Debating India


Do we need the Uniform Civil Code?

Saisuresh Sivaswamy

Thursday 24 July 2003, by SIVASWAMY*Saisuresh

Article Rediff News, ?dition du 24 juillet 2003.

The time: the late 1980s. An old and penurious woman had knocked on the courts for justice after she felt she was wronged in the way her husband divorced her. The matter, in due course,reached the Supreme Court of India, where the learned judges upheld her right to maintenance. An open and shut case, it should seem, but for the Bench’s reference to the need for enacting a Uniform Civil Code since after all it was part of the Directive Principles enshrined in the Constitution which the nation was duty-bound to implement — in due course.

This seemingly innocuous event was a crucial moment in the nation’s history. Upset? By what they felt was the judiciary’s interference in their personal law in deciding the Shahbano case, the Muslim orthodoxy — in the persona of?Z A Ansari and Syed Shahabuddin — convened what they knew best: street-level power. As the muezzin gave the call of Islam in danger, the masses thronged the streets.

One would have thought a prime minister with the biggest parliamentary majority in history would have the courage to withstand such tactics but Rajiv Gandhi was made of different stuff. It was not as if the nation had not been warned of the Gandhi scion’s inexperience.

In the run-up to the 1984 general?election Ramakrishna Hegde had warned Indians on television that it was not the time for on the job experiment, but the nation, impressed by the son’s composure at his assassinated mother’s funeral, felt otherwise. Never mind there was evidence otherwise at that moment: as Sikhs were being butchered across the capital and elsewhere Rajiv Gandhi had glossed over the murders with the throwaway line:’ When a giant tree falls the earth is bound to shake a little.

The Muslim mass protest was like a giant tree falling, and it shook the Gandhi government. Its next actions are still reverberating across the polity: one, using its brute majority it brought in?legislation overturning the Supreme Court case (thereby presenting a precedent on a platter to the Hindu Right to reject the court order if it went against the Ram temple in Ayodhya); two, to ’please the Hindus’ upset at this capitulation before the mullahs it unlocked the Ram Janambhoomi temple, which breathed life into the Bharatiya Janata Party’s efforts to consolidate the Hindu votebank.

The period: July 2003. Yet another innocuous case before the Supreme Court of India, seeking to strike down Section 118 of the Indian Succession Act which prevents Christians from willing property for charitable and religious purposes, the Bench has again regretted the government’s inability to enact a Uniform Civil Code.

Will 2003 see a reprise of 1985? In fact, the situation is fraught with possibilities. Unlike the last time, the Hindu Right is not only in power today, but has also managed to replace the centrists as the party of discourse. The agenda is being drawn by the Right, with the rest reacting to it. It is a seminal moment.

Will religious orthodoxy and the lumpen once again join hands to scuttle what is a progressive, and essential measure, after painting it as an attack on established religion?

Or, will the BJP, as it had done so cleverly then, once again present the entire argument in an anti-minority light to win oer? majority votes? We are in election mode, remember?

The reality is that common law will never become a reality in India so far as it is only promised by the BJP. And so far, there is no sign that any of the major political — even the ’enlightened’ ones such as the Communists — will include it in their agenda, leave alone manifesto.

And why should they — the best way to create communal votebanks is by keeping the people separate. Everything is hunky-dory till the time someone like the BJP comes along and goes, ’hey, why can’t I do the exact same thing with the majority what these fellows are doing with the minorities?’ and suddenly the game becomes deadlier.

So long as the Uniform Civil Code is pursued only by the BJP and its associates, the minorities will see it as Hindu law being stuffed down their throat.?And the BJP, by making it an anti-Muslim plank, has managed to keep the truth about the UCC from its votebank. Which is that a lot of negative aspects currently part of the Hindu law, will be jettisoned. In fact, when the truth about the UCC is known, greater opposition will come from the BJP’s traditional Hindu voters than from the minorities. It is all right to harp on the UCC while in the Opposition; being in power enforces certain responsibilities, one of which is not to bluster.

Does India need the Uniform Civil Code? Of course it does — even Italy has one, as do the rest of the developed world. Nowhere is a scenario like in India, of various personal laws jostling together, allowed. But it needs to come on the heels of a political consensus, which is what the BJP, as a responsible party in power, needs to evolve.

This is the BJP’s biggest challenge. Its reign has been marked by total absence of consensual politics — except on issues where it realises its absence of parliamentary majority needs the Opposition’s — read Congress Party’s — support. Where it does not, it has done as it pleases — as with Pakistan where it first blustered, then bullied, and finally backed down. Governance, especially in a parliamentary democracy, is through consensus, and so long as the BJP does not learn this simple fact it will only rule, not govern.

For the Congress, this is chance for redemption. For party President Sonia Gandhi, this is chance to rectify her husband’s monumental blunder. She could either seize the opportunity to involve her party rank and file in convincing the grassroots of the need for the Uniform Civil Code. Or she can rely on her numerous advisors who will fill her ears with the tale that the quickest way to win back the minorities’ confidence, and votes, will be to oppose the measure. Just as her husband had done.

Before she sets out on the same path, it will help her to remember that though Rajiv Gandhi set out to please both Hindus and Muslims, he only succeeded in alienating both.

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