What are we having this liberty for? We are having this liberty to reform our social system which is full of inequalities, discrimination and other things, which conflict with our fundamental rights.
– Babasaheb Dr. Ambedkar,
Constitution Assembly debate
70 years after independence, we are not yet out of the grip of conservatism and orthodoxy. Why we have to fight the conservatives is because conservatism always favours the strong. The powerful remain powerful, while the oppressed continue to be oppressed. As our founding fathers wanted, we need to make India – a society of equals. India will continue to be a land of rich and varied cultural and religious heritage. But that can be no reason why our fellow citizens should be deprived of liberty and equality. This is why personal laws in India, currently based on religious codes, should be reformed in a gender just manner. However, not all change is reform. The BJP government’s adamant rhetoric on imposing an uniform civil code in the disguise of reform raises apprehension.
Great causes and little men often go ill together!
– Pandit Jawaharlal Nehru
The directive principles of state policy – India of our founders’ dream
The directive principles of state policy form the part IV of our Indian Constitution. This is distinguished from the other parts of the constitution by the way that the provisions contained in this part shall not be enforceable by any court, Nevertheless, it is fundamental in the governance of the country. It is the duty of the state to apply these principles while making law. For example, Art 47 of this section says, “The State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” This is a guidance but not an enforceable duty. A gov’t can check the merits and demerits of prohibition. A gov’t may choose to educate the people on the hazards of drugs and weed out the use of drugs in the state instead of coercive prohibition. This would be appreciated and not criticized as failure of constitutional duty. The Directive principles urges gov’t to reduce inequality in income among people of different regions and vocations, to ensure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment, to ensure equal pay for equal work for both men and women, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, to protect children from moral and material abandonment, to make provisions for public assistance in cases of unemployment, old age, sickness and disablement. The educational and economic interests of the weaker sections of the people, particularly of the scheduled castes and tribes shall receive special care. The raising of the standard of living, of the level of nutrition and the improvement of public health shall be among the primary duties of the State. These are noble and very important duties of the government. But ways and means of implementation cannot be dictated by anyone. They are open to the facile criticism that the constitution is not the place for moral precepts. But they have an educative value and most modern constitutions do lay down general principles of this kind. Some argue, any such categorical assertion would only defeat the very purpose of the government. The success of these non-justiciable principles depends on social philosophy of the government of the day. For purposes of Part IV, the State can be synonymous with the party in power. It is upon the social conscience of the party that the enforcement of these principles ultimately depend. When an RSS pracharak rules the country, this becomes immensely important. A reactionary government ignores principles or escapes them by putting a different interpretation.
This is what has happened now with the uniform civil code (UCC). The Art. 44 of the policy says, The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The constitution sees that in a civilised society citizens should not be governed by disparate laws of conflicting ideologies. The provision is cautiously worded. It is neither time-bound nor compulsive.
The gov’t is trying to use this provision to target minorities, encroach upon their religious beliefs. The Hindu fundamentalists make it a militant demand as if Hindu law should be made the national family law.
UCC – The idea and the agenda
The debate on Uniform Civil Code is walking on a knife edge. The UCC seeks to replace the existing civil laws based on religious faith by a common civil code binding equally on everyone. This has different implications for different people. For liberal constitutionalists, it is a step towards secularisation. We have a uniform and complete criminal code operating throughout the country, which is contained in the Indian Penal code and Cr.P.C. Laws concerning transfer of property, child marriage, termination of pregnancy, domestic violence which will generally be part of civil code are already common. Only laws concerning marriage, divorce, maintenance and succession are different for different religions. If they are united, this would mean a true secular country. For feminists, it is a step towards gender equality and a saving hand from religious orthodoxy. Religious personal laws are by large patriarchal. Islamic law does not allow equal inheritance of property for daughters (nor did Hindu law until amended by SC in 2005). Catholic law does not even allow divorce as ‘what god has united, man cannot separate’. Oral unilateral Talaq has affected lives of numerous Muslim women in India. For Muslim conservationists, it is a challenge to the supremacy of Quran and Quranic laws. As Muslims consider Quran is ultimate and cannot be amended by time, they are not ready for any reform. For, RSS-BJP, it is an opportunity to overrule various religious laws with one common Hindu law or an eye-for an-eye attack for the imposition of a comparatively reformatory Hindu civil code by secular nationalists Ambedkar and Nehru. “When the ‘majority’ Hindus cannot perpetuate injustice as sanctioned by their religion, why should the ‘minority’ Muslims be allowed to?”, is their basic argument. The uniform civil code, mainly because of the widespread agitation by Muslims and the polarisation by the media, is seen as an anti-Muslim agenda throughout India. This is the main reason why this is such a dear agenda to the BJP. The uniform civil code along with the Ram mandhir hold a permanent position in the last page of the BJP manifesto. When it becomes more and more clear that the Modi image has become fractured and that BJP has realized none of their first page development promises, the BJP seeks to retain its popularity by bringing its last page divisive agenda into play. Their recent frequent mentions of Ram mandhir and UCC can be understood this way. With UCC, the BJP moved a step forward by asking the law commission to take action towards forming a uniform civil code. A questionnaire that barely understands the minorities in India, before even initiating a consultation process has added burns to the worries of minorities in India under the Modi kingdom. Justice V.R. Krishna Iyer points out that “the best course will be to set up Commissions for drafting progressive changes in the family laws without doing violence to the fundamentals of faith.” After all, uniformity does not ensure equality.
