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HomeColumnsG N Devy writes: On Uniform Civil Code, intent matters

G N Devy writes: On Uniform Civil Code, intent matters

What the idea of god is to an agnostic, the proposal for UCC is to India. The idea in itself is absolutely superb. But as soon as one starts placing it in context, it starts looking less so. A common code in civil uniformity is one thing. In the context of diversity, it is the diametric opposite. I have been working with Adivasis for several decades. Some of them follow the custom of asking the husband to move over to the wife’s place after marriage and the wife has the right to drive the man out any time during their married cohabitation if she decides to do so in consultation with the community. To me, this appears to be a custom much fairer than the custom of asking girls to go after marriage to dwell in families of men. Will a proposed UCC give fair consideration to the comparative merits of these two systems?

In some Indian communities, property is inherited by daughters, not by sons. Among the Khasis in Meghalaya, a woman is treated as the head of the family and she plays that role for all legal purposes. Will the UCC take into account such a wonderful practice? I have known some communities that consider the cattle folk in the house as members of the family. Among the Kinnaurs of Himachal Pradesh, the custom is for a woman to take up to five husbands. One can go on giving examples of rights, rituals and material substance related to birth, marriage, death, inheritance and authority followed by various communities in India that do not describe themselves as Hindu, Muslim, Jain, Buddhist, Christian or Sikh. Will the proposed UCC bring under consideration their community law, their customary practices and their settled views of man-woman, human-animal and man-nature relations? Or, is the expectation that since 80 per cent of Indians have been entered in the official records as “Hindu”, it is only the “civility” of the legally constructed Hindus that shall emerge as the universal notion of civility while drawing the code? Besides, will the proposed civil code look into the customary right of the yajnopavita — the sacred thread — that some Hindu communities have, and others don’t?

The question is not only of the diversity of traditional practices currently acknowledged by law as valid practices. It is also the question of various inequalities existing in the country. For instance, the right to speech is a fundamental right. One likes to speak in one’s own language, unless migration, employment, livelihood or other social contexts make it necessary to speak in some other language. However, of the hundreds of languages existing in India, only 22 are in the Eighth schedule and enjoy government protection and patronage. Will a common civil code recognise the need to speak as a “civil” matter and rescue the non-scheduled languages from their current status of being unrecognised?

The point I raise here may seem completely irrelevant and even frivolous (which it is not). I raise it to underscore the context of civil inequalities, very distinct from economic inequalities. The most shameful of the civil inequalities is caste inequality and the resulting discrimination. Will the proposed uniformity in the civil code factor in caste inequalities while constructing its provisions? For example, will the entry into all temples be brought on equal footing for all citizens, not requiring in future any existing “purification rites” imposed on women, castes and tribes before entering a sacred space?

That surely is not a frivolous matter. In other words, any uniform civil code of laws presupposes a uniform and unhindered civil liberties regime too. The most problematic aspect of the UCC is the potential clash between an individual’s religious identity and her civil identity. Since an element of sanctity is associated with decisions like marriages, and since religion and sect affiliations continue to play a role in those decisions, it would be impractical to ask citizens to treat marriage as a purely secular (meaning “unrelated to religion”) act.

Particularly in times when allegedly responsible holders of the highest public offices deliberately make a public display of their religious affiliation, it would be wrong to expect ordinary citizens to set aside their religious identities while making decisions crucially important in their lives. Had the occupants of high public offices respected the principle of secularism (meaning “not related to any religion”), the idea of a uniform civil code would have become an idea worth considering.

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Finally, the most important question is related not to the idea but the intention behind the idea. If the intention is to arouse bias against all religious and ethnic communities, sects and tribes that do not share customs or regulations related to marriage, maintenance, divorce, adoption and inheritance, and to show them as less “nationalistic”, the conversation around the UCC must be seen as malafide.

What the people of India need is equality, and all of it, as assured in the Constitution, without its abrogation by bringing in majoritarian whims of what constitutes the nation and what makes citizens patriotic. They need governments that have the ability and desire to think beyond mere election victories. They need political parties that think of the diverse groups of people as the nation and not bring a myopic idea of the nation to fit all of them into the same mould based on the hackneyed ideas of “loyal and primary citizens” and “suspected disloyal and secondary citizens” merely because the ancestors of one group migrated into India a thousand years ago.

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The common civil code is a modern condition of life. It can find stability if the rulers accept that modernity, rationality, scientific temper, respect for diversity, dialogue and tolerance are necessary for social harmony and the continuation of diversity. Or else, what is about to be proposed as a common civil code can push the country towards uncommon civil strife. It is not unnatural if more people turn agnostic when the gods they chose to worship start failing them.

The writer is a cultural activist

© The Indian Express (P) Ltd

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