Swami Agnivesh & Rev. Valson Thampu

The proof that one is genuinely keen to bring about change is the willingness to pave the way for its informed and voluntary adoption by the people.

The need to prepare the way to accompany the desired changes in taste andoutlook is well understood and widely practiced in various spheres of life.  A consumer product, for instance, is advertised in advance so as to set a favourable stage for its entry in the market. Pre-election populist measures are initiated to pave the way for electoral victory. Socially, the way to unmerited favours is paved through flattery.  Such instances are multiple.

Arguably, the same needs to be done with respect to the Constitutional mandateto "secure for all citizens a Uniform Civil Code". However, this needs to be done only if we are serious about it. In this context, there are at least two crucial issues that need to be addressed upfront. First, enunciating and implementing a Uniform Civil Code,  is not the essential constitutional mandate.  The constitutional mandate is the creation of a just, egalitarian and modern society free from discrimination. The UCC is only one of the instruments to attain this goal.  The obsession with means, said Albert Einstein, to the neglect of the ends is the malady of modern times.

We must ensure that we do not repeat this mistake vis-à-vis the UCC. We cannot afford to mistake the means for the ends. The goal of evolving and implementing a Uniform Code must be seen, from the beginning, as an integral part of a renewed and passionate commitment to create a just and egalitarian society.

The keenness to midwife a UCC should be separated from the matching concern to make justice available to all without fear or favour in order to avoid or aggravate anxieties and communal fissures. Sadly, the larger ambience in which Justice Khare made his observation includes events like the post-Godhra riots and the controversial acquittal of the accused in the Best Bakery Case. Instances of State-countenanced discrimination appear to be on the rise and this is the case not only in Gujarat. Muslims all over the country are losing faith in the system. It is no comfort for the victims to hear from judges, as in the instance of the Best Bakery Case- that they are manning "courts of evidence" and not "courts of justice".

If the UCC discourse is divorced from an uncompromising commitment to uphold the rule of law, it cannot expect to receive voluntary acceptance either by minorities or by fair-minded people.
The second serious issue is that of the fallacy, acute especially in the Muslim context, of constructing religious identity almost exclusively on the pillars of personal laws.

 The over-reaction to the prospect of a UCC is based on the anxiety that any reform in personal laws will undermine Muslim identity, which is felt or feared to be already under siege. This is a serious mistake. For all practical purposes, the contentious issues in this respect are: polygamy, triple talaq (or easy divorce for men) and the refusal to pay adequate maintenance to divorced women, degrading them into unavoidable destitution. For any Muslim to assume, much less argue, that these unjust practices are basic to the "profession and practice" of Islam is to insult and caricature that great faith. This has already done enormous harm and there is no virtue in persisting with this mistake.

It is always possible to invoke some scriptural text or precedence to roadblock reform. Take the case of polygamy. Given the limitless practices of polygamy at the time of the Prophet (PBUH) and countless war widows, it was a piece of progressive reform on his part to permit up to four wives per husband. It is unfair and dishonest to turn an instance of reform then, into an argument against reform now.

If the Prophet were to legislate today on the matter, assuredly his verdict would have been vehemently in favour of monogamy.   In any case, monogamy rather than polygamy is the norm in the  Indian Muslim community today. Only 5.2% of Muslim men have two or more wives. The corresponding figures as per official statistics for tribal  communities, scheduled castes and high caste Hindus are: 14%, 9% and 5.8% respectively. Justice is one of the cornerstones of Islam; and a patently  unjust and discriminatory provision like polygamy must be seen as a blot on that faith, especially because Muslim personal laws disallow polyandry.  

The core issue that emerges from this scenario is the extent to which the scriptures and traditions of any religion should be allowed to thwart values   and goals embedded in the Constitution in a secular and multi-religious society like ours. In a secular society, no religious community should be  granted the right to pit its regressive and esoteric practices against  Constitutional mandates.

All religious communities must voluntarily agree to uphold and adjust to the universal values embedded in the Constitution. It is imperative for all religious communities to imbibe a national consciousness. In a secular and multi-religious polity, religious communities need to harmonize two loyalties: the commitment to their religious traditions and the duty to abide by the prescriptions and duties laid out in the Constitution.

In case of any conflict between the two, the Constitutional mandate must take precedence over the former in matters pertaining to issues of public significance. No religious community can claim that injustice and gender-based discrimination are so basic to its identity that they must be perpetuated at the expense of the unity and integrity of the country.  Such esoteric elements as there might be in areligious tradition are best confined to the private realm and not unleashed  into the public space.

To convince the religious minorities in India of their duty to embrace the value of national integration we must attend to two basic realities. First,
the concern for and commitment to national integration has been weakening steadily over the last two decades.

 As a matter of fact, the words "national and integration" have gone out of circulation to the extent that it is not heard even in hypocritical political rhetoric these days. Every party, national or regional, every group, religious or otherwise, and every network is busy building its own constituency. Allied to this is the fact that, while we have plenty of politicians, we have hardly any statesmen who truly believe in national integration.

Second, communal forces that are out to divide and deceive the people are ascendant and assertive everywhere. You can't tell the religious minorities that they do not belong here, that they should return to the countries of their origin or that they are here on the sufferance of the majority community, and expect them to jump on to the UCC bandwagon for the sake of national integration.

This is not to argue against the need to give legislative effect to the  Constitutional mandate set out in Article 44, but only to insist that this
sensitive task be carried out with due preparation. Surely, part of that preparation is asserting the rule of law uniformly and uncompromisingly.

 The perpetrators of communal aggression, intimidation and blackmail must be reined in, no matter who they are. It is dishonest to argue that the only roadblock to the UCC is Muslim fundamentalism.

Given the deep thirst of the majority of Muslim women for equality and justice, Muslim fundamentalists will be swept aside if they are not aided and abetted by their collaborators in the Hindutva camp.  An all-out effort to reassure especially the Muslim community that their human and constitutional rights will be protected at  all costs need to be made. The proponents of Hindu rashtra must not be
allowed a free run to fly in the face of the Constitution and the mores of a  modern and civilized society.

Securing a Uniform Civil Code for all citizens is in short, far more than a technical legislative exercise. It must be seen as a mandate to recommit ourselves to the egalitarian and integrative vision of the Indian Constitution, lest UCC turns out to be the Trojan horse
of cultural homogenization.