Given recent trends in India, there is a risk that a UCC would, in fact, serve as a tool for the BJP to entrench an ethnic state, thereby instituting the ‘tyranny of the majority’.
Prime Minister Narendra Modi. Credit: Reuters
The BJP government, it appears, is making its governing structures more uniform, thereby promoting a more modern state. Certainly, the transaction costs arising from the absence of a standardised sales-tax structure have been considerable for India’s citizenry and economy over the years; but at least Prime Minister Narendra Modi is doing something about this.
And then there is the demand for a uniform civil code (UCC). Different laws for different religions have also been costly for many Indian citizens – in particular women, and in particular Muslim women since it affects their inheritance rights and how they are treated in divorce cases. Congress has resisted reforms for a UCC since it wants to avoid alienating the Muslim vote – an important electoral asset. Its actions in connection with the Shah Bano case 30 years ago illustrated its position, which does not seem to have changed much since then.
Perhaps, then, champions of human and women’s rights can embrace the BJP’s demand for a UCC – a ‘progressive’ move on the latter’s part – even if they dislike that party or disagree with it. However, before siding with the BJP and relying on it on this issue, we would do well to remember that – as I shall show below – matters of this kind are now more than ever intricately booby-trapped; that the challenges are not unique to India and that there is a crucial difference between a state that promotes universal democratic rights and one that has a UCC but which also acts as a so-called ethnic state.
The context is crucial. The ‘crisis of democracy’ has reached global proportions. According to Freedom House, political freedom has been steadily declining in the world for over a decade. This tragic trajectory is intrinsically related to a surge in chauvinistic nationalism in Europe, the US, China, Russia and South Asia.
Group-based rights vs universal individual rights
Such ideas encourage intolerance and arrogance, and indeed a violent conflict in the end. Group-based rights play an important role here. As groups confront each other and ethnic cleavages deepen, it may seem a good idea to try to bridge the growing divides by promoting universal individual rights. Catering to special demands based on identity, a number of examples around the world seem to show, leads to a backlash. An overarching and unifying identity is apparently in demand in many countries now. Instead of group rights, therefore, a stronger emphasis on universal individual rights – as embodied in a UCC, for example – may sound like a good idea. However, this is not a simple issue.
Providing for group rights can help unify a plural society. In certain European countries, a system of consociational democracy – as identified by the political scientist Arend Lijphart – helped sustain such a pluralism in unity. It involved government by elite coalitions, in which most segments of society had a hand in decisions of high importance, and minorities could use their power of veto to defend their interests and to preserve balance.
For a long time, therefore, ethnic cleavages in such societies posed little obstacle to progress. In India too, as Lijphart and others have argued, variations on the consociational solution have been applied. After independence, the country’s internal boundaries were redrawn, replacing the ad hoc borders left behind by the colonial rulers with new ones that better coincided with ethnolinguistic realities.
Moreover, Nehru was able to defuse separatist tendencies in the south by being responsive to group rights. While conflicts have plagued the subcontinent continuously, India has defied prophecies of the demise of its democracy by accepting variety and respecting its astonishing cultural diversity. One issue, however, has always been problematic here: who gets to represent a group? Furthermore, the logic inherent in the promotion of group rights – which in most cases have been instituted to protect minorities – is susceptible to being hijacked by majority groups, or by groups whose interests conflict with those of others. If a minority wants its version of history in its schoolbooks, shouldn’t other groups be allowed their version as well? If evolution is taught as ‘true’, can creationists not make the same case for their world view? Particularism can open the door to relativism. Challenges of this kind have become more severe with the rapid changes in political climate over the last two decades.
In Europe, 20 years ago, it was possible to argue that group rights for immigrants and minorities would further integration. According to the consensus of the time, integration should not entail assimilation. Then came 9/11, London, Madrid, Paris, Brussels, Paris again, Cologne, Stockholm and most recently Barcelona. Economic crisis and austerity afflicted the continent, as well as an overwhelming refugee crisis. Terrorism, honour killings, attacks on Jews by Muslims and other crimes were seen as proof of the ‘Clash of Civilizations’ foreseen by Samuel Huntington.
Also read: The Modi Government’s Hindutva Ideology Could Stall Any Progress on the Uniform Civil Code
Political leaders have since taken their cue from Pim Fortuyn and Theo van Gogh, the Dutch gay politician and filmmaker respectively who were assassinated by extremists in 2002 and 2004, or even from Ayaan Hirsi Ali, the Somali-born former Dutch politician. They have argued, very effectively, that advances from the enlightenment that took hundreds of years to achieve have been voluntarily abandoned in Europe, under pressure from the most conservative, misogynistic and homophobic forces imaginable – various Islamicist currents, among them Wahhabism and Deobandi.
One result of this, at the popular level, has been an increase in hate crimes against immigrants. At the elite level, various mainstream politicians – Sarkozy, Merkel, Cameron and others – declared a decade ago that ‘multiculturalism has failed’. This announcement was puzzlingly vague, but after some time its meaning became clear: indigenous or Western norms and values must be actively ‘protected’ against ‘imported’ ones.
