ON October 7, an appeal and a questionnaire issued by the Law Commission of India soliciting views of the people of the country on a uniform civil code led to an unsavoury controversy regarding the intentions of the Bharatiya Janata Party (BJP)-led National Democratic Alliance government at the Centre. The question of whether rights emanating from marriage, divorce, birth and succession must be guided by religion or by constitutional guarantees has become a matter of intense debate not because of any inherent problem in the proposition but because it was posed in a selective manner, targeted at and tagged with the Muslim minority.
The problem with this approach was the government’s attempt to link the demand for the abolition of the practice of triple talaq with that of a common civil code. The practice of triple talaq undoubtedly has been a cause of concern among Muslim women and women’s organisations as well. What was suspect was the linking of the two aspects without going into gender inequalities codified as accepted rituals in laws governing various religious denominations.
The pronouncement of triple talaq in contravention of Quranic principles and the Shariah and in an arbitrary manner and the event of announcement of divorce over telephone or other similar communication technologies had become a matter of concern, following which Muslim women’s organisations demanded the abolition of this practice and the codification of rights pertaining to marriage, divorce, maintenance and inheritance as was done in the case of Hindus through the Hindu Marriage Act.
Women’s organisations never had any doubt that the rights stemming from such social relationships and contractual obligations ought to be led by constitutional principles and guarantees, but never did they approach the issue in a piecemeal manner as the present government seems to be doing. The issue was that any personal law, belonging to any religion, ought to be taken up in the “rights” framework and impartially. The Law Commission’s questionnaire appealing for working towards a uniform civil code was somewhat skewed more towards Muslims as a community and with a special emphasis on the practice of triple talaq.
No one agrees that the practice of triple talaq has been just to Muslim women. The Law Commission’s questionnaire goes beyond taking the views of people on triple talaq. But its specific inclusion in the questionnaire led to strong opposition from the Muslim clergy as well as organisations claiming to represent the personal laws of the community. The Muslim community was pushed into a corner on the issue of triple talaq as it was unable to support the government’s position on the same especially as the abolition of triple talaq was seen in tandem with the constitution of a uniform civil code.
Notwithstanding the reservations expressed by the All India Muslim Personal Law Board (AIMPLB), which seems to be most vocal along with other organisations in opposing the abolition of triple talaq, the BJP and its senior Ministers have been unable to convince anyone other than themselves of the merit of its decision. Most of the BJP’s allies have been silent on this. Some of the Ministers have been at pains to convey, through various write-ups and Facebook posts, their apparent sincerity in reforming the Muslim personal law, which unfortunately none, including the affected women, seem to be convinced of. For instance, Finance Minister Arun Jaitley noted in his Facebook post that the Law Commission had initiated an academic exercise and that it was in continuation of the debates in the Constituent Assembly about how the state would endeavour to have a uniform civil code. He also mentioned that since Independence various governments had initiated reform in the personal laws of various religions, mentioning the tenures of Jawaharlal Nehru, Atal Bihari Vajpayee and Manmohan Singh. This was an attempt to argue that as other religious laws had undergone reform from time to time, it was high time Muslim personal law followed suit.
Defending an affidavit submitted by the government in an ongoing case challenging the practice of triple talaq in the Supreme Court, he wrote: “As communities have progressed, there is a greater realisation with regard to gender equality. Additionally, all citizens, more particularly women, have a right to live with dignity. Should personal laws, which impact the life of every citizen, be in conformity with these constitutional values of equality and the Right to Live with Dignity? A conservative view found judicial support over six decades ago that personal laws could be inconsistent with personal guarantees. Today it may be difficult to sustain that proposition. The government’s affidavit in the triple talaq case recognises this evolution.”
The Bharatiya Muslim Mahila Andolan (BMMA), the largest organisation of Muslim women with a membership of over a lakh and a presence in over 13 States, is opposed to both the government’s prescription for a uniform civil code as well as the resistance of the AIMPLB on the issue of triple talaq. The convener and co-founder of the BMMA, Noorjehan Safia Niaz, told Frontline that a reform of Muslim personal laws for gender equality was required under Quranic principles as well as the Constitution. The organisation has been spearheading the campaign to ban the practice of triple talaq on the grounds that a ban did not violate the Shariah.
The BMMA had initiated a campaign and collected 50,000 signatures from Muslim women from across the country and also made a representation to the National Commission of Women requesting a codification of personal laws that would be in the spirit of gender justice and equality. Therefore, the present move of the government to initiate a discussion on a uniform civil code using the fig leaf of triple talaq has not fooled the BMMA. The organisation is categorical that its demand was confined to the banning of triple talaq only and not for any uniform civil code.
Noorjehan Safia Niaz told Frontline that the politicisation of the issue did not help Muslim women. “Our stand always has been that these laws need to be codified. The Indian Constitution allows for personal laws. A uniform civil code has wider implications. What is the reason and purpose behind the government putting forth the idea of a uniform civil code when Muslim women are asking for codification? We are talking about a specific practice within a specific community. Uniform civil code is a larger debate. Will other communities accept it? The government should talk to Christians, Parsis and also members of other religions governed by the Hindu Marriage Act, such as Sikhs and Jains. We do not agree with the AIMPLB, which is behaving as if it is in the Middle Ages. Extreme positions of both the government and the AIMPLB do not help the cause of Muslim women,” she said, adding that the Board did not represent the views of the community and its women.
