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Uniform Civil Code – a violation of a human being’s basic freedom

Sanjeev Sabhlok Nov 2004

(this is a compilation from my various e-mails of 2003)

 

The basic liberal principle

A good starting point in this debate is the principle that strongly circumscribes the role of government in matters relating to the family (which includes religious and cultural choice without which there is really no unique individual, and no individual identity), except in the rarest of circumstances. If I cannot choose my religion, my culture, and my way of life, then what is the point of existence? I understand the negotiated limitations and obligations of economic transactions including marriage but these I must negotiate myself, or I must choose to leave these to my elders, either my religious elders or my parents. I cannot have a government define my marriage for me – unless I voluntarily choose to give it that privilege.

 

The government should therefore leave religion completely alone.  Leaving it alone implies a positive regard or at least neutrality toward all religions. That is basic secularism. Creating religious laws is not secularism or freedom but the anti-thesis of secularism and freedom.

 

State laws on religion promote bigotry

Religions tend to evolve if left alone by the state. Hinduism for instance has evolved in 100s of different directions over the centuries. Left to itself, there is a fair chance of its evolution into various forms including extinction. By creating Hindu laws, Nehru has effectively made a Hinduism permanent religion – frozen into a particular form and shape that may not be representative of its evolution. Nehru, who himself abhorred religion, needlessly set up barriers to competition against a particular form of Hinduism from other religions including different branches of Hinduism that may have opted for various alternative forms of marriage, for instance. As usual, all effective monopolies are always created by government.

 

Indeed, far from their original position which was relatively conservative and libertarian, the RSS and BJP have moved into demanding that just because their religion has been converted into a law, other religions must therefore be similarly circumscribed.

 

The original position of the RSS is clear from the book The RSS Story by K. R. Malkani which states that "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’."

 

In any case we cannot ever put national integration, as visualized by a particular group of people, above the basic principles of freedom that we fought for and won. We must be free to live as what we are or become, not what others coerce us to be.

 

By enacting laws to control religion, the state can only promote bigotry and give license to our whims and fancies with regard to control of basic religious and cultural choices of other people. We seek to control others – is that acceptable under a free society?

 

Preventing barbarism

A liberal can be a bit of an activist in some cases, though, in terms of resisting practices that are deemed barbaric by that individual. Freedom does not mean anarchy or murder. A society may require prohibitions to certain barbaric behaviour, for instance, prohibitions on sati, child marriage, bigamy or headhunting (as in the case of Nagas), that limit choice in the interest of setting a minimum standard of civilised behaviour. A society may also require certain minimum reasonable standards to be met in terms of succession, to ensure that the rights of women and children are appropriately looked after.

 

We need to make note of the fact that without the support of Indian liberals like Raja Ram Mohan Roy, sati may not have been abolished. In fact, the common liberal (including British) view at that time was that it is for the Hindu society to generate the required change. It is only the activism of Ram Mohan Roy that provided the political support for the eradication of sati. A purely libertarian view would still support the Hindu society deciding on abolishing this evil on its own without the intervention of government: we need to keep in mind that under such a policy, sati might still have been practised today is a matter of routine.

 

A solution to the statist demand for UCC

Instead of a UCC which violates our basic freedoms as individuals and citizens, and instead of letting governments create monopolies of certain religions, we should seek the abolition of the Hindu laws which were an infringement by the State into our purely personal matters, and simply have a Uniform Prohibitions Act instead, that encapsulates all prohibitions the society believes are necessary, along with appropriate punishments. These prohibitions can be discussed.

 

In addition, on the lines of the Special Marriages Act (under which I am married), there can be an option for those who so wish, to register their marriage or seek the rules of succession set by the government.  In other words, citizens would be born and deemed to live  priori under their own system of faith; but they could, if they wished, look for a voluntary secular system for regulating their personal affairs.

 

a) bigamy

For instance, after discussion if we do not agree as a society to enforce monogamy, then the situation could revert to a pre-1950's status where a larger percentage (though still very small) of Hindu men had more than one wife than the Muslims.

 

If discussion led to a view that bigamy is barbaric, India could, through the government, prohibit this activity across the entire country under the Uniform Prohibitions Act. Hindus have already come to accept this change in their ancient cultural practice as a consequence of Nehru's intervention in the Hindu.

 

To leave it to the natural evolution of the Islamic religion through encouragement of moderate voice to prohibit bigamy may mean that we may have to wait many decades if not centuries, into the future. Is that a good outcome? I believe that it would be compatible with liberalism for the law to abolish bigamy after a suitable and reasonable discussion, even though my inclinations are towards letting the Islamic society arrive at its own evolution. We could do this in the light of other Islamic societies which have done so, eg. Turkey.

 

b) succession

As stated above, a society may also require certain minimum reasonable standards to be met in terms of succession, to ensure that the rights of women and children are appropriately looked after.