Why we may never get a common civil code – Jay Bhattacharjee

Nehru at Constituent Assembly 1947

Jay Bhattacharjee“The Nehruvian approach triumphed over the genuine apprehensions of a number of others involved in the constitution-making process. The Uniform Civil Code provision (Article 44) was made a part of the Directive Principles of State Policy (Articles 36 to 51) which have themselves been rendered toothless by Article 37 that debars the courts from enforcing any of these principles. It is now futile to speculate why we allowed such a glaring lacuna in an otherwise well-conceived charter.” –  Jay Bhattacharjee

Supreme Court of IndiaLast [February], the Supreme Court, in one of its periodic displays of angst, wondered whether India would manage to preserve its secular character for long. The Homeric observations were made by a Bench which was hearing an application by a Christian organisation that is demanding official recognition for courts set up under the Church’s Canon Law. According to a press report, one of the judges reportedly said that “we have to stamp religion out of civil matters”. Although the court in the past has also rejected attempts by Muslim religious “courts” to get legal imprimatur for their “fatwas” or pronouncements, the Bench in the recent case issued notice to the Union of India to obtain its views on this sensitive matter, instead of rejecting the petition outright, as was appropriate.

Interestingly, the petitioner in the present case claims that Christians are entitled to follow their personal religious law, since Muslims are allowed to follow theirs, as in the case of the triple “talaq”. All this foretells a nightmare future scenario where competitive religious demands on the country’s legal and administrative structure are stridently propagated, and the non-religious or secular space gets progressively curtailed.  Without putting too fine a point on it, it must be emphasised that demands like these have rarely come from the followers of Indic faiths and when they have, they have been rightly rejected on all occasions.

The founding parents of our Republic debated the nature and spirit of our Constitution for a number of years in great detail. In fact, this ancient nation and civilisation, when it was being crafted into a modern state, was blessed with great luck that we went through such a rigorous process.

Given the trauma of our emergence from the clutches of Pax Britannica and the mind-boggling communal violence that accompanied the transfer of power from the departing colonialists, it would have been quite understandable if India had declared itself a Hindu-Buddhist-Sikh-Jain state, on the premise that Indic faiths were indigenous products of the land and the followers of these creeds would be justified in putting their religions in the driving seat, as it were, with due safeguards for those citizens whose allegiance was to other beliefs.

Yet, such was the sagacity of our Constitution-builders and the innate liberalism of the leaders who were predominantly from the Indic religions that they consciously opted for a religiously-neutral governance framework. They were inspired by the French idea of a formal separation of Church and state, originally propagated during the 1789 Revolution and then finally institutionalised in 1905 in the country’s Constitution. They were also following the American example.

Liberte, Egalite, FraterniteThe principle of laïcité in the French model, as well as in the US secularist counterpart, means the absence of religious involvement in government affairs, and vice versa. This is the path India chose when finalising its Constitution. In our context, this doctrine clearly emphasised that there was no question at all of the government being hostile to religion. It is best described as a framework where government and political issues are insulated from religious organisations and religious issues, provided, of course, that the latter do not have manifest social consequences and implications. This is a two-way buffer meant to protect both parties, the government from any possible interference from religious organisations, and religious groups from political controversies.

Because hundreds of millions of Muslims chose to stay behind in India and not give up their homeland, the country also faced a multitude of religious practices and traditions that had attained the status of law in British India, either through statute or under the umbrella of customary law. Therefore, the Constitution foresaw a potential minefield in the future and made a provision for enactment of a uniform civil code that would be applicable to all citizens, irrespective of their religious affiliations. This is, however, where the Nehruvian approach triumphed over the genuine  apprehensions of a number of others involved in the process. The Uniform Civil Code provision (Article 44) was made a part of the Directive Principles of State Policy (Articles 36 to 51) which have themselves been rendered toothless by Article 37 that debars the courts from enforcing any of these principles. It is now futile to speculate why we allowed such a glaring lacuna in an otherwise well-conceived charter. 

To add to the disarray, Article 25 (2)(b) allows reform of laws and institutions of the Indic religions only. Other faiths are excluded. Therefore, we had the comprehensive Hindu Code Bill that did away with many undesirable practices in the Indic faiths, but Islam and Christianity saw no such initiative. Worse, successive regimes in Raisina Hill let the genie out of the bottle and we now confront a horror scenario. This is the time to take the bull by its horns. The apex court and Union Government must now take a firm stand. Any more dithering will be disastrous. – The New Indian Express, 14 February 2015

» Jay Bhattacharjee is a corporate laws and business analyst, based in Delhi. Email jay.bhattacharjee@gmail.com

Constitution of India

One Response

  1. Well, with Modi as PM, now is probably the only time we will get for a Uniform Civil Code. Many Indians are disappointed at the slow pace of reforms, and if Modi wants to retain popularity, he and the BJP may have to start focusing on other campaign promises such as the Uniform Civil Code and the Ram mandir. At least that way they will retain their base. The liberal middle class is already disenchanted with Modi.

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