What does Justice Katju think about UCC and CAA?

Amalendu Upadhyaya
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Indian Government set to enact the UCC and enforce the CAA

By Justice Markandey Katju

With parliamentary elections in India only a few months away, the ruling right wing Hindu nationalist BJP is all set to enact a Uniform Civil Code ( UCC ) and enforce the Citizenship Amendment Act ( CAA ) in India shortly, probably thinking it will benefit it in the forthcoming elections.

I support the former but am opposed to the latter. We may consider these separately

1. Uniform Civil Code

Presently India has different laws for different religious communities, in matters relating to marriage and divorce, inheritance, etc. Thus, while Hindus are governed by the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, etc, Muslims are governed by the non statutory sharia law.

Article 44 of the Indian Constitution states “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

But this provision is in the part of the Constitution called ' Directive Principles of State Policy '', which is unenforceable vide article 37 which states '' Theprovisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws ''.

The Indian Constitution was promulgated in1950, but as yet a uniform civil code has not been enacted as envisioned by the Directive Principles, probably because of fear in the Congress party, which ruled India for decades after Indian Indepence in 1947, of antagonising the Muslim voters, whose population is particularly large in north India. These Muslims are largely under the grip of reactionary maulanas ( religious clerics ) who fiercely oppose any change in the sharia law.

The BJP does not get Muslim votes, and seeks to get the votes of a large part of India's 80% Hindu population. It seeks to enact a UCC knowing that this will infuriate Muslims, and thus inflame communal passions, which benefits the party, as it consolidates the Hindus, who are otherwise divided on caste lines.

I am no supporter of the BJP ( nor of any political party in India ), but I strongly support enactment of a UCC, as sharia is totally outdated, and has kept Muslims backward. I have given my reasons in my articles and video below, so I am not repeating them :

Many Muslims and so called 'secular' parties like the Congress criticised me for my stand, but I stick to it, though I am totally secular
Law is a reflection of social relations in a society at a particular stage of its historical development. So as society changes the law too must change. How can a law made in Arabia in the 7th or 8th century apply or be useful in the 21st century, when society has totally changed ? Can we have Manusmriti today ? These are all outdated laws.

2. Citizenship Amendment Act ( CAA ), 2019

The ruling BJP has guaranteed implementation of the CAA within a week

While I whole heartedly support the UCC, I disapprove the CAA, for the reasons given in the article below :

The BJP enacted the CAA as it thinks that the millions of Bangladeshi Muslims living in Assam will vote against them in elections.

But there is a humanitarian aspect to this. Most of these Muslims ( or their forefathers ) living in Assam who came from Bangladesh have lived in Assam for decades or generations. They have no roots in Bangladesh now, and most of them, particularly the youth, have probably never even seen Bangladesh. They are working and earning their livelihood in some occupation in Assam, or studying there. Driving them out now from Assam is like the Pakistan government seeking to drive out Afghan refugees who have been living and working in Pakistan for decades, or like attempts to drive out Mexicans living in USA for a long time, though they entered USA illegally. Where will they live, and what will they do in Bangladesh ? In fact the Bangladesh government has declared that it will not accept them. So should they be dumped into the sea ?

(Justice Katju is a retired judge of the Supreme Court of India. These are his personal views.)

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