Posted on: July 9, 2020 Posted by: ADITI MISHRA Comments: 0

Author : Mrinalini Kumar , M.A. Political Science , University of Delhi

ABSTRACT:

Personal Laws have controlled how families are structured and rights are ascertained at the grassroots’ level. They have come to structure our identities thereby differentiating ‘us’ from ‘them’ and ‘self’ from ‘other’.

Uniform Civil Code (UCC), thus, has been proposed as a panacea to all the evils in India that are apparently propagated by personal laws that govern marriage, succession, inheritance, divorce so on and so forth. While it is a Directive Principle of State Policy under Article 44, that hasn’t stopped people from wanting to make it a justiciable law. For instance, even the Supreme Court in 1985 directed the parliament to frame UCC. Apparently it can bring national integration; gender equality and communal harmony in one go. Yet, the fact which is ignored by its advocates is that UCC has many clauses attached to it. The individual’s identity will come to be defined not by her but by an exogenous agency; earlier it was the religious patriarchy and now state’s role is proposed. While we are socially embedded individuals, what can one do when society starts stifling our individuality? Lack of agency and exit option binds many individuals into the chains of society. Further, the conspicuous absence of trans-genders from the idea of UCC reiterates this point.UCC is one of the many instruments furthering the cause of the homogenization project. Thus, the notion of inherent gender inequality of personal laws for bringing UCC has become nothing but a garb to further religious interests of the majority.

Through this analysis, we would reach our central argument how the control over our individuality translates into the bio-power which sustains the religious patriarchy and shall strengthen the state; how this bio-power is used to establish the superiority of the state and subjectification of a said class of people, herein citizens; how UCC becomes an instrument to carry this out.

KEYWORDS: Personal law, Uniform Civil Code, Biopower, Identity, Social Embeddedness, Individuality, Control, Gender, Secularism

INTRODUCTION:

Aristotle says that the polis is the most ‘sovereign and inclusive of all associations’, because it is directed towards the highest of  human purposes: it alone is ‘sufficient’ for men in that it provides the conditions in which the good life can be lived. The polis is a ‘whole’ which includes households (villages) as constitutive ‘parts’.[1]

This Aristotelian notion about households being constitutive parts of polis summarizes the importance of family in the matrix of state. It is the building block of a state and thus, establishing control over it becomes the primary task at its hand. However, due to the context in which India achieved independence, this task didn’t take the desired route of UCC but took the help of different religious personal laws.

Subramanian[2] argues that, “While employing idioms of modernization and national integration, the leaders of the ruling Indian National Congress (Congress Party) drew from both post-Enlightenment Western ideas and Indian traditions to visualize the nation, and built alliances with religious elites and ethnic and lineage leaders. Moreover, they wished to retain these alliances so that the Congress Party could remain a catch-all party that dominated a competitive multi party system.” Thus, the family hasn’t developed in a vacuum but has always been the site of political machinations. The personal has always been political.

THE HOMOGENIZATION PROJECT

The idea of modern nation-state which has built the framework of all countries in the world took shape in Western realities, wherein the order of the day was homogeneity. But blind acceptance of such concepts has led to a contradiction in the countries of the global south. India is an example. While state and nation have generally coincided in the West, the East has had a different scenario. Here, states and nations never coincide. Every state is an amalgamation of various nations. However, this reality has never found acceptance and the homogenization project has been going on since times immemorial (however, picking up speed in the current times).

This is exhibited in the fact that despite all religious personal laws being discriminatory in some way or the other, the hue and cry have always been limited to Muslim personal laws; the ‘Bano’scape of Muslim personal laws, from Shah to Shayara holds witness. Thus, the notion of inherent gender inequality of personal laws for bringing UCC is nothing but a garb to further religious interests of the majority. This can also be understood from the fact that after triple talaq was held invalid in 2017, it wasn’t only the women who were jubilant but also Hindu men, not because they were champions of women empowerment but because Muslim men lost a customary right which attacked their virility and strengthened the Hindu community. Homogenization always works in favour of the majority and UCC as an instrument comes in handy.

 

UCC ADVOCATING A TOP-DOWN APPROACH

 

UCC advocates a top-down approach wherein elites define the way of life of the masses without giving any voice to those who will be affected by it. Further, any kind of coding doesn’t guarantee a permanent resolution. Shambhavi[3] argues that, “Since the Hindu personal law has been codified, the rights of Hindu women have taken a back seat, assumed to be well protected by a codified personal law and in a better position than a Muslim woman who still suffers the brunt of their archaic personal law. Despite the codification of Hindu personal law and universal application of the codified law, it has not been able to address the question of social reform properly…. There has to be an internal mass development of social conscience first and then the reforms are to be heralded.”

