Is uniformity in law good for women? How will women benefit? Is uniformity tantamount to equality? Do polygamy and gender discrimination affect only Muslim women?
The answers to all these questions are far from clear or categorical. But that has not prevented the Central government from once again sounding the bugle for the Uniform Civil Code (UCC) ahead of the 2024 general election.
Prime Minister Narendra Modi, while addressing booth-level party workers in Bhopal in the last week of June, said that he did not approve of separate laws for separate communities. That his speech was made in election-bound Madhya Pradesh pointed to electoral opportunism.
In his speech, he went on to make charges of appeasement against the opposition parties and projected his party and government as the true well-wishers of the minority communities. The BJP and the Prime Minister have made the liberation of Muslim women their pet project, and the UCC is the ostensible tool for this mission.
It is strange that the Prime Minister’s speech, comments by the ruling party’s members and fans, and the present Law Commission all call for renewed debate on the UCC. To date, there is no draft template in the public domain. The 21st Law Commission released a Consultation Paper in 2018, which held that the UCC was not necessary.
22nd Law Commission
On June 14, the 22nd Law Commission again asked stakeholders, including the general public and religious organisations, to send in their views on the UCC. The deadline to submit responses was July 15, but the date was extended to July 28. On July 21, replying to a question in the Rajya Sabha, Law Minister Arjun Ram Meghwal finally said the fresh consultation was started “bearing in mind the relevance and importance of the subject matter”.
The fact that the Law Commission specifically asked for the opinion of “recognised religious bodies” has come under the scanner. The All India Democratic Women’s Association (AIDWA) has questioned the inclusion. Given that established religions are not necessarily champions of gender justice, the suspicion appears to be warranted.
As problematic as the initiation of a debate without even a skeletal proposal in hand is the narrative that was spread by certain vested interests.
Soon after the Law Commission’s public notice of June 14, people began posting messages on social media platforms urging users to click on a link provided by the Law Commission and endorse the implementation of the UCC. Some messages even circulated phone numbers urging the public to give a missed call to endorse the UCC. Users were asked to circulate the message to a hundred contacts as “a service to the nation”.
Some messages said that Hindus were lagging behind in writing to the Law Commission. One such WhatsApp message reads: “Just in two days 4 crore Muslims submitted and 1 crore Christians submitted. Only Hindus have not submitted.” Finally, on July 7, the Law Commission issued a warning that the public must rely only on official sources and that it had “no involvement or connection with these texts or calls”.
But the damage had already been done and the weaponisation of the UCC for electoral polarisation had clearly begun.
Lack of trust
The chief problem is one of trust. Muslim women, while desirable of reforms in their personal laws, are doubtful of the government’s real intentions given the manner in which the government behaves when minorities continue to be targeted in public life. These apprehensions are not unfounded.
There was a campaign against Muslim girls in Karnataka who wanted to exercise their choice to wear the hijab. Before that, criminalising triple talaq was seen as a punitive tool that could be used at will. Third, anti-conversion laws and the bogey of love jihad have been frequently used to harass inter-faith couples in consensual relationships.
The Bharatiya Muslim Mahila Andolan (BMMA), the National Federation of Indian Women (NFIW), and the Bebaak Collective are among the leading women’s organisations that have written to the Law Commission with suggestions.
The BMMA has said that reforms within personal laws are the answer. It has submitted a set of 25 reforms pertaining to marriage, divorce, adoption, custody and guardianship, maintenance, and inheritance in Muslim law, to the Commission. The reforms include making the bride’s consent mandatory before a marriage is solemnised; registration of all Muslim marriages; banning halala,misyar, and muta marriages and child marriage; regularisation of divorce in and outside the court; and removing remarriage restrictions on women during the iddat (period after husband’s death). The BMMA has also urged recognition of a Muslim woman as the natural guardian of her child irrespective of marital status and sent suggestions on adoption, custody, and inheritance rights.
The Bebaak Collective, while suggesting reforms within Muslim personal law, has pointed out that all personal laws discriminate against women through the patriarchal institutions of the family and heteronormative marriage.
The collective believes that any debate around the UCC should not “target a specific community in the name of protecting Muslim women’s rights”.
