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2018 Law Commission report favoured diversity, rejected Universal Civil Code

By Abhay Kumar* 

The contentious is -- sue of the Uniform Civil Code (UCC) is again in the public debate. Since the days of the making of the Constitution, the Hindu right-wing forces have strongly supported it. Their agenda is to construct a strong nation upon “one culture, one religion and one law”. The existence of cultural diversity and the multiple ways of living have always troubled them. Since the UCC was strongly pro- tested by a large number of members sitting in the Constituent Assembly, the makers of the Constitution put it on the back burner. At that time, Babasaheb Ambedkar cautioned that “No Government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad Government if it did so”.
Amid this difference, the issue was put under the Directive Principles of the State Policy. Unlike the Fundamental Rights of the Constitution, the Directive Principles of the State Policy are simply guidelines for the government. They are not enforceable in the court until they are made law. The Article 44 of the Directive Principle of State Policy, thus, asked the State “to endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”.
Since Fundamental Rights are supreme and cultural rights and religious freedoms are protected under them, personal laws compatible with the basic tenets of the Constitution can- not be weeded out. However, the communal forces often justify the UCC by selectively reading the Constitution. While they invoke the Directive Principles of State Policy in support of the UCC, they like to acknowledge that cultural diversity and religious freedom are protected under Fundamental Rights.
Historically speaking, the agenda of uniformity goes back to the rise of the mod- ern nation-state and capital- ism as the dominant mode of production. Uniformity, rather than diversity and individual-based property relation, instead of community-based resources, were seen as conducive to the establishment of a majoritarian nation-state and profit- based capitalist economy. The imposition of uniform laws has facilitated the penetration of the market and led to the exploitation of resources.
That is why the issue for the UCC cannot be under- stood if it is not placed into today’s neo-liberal economic order. The corporate forces find the customary laws of the Adivasi communities as a hindrance to their access to their land. The members of the Constituent Assembly were visionary in ensuring the Constitutional safeguards for them. The Hindu Right, which often serves the interest of the corporate forces, are trying to change this Constitutional protection through the introduction of the UCC.
The scholars of the laws have rightly pointed out that, like cultural diversity, there exists a diversity of laws as well. For example, personal laws and penal codes are not uniformly applied across the country. Even the 21st Law Commission report, published on 31 August 2018, underscored diversity and rejected the desirability of imposing the UCC. As the report put it, “While the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be dis-privileged in the process. Resolution of this conflict does not mean the abolition of difference. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage” p.7).
Similarly, the progressive currents across the globe, too, prefer diversity to homogeneity. But unfortunately, the goal of uniformity is presented by the mainstream media and the ruling forces as “the solution to all the problems” in our country. Look at the irony: while the Narendra Modi Government has not implemented a single suggestion of the 21st Law Commission report, it is supporting the campaign for the UCC ahead of elections.
It is often not realised that uniformity and the so-called “universal” principles are often secretly coded in favour of the majority. Similarly, it is naive to place the campaign for the UCC outside the domain of politics. For example, can the rise of the BJP and its vigorous campaign for the UCC, along with its tirade against Muslim personal laws, be separated? The demand for the UCC, the construction of the Ram Temple in Ayodhya and the abolition of Article 370 has been the pet agendas of the BJP. Besides, the BJP has been at the forefront of taking credit for the campaign against triple talaq. But the reality is that the wrong practice of triple talaq was outlawed by the Supreme Court after the long struggles of women’s movements.
While the Supreme Court rightly called the practice of triple talaq “invalid” and closed the matter, the BJP went to the extent of criminalizing the act of divorce for Muslim men. Nowhere did giving divorce invite imprisonment, but Muslim men were jailed, and their wives were deprived of their source of income in the absence of any social security offered by the state.
The need of the hour, therefore, is to take the 21st Law Commission report seriously. Similarly, no one should pose the question of the UCC narrowly. We should reject the communal propaganda that the rise of the Muslim population is caused by the non-existence of the UCC. The Muslim population has declined over the years, and Muslim families have increasingly adopted family planning measures. Even the Holy Quran asks its followers to keep a gap between two children. We need to tell that reforms are needed not only in Muslim personal laws but also in Hindu, Christian and Parsi personal laws. For example, Hindu Law gives tax concessions to Hindus. However, it is rarely discussed by the media. Even secular law like the Special Marriage Act is not free from lacunae, and it also needs reforms. It is high time to address gender- based discrimination and unequal property relations and reform personal laws which promote equality and gender justice. Similarly, the protection of the land rights, cultural autonomy and customary laws of the marginalized communities need to be protected. These concerns can be better ad- dressed by not imposing uniformity but respecting diversity. 
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*Delhi-based journalist. This article was first published in News Trail

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