A throwback – who are these preachers of modernity?
The Hindu personal laws were codified initially in 1940s. The bill introduced by law minister Ambedkar was remarked as an “atom bomb on Hindu society” while all it sought was to legitimize inter caste marriages and see women in an egalitarian light. Nehru faced vehement opposition from the right wing hindutva groups from within and outside the parliament mainly Hindu Mahasabha, the Bharatiya Jan Sangh, the Ram Rajya Parishad and the RSS, led by N.C. Chatterjee, Shyama Prasad Mukherjee, and Golwalkar, the ideologues of RSS. In 1949 alone, the RSS held 79 meetings, in Delhi and burnt effigies of Nehru and Ambedkar, “where the new bill was denounced as an attack on Hindu culture and tradition.” The preliminary draft of the Hindu Code Bill was debated in the Legislature as early as March 1943 and despite multiple dilutions, it still failed to be passed in the parliament. In a sign of protest against the rejection of the Hindu Code Bill and Nehru’s lack of determination in pursuing it, Ambedkar resigned. The bill could be passed only in 1955-56, after it was further diluted into four separate acts (Hindu Marriage Act of 1955, Hindu Succession Act of 1956, Hindu Minority and Guardianship Act of 1956 and the Hindu Adoptions and Maintenance act of 1956) and that too only after Nehru’s adamant threat to resign if the bill was not passed. The introduction of UCC was to be postponed until when such a time arrives.
On constitution day 2016, Home Minister Rajnath Singh had remarked that the words secular and socialist should be removed from the preamble showcasing their disregard for secularism, whether in the true sense or in the Nehruvian sense of benevolent neutrality towards all religions. With the BJP’s propaganda during the recent five state elections being blatant communal polarisation, frequent rhetoric on Ram Mandhir, and the Modi’s remark, their call for a uniform civil code causes apprehension. Rather, it is a smokescreen to/for elite majoritarianism.
Need to reform non Islamic laws
It is high time that personal laws are rationalized on the basis of gender equality as this is a question of democracy. This has to come from all fronts and the binary – Uniform Civil Code versus Muslim Personal Law Board must be overcome.
The shadows of the Narasu judgement (1952), later upheld by SC in 1980, in which the personal laws were held to be immune from constitutional challenge still linger. It is high time that personal laws are rationalized on the basis of gender equality as this is a question of democracy. This has to come from all fronts and the binary – Uniform Civil Code versus Muslim Personal Law Board must be overcome.
Even among the uniformed Hindu personal laws, not all are progressive. Still, the property of a hindu women who dies without a will, in the absence of spouse and children, is inherited by the husband’s heirs and not her family, even if they have ill-treated her for her entire life time. They aren’t considered as equal guardians of their children either as under Hindu Minority and Guardianship Act, the father is the “natural guardian” of a child. Moreover, she also loses her ‘absolute’ right to maintenance if she deviates from the path of chastity, virtually making her a property, even after separation. A legitimate reason for divorce under the code is wife’s inability to produce a child for her husband. The injustice extends as a woman cannot divorce for the same reason.
The progress made in Christian personal law since 2001 (Indian Divorce Amendment Act) is often credited for the extensive consultation with the concerned groups and should be emulated in other religions as well. In 1986, the SC gave a landmark verdict allowing Mary Roy equal rights in the inheritance of her father’s property. However, it took 24 years (till 2010) to get it executed. Further reforms are necessary as Roman Catholic law does not allow divorce even today and children born out of wedlock cannot claim any inheritance rights.
In the Parsi personal laws, a non-Parsi woman who is either a wife or widow of a Parsi cannot inherit, but her children can. However a child born to a non-Parsi man and a Parsi woman are not considered a part of the community.
In Nagaland, where no rule of the country is applicable without the state legislating it as well, women under customary laws do not enjoy land, property or inheritance rights.
