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]
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.