Dyuti Sudipta - Senior Advisor, Gender Mandate
Picture Credit Law Corner
The issue of the Uniform Civil Code has been one of the most contested issues about Indian democracy since independence. The topic has been at the center of burning controversies time and again regarding minority rights, gender justice, and violation of certain articles of the same constitution that it is a part of. We need to look at the history of this debate and the various positions within it to have a say on the necessity of a Uniform Civil Code in India or in opposition to it on the grounds of the violation of minority rights. The issue of implementation of a Uniform Civil Code was one of the main electoral promises of the Bharatiya Janata Party (BJP) in the late 1990s. The Bharatiya Janata Party's motive for supporting UCC was far from that of the left-liberals and autonomous women's groups. The UCC envisaged by BJP was more of a Hindu majoritarian civil code and this was severely opposed by minority communities and later by women's groups and secularists. The alternatives came in the forms of codification of personal laws and the drafting of gender-just laws. The politics of the Uniform Civil Code in India is layered and thus needs to be studied in great detail and within its context.
Civil Code, to simply define, is a set of laws governing the civil matters for the citizens of the country relating to matters like marriage, divorce, adoption, custody of children, inheritance, succession to property etc. The Common Civil Code, if enacted, will deal with the personal laws of all religious communities relating to the above matters which are all secular in the character of the Indian state and to enhance fraternity of unity among citizens by providing them with a set of personal laws which incorporates the basic values of humanism. (Ahmed and Ahmed, 2006).
Personal law, on the other hand, is envisaged as a means of securing community and respecting religious difference, any proposed removal or reform of it becomes a sensitive issue and is perceived as a threat to community identity and/or traditional patriarchal arrangements.
Since the Bharatiya Janata Party (BJP), subscribing to and ideologically backed by Hindutva ideology and politics, came to power at the center in 1998 with the promise of instituting such a code, it stayed a prominent issue in the Indian political arena. After their return to power in the 2014 elections, the issue has again come into focus. The appeal to the Supreme Court for issuing a directive to the center for implementation of UCC was rejected by the three-judge bench led by Chief Justice T S Thakur. The statement said, “The law is well-settled on this issue. We have taken a view that these are decisions to be taken by Parliament. How can we issue a mandamus in a matter like this? We can understand your commitment to achieving the constitutional goal but this cannot be done through a mandamus from the court,”
Rukhmabai was married as a minor, at the age of 11, to a person several years older than her, named Dadaji Bhikaji Thakur. He agreed to let Rukhmabai stay at her natal home till she reached puberty. During this time, she acquired education and developed a personality that exhibited an independence of opinion and aspiration. After she attained maturity, her husband tried to persuade her to live with him, she refused to enter her marital home as she had heard about her husband's waywardness and had grown to dislike him. When persuasion and mild threats failed, the husband filed a case in the Bombay High Court for "restitution of conjugal rights" in 1885. He lost the case but appealed again in 1886 and, this time was given a favourable judgment. Despite the judgment, Rukhmabai still refused to enter the marital home and preferred instead to face the punishment that the court chose to award .
While this case was going on, a huge public debate ensued between the orthodox and the anti-reform segment and the reformist segment of the Hindu society. The orthodox faction, under the leadership of leaders like Bal Gangadhar Tilak, forwarded arguments like marriage customs had religious sanctions as they were practices derived from religious texts, wives must consent to sexual intercourse with husbands as they are perceived as instruments of procreation, it is the wife’s duty to live with the husband. Their arguments largely were very blatantly patriarchal and sexist. The orthodox sect saw the law trying to interfere in the domain of cultural practices that were considered beyond the jurisdiction of laws as the practices are to be derived from Shashtras or religious scriptures. The reformists, on the other hand, led by M.G. Ranade, G.G. Agarkar etc. in contrast used arguments in defence of Rukhmabai that could be called modernist in nature. They argued that a minor could not be kept within the marital bond as she has not consented to it as a responsible adult. Restitution was not possible as the marriage had not been consummated in the first place and the only thing relevant in this case was her wishes on achieving adulthood.
The role of the modern law and juridical institutions of the state was disputed in terms of authority to intervene in matters like this, considered ‘personal in nature. The debate within the Hindu community was raised on whether it was permissible for the secular law to adjudicate on a marital dispute governed by religious laws.
