A uniform civil code, which is supposed to prevail over personal laws of different communities, is most definitely an ideal to work towards, but drawing one up will not be easy by any means.
On October 7, the Law Commission of India released a “Questionnaire on Uniform Civil Code” seeking public opinion on personal laws, the desirability of a uniform civil code (UCC), and what it should deal with. That was also the day the government filed an affidavit in the Supreme Court opposing the practice of triple talaq on the grounds that it was not part of the “essential practices” of Islam. The Court had sought the affidavit while hearing a bunch of cases challenging triple talaq and other Muslim practices revolving around marriage.
That set feminist, political and Muslim religious groups dovecotes all aflutter—this was targeting the minorities, they insisted. And the sharply polarised debate on the UCC surfaced yet again. Will anything concrete emerge this time round? It could be anyone’s guess as no one has budged from their entrenched positions.
On one side of the divide are three groups. The women’s groups and one section of Indian liberals were once ardent champions of a UCC and still want equal rights for women and reform of personal laws but are downright suspicious of any BJP initiative on this. And then there are the Muslim religious groups, who reject the very idea of a UCC and insist this is just another way of targeting their community. For these groups, the mere mention of UCC equals pushing a “Hindu majoritarian agenda”.
On the other side is the BJP, the larger sangh parivar and Hindutva hardliners, which have taken the moral high ground on the issue, saying a UCC is the only way to ensure gender justice and is in line with the Constitution. With them on just this one issue is a section of Indian liberals, who think it is high time India had a UCC and feels any apprehensions of minorities can be sorted out through dialogue.
In between these, there is also a libertarian view, enunciated by Parth J. Shah in another essay in this issue (See Page XX), which wants the state to stay out of all personal spaces, except to protect individual freedom.
Lost in the din is a nuanced fact: a uniform civil code, which is supposed to prevail over personal laws of different communities, is most definitely an ideal to work towards; but drawing one up will not be easy.
A UCC is seen as a way to end the gender discrimination inherent in the family laws (covering marriage, divorce, property rights, maintenance and adoption) of various communities. There is broad consensus among all non-traditionalist sections that personal laws, based as they are on religion, are by their very nature patriarchal.
There was impassioned debate around a UCC in the Constituent Assembly, following which its desirability was mentioned in Article 44 of the Constitution. Post-Independence, the initial work revolved around codifying personal laws. Christian and Parsi personal laws had already been codified in some manner and so the focus turned to Hindu and Muslim personal law. Hindu family laws got codified, despite tremendous resistance from Hindu conservatives. However, on the grounds of respecting Muslim sensitivities post-Partition, the codification of Muslim personal law was deferred. It is this timorousness that has made the UCC debate so deeply political now.
Women’s groups were working towards a UCC through the 1970s till the mid-1990s (See box: A U-Turn on UCC). “Our main issue was to end gender discrimination in personal laws. We thought if we had a uniform family law, perhaps constitutional justice will become a possibility for women,” says Jyotsna Chatterji, director and secretary, Joint Women’s Programme India (JWP). But religious leaders across communities insisted that change should not be imposed by the state and must come from within the community.
That worked in the case of the Hindu, Christian and Parsi personal laws, where significant reforms covering marriage, divorce and inheritance were ushered in over the years, despite resistance from the conservatives. Though there are still several problem areas, these codified personal laws are largely in tune with modern times. Implementation, however, lags hugely, with women not confident about taking on their families or the larger community or going to courts to get their rights enforced. But the fact is that the rights are there for whoever has the courage to demand their enforcement.
However, Muslim personal laws have neither been codified nor reformed. “A predominant section of the Muslim masses are under the control of religious leaders who have succeeded in making them believe personal laws equal the Quran. Liberal voices in the community just don’t count,” rues Tahir Mahmood, former chairman of the National Minorities Commission. In an article in The Hindu on 12 July, Mahmood recalls how Muslim religious leaders scuttled a report he had submitted to the Eighteenth Law Commission of which he was a full time member. It had suggested a revision of the Muslim Personal Law (Shariat) Application Act, 1937, but the Commission did not accept it, even as it accepted two other reports by him on the Special Marriage Act, 1954 and compulsory registration of all marriages. At the same time, Mahmood also feels change cannot be imposed from above and that religious leaders need to be convinced that reforms are required.