Developments in India
In India, there were parallel developments. In particular, the conflicts in Punjab and Kashmir had significant political repercussions, fuelling the wave of Hindu revivalism which led at last to the toppling of Congress as the leading national party. These conflicts seemed to confirm the claim that such troubles were mainly caused by excessive leniency with separatist forces and political extremists – that such was the result of giving too much freedom to other religious groups.
However, according to several research contributions by academics in and outside India, religious identity in these particular conflicts was mainly an instrument or outcome in political conflicts over rights, power and resources. But such conclusions were turned on their head, as the most extreme actors on the political stage resorted to a ‘love it or leave it’ rhetoric with roots going back to Golwalkar and Hedgewar.
To what extent the many conflicts mentioned here have their roots in socioeconomic cleavages, acts of states or extremist against other groups, or if they are caused by the content and dogmas which are inherent in religious doctrines or political ideologies, cannot, of course, be determined for each case here. However, values which are ‘cultural’, ‘ethnic’, or ‘community-based’ clash. They can clash with the values of other groups, and they can certainly clash with democratic and secular norms, values and laws.
In situations where democratic institutions are fairly strong and the justice system is seen as fairly ‘clean’, and where political parties largely respect each other and tolerate differences of opinion fairly well, there is a good chance that clashes of this kind can be handled peacefully. In settings such as these, integration can take place without the sacrifice of core cultural values – values that are unique, valuable and distinctly different among groups. Pluralism can thus be saved. Europe has shown this in the post-war period, in perhaps the greatest achievement of the EU project (given the situation in the 1940s, which was the starting point). More diversity and less war. Over much the same period, India has proved it too – which is particularly remarkable, given that it had the most traumatic and tragic birth that a country could have. Since those terrible events of 70 years ago, it has so far managed to move forward by providing more reason for its peoples to stay together than to go their separate ways.
Chauvinistic nationalism
The challenge that both Europe and India are facing now is a rising tide of chauvinistic nationalism, which constantly pits groups against each other in order to win political space. This impacts greatly on the prospects for holding a rational discussion about what political solutions might accommodate both democracy and pluralism in society.
Paradoxically, ethnic-majoritarian chauvinism – even when Christian or Hindu – is greatly appreciated by Islamic extremists. Like others of their ilk, they are motivated to carry out terrorism since it promotes polarisation. The motivational logic used by al Qaeda is similar to that once used by for example the Rote Armee Fraktion in Germany. Terrorists justify their actions on the grounds that their attacks serve to strip away the government’s civilised facade, ‘revealing’ its oppressive and fascist nature.
Sometimes terrorist attacks can be seen as a form of retaliation. However, they can also help convert the hypothesis about the hidden fascist nature of democratic states into a self-fulfilling prophecy. A continued exposure to terrorist attacks may impel governments to introduce measures that reduce the space for democracy. In other words, such governments may become more authoritarian even if they were not on such a trajectory before. The ‘threat dynamic’ also works in favour of both populists and extremists generally. Populists claiming to be adversaries of the elite – and thus sole representatives of the ‘true people’ – can use terrorism to ‘overtake’ more rationally oriented political actors, by playing on fears in order to gain votes. And the terrorists are happy, because their actions give them influence vastly out of proportion to their tiny numbers.
Given this very dangerous dynamic, would it not be a good idea to promote universal individual rights as a way to counteract the negative effects that may come from the exploitation of group rights and polarisation? Obviously, the positive values associated with group rights are easily hijacked by extremists and populists in situations where people are fearful. It is far too easy for authoritarian-minded actors to claim representation of a group – Muslims, Romani, Whites, Blacks, Hindus or what have you. The claim to represent a group is increasingly made, for example, without a vote to back it up. An emphasis on individual rights does not permit this.
In a political system where individual rights are protected, safety is assured for all citizens, regardless of group identity or gender. History has already proved, moreover, that individual rights can act as a bulwark against populists and chauvinists. And any claim of representation without a preceding vote or organisational membership can be rejected by the individuals themselves. Individual rights can protect groups against populists seeking to capitalise on identity politics in order to promote extremism.
Challenge facing Europe
In Europe, this challenge is a growing one. Far-right parties, in particular, have made considerable gains. In Sweden, for example, an anti-Muslim and anti-immigrant party known as the Sweden Democrats would get every fifth vote if an election were held today. The far right is also advancing in Austria, Denmark, Finland, Germany, Greece, Hungary, Italy, the Netherlands and Poland.
In France and the UK, on the other hand, similar forces have seen serious setbacks. What effect would reforms designed to promote universal individual rights have in these various countries? The way in which state institutions work and the extent to which the state can act autonomously in relation to political forces – both at the elite level and in civil society – play a very important role. As the political scientist Bo Rothstein has shown, universalistic policies can be carried out successfully if they are guided by democratic ideals and if the institutions of the state are fairly clean and reasonably autonomous. Such policies apply to all individuals equally, and they are not decided by group identity – this can provide for state and democratic legitimacy in an unparalleled way. This can be an excellent solution from which everyone gains in the end.
