Needed Gender Just Laws, Not Just Uniformity

NEW DELHI: The current atmosphere is charged with the intense and passionate debates around the Uniform Civil Code (UCC).

There are a couple of petitions from Muslim women pending in the Supreme Court. The Central Government has filed an affidavit, which argues against the practice of triple talaq.

At the same time the Law Commission has circulated a questionnaire inviting the opinion of people on matters pertaining to UCC. This questionnaire covers some aspects of personal laws, particularly those related to Muslims and Christians and cursorily takes up just one facet of Hindu law related to inheritance. It seems the ruling Government is trying to push forward its agenda of UCC.

There is some ground for this perception. Since the time of the Shah Bano Judgment the RSS Combine has been pushing forward UCC as the core of the Hindutva agenda.

As such the UCC debate is fairly old. In the constituent assembly the issue rested with the opinion that the state should strive to achieve UCC. This understanding was put in the directive principles of state policy and not as a fundamental right.

There is a long and vexed history of personal laws in India. The British had evolved the laws pertaining to civil and criminal laws, which are uniform irrespective of religion. In matters of personal laws, particularly marriage, divorce, custody and inheritance the customary practices of the dominant religious communities were put together and given the status of law.

Needless to say most of the practices are product of a patriarchal mindset and are not giving justice to the women cutting across all the religions.

The first attempt to streamline the personal laws was done by Jawaharlal Nehru and Ambedkar in the form of the Hindu Code bill. The idea presumably was that since the Hindus are a majority reform among Hindus will pave the way for reform among all the communities in due course.

As matters stood, Ambedkar who was at the centre of evolving this Bill did know that present laws are unjust and made gender justice the foundation of the entire exercise.

The response of conservative sections of Hindu society was severe opposition to the bill. Dr. Rajendra Prasad, the then President of India also opposed the bill. It was diluted giving a large space to customary practices to satisfy the conservatives.

Interestingly the Hindu Code bill also extended to Sikhs, Jain and Buddhists Since there was space for prevalent practices to be given the status of law, most of the gender unjust issues were brought into the Hindu Code Bill. The Special Marriage Act also came in as a law available for all, but as an option not a compulsion.

With rising communal violence in society the Muslim minorities felt intimidated and linked the peronal law to identity.

There are two groups of people supporting reform in the personal laws amongst Muslims in particular. The first group is a large number of Muslim women and some Muslim men. Among the petitions with the Supreme Court one is from the Bharatiya Muslim Mahila Andolan (BMMA), which holds that the present practice of triple talaq is un Islamic.

There are many stalwarts of Islam who do hold that the present prevalent practice has no place in the Quran. They, along with many other Muslim women’s groups, have been ceaselessly campaigning for just and equal rights for Muslim women.

The second group very vocal about justice to Muslim women is led by the RSS. As a matter of fact it’s their politics which creates the situation of violence against religious minorities. They use such issues to play out a divisive agenda of communalism.

We are living in strange times. There is no accepted draft of the UCC only politics. For the BJP-RSS the uniform civil code serves as a dog –whistle to polarize the communities along religious lines.

What should be the response of the communities? First the law commission needs to revise the questionnaire to make it fair to all the communities.

National consultations with women’s groups of all religions are needed to evolve the code. Already there is many an attempt to draft model charters. Can there be a meeting ground between different communities to put up a draft which is just, and protects all women?

To say that uniformity increases national integration, actually holds no water. In many countries there are diverse laws in different parts of the country. We need to also understand that the primary need of today’s society is gender justice; uniformity cannot be the starting point.

The process has to begin bottoms up, by giving security to minorities and to encourage reform from within. Such as triple talaq that is being challenged now by the Muslim women themselves, in the courts and outside.