Given its intimate relationship amongst religious injunctions, practices and beliefs of communities, any discussion on streamlining these laws into a single codified secular legislation is fraught with risks. Some see it as an imposition of majoritarian hegemony on the minority community(which currently follows its own personal laws),others see it as an act of wanton destruction of traditional and religious identities, that were nurtured and preserved by the communities from time immemorial.
This debate takes us to the heart of the matter: should traditional and religious practices how soever regressive and archaic, be accommodated at any cost?” It also takes us to deeper question on nationhood itself. Should a national identity be a mere agglomeration of religious practices of various communities or can the nation have a distinct identity of its own which is secular, progressive and modern to which various communities make small sacrifices so that the nation’s constitutional mandate is achieved and a just and fair social order is established?
Any answer to these questions is fraught with risks. The risk of status quo versus the risk of perceived state authoritarianism by members of the minority community. Some say it is for minority community to decide for itself what it really wants and uniform civil code must not be established. However, the framers of Indian Constitution were convinced that certain amount of modernization is required if the overarching goal of our constitution, Equality and Fraternity for all, especially to the women, is to be achieved.
The Story of the Hindu Code Bills
Consider another debate that happened in the late 1940s. The debate was on Hindu Code Bills. Ambedkar had introduced the Hindu Code Bills in the Parliament. The Hindu Code Bills were arguably the most radical and the most egalitarian piece of legislation of its time. These set of legislations on marriage, succession and adoption sought to override the authority of various traditional practices and religious texts to bring radical social change in the society. For the first time the Hindu Code Bills sought to give the right of divorce to the Hindu women.
Under the traditional Hindu law, marriage was a religious sacrament and an indissoluble union. Under Hindu Code Bills, a women would be free to divorce her husband at will and would suddenly become the master of her own destiny, the captain of her own fate. A radical social order was about to herald.
Ambedkar had earlier observed: “political democracy without social democracy has no meaning,” and in pursuit of this lofty ambition of gender equality, he decided to stake all. He along with Nehru sought to irretrievably alter the social tapestry of a largely Hindu nation with a civilisation that dated back to 5000 years.
However, this notion of equality did not go down well with many. Large protests were held not only by the religious supremacists but also from the members of Congress party. Large rallies were held against the bills. Numerous organisations were formed to lobby to defeat the bills and massive amounts of literature were distributed stating that the Hindu civilization was about to end forever. The critics argued that divorce by women was against Hinduism because the marriage is not a contract but a religious union. The protestors argued that if equal property rights were to be given to women, the concept of a joint family would crumble and so would the foundations of Hindu society.
While the Hindu Code Bills would be defeated, Nehru in 1956 passed the Hindu Marriage Act and other legislations like Hindu Succession Act thereby putting an end the right of Hindu man to have unlimited wives and gave legal right of divorce and property rights to the Hindu women.
One may rightfully ask if the Hindu man can sacrifice the right to unlimited wives after 1955 and agree to share property with their wives in pursuit of a unified national identity and constitutional mandate, then perhaps the minority community can also consider accepting the Uniform Civil Code which ushers a new era of gender justice for women of the minority community. And to those critics who claim that there would be large scale opposition to the Code, it must be said that minority community of today is far more participative in nation building than the Hindu community when Hindu Code Bills were to be passed.