The real issues behind the civil code debate.
Rohan Oberoi
vive...@watson.ibm.com (Vivek S. Pai) writes in soc.culture.indian:
>I've seen both sides of the "secularism/pseudo-secularism" debate, to some
>extent, and I have a question about this last paragraph. All people being
>equal under the law sounds like a noble goal, and, I would guess, would
>sum up what would be a "secular" attitude. However, how does this apply
>to the civil codes? I was under the impression (and someone please correct
>me if I'm wrong) that civil codes vary by religion - so people of different
>religions basically operate under different "laws".
The question raised is a good one, and I think it exposes a central flaw
in the common perception of secularism. Permit me to explain.
First, why was secularism mooted as a concept in India at all, and why is
it in the Constitution ? Why should a secular outlook be in any way
superior to, say, a religious or a mystical one ? The answer is, quite
simply, that -- without saying anything about the nature of religion as a
philosophical system or a code of ethics -- an administration based upon
religion, by its nature, violates the twin conceptions of individual
equality and personal freedom which are taken today as desirable goals
for any society. There are numerous ways in which religion sins against
equality and personal freedom. In Hinduism as practiced before British
reform, for instance, the severity of all offences was measured by the
caste of the offender; an untouchable could expect to be much more
severely punished than a Brahmin. Similarly, under Islam, the value of
a non-Muslim as a witness is considered inferior to that of a Muslim.
Both of these notions, if applied to administration, are outrageously
inegalitarian, in the sense that they deliberately confer advantages
upon some people which are denied to other people, or confer penalties
upon some people from which other people are exempt (recall that
egalitarianism does not require that all people be treated in exactly
the same manner -- this is logically absurd -- but only that the law shall
not confer advantages to a select group, or extract penalties from one.)
Again, Hindu states in India prescribed the death penalty even to
non-Hindus who ate beef, clearly encroaching upon their personal
freedoms; Muslim law bans the consumption of alcohol even by non-Muslims,
again an encroachment on personal freedom. Secularism is an attempt to
remove these harmful effects of religion from society, while recognising
and protecting the practice of religion.
I believe that the confusion that has resulted in kind of bizarre thinking
that leads the BJP to throw around words like pseudo-secularism is that
since independence, the term "secularism" has been trumpeted so widely as
a catchword that the reason for its existence has been forgotten. Thus
it is commonly seen as a concept that can stand on its own, and be defined
independently of any other concept. As the gentleman quoted above reasonably
objects, if secularism is defined -- absolutely -- as the equality of people
of different religions before the law, is not the existence of different
civil codes in clear violation of secularism ? Of course it is. If, however,
secularism is merely the equality of different religions before the law,
there are many serious problems that arise. Is a ban on cow slaughter
"secular" ? By this definition, of course. The law does not discriminate
against a Hindu or a Muslim who slaughters a cow; thus it is theoretically
"secular". Yet it is quite clear that such a ban is actually a serious
encroachment of religion upon personal freedom, which "secularism" was
supposed to prevent ! It is an imposition of orthodox Hinduism upon
society at large, and yet it is, by our definition, "secular" ! Similar
circumstances would accompany, say, a ban upon alcohol, or upon the sale
of pork.
Thus I think it is quite clear that the definition of secularism as merely
having laws which do not discriminate on the basis of religion is flawed.
Secularism is not a concept that can stand upon its own. Its origins must
remain at the centre of any discourse about secularism: "secularism is the
safeguarding of individual liberty and equality against the encroachment
of religion." That is to say, secularism permits religion to be practised
*so long as the practice of religion by anyone does not restrict the freedom
or the right to equality of any other person.* Thus, I may worship my
particular deity in my home, or on the street, but I may not force my
neighbour to subsidise my worship by making his taxes pay for my religious
ceremonies; this is why secularism demands that government remain completely
separate from religion.
I cannot overemphasise the importance of bringing the concepts of freedom
and equality to the forefront of secularism: of actually placing them
before any theoretical conception of secularism. It is essential to keep
in mind that secularism is *not an end in itself* but merely a way to
safeguard liberty and equality. It is not meant *to impose* anything on
people; it is meant to ensure that *no part of society shall impose anything
upon another part of society*. There is nothing in secularism itself that
is noble or desirable; it is merely as a protector of liberty and equality
that secularism deserves our support.
With this in mind, let me consider the question posed below:
>So - I guess my real question is this: do people in favor of secularism
>favor a uniform civil code? I thought this was one of the ideas that the
>BJP was campaigning on.
As explained above, I am a person who "favours" secularism insofar as it
is a means of safeguarding equality and liberty from the encroachment of
religion. That is the brief of secularism. Secularism is permitted to
ban all those practices of religion which infringe upon liberty and
equality; it is not permitted to touch those which do not. Thus it is
permitted to ban human sacrifice, while it is not permitted to ban
fasting. It is permitted to ban laws which give harsher prison sentences
to Hindus than to Muslims for the same offence; it is not permitted to
ban the building of a church or a mosque. Liberty and equality (of
advantage or penalty, not absolute equality) are the touchstones of
secularism.
