Bills — the Bills that deal predominantly with women’s rights — over the other codes that were being debated. Consequently, a potential renaming of the UCC to Women’s Equality Act (or something on those lines), might help bring the debate firmly back to women’s equality. It will definitely garner the support of women, across religions.
There are numerous instances of laws and Bills being ‘creatively’ named. One of the most telling examples, in this context, is the The Muslim Women (Protection of Rights on Divorce) Act 1986. This Act sought to repeal the Supreme Court’s judgement in the Shah Bano case. The Act did precisely the opposite of what it was called — protect the rights of women on divorce.
The nomenclature issues discussed here have not been coined with the intent to misrepresent them to the people. Unfortunately, the nomenclature does make misrepresentation easier.