The practice of triple talaq and halala (the practice of marrying a second time and divorcing in order to remarry the first husband), she said, had to go and that a “confrontational approach” on both the issues did not help remedy gender inequities. Once the law was codified, it would automatically abolish all personal laws. If the government wanted to formulate a uniform civil code, she said, it could make it optional, referring to the optional Special Marriage Act. She felt that even if the government was serious about a uniform civil code, it should have gone about seeking opinions from all communities in a democratic manner. “At the end of the day, principles of equality and justice should prevail. We want the government to codify Muslim family laws on an urgent basis. The practice of triple talaq and halala can be terminated,” said Noorjehan Safia Niaz. However, the BMMA as well as other women’s representatives feel that the government was merely indulging in political and communal one-upmanship with no genuine interests of women of all communities and all religious denominations in mind.
There were features in the Hindu Marriage Act, observers pointed out, such as the saptapadi (taking of seven steps by the bridegroom and the bride around the sacred fire) and the kanyadaan , which were sanctioned and codified under the Act and were very much based on Hindu scriptures.
There are those who have pointed out to the timing of the entire controversy. Kirti Singh, advocate in the Supreme Court and legal convener of the All India Democratic Women’s Association (AIDWA), said that the statements of some Central Ministers implied that while Muslim laws were medieval and unjust, Hindu laws were not. She said the issue of triple talaq was brought to the court by a Muslim women’s group (the BMMA) that had been working with victims of triple talaq and had found the practice unjust and discriminatory. While AIDWA was critical of the AIMPLB for opposing the abolition of triple talaq in the Supreme Court, it also criticised the government by saying that rather than “sermonising and communalising” issues relating to women’s rights, the government could well bring a law to control “honour crimes” and refrain from attempting to dilute Section 498 A, which protected women from dowry-related violence.
Kirti Singh said polygamy, too, had been challenged by such groups from time to time. “At AIDWA, we stand fully behind them and back their struggle for gender justice in their laws. But how is it that triple talaq and uniform civil code have both come up at the same time? Such a linkage has put Muslim women in an extremely vulnerable position as they have to talk about triple talaq as well as uniform civil code even as they are fighting the patriarchal elements in their own community and are being asked to support the code, which they do not,” Kirti Singh told Frontline . The opposition to personal law reform in the 1950s came from the Hindu Mahasabha; therefore, it was ironical, she said, that the present government should portray the Muslim community as regressive and resistant to reform. Before 1955, Hindu women had no rights to property, polygamy existed, and Hindu women could not divorce their husbands. Muslim laws were more progressive.
Hindu Code BillIt is well documented that the Hindu Code Bill, which attempted to reform Hindu law, albeit in a limited sense, was opposed by Hindu Mahasabha leaders who felt that such reform would be a threat to Hindu society. The Hindu Succession Act and the Hindu Marriage and Divorce Act were opposed by Syama Prasad Mookherjee, Kirti Singh said. “In short, they opposed equal rights to women everywhere. The argument was that why was only Hindu law being targeted and that giving equal rights in property would break up the family,” she said. Hindu laws were discriminatory. The Hindu Minority and Guardianship Act allowed women to be guardians of a minor until the age of five and beyond that the father would be the legal guardian. Similarly, women were not given rights to ancestral property but only intestate property (the condition where someone dies without making a will or any similar valid declaration). Women’s organisations had always held that reforms were to be conducted in all laws and not in a piecemeal way. After the Shah Bano judgment, Muslim women were all the more keen to have reforms within their laws.
The subsequent passage of the Muslim Women’s Protection of Rights to Divorce Act was an eye-opener. There was an apprehension that in the guise of uniformity, Hindu laws could be imposed. In fact, some of the apprehensions were confirmed when one of the amendments to the Special Marriage Act, Kirti Singh pointed out, allowed only Hindus to be governed by the Hindu Succession Act but did not give that facility to other denominations. “The fears of a uniform civil code were always founded as the government never tried to bring in reforms in Hindu laws,” she said. There were no rights to marital property even now. A woman could not claim anything in terms of her non-financial contribution to the marital home in the eventuality of a separation. The deficiencies in Hindu laws needed to be looked at as well, he said.
Interestingly, the Law Commission had submitted a report on “The Protection of Children (Inter Country Retention and Removal Bill), 2016”, which recommended a jail term of one year for any parent who was found guilty of removing a child from the custody of the other parent. Kirti Singh said this would go against women as most of the runaway cases involved women escaping abusive marriages. AIDWA, she said, had submitted a draft Bill dealing with crimes committed in the name of honour but nothing had moved on that front. “We are not for a uniform civil code but for reform within communities on the basis of equality and justice,” she added.
Echoing Kirti Singh’s views, Annie Raja, general secretary of the National Federation of Indian Women, said initially women’s organisations did support the need for a uniform civil code, but when it was realised that a Hindu code would be imposed in the garb of a uniform code, the position was revised. “An impression is being given that abolition of triple talaq is equivalent to a uniform civil code. It is an attempt by communal forces from both ends to equate the two issues. By raising the issue of a uniform civil code, the BJP and its ideological partners are trying to say that the Muslim community is anti-reform and against the Constitution. All personal laws are discriminatory; no one is interested in equal rights for women,” she told Frontline .
It is interesting that the majority of political parties, including those that are readying to contest the forthcoming Assembly elections in Uttar Pradesh, have remained silent on the issue even as the Centre has sought to make its position and intention clear through write-ups and views in the media. The Communist Party of India (Marxist) is the only party to have come out openly in support of the demand of Muslim women against the practice of arbitrary and instant talaq and state that all personal laws, including those of the majority community, need reform.
With a feeling of siege in the minority community given the various statements by people in government from time to time and the attacks by cow vigilante groups against members of the minority community, any move by the government to project itself as a torchbearer of the rights of minorities, especially minority women, will not inspire confidence. The BJP is committed to a uniform civil code, but its formula for such a code has always been viewed with suspicion. The need for reform is there, but a piecemeal approach cannot be a solution.
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