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Anshul is a Political Science and Law graduate from the University of Delhi. He is interested in political, legal and policy developments and frequently writes on related themes. You can contact him on anshulkumarpandey [at] gmail [dot] com.

Wednesday, December 14, 2016

Debating UCC - Nehruvian Secularism and the Uniform Civil Code

(Above) Painting titled 'The Language of Stone' by M.F. Hussain

Part I of a series of articles on the Uniform Civil Code.

Among the principles dear to Nehru, it is Secularism that has come under attack most sharply in recent memory. The Socialist economic policy - or rather the mainframe of it - was abandoned when the Narsimha Rao government decided to open up the economy and unleash its 'animal spirits' in 1991. The gaze has now turned to Secularism, in fact, the skeleton of Nehruvian Secularism that has remained with the passage of subsequent governments. It is important, at the outset, to keep in mind the fact that Secularism as a policy was pursued by the Congress, not Nehru alone, as a counter to Jinnah's two nation theory. The Congress leadership had failed to avoid the partition of the country and they were determined to see that Jinnah did not have the last laugh, which he would if the administration of India was organized on majoritarian lines.

It was then that the subtext of Indian secularism became affording special protection and opportunities to the minorities. With subsequent Congress governments, the original sense of Nehruvian Secularism was lost and this subtext overshadowed the principle headline itself.

To Nehru it was clear that the minorities of the country could not be afforded special protection or any other protection unless the hostilities between the two main communities - Hindus and Muslims - ceased to exist. An atmosphere of communal harmony had to prevail if the country was to focus its attention on more pressing matters such as development of industries, employment and economic growth rather than trifling diversions such as religion.

Hindus and Muslims had started to view each other with suspicion under the British rule, which was the handiwork of the British divide and rule policy at play. After the revolt of 1857, the English government came to view Hindu Muslim unity as a key stumbling block to its rule and moved quickly to exacerbate religious differences and tensions between the two.

Muslims came to view Hindus as idolaters and a social and political threat to their prosperity as the latter outnumbered them. Hindus came to view Muslims as foreigners and beef eaters who had subjugated them in the past and who created the fertile ground for the English to take over. As the Indian national movement under the leadership of the Congress gathered steam, riots increased, distrust grew and finally the Muslim League emerged out of the shadows with its vitriolic agenda to translate the basest of Muslim political desires into a movement for separate nationhood.

It was this two-nation theory that Secularism aimed to counter. In Nehru’s mind, the two nation theory constituted the apotheosis of the British divide and rule policy and it was to be countered by showing the world that co-religionists are not necessarily the best of countrymen. 

Religion- or rather - practical religion, with all its rituals and superstition and folklore, never attracted him. He was more interested in its aesthetic and philosophical aspects. He had a vast knowledge of India's ancient past as was made clear by his rambling ode to his country - The Discovery of India. Perhaps he had come to view religion as a primitive and man-made phenomenon which would evaporate as the human race became wiser and more rational. The Scientist and Atheist Richard Dawkins quotes him approvingly from his autobiography in his book 'The God Delusion'.

But there was a catch. The Western concept of Secularism advocated a complete separation of the Church and the State, at least theoretically if not in practice. It was not possible for a multi-religious country like India to organize administration and policies that would remain insulated from religion. In fact, the leader of the Indian national movement and the father of the nation Mahatma Gandhi was himself a deeply religious man. He had been able to wield such a power over the masses not because of his image as a politician, but because he was perceived as a saint. Even if the Congress was able to devise such policies and put such administration in place, there was an obstacle they wouldn't be able to overcome: the people who would be responsible for overseeing administrative affairs and implementing policies would themselves be deeply religious men and women; if not all then the majority of them at least.

It was with these thoughts that the Indian version of Secularism was born. The Nobel laureate Amartya Sen in his book The Argumentative Indian calls it 'neutrality'. Instead of it being equidistant from all religions, the state would be equally close to all of them and would not take sides i.e. it would remain neutral and would come to a conclusion with national interest in mind in cases of conflict.

But what constituted National Interest? In the context of matters divine it certainly meant that people were free to follow any religion they liked. They could worship any god - with or without an idol - without any fear and could also convert if their preferred deity was not answering their calls. But no such religion would play any part where the law was concerned - except, in some cases, in the private sphere. The rule of law was to apply on everyone equally and in the eyes of the judge the quantum of punishment was not to increase or decrease on account of one's religion. Religion was to play a part in national integration and the state was to keep a watch and intervene when it promoted division instead of cohesion.

This justification of Secularism as safeguarding national interest and promoting national integration lost its sheen when the personal laws relating to Hindus, Sikhs, Jains, Buddhists and Christians were codified under a slew of legislation and polygamy was abolished while the Muslims were allowed to practice polygamy and the law relating to marriages, adoption and inheritance according to their scriptures.

In the aftermath of the horrific partition riots and the general hostility that Muslims had to encounter in the Indian society, it seemed that the Nehru government was bending over backwards in this area to afford them 'special protection'. The line between 'protection' and 'appeasement' seemed blurred and it was completely wiped out by the time Congress lost power and was reduced to its lowest tally since independence in May, 2014. The reluctance to impose a Uniform Civil Code revealed a chink in Secularism's moral armor and in subsequent battles with majoritarianism it was exploited to the hilt.
“We have passed one or two laws recently and we are considering one … in regard to Hindu marriage and divorce … These are personal ingrained in custom, habit and religion … Now we do not dare to touch the Muslims because they are a minority and we do not want the Hindu majority to do it. These are personal laws and so will remain for the Muslims until they want to change them … We do not wish to create the impression that we are forcing any particular thing in regard to Muslims’ personal laws.” - Speech by Jawaharlal Nehru, Reproduced in Six Thousand Days: Jawaharlal Nehru, Prime Minister by Amiya Rao and B.G.Rao
In hindsight, it is clear that Nehru and the Congress leadership committed a big mistake by not enacting the Uniform Civil Code. He believed that the time was not right for such a legislation. However, I disagree. I believe that only the first generation post-independence Congress leadership had the stature and the mettle to enact such a code without being accused of majoritarian bias. They had stellar secular credentials, long history of fighting for the freedom of the nation which raised their stature and the requisite political will to forge a national consensus on the issue.

Hindus had a harsh critic and social reformer in the form of Dr. B. R. Ambedkar, the champion of the lower castes, an intellectual par excellence and the main architect of the Indian constitution. Ambedkar resigned from Nehru's cabinet because his version of the Hindu Code Bill was stalled in the lower house of the Parliament. Nevertheless, Nehru made the passage of a diluted Hindu Code Bill as his poll plank in Independent India's first General Elections held in 1952 and entered the parliament with a thumping mandate to do so. The Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act were passed between 1955 and 1956, thus codifying the personal laws of Hindus, Jains, Buddhists, Sikhs and Christians. The Special Marriage Act, which provided for inter-caste and inter-religious marriages, had already been passed in 1954. Only Muslims were allowed to regulate the system of marriage, divorce, inheritance etc. according to their scriptures. This, in my view, was a great mistake.