In Goa, where the family laws fall under the Portuguese Civil Code, which is often cited as a precedent for UCC, the concept of property after marriage is that of “communion of assets” but the management of the same is under the male custody. “What do equal rights mean when there are women who can’t even access their salary, or their jewelry in their marital homes?” asks Sabina Martins, a women-rights activist from Goa. Further, the law puts the wife way down in the succession line of the husband’s share if the husband dies intestate. Worst of all in this “model for UCC” is the Goan law on polygamy, which recognizes the second marriage of a Hindu man of Goa if his previous wife does not have any children before the age of 25 or if she does not have a male child by 30.
And none of these personal laws recognise transgender marriages.
Discrimination does not end with the personal laws. In India, tragically, the law only prevents the marriages of children, it does not render them illegal. According to the UN, this is one of the main reasons why the custom still flourishes in rural areas. Another facet to the issue is that the age of consent for such marriages is only 15, and that the right to deem them void is only up to 20 (23 for men). The rationale behind the differences in marriageable ages(18 and 21) is also bewildering. The woman’s claim to family property after divorce in light of recognizing her domestic efforts should also be codified. Other minority women also faces stigma as is understood by the protests in Himachal Pradesh and Jharkhand against customary laws. When so many flaws remain within individual civil codes, why rush towards UCC?
One of the great tragedies of mankind is that morality has been hijacked by religion. So now people assume that religion and morality have a necessary connection. But the basis of morality is really very simple and doesn’t require religion at all.
– Arthur C Clarke
The Shah Bano case – History that hurts
Mohd. Ahmed Khan v. Shah Bano Begum (1985) case is a milestone in Indian judicial history for a number of reasons. Shah Bano’s spouse, Mr. Khan, abandoned her when she was 62 years old for a second younger wife. When he even stopped Rs. 200 he had earlier promised, she went to the court. The MP high court directed Khan to pay the amount of maintenance of Rs. 179.20 per month. Khan then filed a petition in SC that he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total ₹5,400 as she had ceased to be his wife as he gave a irrevocable Talaq and a second marriage before Talaq is also permitted under Islamic law. The SC upheld the high court verdict. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It had to state that, there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the matter. After referring to the Holy Quran, holding it to the greatest authority on the subject, it held that there was no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. It was the first case where the supreme court expressed displeasure at the delay in framing a uniform civil code as article 44 remained a dead letter. Its contention was that no individual should be deprived of hir right in the name of religion. However, this judgement faced lot of opposition from the Muslim orthodoxy that it was an attack on their religion and their right to their own religious personal laws. The then Congress government effectively nullified the SC’s judgement by enacting The Muslim Women (Protection of Rights on Divorce) Act, 1986, using its absolute majority. The act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. While intellectuals across the spectrum considered this act as a major infringement of rights of Muslim women, the BJP saw it as discriminatory to non-Muslim men as they were still bound to pay maintenance under Section 125, Cr. PC. It is interesting to note that the Islamic orthodoxy went from trial court till Parliament to secure their right to deny women of their basic right to life with this act.
Need to codify Islamic laws – In solidarity with BMMA
“Religion is not endangered by people who want to reform a particular law . May be, they are over zealous, but it is better to be over zealous in things idealistic than things corrupt.”
The Bharatiya Muslim Mahila Andolan is an organization trying to reform the Indian Islamic community by fighting the patriarchal interpretations of Quran codified as the Shariat law which has made life of large number of Muslim women’s life miserable. “Why should we Muslim women be deprived of the rights Allah had granted years ago, because of a few people’s misinterpretation?”, asks Noorjehan Safia Niaz, cofounder, BMMA. BMMA had come up with an exceptional draft of “The Muslim Family Act” as a result of over ten years of hard work, ensuring gender justice to women in Islam. They had sent it to the PM for consideration. They have also petitioned against the practice of unilateral triple talaq in the SC. Through their nationwide surveys, they have challenged the representativeness of the AIMPLB. We mailed Noorjehan Safia Niaz, cofounder, BMMA, seeking an interview, which we later had over phone.
What do you see as the necessity for codified Muslim personal law? Do you agree that the existing laws have done injustice to Muslim women?
Because we do not have a codified Muslim law, our women do not have recourse to legal aid. Hindu religion or any other minority religion have their own codified laws. Because of partition preceding our freedom and many other historic reasons, our law was not codified. In 1972, we had the All India Muslim Personal Law Board (AIMPLB) which came to simply defend the Shariat law and therefore not allow any interference in Muslim personal law. Therefore now, even after 70 years of independence, Muslim men can divorce their wives in the way they want to, indulge in polygamy, the age of marriage is not specified, inheritance between son and the daughter is not specified. So, our last ten years’ struggle has been to bring this draft law that you have seen. We have tried to incorporate the teachings of Quran in these matters. Our aim is to bring this to the parliament and pass this law, of course after hearing from all quarters of the nation, thereby codifying the Muslim personal law in a gender just manner.