Does the civil code system we have in India encroach upon liberty ?
The main areas to which the different civil codes apply are to
marriage, inheritance, and divorce. If two people wish their marriage
to be governed by Islamic law, it would actually be an infringement
on their freedom to prevent this. If, however, as Muslims, they wished
not to be governed by the Shariah laws on marriage -- such as the talaq
rules -- it would be equally an infringement upon their freedom to force
them to accept the Shariah. Thus it would be objectionable to abolish
Muslim personal law; it would also be objectionable not to give Muslims
the right to opt out of the Muslim personal law system. A Muslim
choosing to be married under Islamic rules or under secular rules
does not infringe upon the freedom or right to equal treatment of
his fellow citizens; secularism is, therefore, *not permitted* to take
away his freedom to do as he pleases in the matter of marriage.
However, the option to refuse to be married under Islamic rules should
also be available to Muslims; then it remains for the Muslim community
to decide whether that person shall continue to be judged a Muslim.
In short, civil codes, whether Hindu, Muslim, Christian, or whatever,
are perfectly compatible with secularism; the only caveat is that there
should be another, secular, code, by which people may *voluntarily* choose
to be judged. If this is what is meant by a "uniform" civil code, it is
an excellent idea. If by a uniform civil code is meant the abolition of
separate civil codes, it is a terrible idea.
>If the answer to the uniform civil code question is no, can someone please
>explain to me why there is an apparent inconsistency here?
The answer is that you are working on an indefensible notion of secularism.
As far as a "uniform" civil code goes, my position is clearly outlined in
the above paragraph.
Mahesh Saptarshi
>First, why was secularism mooted as a concept in India at all, and why is
>it in the Constitution ? Why should a secular outlook be in any way
>superior to, say, a religious or a mystical one ? The answer is, quite
>simply, that -- without saying anything about the nature of religion as a
>philosophical system or a code of ethics -- an administration based upon
>religion, by its nature, violates the twin conceptions of individual
>equality and personal freedom which are taken today as desirable goals
>for any society.
IMHO, the concept of *personal freedom* has acquired a very strange
meaning, in India at least. Coupled with equality it should mean that
everybody should have the same choices, and same restrictions. It is
ridiculous to punish one person for an act which another person can
*legally* perform and be not considered a crime, based on any
differentiation. This is clearly violated when personal laws as different
as in India are in force. And an even bigger issue of equality and
personal freedom among the people governed by the same personal laws
is at stake. The adminstration can not throw its hands up saying this
is a social issue, or religious issue, or whatever. The adminstration
can not differentiated between sexes, religions, races. That is the
true secularism. What happens when different personal laws are in force?
The adminstration and the judiciary is forced to take into account
the religion, sex, race,etc. of the persons involved, which is clearly
a discrimination and clearly not secular. This is the most important
issue, and the paramount reason why we in India should have common
civil code. With that, the adminstration and the judiciary is compelled
to treat everyone *equally*. This common civil code is not required
to be based on, or derived from any particular personal laws. If it so
happens that Hindu personal laws are by far the most liberal and appropriate
the common civil code may be similar to it in many parts. But remember
that a civil code exists in India apart from the personal laws, and what
should be done is to adapt that civil code to be applicable to every
Indian citizen, erasing the personal laws from the constitution.
>In Hinduism as practiced before British
>reform, for instance, the severity of all offences was measured by the
>caste of the offender; an untouchable could expect to be much more
>severely punished than a Brahmin. Similarly, under Islam, the value of
>a non-Muslim as a witness is considered inferior to that of a Muslim.
>Both of these notions, if applied to administration, are outrageously
>inegalitarian, in the sense that they deliberately confer advantages
>upon some people which are denied to other people, or confer penalties
>upon some people from which other people are exempt (recall that
>egalitarianism does not require that all people be treated in exactly
>the same manner -- this is logically absurd -- but only that the law shall
>not confer advantages to a select group, or extract penalties from one.)
>Again, Hindu states in India prescribed the death penalty even to
>non-Hindus who ate beef, clearly encroaching upon their personal
>freedoms; Muslim law bans the consumption of alcohol even by non-Muslims,
>again an encroachment on personal freedom. Secularism is an attempt to
>remove these harmful effects of religion from society, while recognising
>and protecting the practice of religion.
The examples given above are irrelevant, and constitute what I call
double speak. This is similar to saying "all men have beard, camel
has beard, therefore all camel are men". The examples given above
clearly state that any one personal laws can not be enforced on all
the people. But the conclusion drawn in the article is " therefore
common civil code should not enforced uniformly, and the personal
should not be abolished". Again, the personal laws divest too much
power and control in the hands of the male of the population. The
situation can not be remedied from within the framework of some
of the personal laws. That is why we need a uniform common civil
code. I would say that not any one of the personal laws is absolutely
desirable. Therefore we should enact a civil code which ensures the
personal freedom and equality. For instance, there will be no ban
on cow slaughter, and polygamy will not be permitted.
While a person must be free to subscribe any religion, the social
aspect of it must be restricted in the form of common uniform civil
code.
Any comments ?