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Pratap Bhanu Mehta writes: Uniform Civil Code must be about justice, not majoritarianism

The sole purpose of enacting a Uniform Civil Code ought to be the creation of a just society, guided by the constitutional values of freedom, equality and dignity of the individual. Given this government’s track record, there is a real danger that the core normative issues will be overshadowed by divisive rhetoric, nationalist passion and conservative obscurantism. But both prudence and principle require taking the UCC seriously and working to ensure that it lives up to its promise of justice. For that, we will have to set aside some encrusted alibis for not engaging with the issue.

Majoritarianism is a palpable threat in Indian politics. It may remain so regardless of how the UCC turns out. But in the case of the UCC, at least, the image that some covert version of Hindu law can simply be extended to the minorities is unlikely. This is because so much of the thrust of recent reforms has taken the form of constitutional principles overriding “traditional” conceptions of Hindu law. If anything, particularly in areas of property and inheritance, a huge burden of the reforms will fall on Hindu law.

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In the case of triple talaq, Parliament was right to abolish the practice. But the criminalisation of the practice was widely seen as majoritarian, when no equivalent provisions exist for other communities. The lesson from that episode is, ironically, that when you enact community-specific laws that don’t apply to all, and do not pass an equality test, it will be easier to enact majoritarianism.

There is the worry that Parliament is overwhelmingly dominated by Hindus. Since Independence, this has induced hesitation. This is a concern. But this argument should be made very carefully. It is difficult to deny Parliament the right to formally pronounce on laws that are being enforced by the state on the ground that Parliament is not representative enough of particular communities. Often, the response to this worry (including by this columnist) was to think of the possibility of each community enacting reforms through their own representative process. But that has proved to be a dead-end. The issue of under-representation needs to be addressed through the political process. But it will be a mistake to privilege religious under-representation as constituting a veto on the desirability of Parliament enacting a common civil code.

Most of the current personal laws were not enacted or administered by a process that was representative in any meaningful sense. Secondly, if anything, the relevant issue here is surely the under-representation of women and sexual minorities in Parliament, not just religious ones. And the poor have always been excluded. So, ultimately, the authority of most law will never be grounded in the fact that the composition of Parliament is a mirror of society around all the relevant cleavages.

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It will have to be grounded in part in the substance of what it enacts: Does the reform meet the benchmark of freedom and equality? Does it avoid imposing any burdens on any community that do not stem from those considerations? Ensuring this will require a wide consultation process. And finally, we have let an unrepresentative judiciary tinker around with these laws. It cannot be outside the purview of Parliament on the grounds that it is less representative.

It is often said, and the Law Commission repeats this, that one reason we cannot have a UCC is because different traditions have different conceptions of marriage: It is, allegedly, a sacrament for Hindus, a contract for Islam. But, for law, the question is not that of the “meaning” of the institution. It is, simply: What interests of the relevant parties should the state protect, enforce or permit? It is the freedom and equality of individuals and the well-being of children affected by these institutions. And these burdens should apply equally. The question of meaning is a red herring; the law can free up individuals to define that meaning. The question of diversity is also slightly oddly posed. For one thing, this particular question of what is in the interests of a state safeguarding freedom and equality to impose, is quite compatible with variations so long as they do not infringe on this core principle.

Diversity in India has become synonymous with community power over individuals. It is not a diversity produced by granting individuals freedom and equality, which is a more authentic form of diversity. In India, authentic religious expression is severely jeopardised because material benefit and livelihood prospects have got entangled with religion, though marriage and property laws.

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The more you detach religious identity from material implication in social and political power (which is what marriage, inheritance and succession is), the more you free it up to be a form of genuine religious seeking, rather than a legally imposed category. If being Hindu means being trapped by a particular inheritance law, or being Muslim by a particular set of divorce decrees enacted by some unrepresentative body, how is religious diversity being protected? A UCC, if it is just, would also make it easier for those who want to change religion or be irreligious, by making the material and legal implications of these options easier to navigate.

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The 2018 Law Commission Paper on Reform of Family Law opted for the recommendation that all codes be internally reformed to make them more gender equal. This proposal is attractive, if it makes it easier to secure consensus. But the substance of the Law Commission’s paper suggests that in the areas of marriage and divorce, guardianship, adoption and maintenance and succession and inheritance, much of what it is trying to achieve is identical — a de facto uniform code. The tricky issue is the federalism issue, particularly in relation to the North-east (by the way, it is arguable that even the US does not, strictly speaking, have a uniform civil code on account of variations produced by states’ rights). There are also issues of administrative feasibility, and considerations of creating change through consensus. But all parties to this debate must concentrate on the normative commitment to freedom and equality.

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It will be a tragedy if the project of justice becomes hostage to two forms of bad faith: Majoritarianism, and the fear of majoritarianism that, for decades, has been used as an alibi to not bat for freedom and equality. We have to rise above both. The Indian constitutional vision is not that of a power play of a federation of communities but to create a zone of individual freedom, equality and reciprocity. This is a truer foundation of both identity and diversity.

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