Inspite of the AIMPLB being deeply and openly patriarchal, why have there been no widespread opposition from within the Muslim community? They continue to be the face of the Muslim community in India. How has this happened? Is it indicative of the Muslim community itself being patriarchal?
All communities are patriarchal, not only in India, but throughout the globe. But the AIMPLB claims to be the representative of all sections of the Muslim community, which is not true. We did a survey, according to which 95% of Muslim women have not even heard the name AIMPLB. There is tremendous heterogeneity even within AIMPLB while they keep saying all the Muslims are one. We do not see AIMPLB as anything other than NGO, like any other NGOs. They are not a statutory body. Yes, they do have a large following. But, our work is to challenge their hegemony, their interpretation of religion. We are happy that we are getting a lot of support. A lot of women come out and share their legal difficulties which was not possible years ago. They are no longer termed unislamic, antireligious.
The draft recommends distribution of property to be made as per the Quranic verses 4:11 and 4:12. Considering the socioeconomic and political changes in our society and the women’s liberation movement, should we ideally not be legislating towards equal inheritance?
It is true. But, considering all the verses that talk about gender equality in Quran, we can understand that nothing in it prevents us from giving more to women. At a time when women themselves were considered a property, Quran gives them property rights, That is only the minimum. So, after suggestions from some lawyers in Tamil Nadu, we have included the provision of HIBA or gift deed for their daughters to equalize the daughters share with the son. Over and above the quranic sense, this should be practised.
Your draft has recommended provisions under The Muslim Women (Protection of Rights on Divorce) Act, 1986 regarding maintenance. There is a major criticism that the act was passed in the parliament to deliberately circumvent the Shah Bano judgement by which a man need not provide maintenance to women after 90 days. This is depriving her of her right to life. What is the rationale behind this provision?
Yes, your are correct. The act was passed to restrict maintenance to period of 90 days. However the SC judgement in the Danial Latifi case and several HC judgements have interpreted the law demanding the husband to pay maintenance for his wife for throughout her life, but that the sum should be settled before 90 days. The 90 days is the deadline to settle the maintenance covering for her entire life. This we find to be gender just. So, we have accepted the act under the light of SC’s interpretation.
Lastly, how do you differentiate the UCC issue from that of codification of Muslim law?
The issues are completely different. Codification of Muslim law is specifically for the Muslim community. While UCC is for the entire country. It is wrong to pick UCC as against Muslims. For UCC we will have to go through an entire consultation process. They would have to go through an entire process of consultation with the Hindus, Parsis, Christians, Buddhists and Jains. After 70 years now, we don’t even have a single page of UCC. The NDA gov’t has been in power for 8 years now. What have they done? I see this as mere politicizing of the issue. This is a much larger debate. Before which, Muslim women need a law. That is what we are working towards. We have sent the draft to PM, we will take this to the parliament and ensure Muslim women get justice.
The special marriage act, 1956 – Is this the optional UCC?
There is a question in the Law Commission questionnaire which is quite a puzzle. It asks whether the UCC framed should be optional. However The special marriage act, 1956, already serves as an optional UCC. The act allows any citizen irrespective of hir religious faith to marry across caste or religious boundaries. Their divorce and maintenance would also be governed according to the same act. Inheritance would be according to Indian Succession Act. But, if the parties to the marriage belong to Hindu, Buddhist, Sikh or Jain religions, then the succession to their property will be governed under the Hindu succession Act. Thus a separate uniform civil code can be nothing but a barely modified form of special marriage act. People should be educated about the scope and nature of this act. Youngsters should be encouraged to love and marry beyond religious and caste borders and shun useless customs and traditions making marriages meaningful. Because this alone could bring about integrity and equality among citizens and combat communal hatred, not a legislation that is thrust upon its people.
Why does the centre want to do all the hardwork?
Federalism in India, like any other democratic value has suffered its due in the Modi regime. While the government wants to get rid of all its duties for state, it wants to hold all the power. Reform in religion and religious laws can be best done by smaller states, centre. This can be best explained by the Tamil Nadu example. After over half a century of Dravidian movement from 1916, when the first Dravidian rule was established, in 1967, in its very first signature legalised self-respect marriages, allowing couples to marry without any customary practices. The Tamil Nadu government was the first in the country to grant equal inheritance rights of ancestral property to women, as a new high in its quest for gender justice. All this government was able to do by amendments of Hindu code laws in the assembly without any opposition, because of its efforts to popularize these values. The Kerala government by the Joint Family abolition act, abolished the different schools (Mitakshara and Marumakkathayam) within the Hindu code. Goa, although far from perfect, has a practically a common Goan code. When states can reform the religious code laws within their state with better communication with public, why does the centre want to threaten the public with its communal knife? The function of politics in any society is reconciliation of conflicting interests. Whether the centre wants to reconcile the conflicts, or blow them up is the question.
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