What kind of India are we creating?

If you are in love and not ready to get married, then do move in with the person you adore.

Just don’t do it in Uttarakhand.

 

It is fine to live together in Lucknow, which used to be the capital of what now constitutes the state of Uttarakhand. But drive a little out of Uttar Pradesh to neighbouring Uttarakhand—say, to a lovely home in the hills—and the two of you could end up in separate prison cells.

 

   With the Uttarakhand assembly passing the Uniform Civil Code Bill, the BJP government of Chief Minister Pushkar Singh Dhami has got what it wanted—to be able to punish couples living together outside of marriage with a jail term of three to six months.

 

   The only way to avoid this fate is to officially register your relationship with the authorities. (In which case, of course, why not just get married?) This applies to people who do not live in Uttarakhand as well. If you are from Uttarakhand but live in say, Chennai, you are still bound by the provisions of the Bill. You still have to register your relationship with the local registrar or some such official of the Uttarakhand government.

 

   Ah, the thorny issue of civil codes; pure electoral gold for politicians of all religions. At least, for once, these provisions are not rooted in communal politics. We know that the ‘Code’ in Uniform Civil Code (UCC) refers these days to its role as a code phrase for targeting Muslims and their personal laws.

 

   This issue, however, goes beyond religion. Speaking for myself, I have long supported a common civil code for all Indians but I want it to be preceded by a national debate and some level of consensus. Sadly, the move to introduce such a code has now become a means of asserting Hindu triumphalism, especially when BJP state governments introduce their own bills and the introduction of such bills is accompanied by chants of Jai Shri Ram in the assembly.

 

   But while the Uttarakhand BJP was focusing on pushing its own Hindutva political agenda, a clause aimed at live-in couples was also sneaked into the Bill.

 

   This affects Hindus (and everyone else) as well. And I imagine that, as the realisation of what the Bill entails sets in, there will be a move to water down or even delete this provision. (Or perhaps not. These days, rational explanations cannot match the irrational behaviour of politicians.)

 

   Leaving aside, for the moment, the cynical politics involved in turning a perfectly reasonable idea—the belief that India should have a common personal law for everyone—into a mark of majority triumphalism, let’s look at the other principles at stake here.

 

   The first is the principle of individual rights. Unfortunately most systems of law (including the British system, which ours is derived from) were framed centuries ago and included elements that were unfair and unjust. For instance, most democratic societies now accept that the law has no role in our private lives. Yes, there are matters where the law has a place (divorce, adoption rights, etc.) but on the whole, the guiding principle is that, as long as they do not harm anyone else, people are free to live their lives as they choose.

 

   In the UK, for example, it was often said that an Englishman’s home was his castle. Yet in complete contradiction of this principle, homosexual relations between consenting adults in private spaces were illegal. A national debate in the 1960s, and the publication of the Wolfenden report on the issue, led the UK to amend its laws. I can’t think of any Western democracy where homosexuality is still illegal—barring some conservative states in the US that still have anti-sodomy laws in their statute books.

 

"Matters of individual rights cannot be settled by reference to popular opinion or so-called tradition. They depend on first principles of respect for individuals."

   In India, however, because we had inherited pre-Independence British laws, the contradictions and prejudices of the old British legal system remain on our books. (There is now, finally, some attempt to change all this, but of course it is controversial.) I still find it shocking that, well into this century, so many of our senior judges were happy to treat gay people as criminals. When homosexual acts were decriminalised by the Delhi High Court, the Supreme Court struck it down. Quite apart from the dissonance of claiming to be a believer of individual rights while simultaneously upholding gay people as criminals, the levels of prejudice demonstrated by the courts was often shocking. (One senior justice declared in open court that he doubted the issue was of any great consequence because “I have never met a homosexual.” Which, of course, led another judge to joke to me, privately: “Clearly the man never went to a boarding school.”)

 

   If judges can’t see anything wrong in this willingness to barge into bedrooms and judge people’s private behaviour, then it is a bit of a stretch to expect politicians to recognise how shameful this is.

 

   And so, you have provisions like the one in the Uttarakhand UCC Bill about jailing heterosexuals (and, I imagine, homosexuals too) who live together without having their love lives cleared by the local registrar. All these invasions of individual privacy and liberty are usually justified by the same sort of argument: it is against our ancient traditions. In fact, this is a debate that has long been settled in most of the civilised world. Matters of individual rights cannot be settled by reference to popular opinion or so-called tradition. They depend on first principles of respect for individuals.

 

   This kind of political (and legal) stupidity provides huge opportunities for the police and other authorities to terrorise or persecute people or (and this is the more likely outcome) extort lots of money from those affected by these laws.

 

   Fortunately, there are enlightened judges who see the danger. I am grateful to Apar Gupta, a distinguished lawyer, for pointing me in the direction of the 15-year-old judgment of the Delhi High Court. The Delhi Police had charged a newly married couple under the Indian Penal Code for demonstrating affection in public. The couple had gone to the Dwarka Court complex to get some paperwork done for registering their marriage and were found kissing each other by two policemen. At this stage, they were charged with criminal behaviour.

 

   Justice J Muralidhar saw how absurd the case was. “It is inconceivable here, even if one is to take what is stated in the FIR to be true, the expression of love by a young married couple…could trigger the coercive process of the law.”

 

   But how many such cases ever get to the high court? How many judges are there like Justice Muralidhar? How many people have faced extortion from police officers?

 

   And finally, there is a serious principle that we rarely consider. It is often being made clear that many middle class Indians don’t mind a bit of authoritarianism. They don’t have much time for a free press or the opposition. We saw this most clearly during the 1975 Emergency when, contrary to what we like to claim now, much of the middle class was supportive of Indira Gandhi’s authoritarianism.

 

   But, I often wonder: do enough middle class Indians recognise the difference between authoritarianism and totalitarianism? An authoritarian society seeks to minimise (or punish) dissent. A totalitarian society goes much further. It is one that decides how people will live, what they will eat, how they will love, what they will wear, etc. It goes beyond political rights to everyday living, from public expressions of dissent to our behaviour in our homes and our bedrooms.

 

   The best example of totalitarianism is Mao Zedong’s China, where ordinary citizens were forced to live in the way the Communist Party wanted them to. The Taliban are a modern example of totalitarianism.

 

   Each time we allow the state to take more and more control of our lives, we are following the path of Mao Zedong and Mullah Omar. It always starts small and only affects a small percentage of the population—say, gay people or those who live together outside of marriage—and so the majority doesn’t care. But it is a slippery slope. And it never stays small for very long.

 

   So, what kind of India are we creating? A 21st-century superpower?

 

   Or, a mirror image of the Taliban’s Afghanistan?