Similar issues were raised a hundred years after the Rukhmabai case, in the Shah Bano case, that led to similar controversy regarding Muslim personal law and the right of secular law to govern issues such as marriage, divorce, inheritance etc. And it gave rise to further debate regarding the codification of personal laws .
Shah Bano was a 68 years old woman who was given a unilateral divorce in the form of triple talaq by her husband Mohammed Khan, 75 years old, after 43 years of marriage. Her husband had argued that after divorce his liability to maintain his wife was governed by the Muslim Personal Law which limited his responsibility to the three-month iddat period of three menstrual cycles and to mahr which was committed at the time of marriage. After fulfilling these commitments maintenance was the responsibility of the divorced woman's natal family and of the community through their Waqf income. The Indian Supreme Court ruled otherwise and held that Section 125(3)(b) applied to the case and its judgment noted that "Mahr was a sum payable by the husband to the wife on divorce, an obligation imposed on the husband as a mark of respect" and therefore, not an excuse for not fulfilling the responsibilities under section 125. In delivering the judgment, the honorable Justice went beyond the stature and sought to give additional legitimacy to the judgment by offering an interpretation of sura 2:241 of the Holy Qur'an.
The judgment gave rise to a massive political outrage in the Muslim community, who mobilized by the political leaders, objected to the Muslim Personal law being overridden by secular law, and worse, to the court interpreting the Holy Qur'an which only a Muslim ‘alim' can do. The court in its judgment had clearly defined the position that in the case of a conflict between laws, eg. religious and secular, the secular law would prevail and that is why responsibilities under section 125 were imposed. The political mobilization of the Muslim community conducted by several Muslim organizations, such as the All India Muslim Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, Jamat-i-Islami etc. argued that the Supreme Court had transgressed its jurisdiction since "the Muslim personal law... was based on the Shariah, which is divine and immutable, hence, no legislative or executive authority could amend or alter its provisions”
In the face of these protests, the Rajiv Gandhi government sought to appease the community by quickly reversing the many gains of the judgment by issuing the Muslim Women’s (Protection of rights on divorce) Bill in 1985. This was done to appease the collective Muslim anger that the judgment gave rise to in fear of losing out on the Muslim vote bank in the upcoming elections.
The state enacted the Muslim Women’s Protection of Rights on Divorce Act (MWPRDA) in 1986, where Article 3(1) (a) entitles a Muslim woman at the time of divorce to “reasonable and fair provisions and maintenance to be paid to her within the Iddat period by her former husband”, (c) “An amount equal to the sum of mahr or dower agreed to be paid to her at the time of marriage or after the marriage by her relatives or friends or husbands or any relative of the husband or his friends.” .
It’s important to note that there was also an alternate voice in the Muslims, albeit a minority, who supported the judgment as an advance in the Muslim women’s rights movement, but these were not heard.The act gave the divorced woman and her former husband the option to be governed by section 125. This willingness had to be given on the day of their first hearing or else it would not apply. As a result of the MWPRDA, Muslim women went outside the ambit of Section 125 because of the culture of patriarchy within the community. Some feminist organization hailed the MWPRDA, while some called it regressive. The Hindu communalists called it minority appeasement. Muslim progressives also had different opinions regarding this. Some appreciated it as a break away from the chains of the orthodoxy of Islamic patriarchy. Some were unhappy with it because this had made the intra-community struggle for reform much harder.
The UCC issue came in the light of public debate during this time. A women’s group consisting of eminent feminists like Farida Khan. Nivedita Menon, Ritu Menon, Urvashi Butalia, Tanika Sarkar and many more, brought out a statement on civil codes and personal laws where they offered three core ideas-
The preparation and instructionalization of a comprehensive package of legislation which would embody gender justice and would be far wider in its scope than existing laws, including the personal ones.
All citizens of India would come under the purview of this framework
All citizens would also have the right to choose, at any point in their lives to be governed by personal laws if they desire.
In trying to capture some of the ideas, a model Nikahnama was prepared. The establishment of NGOs like Awaaz-e-Niswan in Mumbai created a new movement advocating "women's rights and the spread of legal awareness, not through the language of secularism but through Islamic scriptures and reinterpretation of the Sharia".