What one should ponder on is, thus, that UCC can never achieve acceptance till the time all the stakeholders are involved in its making. Flip-side of the coin is that those affected by it generally lack agency to voice their opinion and the general exit option that is advocated as a remedy also becomes futile in the absence of a capability set. It becomes a vicious cycle as those who are already marginalised aren’t able to break free from that state as they lack what Amartya Sen and Martha Nussbaum call capabilities.

Further, the issue of UCC is presented to a common person as a religious-secular identity paradox wherein one can’t be religious if one is secular and vice versa. Though religion emulates modern concept of law through its various commandments and lacks any spirituality as such, it still doesn’t hold any affinity with modern concepts of secularism; secularism which believes in absence of religion from the public sphere. UCC can’t be viable in South Asian realities where religion is intrinsic to life in general, whether in the form of commandments or spirituality.

While there is no denying that personal laws are oppressive to women, the discourse of gender justice is often appropriated by political parties in the interest of vote-bank politics.[4] This is why UCC is a hollow proposal as it has not been conceptualized but instrumentally used for political gains. Further, the trope of tradition-modernity dichotomy to show that UCC will lead us ahead in the linear scale of modernity and rid us from tradition has been put forward to gain legitimacy amongst the public. Constituent Assembly debates on this topic with prominent voices like Ambedkar, Ayyar and Munshi favouring UCC also made this mistake and thus, the convoluted environment led to its inclusion as a Directive Principle of State Policy. Development and modernity are neither linear concepts nor are they about aping the west.

TRANSGENDER EXCLUSION FROM GENDER BINARY PERSONAL LAWS

A clause that would be transferred from personal laws to UCC is the conspicuous exclusion of transgenders. The transgender label demarcates a certain section of the population which doesn’t conform to societal expectations related to their sex but have the courage enough to rediscover themselves through their lenses. This label outcaste’s them, seeing their rebellion with contempt. Transgender is someone who crosses the wall created by gender, thereby trying to cause upheaval in the ‘natural’ order. However, it leads us to the question i.e. how has this term led to the social exclusion of this section? While the concept of exclusion is generally subdivided into different categories like social, economic, political and so on and its study disaggregated, we can’t set aside the fact that exclusion in one sphere deepens the exclusion in the other sphere.

As it is, kinship practices and family structures act as oppressors for them and any sort of protection that they could have received is submerged in the biases and prejudices attached to them. Such marginalization forces them to be a part of the ‘guru-chela’[5] system which even though oppressive, gives them a chance to be themselves and pursue their identity. State protection, thus, becomes a double-edged sword.

COMMUNITARIANISM VERSUS LIBERALISM DEBATE

 

While communitarians criticize the liberals for an ‘atomistic’ view of the individual, the liberals criticize them for the ‘social embeddedness’ of individuals that they advocate. Liberals believe in the rationality and capacity of every individual but communitarians believe that not every autonomous choice is of value. Taylor[6] argues that communal values are ‘authoritative horizons’ that ‘set goals for us’, while liberals believe that individuals can act independently of their social practices. Communitarians further argue that individuals are ‘situated’ in their communities through which they derive their ‘moral and social particularity’. While both viewpoints hold their merit, one can’t glaze over the fact that they are two sides of the same coin. Individuals derive their identity from the community but they also seek to break out of it once in a while. Besides, when we say that communal values are authoritative horizons, we forget that these horizons are a result of not a dialogue within the community but a monologue of the most powerful. Women, transgenders or anyone who wishes to hold their ground are divested of their voices, shamed into submission and repressed. Further, the capability set with which an individual might be endowed is decided by the community. Therefore, women, transgenders, poor and others are left out and get caught in the vicious cycle of marginalization. What should one do then? There always has to be a balance between individuals and communities; either taking precedence would not bode well with the idea of rights and freedom.

CONCLUSION:

Government involves, in Foucault’s famous phrase, “the conduct  of the conduct”, the directing and channeling of the behaviour of the body individual, the body social, and the body politic by means other than force or even explicit rule.[7]

This quote summarizes the entire idea of this paper. It shows how any government, to establish its power has to establish its hegemony through hidden control of bodies in general. This hidden control is established by creating a consensus among the people about the necessity of the so-called control. This option wasn’t available at the time of independence due to the communal unrest caused by partition and thus, this control was established through religious elites who were the custodians of personal laws. Therefore, the government channelized its authority through the garb of religion and expanded its legitimacy.