Not everyone agrees with the change-from-within argument. “For 60 years, we are saying the same thing—communities will reform themselves. When will that happen?” asks Ravinder Kaur, head of the department of sociology at IIT Delhi.
“Women’s voices are rarely counted as part of the voice of the community; the focus is on the maulvis and the All India Muslim Personal Law Board,” laments Hasina Khan, founder of the Bebaak Collective (which brings together several Muslim women’s organisations and is also a petitioner in the Shayara Bano case challenging triple talaq in the Supreme Court). Muslim women are going to courts and fighting for their rights, their voice needs to be heard, she insists. “When have the religious conservatives ever spoken in favour of women? Whenever they have, it is always a string of anti-women fatwas.” Yet, she balks at supporting a UCC.
The Hindutva hardliners are partly to blame for the suspicion about a UCC. They almost always posit it in terms of Muslim practices relating to marriage and divorce; they hardly ever talk about maintenance, succession, inheritance and adoption, which are also part of family law. The Law Commission questionnaire also asks whether all these should be part of a UCC or whether some should be excluded. This gives a handle to Muslim religious leaders to whip up fears about the community’s identity being under threat.
This position is not unique to Muslims and has been used by traditionalists from other communities as well when their personal laws were being reformed. When the women’s movement was pushing for a UCC in the 1970s, most religious leaders opposed a UCC on the grounds that it will not allow communities to regulate its personal affairs. “This is a specious argument; how is identity crucial for inheritance, adoption etc?” asks Kaur.
But, however desirable a UCC is, drafting and legislating it will be fraught with problems.
Some of these have their roots in the Constitution itself. All that the one-sentence Directive Principle of State Policy says is that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is not even a hint about what the elements of such a code should be. Nor does it say whether or not the code should be mandatory.
It could be argued that “uniform” automatically means the code will be mandatory, but Alok Prasanna Kumar, visiting fellow at the Vidhi Centre for Legal Policy, points out that issues covered by family law were put in the Concurrent List of the Constitution. This, he argues, does not fit with the idea of uniformity.
Indeed, individual states have made amendments to codified personal laws. Amendments to the Hindu Succession Act giving unmarried women co-parcenary rights in family property, Kumar points out, were first enacted in Andhra Pradesh, Tamil Nadu, Karnataka, Kerala and Maharashtra before Parliament amended the Act for nationwide application in 2005.
Then there is what Chatterji calls the tension between two constitutional guarantees—the right to equality in Article 14 (which says every citizen is equal before the law and gets equal protection of laws) and Articles 25 to 28 relating to the right to freedom of religion. During the early initiatives for a UCC, she recalls, presenting a draft that would protect both sets of rights had been a challenge.
This tension can be resolved, feels Supreme Court advocate Vikramjit Banerjee, a strong supporter of a UCC. Article 25, he points out, is the only fundamental right which is subject to the exercise of the other fundamental rights. Besides, the Constitution also says the right will not prevent the enactment of any law “regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice”. He refers to Supreme Court orders that have held that issues of marriage, succession and adoption are secular activities, and not essential practices of a religion (one Supreme Court judgement had said only essential practices would get protection under Article 25).
But this could be open to interpretation. It is quite possible that religious hardliners could insist that marriage, divorce and succession are essential practices. “It is a problematic test,” admits Kumar, pointing out that the concept of marriage is different across communities.
How will a UCC reconcile the enormous diversity in India, not just among religions but within religious groups as well?
