Thoughts on economics and liberty

We need uniform civil law, not uniform civil code

Article 44 of the Constitution states, ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’.

One may well ask, ‘What is wrong with this innocuous statement?’. To keep the record straight, we first note that the subject under discussion is not about civil law. We already have a consistent framework for such matters. It is about a civil code. But what exactly is a civil code? It turns out that it is all about personal law. Civil code is ‘code’ for ‘matrimonial matters, guardianship, adoption, succession, and religious institutions’.[i] Even before we think further about it, this must raise a red flag. Personal law is surely a dangerous thing to demand uniformity about in a free society.
 
An individual’s choice of a religion, if any, and actions taken by that individual to manage the journeys of his or her soul as part of the requirements of that religion, is surely a purely personal matter. Among related matters, marriage as a religious sacrament is clearly a human relationship in which, unless a very good case can be made for it, the state has absolutely no business to intervene. The government’s role of providing justice relates largely to damages we cause by commercial improprieties and criminal actions. We do not want a government peeking inside our family unit without either a commercial impropriety being involved or a criminal action. In any event, we don’t need a government to tell us how to marry for the institution of marriage predates modern government by fifty thousand years or more. On the other hand, I agree with the Supreme Court which said on 14 February 2006 that registration of marriages must be made compulsory. Registration of a marriage would be a public record of the facts, including which type of marriage was performed. Registration does not lead to uniformity.
 
All societies have developed their norms of marriage, including relevant principles of accountability. These principles of accountability are often designed to balance the economic liabilities of the two families or communities that come together through the marriage. There is no uniquely ‘correct’ way to bring these liabilities together; plenty of flexibility and scope for negotiation exists. These accountabilities are largely a creature of convenience and consensus within the boundaries of particular religions or social structures. It cannot be up to a government to decide which mode of consensus is appropriate for an entire segment of society. In general, therefore, I should be in a position as a free citizen to negotiate suitable agreements in a marriage which would then bind, explicitly or implicitly, all parties in the relationship. As long as a group of free people ‘self-regulate’ in this manner, and accept a particular norm for balancing their liabilities, no outsider, including the government, can have cause to get involved. 
 
Many social norms relate to matters on which for a government to legislate will make it look silly. For instance, we cannot legislate the level of affection that must exist between husbands and wives, equally as we cannot legislate that a father must invariably provide for an equal bequest to all his children, irrespective of the care and effort that the children took of their parents when they were alive, or irrespective of the obligations enjoined in the parent’s religion. These are matters of personal judgement and belief. The state cannot have a role in these matters.
 
Indeed, if I am not free to choose my religion, my culture and my own way of life, I would question the point of my existence itself. We must be free to live, and to be what we want to be, not what the state coerces us into becoming. A free citizen must be free to choose from among an array of competing suppliers of marriage laws, religions and cultures; just as the citizen is free to choose between different brands of shampoo. A state can legislate minimum standards for shampoos to prevent people from putting in poisonous ingredients, but it cannot tell us which shampoo to buy or how to shampoo our hair. And we must also remain free to use our home-made shampoo as well.
 
This freedom implies that those who are not satisfied with the traditional norms of existing social groups must always be free to explore and adopt, or to create alternative norms. As a feeble example, I should be able to choose to marry under the Special Marriage Act(which is what I chose for my marriage) if I do not subscribe to any religious practice (which I don’t). But more generally, I should be free to create my own rules of accountability for marriage. A marriage contract that meets socially acceptable minimum standards should be equally binding as any religious or other form or marriage.
 
We must be very sceptical of attempts to impose a mythical ‘best’ way on us to marry or
to pass on our inheritance. The free society’s government does not standardize things merely because it can do so. Uniformity among personal laws is not a virtue but an unwarranted imposition,just as demanding uniformity among various brands of shampoo is not a virtue. This ‘hands-off’ approach may appear to allow for continuation of problematic things like dowry, but that is not how it will play out. Madhu Kishwar has demonstrated that dowry is often used as a way to prevent the equitable transfer of inheritance to daughters. Therefore a system without dowry but with equitable inheritance, which takes into account the extra costs incurred by sons (or daughters) in looking after the elderly parents, is a much fairer system. However, rather than having a government prescribe such a thing, I suggest that left to itself Hinduism will move on its own to a system without dowry but equitable inheritance, particularly as children get more educated. The point therefore is that people must be free to choose any appropriate norm they please on personal matters. We can’t have a government telling us what to do. On the other hand, if I were to harass someone for dowry, or cause a dowry death, then that would be a criminal matter to be dealt with under the usual criminal law. Either way, the message for the government is – stay away from uniformity or prescriptions in these matters, and let societies evolve their own understandings.
 