Foucault argued that power was about making the body docile as well as dependent. This ensured that the reins of power never left the government’s hands. He said:

Power over life evolved in two basic forms….. One of these poles….centred on the body as a machine: its disciplining, the optimization of its capabilities, the extortion of its forces, the parallel increase of its usefulness and its docility….. The second… focused on the species body, the body imbued with the mechanics of life and serving as the basis of the biological processes: propagation, births and mortality, the level of health, life expectancy and longevity… Their supervision was effected through an entire series of interventions and regulatory controls: a bio-politics of the population.[8]

Foucault further talks about how the threat of death becomes a futile weapon of exercising power as it can create unrest and stirs for rebellion. However, mastery over life creates pacified citizens who are easier to control. He says:

Power would no longer be dealing simply with legal subjects over whom the ultimate dominion was death, but with living beings, and the mastery it would be able to exercise over them would have to be applied at the level of life itself; it was the taking charge of life, more than the threat of death, that gave power its access even to the body.[9]

 

While we are socially embedded individuals and derive our identity from the constitutive parts of life, we also can’t ignore the fact that the ‘seed embedded in the fruit also has an identity of its own’ which is entirely endogenous. State and society tell us ways in which we should conduct ourselves but our experiences and ideological inclinations sometimes lead us to the road less travelled. How we organize our family, marriage, divorce and so on is told to us by agencies outside the sphere of our individuality. Neither did personal laws nor will UCC give importance to the voices of those who are affected and are located at the bottom of the agency ladder i.e. women and transgenders mainly.

 

Foucault is especially interested in those forms and operations that “categorize the individual, mark him by his own individuality, attach him to his own identity, impose a law of truth on him which he must recognize and which others must recognize in him….. a form of power which makes individuals subjects”.[10]

Herein, Foucault brings out the idea that through bio-power individual identities are subverted and individuals converted to subjects to make the idea of one nation, one state coherent. Individual identity is attacked from every sphere, be it secular or religious and the ideas of self-actualization and self-mastery not given any consideration.

The role of the state then becomes overbearing, since the laws and the political set up will have to be created and regulated by those principles which the State deems to be appropriate. The State will have the power to be intrusive and authoritarian to govern the people along the secular line which it considers to be progressive and modern. The occidental concepts of modernity cannot be considered to be the uniform standards of a progressive society. Universalisation of laws, especially personal laws would necessarily have to dodge this question, i.e., modern according to whom; oppressive and backward according to whom?[11]

Further, Shambhavi argues as to how laws controlling personal life become tools of internal colonization where occidental ideas take precedence. UCC also bears the brunt of being uni-dimensional in essence wherein there is only one way of right, only one way of life in a territory and only one view prevailing (the elitist view).

 

Thus, all the clauses discussed in this paper lead us to our central argument that bio-power is used to establish the superiority of the state and subjectification of a said class of people, herein citizens. While women and transgenders became targets in the personal law regime, UCC would be able to expand its focus. This bio-power wouldn’t only strengthen the state but become an instrument for the end goal of homogenization on the lines of the Eurocentric concept of state.

What one, thus, needs to do is question the status quo and break through the false consciousness binding us. A dialogue among individuals is the need of the hour.

FOOTNOTES

[1]ANDREWLOCKYER, A GUIDE TO THE POLITICAL CLASSICS: PLATO TO ROUSSEAU46(Murray Forsyth et. al. ed., Oxford University Press, 1988).

[2]N. Subramanian,Making Family and Nation: Hindu Marriage Law in Early Postcolonial India, 69T.J.A.S., 771, 774 (2010).

[3]Shambhavi,Uniform Civil Code: The Necessity and the Absurdity,1 ILI LAW REVIEW, 12,25-26 (2017).

[4]EPW Engage,Personal Laws versus Gender Justice: Will a Uniform Civil Code Solve the Problem?,ECONOMIC AND POLITICAL WEEKLY ENGAGE (May 1, 2020, 10:30 AM),

https://www.epw.in/engage/article/personal-laws-versus-gender-justice-uniform-civil-code-solution.

[5]The guru -chela system is a protection mechanism of the transgenders wherein ‘gurus’ are leaders of a transgender community in an area and a ‘chela’ is any transgender who wishes to be under the protection of the said guru. They work for the guru and pay fifty percent or more of their earnings to be a part of that community. While oppressive at times, it remains the only viable option to live a safe life and to be able to express their real identity. One should never have to go through the pain of suppressing one’s identity.

[6]WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY: AN INTRODUCTION223 (Oxford University Press2002)

[7] WENDYBROWN,THE OXFORD HANDBOOK OF POLITICAL THEORY73(John S. Dryzek et. al. ed., Oxford University Press, 2008).

[8] MICHELFOUCAULT,THE HISTORY OF SEXUALITY 139 (Robert Hurley trans., Pantheon Books, 1978).

[9]Ibid. 142-143

[10]WENDYBROWN,THE OXFORD HANDBOOK OF POLITICAL THEORY67(John S. Dryzek et. al. ed., Oxford University Press, 2008).

[11] Shambhavi,Uniform Civil Code: The Necessity and the Absurdity,1 ILI LAW REVIEW, 12,24 (2017).

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