UCC: Don't look to the West, India has evolved its own way | Werner Menski

The Times of India

UCC: Don't look to the West, India has evolved its own way
Werner Menski | Updated: Sep 14, 2017, 10:00 IST

Discussions about a Uniform Civil Code in India have taught me one thing: those who seek a single 'right law' for a country of 1.3 billion people have simply lost the plot.

Neither the US nor the UK have uniform family laws. Eurocentric presumptions about value-neutral law have collapsed miserably in our time, which is increasingly dominated by a non-Western legal consciousness, and visions of being connected to something higher than state-made law.

Look around the world. Most countries have a personal law system, though some, like China and Japan, may not admit this. Muslim dominated Indonesia, Pakistan and Bangladesh, Christian-dominated South Africa, Kenya and even Greece, mixed places like Malaysia and Nigeria all operate personal laws. India and Nepal, which are unique in the world for having a dominant Hindu personal law, border countries that privilege Buddhist law. These are risky models, but they are not theocracies.

All over the world, law is connected to religion and society. Nations with so-called mixed legal systems make multiple exceptions for certain communities. Even countries claiming to have uniform family laws make such exemptions. Legal uniformity then becomes a convenient legal fiction, especially when 'ethnic implants' of new migrant groups change a country's demographic composition. Proponents of a Uniform Civil Code imagine that the state's laws have the power to re gulate everything, as though India was somehow like Singapore. This reflects a misguided vision of law itself.These contract-based views of law as administered by states are no longer seen as a guarantor of human development, now that we know how easily freedom of contract privileges those with the power to make the terms.

Asking for the moon, in the form of the UCC, for a composite nation like India, is then deeply misguided.Justice everywhere is a work in progress rather than a stable reality, and is constantly endangered by human failures. A UCC is the wrong medicine for an inadequately diagnosed illness.

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Article 44 of the Indian Constitution does not actually demand a UCC. It merely advises movement towards greater legal equality to strengthen justice for all.It does not treat personal laws as 'problematic', as some commentators selfrighteously claim today . In a massive state like India, the law cannot police every home, but it should still claim politicalmoral superiority in efforts to deliver justice. Since it necessarily fails to deliver 'complete justice', people as individuals, members of families or groups, as citizens of the nation and the world, also shape the various rules, processes and values by themselves.

A good state law, then, remains connected to socio-religious norms and moral val ues, seeking to guide them. All personal laws are internally diverse, allowing sophisticat ed fine-tuning to address the needs of disadvantaged persons. These discretionary spaces have been - although not sufficiently yet -creative ly used to assist vulnerable individuals in consonance with religious norms, in a process of har monisation of per sonal laws. Since the 1970s, the Indian state has actually opera tionalised central constitutional obliga tions to protect weak er parties in various contractual arrange ments related to fam ily life. This has not been a perfect process, of course, and the public is largely unaware of the gains made, which is why politicised protests can often hijack these issues.

The good news is that In dia has matured into a sophis ticated plural legal system, increasingly adept at managing gendered inequality in family life. This has bordered on downright radical sometimes, like when Indira Gandhi redefined 'wife' to include 'divorced wife' under Section 125 of the CrPC 1973. It was this that culminated in the Shah Bano saga of 1985, when this definition was stretched to include Indian Muslims, leading the Muslim patriarchy to protest.

Despite all the journalistic sleight of hand since, any serious examination would reveal that the 1986 law passed after Shah Bano effectively strengthened divorced women's rights, as clearly shown in the Supreme Court's Danial Latifi decision. And yet, activists continue to insist that the Indian state let down Muslim divorced wives, leading to the current tamasha over triple talaq.

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Again, the insistence on bureaucratic unifor mity misses the key point: uniform family laws do not secure justice, but imposing equal maintenance obligations on everyone is an effective strategy. The demands for a Uniform Civil Code today distract from Hindu men's obligations to maintain ex-wives, which should be just as rigorous. It is part of a generalised discourse about 'bad Muslims', dancing to the tunes of a majority's expectations. This is plainly dangerous.

India has achieved its own sophistication in 70 years, and its experience does not follow Western models. Those dissatisfied with this model should look around them, to realize that India already operates a Uniform Civil Code in its uniquely harmonised personal law system.

(The writer is an expert on South Asian laws and professor emeritus at SOAS, University of London)