What India must do to get uniform, secular civil laws
Civil laws are different from how we perceive most other laws. The other laws comprise criminal laws, laws governing finance, transaction, taxation, land, property, money, entitlements, and so on.
These laws we understand as those enunciated by the government and they draw their legitimacy and logic from policy, societies collected wisdom, new challenges, and based on principles of law, justice, commerce, economic policy, et al.
To any one person, these laws will appear as just as they will to another, and the reaction towards them would come from their human position, and their situation in life.
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| Perhaps, the most difficult step is to apply secular principles to all laws. Photo credit: Reuters |
Civil laws, comprising of marriage and divorce, personal property and inheritance, and adoption and maintenance are different. I perhaps look at many of them differently from how another person with a different denomination of religion, or culture, or faith, or geography, or birth, or social grouping would look at them.
To me, the Civil Marriage Act is my law to marry, to a devout Hindu, it means she must go through the process of a wedding, through the motions of rituals dictated by the priestly class she patronises; to a Muslim boy, he will look at marriage as a contract with the girl, as did his forefathers, as in his religion this is the word of God, which in civil laws is the law for that family or personal or civic function.
Here lies the major problem. In the case of the other laws, the government is the God or tradition and provides social and community sanction to such laws. In case of civil laws, it is a persons' accepted God, or his/ her words, or tradition that draws sustenance from religion, from religious practice and hence the ordained way for that action/ function. Only when this gets sorted out, then Civil laws move towards a secular foundation.
They would no longer draw only from the belief or practise of faith and tradition, but also equally if not more from constant changes that a society faces, and the progress made in society as it understands and then details problems in tradition, the need to change and sets the foundation for more humane, more just and more civil laws.
Since 1951, when the Constituent Assembly chose, due to strong feelings of many members to keep the articulation of a Uniform Civil Code as a Directive Principle of State Policy and not give it the legitimacy of Law, the discussion on bringing in a Uniform Code continues, and in times like today, it takes a more urgent form.
Many of the reasons why the Uniform Civil Code was pushed into the Directive Principles still remain. There are two parts in this evolving discussion. Newer times, newer experiences, changed social, cultural, and technological context and thinking, attitudes and acceptability, have brought a different light to the way people looked at the same laws, practices and traditions as they did 60, or even 20 years back.
One part is the gradual acceptance of inherent injustice of many civil laws, or their out-datedness or simply their unacceptability in our world, where we look at human rights, at equity, at gender equality, at rights of young people, at sexual rights and so on in very different ways.
Examples include rights of men and women in marriage, inheritance, equality of girls and boys in all manners of treatment and entitlements, shrinking space and declining popularity of many inhuman practices, etc. There is a very strong and undeniable logic to civil laws taking precedence here, and even when we find religious tradition or beliefs coming in the way, Governments and society have responded fairly adequately to changes.
Second, are laws based on the belief that they are the word of their faith, perhaps what their Gods spoke, or have ordained for their life on this planet, and which shall affect their after-life. Hence, while Christianity does not permit divorce, since it believes marriages are made in heaven, Islamic tradition believes that marriages are a contract between a woman and man and hence can be terminated, albeit with conditions and a large body of caution and clerical warnings against its misuse.
Even within faiths, followers interpret the "documented" word of God differently. Different traditions of similar faiths interpret civic traditions and laws differently. That complicates this situation further, when you attempt to codify and unify these.
Of course, changes have taken place in laws and practices sanctioned by religion. In many Islamic nations, the provision of triple talaak (divorce) has been challenged, many Christian nations have allowed divorce and even abortions, Indian laws have allowed for civil marriages, inter-caste marriages amongst Hindus, and equal inheritance rights to male and female children, and banned practice of untouchability. Changes in civil laws that impact faith get accepted if people believe in the secular and just reasons forwarded for these changes.
The Indian context in today's world in pushing through a Uniform Civil Code is neither secular nor just. It is communal and political, and therefore breeds suspicion amongst those it affects, builds a feeling of siege and pushes people of different minority faiths into the clutches of the orthodox, where they find safe haven faced with a feeling of an attack on their identity and way of life and religion, that they justifiably believe is only theirs to follow and reform.
That it is a very good time to reflect and review many of our civil habits and ways and recommend changes to the more unjust, unfair and barbaric features in our religion, goes without saying. But these need a fair atmosphere of discussing, convincing the progressive elements in all faiths and cultures, and building a sense of fairness and just reasons, rather than political hype and pampering to "communally" sponsored demands for civil laws through a uniform code.
If serious efforts are put into motion, through inclusive debate of building confidence, especially among religious and cultural minorities, the process should move forward. There will be milestones to cross, no sudden arrivals at any final destination. They will carry everyone except the bigoted and the communal.
Simultaneously, other steps ought to be taken, and they should be just, logical, and fair:
- To segregate parts of the civil code into what is core to different religions and what is not.
- Civil laws should primarily be secular in nature, and look at justness and correctness and ethics, as well as punishment and serving of justice in this life, and not the afterlife.
- In our hurry to make and implement civil laws, we have subverted progressive customs of many cultural, ethnic and quasi-religious groups, such as de-legitimising practices of conjugation and marriage amongst certain tribal groups (for example, the practice of Ghotul), community ownership of forest and property amongst many tribal communities et al.
- To recognise the glaring lacunae in civil laws like gay rights, rights of married partners in cases of infidelity, rising practise of multiple partners post marriage, rights of parents and parents in laws, rights of abandoned partners and parents, etc.
- And the most difficult - the non-implementation of legislations relating to ban on dowry, domestic violence, child abuse, foeticide, forced pregnancies/rights of woman on her own body etc.
- The last and perhaps most difficult is applying secular principles to all laws, or at least revising many laws and practices in this light. When we accept that personal or civil laws must move away from drawing their legitimacy only from religion, or tradition or culture or an inter mixture, then we must also do away with many laws, restrictive rules, prohibitive practices, special allowances and provisions that are based on religious or cultural norms or practices. And this is going to be a tricky and fiery prospect.
Let me state here some of the matters that will be pulled up, and justifiably, for review, once we start on the process of secularising all civil laws, unifying them under principles that draw, not from what believed Gods or their doyens have said, but what human kind has come to believe are principles that should govern a just, fair, free and equitable society.
If religious sanction is not going to be the corner stone of civil law, then how do we tackle the demand for various bans concerning religious fascism, such as banning books, articles, cartoons, websites, et al, and some may even go further(!)? Then can the deeply held beliefs of a large number of people prevent even a single individual from exercising their rights to consume or say or do what they wish?
Can we continue to permit land grab and illegal construction and evasion of civic laws by religious structures, whether places of prayer or of religious organisation? It will be a very happy occasion, when, while we discuss and adopt more and more of a unified civil code, we also do away with all the other concessions we grant to religion.
No illegal places of prayer, no tax or duty or payment concessions to any religious body, no tolerance of any demand or any intolerance or any restriction or demand for anything based on religion, no Hindu Undivided Family units for Income Tax concessions, no compromise on equal division of property between daughters and sons, to list some.
This would lay the foundations, of a truly scientific temper and leaving knowledge to truth, facts, logic and arguments, not on manufactured truths, mythology, and religious propaganda. There will have to be supremacy of reason, drawn from principles of secular jurisprudence, clearly distinct from temporal.
From issues of this life, without intrusion of any concern for either after life, or the supernatural, or any God or Goddess, or any manufactured truth, or mythology, or aastha.