If the legal debate over the non-implementation of a uniform civil code is instructive, far more revealing is what the controversy tells us of the state of Indian politics. In particular, it exposes the fragility of what constitutes the liberal-secularist consensus and its craven willingness to play courtier to the most regressive forces in public life. Additionally, it is another case study of how a determined minority can successfully impose its veto on India's evolution as a just, equitable and modern society.
The manner in which the skirmishes over the uniform civil code have played out since the Shah Bano judgment is well-known. First, an exasperated Supreme Court reminds the political class of the unfulfilled Article 44 in cases where iniquitous personal laws are used as cover for blatantly unjust practices. Second, the BJP - the only major party to be officially committed to a uniform civil code - cites the court judgment to press a political point. This in turn propels the 'secular forces' to respond that the time is inopportune and that the demand for change must come from 'within' the religious communities.
Finally, the secularists are complemented by theological bodies such as the Muslim Personal Law Board that asserts the separate personal laws are a badge of religious identity and cannot be compromised. Syed Shahabuddin, for example, was honest enough to write in 2002 that Muslim Indians will "not accept a trade-off between identity and development".
The latest debate - which followed a Supreme Court judgment on a matter of succession involving Christians - has witnessed a new twist to the tale. The theological bodies have, by and large, abstained from what appears to be a one-sided battle against Chief Justice V.N. Khare's espousal of 'national integration'. Leading the charge against a uniform civil code are stalwarts of the liberal-secularist establishment. Today, they constitute the new praetorian guard of the religious orthodoxy and separatists.
The new arguments proffered against any attempt to legislate a uniform civil code combine the worst facets of political correctness and electoral expediency. Packaged in the language of trendy sociology, they prescribe the institutionalisation of a minority political veto to derail the emergence of a composite, modern Indian identity. Like the Islamist terrorists who found unlikely allies in the peaceniks in the western democracies, the backward-looking custodians of minority ghettos have been conferred respectability by the liberal-secularist establishment. Bodies like the Muslim Personal Law Board don't need to react; their job is being more effectively done by those who flaunt the tag of progressive, non-sectarian politics.
To begin with, the goal of national integration that motivated the stalwarts of the Constituent Assembly into wishing a uniform civil code has been peremptorily contested. Under the cover of promoting diversity, the crucial distinction between rituals and rights has been submerged. Uniformity and, by implication, equality in the eyes of law has been sought to be equated with common cultural practices. This is a specious and alarmist argument and about as ridiculous as the belief that membership of the WTO will make the consumption of hamburgers obligatory for Indians.
A uniform civil code will not undermine a marriage solemnised in a mosque or before a maulvi. It will merely ensure that any possible separation and future inheritance will be governed by the same laws as applicable to those who got married in a temple or - as a latest fad suggests - underwater. In short, a uniform civil code will ensure that laws are secularised and made pan-Indian.
Secondly, a uniform civil code has been opposed on the ground that the timing is inopportune. It has been held, particularly by the Left, that in an environment of Hindu-Muslim polarisation on issues such as Ayodhya and the Gujarat riots, the minorities will be loath to accept any initiative of a BJP-led government in good faith. The implication is that the principle of justice for all has to await a day minorities feel secure and get a government they desire, not one resulting from a collective choice of all communities.
This is a dangerous argument and suggests a total contempt for the ground rules of democracy. Imagine the outcry if some saffron-robed sadhu declared his unwillingness to obey a law in West Bengal because it was enacted by a party of unbelievers. Yet, this brazen declaration of apartheid - in effect, it questions the legitimacy of a democratically-elected government - has been meekly stomached. It is this pusillanimity of India's liberal-secularist elite that emboldened the Muslim League's G.M. Banatwala to move a private member's bill in the Lok Sabha on July 25 seeking separate electorates for minorities. Though visibly embarrassed, the 'secular parties' shied away from attacking the divisive proposal frontally.
Finally, it has been suggested that the issue is essentially one of ensuring gender justice, a problem that affects all communities in India. Therefore, rather than attempt something that fails to pass political muster, it would be prudent to focus energies on securing women's rights in all the separate personal laws.
On the face of it, this seems a compelling argument, one which addresses the central issue of equity and justice without getting embroiled in the sloganeering that accompanies a uniform code proposal. Taking heart from recent court judgments, legal experts believe that by a process of creeping encroachment the provisions of Articles 13, 14 and 21 can be used to mitigate some of the more antediluvian features of the different personal laws.
The problem with this well-meaning gradualist approach is that it skirts the key reason why India needs a uniform civil code. It is indeed possible that judicial intervention will ensure more equitable treatment for the vast majority of Indian women who happen to come under the sway of Hindu, Christian and Parsi personal laws. Despite odd imperfections - and an unwarranted tax haven provided by the Hindu Undivided Family cover - these laws correspond to modern norms and prevailing standards of ethics. The Christian and Parsi personal laws have only recently been updated following a wide process of consultation involving both clergy and laity.
Tragically, no such changes have taken place in Muslim personal laws. Ever since the Muslim League negotiated the 1937 Shariat Act to forge a political community to act as a counterweight to the Congress, Muslim personal laws have remained by and large frozen in time. Even the codification that was promised during the passage of Rajiv Gandhi's Muslim Women's Bill of 1986 has never been seriously attempted. Nor for that matter has there been any sustained initiative by India's lawmakers to address the disabilities of Muslim women that flow from the provisions of poly-gamy, triple talaq and maintenance.
The Waqf Boards which have responsibility for destitute Muslim women beyond the 100-day iddat period have, for example, never bothered to address the problem, despite an abundance of resources. Instead, a self-perpetuating Muslim Personal Law Board (created in 1972 by the Deobandi ulema) has used the regressive laws to foster backwardness and emotional separatism.
The 'gender issue' in abstraction is a red herring in the uniform civil code debate. At the core is a problem of Muslims, particularly Muslim women. The Muslim personal laws that operate in India violate the tenets of human rights and justice. They are not laws that impact on the ritual practices and core beliefs of the faith - many Muslim countries have enacted progressive legislation which hardly makes their citizens guilty of apostasy. This blot on Indian jurisprudence has to be removed.
Yet, the political numbers game argues against the possibility of a uniform code being enacted in the short-term. Is that an excuse for doing nothing and allowing a caricature of Muslim intransigence becoming bazaar wisdom? It's time the BJP recognises that the road to the fulfilment of Article 44 will be marked by temporary halts. The first objective of the government should be giving the hapless Muslim women immediate relief. That involves amending the existing gamut of personal laws - including outlawing polygamy and peremptory divorce - to bring them on par with the Special Marriages Act.
The problem of separateness will not be addressed but at least a measure of equality and justice will have been guaranteed. Such legislation will be in keeping with the spirit, if not the letter, of the Constitution's Directive Principles.
The liberal-secularist classes have
spouted progressive rhetoric, even as they play retainer to those who ensure
bloc votes during elections. It is time their bluff was called.