I have a feeling (I may be wrong) that Article 44 was introduced at the behest of some Hindus –not all of them – to compel conformity by Muslims to their evolving views on monogamy and succession. If that hunch is true, then it was an insidious imposition of majority rule; an example of mobocracy. Originally, some of the religious leaders, whose views BJP presumably now represents, opposed both the Hindu laws as well as the UCC. This RSS position is outlined by K R Malkani in his 1982 book, The RSS Story:
 
Shri Guruji [Golwalkar] went so far as to say that Muslim Law could continue separately, without being replaced by a Uniform Civil Law, as laid down in the Directive Principles of State Policy. When subsequently asked whether uniformity of law would not promote national integration, he said, ‘Not necessarily’.[ii]
 
The BJP should move away from a blind faith in uniformity and for the sake of uniformity think of the underlying issues. Article 44, being incompatible with freedom and democracy, must be scrapped.
 

[This is an extract from my book, Breaking Free of Nehru]


[i] Mitra, Subrata K, and Fischer, Alexander, ‘Sacred Laws and the Secular State: An Analytical Narrative of the Controversy over Personal Laws in India’, India Review, Vol. 1, No. 3, July 2002, pp.99–130.

[ii] Sikand, Yoginder, ‘Hindutva and the Dalit-Bahujans: Dangerous Portents’, 2004, [http://www.countercurrents.org/comm-sikand230204.htm].

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10 thoughts on “We need uniform civil law, not uniform civil code
  1. surendra bisht

    namaskar sanjeev ji.
    as you have differentiated between common civil law and common civil code, there must be acceptance to difference between common civil code and common code of conduct. when we demand common civil code , we are just demanding the modern civilized things like the age limit of marriage and not the the procedure of marriage rituals. it will be inhuman to allow someone to get married their children at the age below medical science permits in the name of religion. it is same to other related matters of civil code. please try to accommodate this view too.   

     
  2. surendra bisht

    namaskar sanjeev ji.
    as you have differentiated between common civil law and common civil code, there must be acceptance to difference between common civil code and common code of conduct. when we demand common civil code , we are just demanding the modern civilized things like the age limit of marriage and not the the procedure of marriage rituals. it will be inhuman to allow someone to get married their children at the age below medical science permits in the name of religion. it is same to other related matters of civil code. please try to accommodate this view too.   

     
  3. Sanjeev Sabhlok

    Dear Surendra

    I’ve clarified that the MINIMUM requirements below which a thing becomes a criminal act, should be clearly specified. After that let civil/criminal law take its normal course.

    E.g. The IPC should specify marriage below the age of 16/18 as a crime. That’s all you need.

    Thus, identify areas where the society should impose restrictions (in the interest of say, a child’s freedoms and development) and thereafter let people work out any way by which they comply with that low.

    Can you please specify what exactly are you “demanding” (e.g. you mention:we are just demanding the modern civilized things like the age limit of marriage.”)

    Let’s make a list and sort them out.

    Regards
    Sanjeev

     
  4. Sanjeev Sabhlok

    Dear Surendra

    I’ve clarified that the MINIMUM requirements below which a thing becomes a criminal act, should be clearly specified. After that let civil/criminal law take its normal course.

    E.g. The IPC should specify marriage below the age of 16/18 as a crime. That’s all you need.

    Thus, identify areas where the society should impose restrictions (in the interest of say, a child’s freedoms and development) and thereafter let people work out any way by which they comply with that low.

    Can you please specify what exactly are you “demanding” (e.g. you mention:we are just demanding the modern civilized things like the age limit of marriage.”)

    Let’s make a list and sort them out.

    Regards
    Sanjeev

     
  5. Palahalli

    Dear Sanjeev,
    I am broadly in agreement with your position vis a vis the Uniform Civil Code. I am against it on the basis of it being a Liberal agenda and therefore against Traditional social practices.
    Perhaps this is also why I feel you are not serious about the subject since you compare evolved Traditions which you also consider sacred and therefore very important to the society that practices them – to a commodity such as the shampoo and the free choice its variety accords to consumers.
    I think you make such an odious comparison because you stand on the premise of inalienable individual rights rather than the rights of the individual in conjunction with the responsibilities his position in society entails. When individuals exercise their rights without regard to their larger responsibilities to social order and balance, they will naturally need to view Traditions as so many varieties of shampoo. That's logical.
    It is also not clear how your run for free individual choice including viewing at least some Traditions as sacred (I wonder how sacred shampoos are) and beyond the reach of the State, meshes with the fact that there are Traditions that do not give quarter to free choice at all. In my opinion you either are for free choice in exercising Traditional rights (howsoever they rest on their respective societies) and against State intervention in the form of a UCC or you must support State intervention to moderate such practices that liberal modernity deems unacceptable.
    In all fairness you should address this dichotomy your stance throws up.
    Looking forward to your response.
     