As a practical matter, therefore, reforms promoting individual rights would mean little in Hungary, but quite a bit more in the Netherlands – even though both countries face a rise in support for chauvinistic nationalist parties. In the Netherlands, namely, state institutions are relatively clean, and they cannot be seen as a simple extension of party interests. In Hungary, the opposite is true.
UCC in India
What about India then? Would introducing a UCC have positive effects there? On paper, it would appear so. The problem in this case – the reason why it is so hard to support such a reform in India today – is that the BJP seems to be turning India into a de facto ethnic state.
An ethnic state is one where an individual’s rights and obligations, to a great extent, depend on his or her ethnicity. There is a formal and an informal way to measure this. Formally, we can look at the constitution and the laws, to see if the majority culture is given special privileged treatment. However, a state which is formally secular and oriented to universal individual rights can de facto be something very different – as the comparison of Hungary and the Netherlands reveals.
Also read: A Uniform Civil Code? Easier Said Than Done
In India, the BJP is pushing for a UCC with universalistic characteristics. Parallel with this, however, the BJP and its supporting organisations (the Sangh parivar) are unfortunately working very hard to increase their influence over civil society and public administration. To be sure, there are long-standing institutional weaknesses and problems with corruption that make it hard to ensure that laws are applied equally to all citizens. However, what the BJP government has been doing since 2014 – in close collaboration with the Sangh parivar – is an unprecedented and deliberate attempt to change the very nature of the Indian state.
The BJP has worked actively to create a ‘Hindu Rashtra’ by dismantling civil-society organisations that it perceives as disloyal – many of which have been crucial for safeguarding democratic principles and protecting minorities. During the first two years when Modi was prime minister, perhaps over 20,000 organisations lost their FRCA licenses – that is to say, about two-thirds of all the organisations that have licenses to receive support from abroad.
Evidently, the Rashtriya Swayamsevak Sangh (RSS) is very active in determining which organisations are ‘objectionable’. While the Sangh parivar seems to have no problem securing financial support from abroad, those that work to strengthen society’s weakest groups have been hit hard. The Hindu rashstra is also being realised by curtailing freedom of expression and replacing school books with ones that have been ‘saffronised’. The policies promoted by Dinanath Batra are particularly prominent here.
Together with the RSS and other Sangh parivar outfits, Batra has managed to impose a de facto censorship structure in India. He has been highly influential in making Indian education even more biased in favour of Hindu religious norms, values and interpretations of history and ‘family values’.
Most lately there was the court order that stopped the publication of Priyanka Pathak-Narain’s Godman to Tycoon, which focuses on Baba Ramdev who is close to Prime Minister Modi, and the BJP government of Jharkhand banning Hansda Sowvendra Shekhar’s The Adivasi Will Not Dance. Then there are the criminal outfits at the grass roots level which are euphemistically labelled gau rakshaks, or cow protectors, but which actually have the same role as the Sturmabteilung in the Weimar Republic and later Nazi Germany, although not on the same scale in India yet. Their role is to beat up and lynch Muslims in particular, or anyone who is objectionable to ‘the cause’ in general. Such activities are related to the camps for reconversion arranged by Vishva Hindu Parishad and the RSS which intimidates minorities. Freedom of religion is now more limited because of laws in several states which practically prohibits conversion from Hinduism.
Therefore, the answer to the initial question – whether the current government in India can be trusted to institute a decent UCC – is ‘no’. The answer remains so as long as equality and universalism are the aims. Given the ideological base of the BJP, and given how it has acted since it came to power in 2014, it is obvious that its pursuit of a UCC is not driven by ‘progressive’ values or concerns about gender equality. Its main motive is most likely a deeply-rooted resentment of Muslims and other minorities in India.
A UCC would strip away a large part of what these minorities perceive as crucial constitutional protections – even if, granted, some of these laws are archaic and misogynist. Given recent trends in India, there is clearly a risk that a UCC would, in fact, serve as a tool for the BJP to entrench an ethnic state, thereby instituting the ‘tyranny of the majority’ against which James Madison warned and which the American constitution was designed to prevent. If such a tyranny is to be avoided, there must be checks and balances between state institutions. For these to work, however, state institutions need to be able to work with a fair degree of independence from political forces.
In India lately, the Supreme Court has in several instances acted courageously to uphold democratic and universalistic principles – the ban on triple talaq, the protection of privacy and political freedom. But how long can one institution withstand the pressures that push India in the ethnic-state direction today? A free, diverse and vibrant civil society would certainly help. That applies both to India and to Europe. However, the attack on India’s democracy today comes from above and from below – from the state and civil society based actors. This convergence of forces threatens much more than the prospects for introducing a truly democratic uniform civil code.
Sten Widmalm is a professor at the Department of Government, Uppsala University, Sweden and the author of Political Tolerance in the Global South – Images from India, Pakistan and Uganda.
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