This is why bodies like Muslim Personal Law Board oppose Uniform Civil Code

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One of the oft-repeated arguments put forward against Uniform Civil Code (UCC) is that this is against the fundamental right to practice one’s religion. It is argued that the act of the state to legislate in matters, which ought to be governed through religious texts, is an attack on religious freedom.

Outwardly it might appear so, but in practice, UCC doesn’t take away any religious freedom. Yes, it takes away the rights of religious bodies to control a group – and that’s why those who fancy themselves as representatives or leaders of a religion are opposing it – but it doesn’t strip an individual his freedom to follow certain religious practices or rules.

Let’s first understand the issues involved in layman language to understand this important difference.

The laws of a nation can be broadly divided into two types – criminal laws and civil laws.

Criminal laws, as the name suggests, deal with issues related to crime e.g. theft, murder, violence, economic fraud, harassment, etc. while civil laws deal with issues such as marriage, inheritance, adoption, maintenance, divorce, etc. there are some issues that are covered under both e.g. defamation and domestic violence.

An act of crime is often seen not just as an offense against an individual, but as an offense against the society as a whole – as it disturbs public order – which is why the criminal law is common for everyone.

However, a civil wrong is often seen as a matter between two individuals or groups. Yes, such wrongs can also be seen as a wrong against the society e.g. a matter of divorce could be seen as a matter pertaining to the larger issue of status of women in a society, but in legal terms, civil wrongs are treated differently than criminal offenses.

Another crucial difference is – a civil wrong is legally actionable only when an aggrieved party seeks a remedy, while a criminal offense is deemed to be committed the moment such an act is carried out by someone, whether or not there is any complainant.

For example, if there is a murder in the neighborhood and nobody knows the victim, the state will still investigate it and try to deliver justice, but if a son has voluntarily given up share in his dad’s property, the state won’t intervene and ensure a ‘fair’ inheritance.

Understanding it in the context of Uniform Civil Code, let’s assume that there is a civil law (part of UCC, which by the way could be a series of amendments or legislation, instead of being one single act) which states that retired parents have the right to get minimum 5% of the monthly salary from their grown up children as maintenance for their old age.

There is a person X who feels that he has enough retirement funds and he doesn’t need such maintenance from his son or daughter. The state, or a third party, can’t force X or his children in this case to execute the provisions of the law.

Now assume that there is a religion Y that says that it’s a sin for a person to take money from his or her children. Technically, the civil law (UCC) has given X the right to commit this sin – and thus the custodians of religion Y will call the civil law “anti-Y” and an attack on their faith – but in practice, it doesn’t force the followers of Y to commit the sin.

If the person X is religious, he will not exercise his right to get money from his children even if his retirement funds deplete. He will not see himself as an aggrieved party due to his religious beliefs. Thus despite the civil law that contravenes his faith, he will have all the freedom to follow his faith.

Now for whatever reasons – whether X is a bit less religious or he is in dire need of money – if X decides to exercise his right, and commits a sin in the eyes of religious leaders of Y, he can’t be stopped or punished from committing this sin.

And this is where Uniform Civil Code takes away the rights of a religious body. When personal laws exist, X can be stopped or punished under such laws whose interpretation and implementation are often controlled by these bodies. This power of controlling lives of people is taken away from such bodies if UCC come into effect replacing personal laws.

Yes, it all depends upon how the Uniform Civil Code is drafted, but the default position in most civil cases is a third party or the state not having the locus standi to intervene on behalf of the aggrieved party. In essence, UCC doesn’t take away the individual rights to practice one’s religion, even when the code may appear to be in conflict with the religious beliefs, as is explained in the example above.

It gives the citizens some ‘secular rights’, which they may or may not exercise depending upon their religious beliefs or their religiousness. If a religious body is not comfortable with the idea of allowing varying levels of religiosity to adherents of the religion, it will feel threatened, and which is why they are the most vocal in opposing UCC, terming it a “war” on religious rights.

(originally published on OpIndia.com)