It’s a false dichotomy arising from widespread misunderstanding of what liberalism, and secularism, truly means.
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He writes, “If a pan-India UCC happens, secular liberals have to decide: do they oppose it because it comes from the BJP? Or do they uphold their principles?”
This is a false dichotomy that arises from widespread misunderstanding of what liberalism is and what true secularism implies. It is perfectly possible for the liberal movement in India to believe in the secular state and to oppose an illiberal and majoritarian UCC. It will depend on what exactly the BJP government proposes to include in a UCC. The devil will be in the details.
Let’s start at the beginning.
A Uniform Civil Code is a set of laws that covers areas of personal and family life, such as marriage, divorce, inheritance, adoption and worship. It is uniform because it would apply to everyone regardless of class, caste, religion or other personal attributes such as gender or sexual orientation. It is a complex issue, complicated further in India by diverse views and traditions from all communities, as explained in this essay by Soutik Biswas for the BBC.
The first thing to understand is that a UCC does not necessarily have to supersede or be exclusionary of other rules, customs and practices by which citizens might choose to order their personal and family lives.
There will be choices to make. Laws can be permissive, prohibitory or mandatory. For example, a law that, in effect, says “sex between members of the same gender is okay” would be a permissive law. It decriminalises gay sex but does not force it on anyone.
On the other hand, a law that says “the taking of a bribe by a public official is an offence” clearly prohibits a certain activity. And a good example of a mandatory law is one that says “you must have a valid driving licence to legally drive a car”.
Next, what do we mean by secularism?
Surprisingly, many Indians, even those among the “liberal left”, misunderstand the true meaning of secularism. But first, it is important to understand that the secular ideal applies not to individual citizens but rather to the state and how it makes laws and policies and how it carries out its administrative duties under the constitution.
So, to speak of “secular liberals” is nonsense, unless we mean liberals who believe in the secular state. As a “secular liberal” myself, I am quite at liberty to practise my faith, or not have any faith, or to change my beliefs without either needing approval from the state or being in any way stopped by it.
Believing in the ideal of a secular state does not mean being irreligious or anti-religion. Nor does it mean treating all religions equally. As a good citizen, I am required not to discriminate unfairly between citizens but I am quite at liberty not to treat all religions equally – that would be quite impossible.
Secularism is where the state applies and practises three fundamental principles. To quote directly and fully from the National Secular Society – and I must disclose that I am a member of this society – these principles are:
1. Separation of religious institutions from state institutions and a public sphere where religion may participate, but not dominate.
2. Freedom to practise one's faith or belief without harming others, or to change it or not have one, according to one's own conscience.
3. Equality so that our religious beliefs or lack of them doesn't put any of us at an advantage or a disadvantage.
These principles make secularism the essential foundation on which our freedoms and liberties are built. They put individual choice in matters of personal lifestyle above the stranglehold of organised religion.
Secularism is neither for nor against religion in general; it is neither for nor against any religion in particular. Secularism guarantees the practice by citizens of any religion of their choice or of no religion at all – so long as such practice does not harm another citizen. Even if all, 100 percent, of citizens belonged to just one religion, whatever it is, citizens would still benefit if it were a secular state. This might sound paradoxical but it’s true, for the opposite would be a theocracy and no theocracy promotes individual free choice. The men in charge of every religion are by their very nature wedded to the ideas of control, coercion and compulsion.
It is a nuanced idea better explained in this video. Far too many Indians do themselves no favours by reducing the secular ideal to a debate about equality of religions.
So, how is it possible for legislation under a truly secular state to promote individual free choice and guarantee freedom to practise one’s faith as one sees fit? This is where a nuanced understanding of the intersection between secularism and the Uniform Civil Code helps to declutter the confusion.
Under the secular ideal, the UCC would be a permissive law – neither prohibitory nor mandatory. It would offer a new and secular – meaning free from what has been prescribed by religion – choice that would be available to everyone, regardless of gender, class, caste, sexual orientation or disability. That choice, when exercised, would countermand any attempt by the leaders of any organised religion to dictate to the citizen.
Consider marriage as an example. The UCC could quite plausibly make rules that would allow and recognise as legally valid any marriage between two persons that involved a minimum of process – for example, nothing more than an exchange of vows before a registrar of marriages in a civil ceremony. What the couple did before or after the ceremony – such as participating in a ceremony of this or that religion – is entirely their affair and of no concern to the UCC or, indeed, to anyone else.
Thus a UCC would permit same-sex unions as well as inter-caste or inter-faith unions, while permitting whatever elaborate religious rituals, or none at all, before or after the minimalist civil ceremony.
Such a code would necessarily have to afford the full protection of the law to citizens who choose to opt for its provisions. Hence the law on marriage under a UCC would also make it a criminal offence to obstruct, or thwart, the exercise by citizens of the freedoms afforded by the code. It would automatically render null and void repugnant “love jihad” laws.
Which brings us to present-day India.
The Hindu Right gets all hot under the collar about the fact that Muslim law allows a man to have four wives, though very few Muslim men actually have more than one. Equally, some Hindu communities practise polygamy, though it is technically illegal.
It is possible for a UCC to discourage such practices by simply not recognising such marriages as legally valid for purposes of pension and inheritance rights under intestacy. But it should stop short of criminalising them because that would serve no useful social purpose. The law under a UCC would regard polygamy as no different than a married man with one or more “mistresses”, so to speak, where an aggrieved spouse under both situations would have recourse to the provisions for divorce that may be made under a code.
Vir Sanghvi’s fear is entirely without basis that “disgusted” by “Hindu triumphalism”, liberals will “forget their own secularism and liberalism and oppose a Uniform Civil Code”. It depends on the specific provisions that will be included in any UCC bill brought before the parliament. Liberals will be at the frontline championing such a bill if it sets out a range of permissive laws that seek to promote free choice by individuals, and protects those individuals who seek to exercise their freedoms under the code by criminalising acts of coercion and obstruction.
If, on the other hand, the UCC is used as a tool of coercion to enforce regressive, upper-caste Hindu cultural and religious practices on everybody in the country, then there will almost certainly be a wide coalition of protest against it. And liberals of all stripes would be at the frontline of that protest too, because such a law would be totally illiberal and neither secular nor progressive. It would be just another instance of the brute majoritarianism and Muslim hate that we have come to expect from this government.
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