Politics of the Uniform Civil Code in India PDF

Ei:Jt◄M9i1iiit3!- Politics of the Unifo r~ Civil·Code in India PETER RONALD DESOUZA The debate on the Uniform Civil Code in.India has passed 0...

Ei:Jt◄M9i1iiit3!- Politics of the Unifo r~ Civil·Code in India PETER RONALD DESOUZA The debate on the Uniform Civil Code in.India has passed 0 ne of the persistent contradictions that the postcolonial through three phases which have been grounded in democracic state in India has had co deaJ with different normative concerns, that is, national concerns the enactment of a Uniform Civil Code (ucc) for India. This contradictio n began life in the Constituent consolidation, equality of laws, and now gender justice. Assembly itself when it was moved from the Fundamental Rights Since the normative goals of a polity and political chapter to that of the Directive Principles of the Constitution, a contingency are in a perpetual struggle in India, the time political compromise that made it recommendatory for the stare is appropriate for us to visit the ucc debate with aview to to ·.enact an ucc, but one which was noc justi'~iable. Over the objections of Minoo Masani. Hansa Mehta and Rajkumari strengthening our constitutional democracy. This article Amrit Kaur, members of rhe Constituent Assembly who _saw after presenting an overview of the debate suggests that this as aA unacceptable compromise. Article 44 entered the there are mainly two paths to follow to meet this Constitution recommending that "The State shalJ endeavour aspiration: (i) changing the ecology of laws relating to to secure for the citizens a uniform civiJ code throughout the territory of lndia. Over the past 65 years Anicle 44 has repeatedly 11 women, and (ii) adopting the common civil code that is been invoked by courts, whenever a dispute on personal laws prevalent in Goa. reaches the public sphere, to remind the state of its pending obligations. This has produced a rich public debate about the deepening of democracy in India. In this paper I shall look at the landscape of this debate. The common issue running through the various phases of this debate has been the argumems relating to the "terms" of this politics of compromise. As.the classic tension between the dynamics of politics and the promises oflaw plays out, advances and reverses take place on the normative commitments that the emerging new polity muse make. On probing rhe dynamics of this tension some interesting subsidiary questions emerge. For example, if a society is to engage with modernity, in its political form of a constitutional democracy, how c-an law facilitate such I engagement? What resistances does such engagement confront? Do these resistances come from pr~gressive and/or regressive forces? How should the institutions of politics, and oflaw, deal with them? Is a coercive strategy of imposition preferable to a persuasive strategy of c0nsensus building especially in a politically stubborn society such as India where mobilisations can often be very retrogressive? In such a situation what are the obligations of a secular state faced with a communal society? This paper will provide a brief overview of the stages and phases through which this contradictio n has evolved. We must through this narrative, however, not lose sight of the central question that runs through this saga: Whal is the role of law as an instru- ment of social and political reform in a postcolonial state? Historical Overview It is perhaps pertinent co begin the analysis in the colonial Peter Ro_nald de_So:1za ([email protected]) is ac the Centre for 1he Study of Developing Soc1enes, Delhi. He also holds the Dr S Radhakrishna Chair period. Two aspects are relevant here. The first concerns the of the Rajya Sabha (21os-i 7). conf1ict between the protections oflaw and the forces of cultural orthodoxy as was played out in the Rukhmabai case (188.-,-88). so NOVl::MDLR ~s. 2015 VOL I. NO 49 0m E1'0I\Ollll1 & l'olilical wn:i;r,\'  The seco nd refe rs ~o cne proc ess of codification of the per SPECIAL ARTICLE law s of the dom ina nt com son al the case mun itie s by the colo nial stat s con cer ned a dispute betw e. een two per son s wh o wer Ruk hma bai was mar ried ac majors wh ere as in the Ruk e the age of 11, a min or, to a hmabai cas e the mar riag man y yea rs her sen ior, Dad per son betw een a e was aji Bhikaji Tha kur , wh o had min or and a major. New agr eed invoked to dec prin cipl es had to be to let her stay wit h her ide the case. J mention this step fath er till she rea che inte rest ing snip pet Dur ing this per iod she stud d pub erty. because it is suc h con und ied and dev elop ed a per son rum s that mo dem law in tha t exh ibit ed per son al inde alit y to dea l wit h as it stri Ind ia has pen den ceo fop inio n and asp ves to establish the rule ofla irat ion. eng agin g wit w in a soc iety Wh en she atta ined majorit h the forces of mod erni ty. y her hus ban d trie d to per The cha llen ge of for man y reas ons incl udi ng sua de her, building a mo access to her inh erit anc e, der n stat e is to dete rmi ne to com e how ma ny of che and live wit h him. She had asp ects of the old social nev er lived wit h him bec aus ord er can be inc orp ora ted step fath er had insi sted that e her eme rgin g new con into rhe till she atta ins pub erty she stitu tion al ord er so tha t the wou ld sistent wit h the y rem ain con- not ente r the mar ital hom principles of this new ord e. Rukhmabai, who se per er for exa mpl e, and view s had ove r the yea son alit y equal citi zen ship rs evolved, refu sed to ent , whi le giving an imp ress er the ion of con tinu ity mar ital hom e bec aus e she with che old ord er. had heard abo ut her hus waywardness and had grow ban d's n· to dislike him (Ch and ra Cod ific atio n of Per son al Wh en pers uas ion and eve 200 8). n mild thre ats failed he filed Laws in the Bombay Hig h Cou rt a cas e The seco nd aspect