Cynical Constitutionalism: BJP’s Push for UCC

The Bharatiya Janata Party (BJP) has once again demonstrated its adeptness in using pretentious constitutional righteousness and selective championing of various ‘Parts’ and ‘Articles’ of the Indian Constitution. It continues doing so despite its known rejection of various statutes and repeated calls for a ‘naya samvidhan’ in the past, not just by the party but other constituents of the Sangh Parivar as well.

This has been unmistakable in the government and the party that continually swear by the rule of law, yet choose the path of silence or inaction when affiliated individuals and organisations flout laws.

This duplicity of BJP and ministers of the government has become most evident in the continued campaign for introducing a Uniform Civil Code (UCC) and a couple of other issues at the core of Hindutva. They do so by citing the Directive Principles of State Policy (DPSP), contained in Part IV of the Constitution.

This ploy became visible again recently when the party and the government backed BJP Rajya Sabha member from Rajasthan Kirodi Lal Meena’s efforts to introduce a Private Members’ Bill on UCC in the House.

When the Opposition members argued that the Bill could possibly disturb peace and hurt the secular credentials of the country, Union Commerce Minister and Leader of the House Piyush Goyal defended the legislation and the move to introduce it. “I think it is the legitimate right of a Member to raise an issue which is the Directive Principle of the Constitution,” he said.

Goyal added that he was "pained to hear some of the comments which are being made using very, very illustrious names -- Dr Babasaheb Ambedkar" and others in the Constituent Assembly "who in their wisdom brought this in as a Directive Principle."

The BJP justifies its stance on the UCC by stating that it is a part of the DPSP that forms Part IV of the Constitution of India. Article 44 of the book that Prime Minister Narendra Modi famously calls, India’s “only Holy Book”, states: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Two phrases are significant in this now profoundly-cited but little-examined, sentence of just eighteen words: “The State”; and “throughout the territory of India.”

Two issues arise out Meena’s move and the official backing to it. The first point relates to concerted efforts in recent months to create a false sense that the introduction of the UCC is impending in India now. Before Meena’s Bill was introduced in the Rajya Sabha, BJP-led state governments of Uttarakhand, Himachal Pradesh and Gujarat established study groups this year to examine ways to introduce and implement the UCC.

The jurisdiction of state governments is limited to specific states. There are issues of feasibility for the existence of UCC in just a few states and not the entire country. Does this mean that the formation of committees to study UCC’s implementation is merely dog-whistle politics?

The second point is related to the wording of Article 44, which leaves no ambiguity in stating that it is the State’s obligation to “secure for the citizens a uniform civil code throughout the territory of India.”

Since state-specific multiple UCC laws are not what the DPSP called for, what’s the purpose of the exercise? Additionally, if the Centre backs Meena’s Bill, can it not be argued that “the State” is not fulfilling its obligation to “endeavour to secure for the citizens a uniform civil code”?

It must be pointed out that the BJP and its Hindutva affiliates are selective in their choice of the DPSP or Directive Principles they wish to pursue. Let us briefly list some of these principles that the State is equally obligated towards, just as the UCC:

●       Right to an adequate means of livelihood for citizens, men and women equally.

●       Ensure that ownership and control of material resources of the community are so distributed as to subserve the common good best.

●       Ensure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

●       Equal pay for equal work for both men and women.

●       Equal justice and free legal aid.

●       Right to work, education and public assistance.

●       Participation of workers in the management of industries.

●       Duty of the State to raise the level of nutrition and the standard of living and to improve public health.

●       Separation of judiciary from the executive.

The DPSPs run from Article 36 to 51, and the BJP either overlooks or tramples over many of these. It is apparent to all that the BJP focuses on only three of them, but it requires reiteration in the wake of incessant efforts by the Sangh Parivar. These three articles are:

●       Article 44 - Uniform Civil Code;

●       A part of Article 47 – “the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks”;

●       A section of Article 48 that calls for – “prohibiting the slaughter of cows and calves and other milch and draught cattle”.

Does anyone not know the purpose behind zeroing in on these three DPSPs? Does this not demonstrate that BJP is focussed only on those directive principles that further either the Hindutva ideology or has a moralistic undertone (such as the call for the prohibition of alcohol)?

The demand for the UCC is among the earliest ones raised by the Sangh Parivar in independent India. The Bharatiya Jana Sangh, formed in 1951, stated in its ‘Principles and Policies’ that “there should be a uniform civil code to govern the laws of marriage, inheritance, adoption etc. of all citizens.” More than 15 years later, the party’s manifesto published in 1967 promised to enact the UCC if voted to power.

The issue has also been part of the BJP’s documents and resolutions for a long time. In May 1986, Lal Krishna Advani took over the party presidency from Atal Bihari Vajpayee, and bade goodbye to the politics of Gandhian Socialism (which effectively reflected neither of the two words) and brought back the conceptually incoherent treatise of Integral Humanism.

In his maiden presidential speech, among other issues, Advani also stated that the party would be steadfast in its demand for a Uniform Civil Code. The demand for UCC was one of the three contentious issues that BJP championed thereafter, the other two being the construction of the Ram temple in Ayodhya and abrogation of Article 370 in Jammu & Kashmir.

For much of the period before 2019, it appeared that these three issues would remain mere dog whistles and the unfinished agenda would harness new supporters for the Hindutva cause.

But after Article 370 was nullified in August 2019 in J&K, and following the Supreme Court verdict on Ayodhya awarding the disputed site to the Hindu side under the aegis of the Centre, it became clear that the wish list had been expanded.

This gives every reason to believe that BJP and the government would possibly examine steps towards enacting a UCC before the next general election in 2024.

The championing of the DPSP appears Kafkaesque when Fundamental Rights enshrined in the Constitution that appear prior to the DPSP in Part III of the same “holy book” are time and again trampled upon.

The Indian Constitution is not a document frozen in time and to be revered as a religious text, although this is the way the current regime wishes to treat it.

Instead, it is a dynamic text that is open to amendments, provided that its “basic structure”, as specified almost 50 years ago by the Supreme Court in its judgement in the Kesavananda Bharati case, is not violated.

So far, people have formed positions or stances on amendments to the Constitution based on their political judgement and how they see its context.

It will not take much prompting for anyone to comprehend the backdrop in which the demand for UCC is being given an additional push. Once this is accomplished, it will be time for other directive principles to be championed with renewed fervour.

The writer is an NCR-based author and journalist. His newest book is The Demolition and the Verdict: Ayodhya and the Project to Reconfigure India’. His other books include The RSS: Icons of the Indian Right and Narendra Modi: The Man, The Times. He tweets at @NilanjanUdwin. The views are personal.