Aakar Patel | After PM’s talk of a secular civil code, can govt publish a draft?

The personal laws govern marriage, divorce and inheritance. The BJP has had a curious relationship with this subject from the founding of the republic. Dr B.R. Ambedkar had proposed modest changes to the Hindu personal law, especially on the question of inheritance for women. He identified the two dominant forms of traditional inheritance law and modified one of them to make inheritance fairer for women. This was not acceptable to the RSS’ political formation.

In its 1951 manifesto, the Jan Sangh opposed the Hindu Code Bill, saying that social reform should not come from above but from society. In 1957, it said that such changes were not acceptable unless rooted in ancient culture. “Riotous individualism” would ensue as a result, it claimed. In its manifesto of 1958, the party wrote: “Joint family and indissoluble marriage have been the basis of Hindu society. Laws that alter this basis will ultimately lead to the disintegration of society. The Jan Sangh will therefore repeal the Hindu Marriage and Hindu Succession Acts.” Over time, as nuclear families became common and divorce became acceptable in society, the party dropped this position without explaining why.

In its 1967 manifesto, it called for a uniform civil code. From here on, this appeared in all the party’s manifestos and it promised its voters it would enforce it if it came to power. The BJP had an absolute majority in 2014 and 2019, and in both the elections it had promised a uniform civil code in its manifesto but it did not legislate it or produce a draft.

Now that the party has been reduced to 240 seats in the Lok Sabha, the promise has been made again, but who is to fulfil it? Where is the draft law made by Mr Modi and his ministers? It does not exist, of course. In the many years that this country has seen a BJP government there has been no draft, only speeches.

The reason that no draft exists is that it is not an easy problem to solve. For the BJP and its votaries, “uniform civil code” or “secular civil code” is a placeholder for the abolition of polygamy. But to get rid of it, the BJP will have to target more than just Muslims. The aspects relating to Hindu undivided family are not the only ones that will have to be resolved.

Most are familiar with Article 370, which the BJP long targeted and then gutted in 2019, but fewer are likely to know about the very next article, 371, which says that “no Act of Parliament in respect of religious or social practices of the Nagas (and) Naga customary law and procedure… shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides”.

What happens to a Secular Civil Code that may go against Naga customs? We do not know. The BJP doesn’t either.

In March 2018, the Nagaland Bar Association submitted a memorandum to Nagaland CM Neiphiu Rio saying that several Central laws pertaining to personal laws in the state are “badly contradictory and opposed to the Naga social customs and practices. Apart from the provisions of Article 371A of the Constitution of India, legislative power in matters of personal law is vested with the state legislature”.

The laws mentioned were the Indian Succession Act, 1925; Special Marriage Act, 1954; Indian Divorce Act, 1869; Births, Deaths and Marriages Registration Act, 1886; Guardians and Wards Act, 1890; and Family Courts Act, 1984. The Bar Association said these laws “are required to be substituted by our own State Acts”.

Similar provisions in Article 371 safeguard customary law for Mizos (371G).

Two things need to be considered now. First, there is no point in opposing or even commenting on the Prime Minister’s call for a uniform or secular civil code till he produces a draft. He must be encouraged to show it, even if he is not pressed to explain why he didn’t write and pass the law in the 10 years when he had a majority.

The Opposition and communities threatened by the speech should consider holding back their response till they see what, if anything, he actually produces other than talk.

The second thing to consider is why he is raising it at all given that his party is now in a minority. Why, similarly, was the Waqf Bill introduced when it was obvious that a BJP at 240 seats could not get it passed and its allies were not interested in furthering its Hindutva agenda? Why was a Broadcast Bill aimed at throttling such people as Ravish Kumar and Dhruv Rathee written when again it was clear that it would run into trouble? Both these proposed laws have run into the reality of India after June 4, 2024. The speech on secular civil code shows no understanding of the meaning of the election and the fading of the Prime Minister’s halo.

It shows no acceptance of the real new India, and so the government continues writing cheques that its parliamentary minority cannot cash.