Even the Hindu codes—there are four of them, on marriage, inheritance, adoption and guardianship—cover personal laws of four communities: Hindus, Sikhs, Jains and Buddhists. The Sikhs demanded and got the right to have their marriages registered under the Anand Marriage Act, 1908, and not under the Hindu Marriage Act, 1955. Interestingly, in an article in Indian Express, Mahmood points out that the Bill to amend the Anand Marriage Act was moved by a BJP member of Parliament. In Maharashtra, there is a move by the current BJP government to have a separate marriage law for Buddhists. So clearly there is lack of uniformity on UCC even within the BJP. Will the communities which want to opt out of the Hindu codes (though they protect their practices) agree to a UCC?
There are regional and community-specific variations even for Hindus, Kumar points out. Certain communities in Kerala and Tamil Nadu, for example, have different inheritance rights. The Hindu Minority and Guardianship Act, 1956, does not apply to the scheduled tribes. And across communities, touching inheritance rights could invite a far more virulent backlash than laws relating to marriage or divorce.
Then there are constitutional guarantees given to Jammu and Kashmir under Article 370, and to Nagaland and Mizoram under Article 371 A and G. Under the latter two, no law passed by Parliament relating to the religious and social practices of the Nagas and Mizos would apply in those states unless the state legislatures pass a resolution to that effect. Goa has its own UCC (See box above). In Puducherry, those who chose to come under the Franco-Indian law when it became part of India do not come under the purview of the Hindu Marriage Act.
What the controversy over a UCC has blanked out is the fact that there are already some secular family laws that apply to all communities. The Special Marriages Act, 1954, is seen as something that only facilitates inter-religious marriages, but even couples from the same religion can marry under this; many do so. The Juvenile Justice Act, 2000, has a chapter on adoptions, which people from all communities can resort to. Earlier, religious restrictions prevented Muslim, Christian and Parsi couples from adoption. They could only be guardians and this imperiled the child’s inheritance rights. The Hindu Adoption and Maintenance Act, 1956, also had several restrictions on adoptions. The Juvenile Justice Act addresses all these problems. Jagdeep Kishore, a lawyer specialising in adoption cases, points out that couples across religions are now increasingly resorting to this Act. Even earlier cases of guardianship are being regularised under this Act.
So, should the government just say only these secular laws will prevail and customary law stand repealed? That is something Ranjana Kumari, director of the Centre for Social Research, feels could be more workable and acceptable than drawing up a new code. But Justices M. C. Chagla and P.B. Gajendragadkar had held in the 1950s that customary laws cannot be struck down as being inconsistent with fundamental rights under Article 13 of the Constitution. Besides, Kumar points out, property or financial arrangements made on the basis of existing customary laws would be affected. “The legal consequences would be immense.”
Banerjee suggests a half-way house—a civil rights law, which will assure equal treatment of all sexes on all issues. Other laws that conflict with this will be invalid. This, he says, will end unequal treatment of men and women within different personal laws and bring the latter in line with the Constitution. For example, in some personal laws the grounds for seeking divorce are different for men and women; this will be done away with.
Mahmood prefers giving individuals the freedom to choose between the secular law or the personal law. “Individuals will gradually adopt the secular law through a process of education.” Agrees Nandita Shah, co-director of Mumbai-based women’s organisation Akshara: “Secular law should be a gender-just one, and women should be encouraged to resort to it.”
Kaur, however, feels this is a slippery slope to tread. “Yes, more women are getting educated, but can we wait till all women get educated? There has to be forward movement on this.” She thinks it is time for serious effort by everyone to discuss how to reconcile issues of cultural identity with equal rights in governance related matters.
That would require all groups to engage with the government, which appears difficult, as most women’s groups and many liberals refuse to even countenance the idea. There appears to be some divide within the women’s movement, with some less vocal groups and individuals wanting to discuss the matter and see what the government has in mind. The naysayers, however, appear to have an upper hand for now.
But this unyielding position is misplaced. If this government does have a plan to impose Hindu personal laws on all communities, the best way to expose and oppose it is to get into a debate with it on the UCC. The Law Commission and the government should be compelled to put out an early draft outlining what the proposed UCC will entail. As of now, both sides seem to be talking at, instead of to, each other.
The women and children of India need to get the equal rights the Constitution promises them. This cannot be done without a fair debate on a UCC. Both the government and the women’s groups owe this to them.