It has sent a list of suggestions to the Law Commission titled “Not in my name: The Rhetoric of Protecting Muslim Women Eliminates Gender Just Laws”. They include repealing the criminalisation of triple talaq; invalidating all forms of unilateral talaq; abolition of polygamy and halala; registration of marriages and accountability of the qazi in a legal framework; and the right of Muslim women to calculate mehr.
- The 21st Law Commission released a Consultation Paper in 2018, which held that the UCC was not necessary.
- Muslim women, while desirable of reforms in their personal laws, are doubtful of the government’s real intentions.
- According to women’s organisations, reforms are also needed in the personal laws that govern the Hindu community.
- There is a pending suggestion to do away with the one-month notice and waiting period for marriages under the Special Marriage Act.
Rights for Muslim women
The collective’s suggestions would grant Muslim women housing, property, land, and inheritance rights, and matrimonial property rights.
The collective has also said that there should be no codification of personal law as it exists within the religious framework. It suggested that the Law Commission should also look at partnerships and civil unions outside the institution of heterosexual marriage and live-in relationships.
In its submission, the NFIW sought to know why the Law Commission was seeking views on a subject on which a previous Commission had already taken a position. Given the changes in ideas of gender, family, marriage, and maintenance over the years, the impact of a UCC would be detrimental to the interests of women, the NFIW said. It demanded that the existing legal system be strengthened and said that a UCC would only divide rather than unite people.
“The mere existence of difference does not imply discrimination but is indicative of a robust democracy.”21st Law Commission2018 report
According to women’s organisations, reforms cannot be about one community alone and changes need to be brought in across the board, including reforms in the personal laws that govern the Hindu community.
They also said that India has a rich tradition of plural family laws and common laws in areas where family laws do not exist. Common laws such as the Dowry Prohibition Act, Commission of Sati (Prevention) Act, Prohibition of Child Marriage Act, and Protection of Women from Domestic Violence Act apply to all communities. It did not take a UCC to implement such gender-sensitive laws. For many of these organisations, the UCC bogey raised by the BJP from time to time is nothing new.
Many of them wrote to the 21st Law Commission, urging the importance of reform within communities and the concept of a common law. Now they have submitted their viewpoints again.
The AIDWA, for instance, has said that it concurs with the 21st Law Commission that the UCC is neither desirable nor necessary to align personal law with the fundamental rights of women, including bringing them substantive equality. It pointed out that the 21st Law Commission had carried out extensive research and participated in many seminars and discussions before stating that the UCC was not needed. The 2018 report had acknowledged that various personal laws de-privileged women, but said that it was discrimination and not difference that lay at the root of inequality. The report also pointed out that “many countries are now moving towards recognition of difference and the mere existence of difference does not imply discrimination but is indicative of a robust democracy”.
Reforms in Hindu personal law
The AIDWA said that Hindu women still did not have equal guardianship rights over their children or equal rights over marital property acquired during the subsistence of a marriage. It was only a recent judgment of the Madras High Court that recognised the value of a woman’s household work and held that she was entitled to an equal share of the assets acquired by the parties, irrespective of whether she had financially contributed or not.
The AIDWA also said the court had done what successive Central governments had failed to do even though this was something women’s organisations had always demanded.
“In some States, including Uttar Pradesh and Uttarakhand, Hindu women still lack equal rights in agricultural property.”
According to the AIDWA statement, the government was unresponsive to the demand for a standalone law to deal with crimes done in the name of “honour”. It had presented two proposals, one in 2005 and one to the current government, for a law that dealt not only with members of families responsible for such killings but also with community panchayats that play a prominent role in denying young couples the right of choice in marriage and relationships.
Similarly, there is a pending suggestion to do away with the one-month notice and waiting period for marriages under the Special Marriage Act. Women’s groups have long objected to the long waiting period as it gives families and outsiders the time to raise objections and sabotage such marriages.
As for property rights, in some States, including the BJP-ruled Uttar Pradesh and Uttarakhand, Hindu women still lack equal rights in agricultural property.
While women’s groups genuinely want inequities within personal laws to be removed, they doubt if the BJP government’s intentions are above board. There was some speculation earlier that the government might bring a Bill in the monsoon session of Parliament, but that likelihood seems remote now, given the degree of opposition on display.