con in 1885 for "res titu tion of con cerns rhe process of codifica rights." He lost the case. He juga l personal law s by the tion of then wenc in app eal in 188 colonial state. Because ic had 6 and on macrers relating to adjudicace was given a favo urab le judg co marriage, divorce, ado ptio men t in spite of whi ch Ruk n, inheritance, still refused co ent er the hma bai that is, on famiJy marital home pre ferr ing inst and propercy mat ters , the ead to initi colo nial state face the pun ishm ent that the ated a pro cess of bringing toge courts chose to awa rd. ther rhe div erse prac tice s of During this lega l contest different gro ups and regions ation a public deb ate ens in India into wh at cam e to acq betw een the orth odo x or anti ued a semblance of a common cod uire -reform faction and the- refo e for the community. By employi factfon of the Hin du commun rmi st the services of Brahrnin ng ity. The orthodox bloc , led priests and experts in the sha Gan gad har Tila k and Rao by Bal Muslim clerics, who wer stra s and of Bahadur Mandalik, forw arde e trained in the Qur'an and the man y argu men ts, suc h as d the colonial stat e produced AJ-Hadith, marriage customs had reli texts which bec ame the basi sanction since they wer e gious judges to adjudicate on s for practices that wer e deri ved property and fam ily disp utes sacred texts, wives must con from cou rts (Ghosh 200 7; Menski 200 in rhe sent to sexual intercourse with 8; Agnes 199 9; Par ash ar husbands, especial1y since thei r 200 0). The re are several they were inst rum ents of pro texts that wer e crea ted as a tion, it is the wife's duty to crea- this codification, such as Tho result of live with her hus ban d, ere. mas Srrange's Elements of Hin thodox faction saw the law The or- Law and late r the Sha du as interfering wit h the cult riat Ace of 1937 and the Diss practices of the Hin dus whi ural Muslim Marriages Ace of olution of ch was beyond its juri sdic tion 1939. The list of texts prod thes e practices wer e derived since through suc h an exercise uced from the shastras. The refo of codification, dur ing the facrion, led by M G R,made, rmist peri od, is extensive and need not colonial G G Agarkar and KT Telang be listed her e but wha t is of con tras t used mod erni st argu , in relevance for our discussion of ments in defence of Ruk hma the ucc today, from chis exer such as, as a min or she cou bai of codification, is rhe active role cise ld not be held to the term s of the stat e in the preparation mar riag e con trac t since she of the a set of lega l texts on property and fam of had not consented to it as ily laws whi ch were responsible adu lt, that "res a then available to the courts for the titution" was not possible adjudication of disputes. "consummation" had not take since Further, chis coc:lification happ n place, and that her wishes ened with the active assistan achieving adu ltho od were alon on of scholars from both the Hindu and ce e relevant to the case. Muslim communities. The The case mak es fascinating code s then cam e co be owned by the respectiv reading but wha t is rele van e communities. This our discussion is chat even t for role of the scace becomes relevant a century earlier the role of because, und er democratic law and the juri dica l instituti mod ern Indi a, whe n the policies of communities ons of the scare was disputed emerges, ther e is term s of its auth orit y to inte in resiscance to stat e interference bnsc rvene on an issue con cern ing d on the arg ume nt that rights and obligation of.the the refo rm sho uld come from within com two parcies to a mar riag e. munities alon e. I will instance it was a debate In this return co chis issue in a lace within the Hindu commun r section. whe ther it was permissible for icy on The nex t major historical location the secular law co adjudicate for the ucc deb ate was marital dispute governed by on a when the ima gina tion for a free religious laws. In spite of the India was bein g forged in the protesrs on the state's interfer public deb ates in the Constituent Asse ence the decision of the stat mbly. The decision to plac accepted and a comprom e was in the Directive Principles of e it ise was reached for a mon Stare Policy, Article 35 in serrlemem that Rukhmabai' e1ary draft and Article '1'1 in rhe final the s husband accepted (Ra Constitution, was ba~ed on 200 5). Similar issues, njan assurance given by Nehru and the to those raised in the Ruk hma Gandhi to the ulcm a thac find expression in ucc disp bai case, enac1ment of a ucc would the utes today except tha t here be posrponed alth oug h it they remain an aspiration of the stale would now concern the Muslim com (Ghosh 200 7: 72). The gro und munity. It is inte rest ing that s case law on mar riag e, inhe the of this assurance were 1he trauma ritance, divorce, ecc, from Eng of partition whe re the Muslims was unavailable for che colo land who had elected to stay back in nial courts to draw upo n sinc India wer e fear ful chat thei e all customs c1nd religious prac r Eronn mir b l'nlllllity,".paper presente Pvliriw1 Vledly, resigned d from rhc parry u~cctusc: of wha t he con Citizens and their Hisrories, Emo at Subaltern 13 Aug ust, p 2147. ~idcrcd.t!'i rhe Gtpirulitrion l,y ry University, Menon, Nive dita (201 ,1): "Un rhe Con gres s 13-1 4 October. iform Civi ¾Co dc-T he leadership ro the.orthodox secti Star e o( che Deb are in 201 ";· ons of rhc Mus- Alm eida. Alhertina (2013 ): "Vis ras on chc dr.;1fr ess.l'\,' sh,1red lim communiry. from Portuguese Civil Code Road wnh rhe aurh or. p 4. to Fam - 3 Prariba Jain , Siobhan Mulallay, Anika Rahman, Goa," pr1per presenced ar 1he conf ily Laws JO Menski, Wer ner (200 8):.. The Unif orm 0\ ti Gode Manha Nu."-Sh,mm, Werner Minski er~nce "Goa: Debate m Indi an Law : New and Raje.c;hwari 1961 and Beyond," 18-2 0 Dt,>clopmt ltf!f Jft,i Jint (i.tn rlht, Nandita e1 ol h9pt,): "Drn 1 1h