I fully endorse judicial proactivism in a country like India where the elected executive is seen to be regressing into social obscurantism and lacks the will to set things right. In fact, in an earlier blog-post ( SOCIAL CHANGE- SUPREME COURT AS THE DEFAULT OPTION, July 2015) I had expressed the view that it is only the Supreme Court which is capable of driving meaningful social change in the country. There is, however, a caveat to this endorsement: in essentially religious matters concerning deeply held beliefs and centuries-old rituals the Courts should temper their reformist zeal with prudence and an understanding of the political-social-religious ecosystem in which they adjudicate. Such an understanding appears to be missing in the order of the Supreme Court ( 12.10.2015) directing the central government to take a quick decision on legislation of a Uniform Civil Code for all Indians.
The intent and rationale of the Court is beyond question, for in matters of civil, gender and human rights all citizens should be equal and should enjoy the protection of a common and humane law. Any discrimination on grounds of religion is abhorrent to the concept of a modern nation. But what is equally beyond question is that society should be ready to accept and embrace such uniformity: it cannot be rammed down the throats of hundreds of millions of people by executive and judicial fiat without straining the social fabric to breaking point. And it is here that the problem lies with our country.
Notwithstanding the Constitutional mandate India is not a secular nation. There is a persistent distrust among communities going back for decades, the result partly of historical legacies and partly of majoritarianism/ minoritarianism mindsets cultivated assiduously by all major political parties. There have been thousands of communal riots since partition. Figures released by the US State Department yesterday show that there were more than 800 " religiously motivated attacks" in 2014-15 . Governments wear their religious biases on their sleeves and unabashedly promote one religion or the other. ALL governments have pandered to religious extremists of all shades through bans, selective prosecutions, reluctance to enforce the laws, overturning court decisions,even dubious legislation meant to appease one community or the other. Just this year, for example, the Maharashtra government has tabled a bill- the Buddhist Marriage Bill- to provide for a separate marriage code for Buddhists! Concessions, quotas, subsidies and preferential treatment are doled out to communities under the pretext of affirmative action but actually to garner vote banks. Unlike a true secular state which distances itself from any religion, what we have in India is a state which is a cocktail of ALL religions and therefore unable to maintain the impartiality which alone can ensure the credibility of a government when legislating on common civil rights ( which is what the Supreme Court wants the government to do).
And things are getting worse. In the last couple of years even the fig leaf of neutrality and ersatz secularism has been contemptuously thrown away. Even as tiny Nepal has become a secular republic after centuries of being a Hindu state, we are moving in the opposite direction. An aggressive and unapologetic majoritarianism by the ruling party at the center has instilled a deep insecurity among the minorities, further deepened by the strange fact that those who should speak are silent and those who should be silent have been given the license to preach hatred at every street corner. The agenda of Ghar Wapsi, Love Jihad, Beef bans, cultural intimidation, aggressive propounding of a perverted and unilateral brand of nationalism, and a rabid intolerance of any dissent has firmly driven a wedge between the two major communities already distrustful of each other. An inevitable reaction by the main minority- the Muslims-is coalescing into what could become a dangerous face-off in the months and years to come. Not since 1984 have religious identities been so highlighted or religious sensitivities so aroused. If someone as erudite and genteel as Naseeruddin Shah can say on national TV that " for the first time in my life I have been made to feel that I am a Muslim in India" then we all need to worry.
The country today is a tinder-box and the last thing it needs is a spark of socio-religious reform. The judiciary should be mindful of this context: it has not shown this sensitivity so far, as two recent judgements indicate. A couple of months back the Rajasthan High Court declared that the Jain ritual of voluntarily fasting to death, known as " santhara", was an attempt to commit suicide and therefore illegal. Santhara is a centuries old and honoured ritual among Jains: there are about 200 such deaths every year; those who choose to opt for it are the old or terminally ill who embrace it voluntarily. Something similar is also practiced by Buddhist saints and Hindu holy men ( taking " samadhi"). Moreover, the Supreme Court has already asked the government to decriminalise attempted suicide and we are told the government is ready with a law for it. Should the Rajasthan High Court have shown such alacrity given this background? As expected, large scale protests by the Jain community have now led to the Supreme Court staying this unwise order.
The same lack of sensitiveness was on display in the highly volatile state of Jammu Kashmir in September when the High Court there declared that consumption of beef in the state was illegal. The court should have sensed that something was amiss because the petition was reportedly filed by a BJP member from Jammu. It based its order on a provision of the Ranbir Penal Code of the state which did in fact make such consumption illegal. But the court should also have noted that this law was of 1858 vintage (!) when the state was ruled by a Dogra( Hindu) king, and that this law had effectively been superseded by the Constitution of India a hundred years later. It should have given some thought to the fact that 98% of the population of Kashmir consists of Muslims for whom beef is a staple diet, and that this particular provision of the RPC had never been implemented. Kashmir has many problems on its plate and the last thing one needs is to add a portion of beef to it!
The massive outrage at this ruling ( it happened just before EID) was contained in the nick of time by the Supreme Court suspending the order of the High Court, but the damage to minority sentiments had been done. These two judicial pronouncements establish two important truths: One, courts should not go merely by the letter of the law (especially laws penned decades ago and which have been overtaken by a rapidly transforming society) but should honour its spirit; and two, on issues which impinge on religious beliefs and practises, the courts should acknowledge that ours is a deeply fractured society and polity and therefore the widest consultation must be held before deciding on such matters.
This then is the eco-system in which the Supreme Court has passed directions to the government to get on with introducing a Uniform Civil Code. Legally speaking, Article 44 of the Constitution enjoins upon the government to secure a UCC to replace personal laws, but this Article is part of the Directive Principles of State Policy. In effect this means that this cannot be enforced in a court of law but the state shall have to adhere to them when making laws. It is my contention that the political and social climate is not right or conducive for such a law at the present time. Practically all non-Hindu communities are suspicious and intimidated at the same time and any attempt at further eroding their distinct identities will only deepen the fault lines. Furthermore, the credentials of the present government at the centre are suspect in the eyes of the minorities, and any attempt by it to pilot this law will just not be acceptable to the latter.
The Supreme Court should not be guided by the letter of the law in this case but should acknowledge that the time is not right for a UCC. Everything which is legal is not necessarily legitimate, as Nicholas Chamfort once said. For a law to acquire legitimacy it must be accepted by the people, and right now the Uniform Civil Code will be resisted violently. The government has to hold the widest possible consultations and remove all misgivings before such a law can be introduced. As long as we have just enough religion to make us hate, but not enough to make us love one another ( Jonathan Swift), let us do without a Uniform Civil Code. Its time will come.