The involvement of NGOs, coming from different political and socio-economic backgrounds has given rise to several issues in the debate regarding social reform and the role of uniform civil code in it.
Before discussing this we need to look at two significant issues, the first being the growth of civil society in the decades beyond the 1980s in India. In contrast to the 1950s and '60s where the debate on UCC was more state-driven, it later tended to become fueled by civil society organizations. Feminist groups, minority rights groups, legal scholars, and political parties, share and challenge each other's ideas resulting in a diversity of views whose spread has been aided by the liberalization of electronic media. The inclusion of global debates within the purview of Indian issues of social reforms has given the UCC debate a layered character that ranges from the dynamics of local community politics to the logic of electoral politics at the national level, to the domain of comparative politics of Islamic countries that have responded to personal law issues by reinterpreting the Sharia, to women's rights and substantive equality , to a defence of pluralism of laws and to reviews of resolutions in a situation of a conflict of laws.
The second relates to the fact that the UCC debate embedded in not just feminist politics but in party politics as well. In addition to a discussion of the obvious aspect of the consolidation of the Muslim and Hindu vote banks by a politics of appeasement in one case and opposing the politics of appeasement in other is the allied issue that what is at stake in the UCC debate is two contrasting ideas of India. On the one hand, is the idea of India being a majoritarian Hindu country and hence a uniformity of laws must be imposed similar to those enacted in the 1950s for the Hindu community. This view is espoused by the Hindu Right-wing, Sangh parivar, and its affiliates. On the other hand, is the view of India as a pluralist secular polity which is willing to accept a future based on legal pluralism, a view that has been espoused by a range of political parties.
Apart from these contentions, there are additional conflicts of interpretation within the UCC discourse, such as the question of religious and secular laws, as well as the conflict between individual rights and group rights.
Image Credit: LawOctopus
Part III of the Indian constitution, i.e, Article 12 to Article 35 provides our fundamental rights, which are enforceable by the High courts of the various states and the Supreme Court of India. Part IV of the constitution provides for socio-economic rights styled as Directive Principles of state policy and are not enforceable by any court of law. However, article 37 clarifies that such directive principles "are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws." Under part IV of the Constitution, Article 44 states that "the state shall endeavor to enact a Uniform Civil Code for citizens throughout the country." On the other hand, under part III of the Constitution, Article 25 provides "Freedom of conscience and free profession, practise, and propagation of religion. The tussle is usually between these two articles.
Two strategies are available to ensure that such conflicts are minimized. The first can be called "outflanking strategy" i.e a strategy to outflank the resistances that are encountered by the attempts to evolve a gender just and minority sensitive UCC. Here as the women's group on women's rights have stated a package of laws would have to be enacted covering both the personal law and also laws relating to violence and discrimination in the workplace and in the home, such that the responsibility of promoting gender justice in the face of an asymmetric system of social power is not carried by the personal law alone (EPW 1996). In addition, as Nivedita Menon (2014) has argued, a three-part strategy can be followed:
Support attempts to bring about reform within personal laws
Bring about legislation in areas not covered by either secular or personal laws, such as domestic violence and the right to matrimonial home, thus avoiding direct confrontation with communities and communal politics.
Setting up a comprehensive gender just framework of rights covering not just areas covered by personal law but also the public domain of work (creches, equal wages, maternity benefits etc.
The second strategy is “reform through jurisdiction”. Since it is obvious at this stage (the NDA govt at the center with the BJP majority) in the politics of India that an initiative to prepare a comprehensive common code for all communities is politically unfeasible (DeSouza 2015). Because of the lack of trust in the intentions of the regime, gender justice is being pursued through a number of court cases across the country, and as a result, the judiciary is creating laws through interpretation of MWPRDA, which the legislature did not.
Both strategies of "outflanking the resistance and of "jurisdiction" have advanced the cause of gender justice in India though there is still a long way to go. Included in the constitution as a directive principle, to be kept in abeyance and implemented in the fullness of time, UCC is not yet a politically feasible option in India. Non-implementation of Article 44, thus, by no means amounts to the failure of Indian democracy.
Dyuti is a feminist researcher and writer based in Delhi. Her work has largely been centered on women and health, violence against women, feminist internet, sexuality and mental health. She is a graduate of TISS with a masters in New Gender Stud