    – Namaste

     
  6. Palahalli

    Dear Sanjeev,
    I am broadly in agreement with your position vis a vis the Uniform Civil Code. I am against it on the basis of it being a Liberal agenda and therefore against Traditional social practices.
    Perhaps this is also why I feel you are not serious about the subject since you compare evolved Traditions which you also consider sacred and therefore very important to the society that practices them – to a commodity such as the shampoo and the free choice its variety accords to consumers.
    I think you make such an odious comparison because you stand on the premise of inalienable individual rights rather than the rights of the individual in conjunction with the responsibilities his position in society entails. When individuals exercise their rights without regard to their larger responsibilities to social order and balance, they will naturally need to view Traditions as so many varieties of shampoo. That's logical.
    It is also not clear how your run for free individual choice including viewing at least some Traditions as sacred (I wonder how sacred shampoos are) and beyond the reach of the State, meshes with the fact that there are Traditions that do not give quarter to free choice at all. In my opinion you either are for free choice in exercising Traditional rights (howsoever they rest on their respective societies) and against State intervention in the form of a UCC or you must support State intervention to moderate such practices that liberal modernity deems unacceptable.
    In all fairness you should address this dichotomy your stance throws up.
    Looking forward to your response.
     
    – Namaste

     
  7. Sanjeev Sabhlok

    Dear Palahalli

    I can see what you are trying to get at: e.g. how can I, an advocate of free choice (subject to accountability) "permit" traditions that "do not give quarter to free choice".

    I think the point I'm making is much simpler and clearer, and there is no confusion possible when that point is understood. 

    This is NOT about choice. This is about ensuring COMMON MINIMUM STANDARDS that are common to everyone in society, because trespassing them would be violative of others' freedoms. Thus, slavery can be prohibited because it blocks someone's freedom. Similarly child labour can be prohibited. The duty to ensure the care of one's wife and children (in the case of men), must be part of this minimum standard.

    With regard to marriage, a minimum age can be established based on a scientific consensus on the development of children. Similarly, a mandatory requirement of choice must be afforded to adults agreeing to marry. 

    Thereafter, whether two ADULTs choose to marry or not becomes less problematic. All essential minimum standards having been met, the question of monogamy or polygamy becomes far less significant in determining freedom and prosperity in society. But even on that a society can agree to a minimum standard. Whatever that standard is, it should apply equally to everyone.

    My problem is that the Indian lawmakers have gone ahead and tinkered with SOME forms of marriage but not others. That is totally improper in a free society. Let the minimum standards be agreed and apply uniformly. And let lawmakers not impose their choices only on SOME people but not all.

    So if monogamy is NOT commonly agreed across society, then let registration of marriage, regardless of whether it is monogamy or polygamy be the minimum standard. DOUBLE standards can't apply. Only ONE standard.

    Regards

    Sanjeev

     
  8. Sanjeev Sabhlok

    Dear Palahalli

    I can see what you are trying to get at: e.g. how can I, an advocate of free choice (subject to accountability) "permit" traditions that "do not give quarter to free choice".

    I think the point I'm making is much simpler and clearer, and there is no confusion possible when that point is understood. 

    This is NOT about choice. This is about ensuring COMMON MINIMUM STANDARDS that are common to everyone in society, because trespassing them would be violative of others' freedoms. Thus, slavery can be prohibited because it blocks someone's freedom. Similarly child labour can be prohibited. The duty to ensure the care of one's wife and children (in the case of men), must be part of this minimum standard.

    With regard to marriage, a minimum age can be established based on a scientific consensus on the development of children. Similarly, a mandatory requirement of choice must be afforded to adults agreeing to marry. 

    Thereafter, whether two ADULTs choose to marry or not becomes less problematic. All essential minimum standards having been met, the question of monogamy or polygamy becomes far less significant in determining freedom and prosperity in society. But even on that a society can agree to a minimum standard. Whatever that standard is, it should apply equally to everyone.

    My problem is that the Indian lawmakers have gone ahead and tinkered with SOME forms of marriage but not others. That is totally improper in a free society. Let the minimum standards be agreed and apply uniformly. And let lawmakers not impose their choices only on SOME people but not all.

    So if monogamy is NOT commonly agreed across society, then let registration of marriage, regardless of whether it is monogamy or polygamy be the minimum standard. DOUBLE standards can't apply. Only ONE standard.

    Regards

    Sanjeev

     
  9. Harsha Matadhikari

    Dear Sanjeev,

    I think there should be uniform civil code that tells how the relationship between two partners should be to uphold individuals liberty, but nothing more than that.No marriage contracts also. Just as it has to put a blind eye to religion, it also has to put a blind eye to religion based marriage laws and further refrain from imposing additional laws by itself as well.

    Please find my comments on UCC here : http://wp.me/p4dlQc-1n

    Regards,
    Harsha

     
  10. Sanjeev Sabhlok

    Thanks. That’s more or less what I’m saying, a minimum standard of liberties for all. The registration of marriage is relevant for property disputes, etc. so people MAY wish to register.

    s

     
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