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What lies at the heart of the Uniform Civil Code Debate?

The ‘One Country, One Law’ demand has been raised consistently and most stridently by the sections that perceive heterogeneity of the Indian population as anathema and promote homogeneity (by definition majoritarianism of the small influential section among Hindus) of citizenship. Why should a secular society have different laws for different segments of the population, is the argument?

The vocal opposition of large sections of the Muslim male clergy to the grant of maintenance to a divorced Muslim woman in accordance with general provisions of the Indian criminal law (the Supreme Court judgement in the Shahbano case in 1986), and their insistence that the union government change the law to exclude Muslim women from the law’s general purview, further muddied the debate over the decades.

Not only did the central government enact the Muslim Women Protection of Rights on Divorce Act, 1986 (NCW :: Laws Related to Women in INDIA) but the All India Muslim Personal Law Board became sole arbiter of the fate for Muslim personal law reform. There has been hardened public perception that it is Muslims alone that are totally hostile to any idea of social reform. Within this section of the rightwing (and even mainstream) discourse, it is assumed that only minority women need saving, for ‘we Hindus’ have already given ‘our’ women equal rights. This belies the lived reality for hundreds of thousands of Hindu women.

Why is the UCC in the news now?

While the idea of a Uniform Civil code has always been something of a political flashpoint, what makes it especially relevant is the BJP’s use of it as a major plank in its manifesto for the 2014 Lok Sabha elections. Soon after summing power, minister for law, Sadananda Gowda unequivocally stated that the BJP was committed to making good on its election promises regarding the code, although he maintained that consultations with stakeholders would have to be undertaken. But how will the government proceed with regards to the drafting and implementation of such a code?

Who supports a UCC?

Support for a uniform civil code has been nuanced. While the Hindu right’s argument -- reflected in what the BJP continues to endorse --is that only such homogeneity and uniformity can ensure national integration, this concern is not born out of concern for the rights of women or children. The Jana Sangh and the Rashtriya Swayamsevak Sangh (RSS) had vociferously opposed the passage of the Hindu Code Bill in the 1950s. Dr BR Ambedkar has resigned in protest against this conservative intransigence.

Faced with an inward looking Muslim male clergy today, however, it has found the demand for the UCC a convenient and handy stick to beat the minority with. The more nuanced demands for change and reform from within the women’s movement have however been in turn arguing for a gender just code or a uniform/common code that draws on the most egalitarian provisions from different laws. Increasingly however, a more visible argument has been for ‘reform or codification in Muslim personal law.’ It is clear that for changes to be democratic the government will need to take Indian women, Dalits, Adivasis, Hindus, Muslims, Christians and Sikhs with them.

Individual Rights and Community Rights

As things stand, most communities privilege men in their understanding of inheritance and rights within a marriage, even with respect to issues as basic as the dissolution of the same. Is the duty of a government and the state, then, in a secular democratic republic towards the rights of the individual citizen or is its duty to respect the freedoms of the community to which this individual belongs.

The debate over the UCC in contemporary India is sharpened by two notions of rights in the Fundamental Rights (Part III) of the Constitution: the individual citizen and the collective. The former is the subject of Articles 14 to 24 which ensure the individual’s rights to equality and freedom and the latter of Articles 25 to 30 which protect religious freedom and the educational and cultural rights of minorities. It is from the latter that religious communities derive the right to be governed by their own ‘Personal Laws’. Since these Personal Laws cover matters of marriage, property inheritance and guardianship of children, and since all Personal Laws discriminate against women, the tension in Part III of the constitution can be read as a contradiction between the rights of women as individual citizens and those of religious communities as collective units of a democracy. The statement of intent, or implication that uniform laws for all citizens is the properly modern goal for a nation-state, is reflected in the Directive Principles of State Policy (Part IV of the Constitution), which calls upon the state to bring about a UCC.

Is there consensus on the issue?

The notion of a Uniform Civil Code is contentious and on one level has polarized opinion among the members of minority faiths and, on another, among those working for more gender-just laws. Among those who recognize the issues with the kind of freedom afforded to communities under separate personal laws, there is a lack of consensus on precisely what approach is likely to best achieve the goals of greater gender justice. The first approach advocates a uniform civil code that allows for plurality within a single code. The understanding behind this approach is that a system of separate family laws brings with it trappings of tradition, custom and faith that make it difficult for women to seek justice. The second approach, while accepting this limitation, advocates the simultaneous reform and parallel codification of separate family laws arguing that, in practice, a continued regard for the autonomy of various personal laws will ensure a greater acceptance of reform within them.

Who’s pushing for a UCC?

The call for a uniform civil code has come over the years, from several, extremely disparate quarters. Women’s rights advocacies, such as the All India Democratic Women’s Association, have continuously emphasized the need for reform within the personal laws of communities in order to make them more gender just. While they are not opposed to the idea of a uniform civil code, they caution against a superficial understanding of equality within communities as necessarily stemming from uniformity between them. It is the BJP, seemingly allied with these groups in their dedication to gender justice, which has most frequently and consistently pushed for a uniform civil code. In its 2014 manifesto, the party stated that it continues to remain committed to the drafting of a uniform code “drawing on the best traditions and harmonizing them with modern times”. While a number of conservative Muslim groups have expressed strong opposition to the idea of a uniform civil, code, the call for reform has repeatedly surfaced within the community as well. As early as 1993, Ahl -I- hadith declared that instant divorce was un-Islamic and in contravention of the Prophet’s word while Muslims for Secular Democracy (MSD) has consistently called for gender reforms within the personal laws of the community.

Will the UCC target minorities?

The call for a uniform civil code has led to a considerable sense of anxiety amongst minorities. Specifically, the Muslim community has been most closely scrutinized and has become most defensive regarding the same. There remain practices within Muslim Personal Law, such as triple talaq and legally permitted polygamyas also subsequent issues of maintenance and alimony) that place women at a distinct disadvantage.

However, it is not the Muslim community alone that has unfairly gendered personal laws and therefore in need of reform. Among Parsis for instance, Non-Parsi wives or widows have no right to inherit property and Parsi women, if they choose to marry outside the community are excommunicated, their children can no longer be considered Parsi either.

While it is important to recognize that these communities have laws that are in need of reform, it is untrue that they have remained static over time. In 2007, the Supreme Court held that a Muslim woman deserted by her husband is entitled to maintenance from him, notwithstanding the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In 2004, the All India Muslim Personal Law board restored women’s rights to agricultural property, although it continues to be slow moving on other issues such as triple talaq and maintenance.

What about the Uniform Civil Code of Goa?

A quick look at the experience of Goa is useful, as the Civil Code of Goa is often touted as an example of a UCC that works. This law was in place by the Portuguese colonial authorities and is neither ‘uniform’ nor gender-just. Yet in his recognition of the BJP’s continued commitment to a Uniform Civil code, Gowda referred once more to the code in existence in Goa.

Goa allows for the existence of community property law, which means that, upon marriage, both spouses are entitled to a fifty percent share of their joint property and neither spouse is allowed to dispose of these joint assets without the permission of the other.
It is important, however, to understand that the Goa model is far from ideal. Most fundamentally, it is not uniform in its functioning.
Catholics and non-Catholics are subject to a different set of laws.
For Catholics, if the marriage is solemnised in church, the Church can annul the marriage at the instance of one of the parties, as is permitted in church law.
Goa’s UCC permits ‘Gentile Hindu’ men to take a second wife if the first wife bears no children before 25 or no son by 30.
Other inequalities – on issues of adoption and the rights of illegitimate children – are also allowed for in these laws. When it comes to taking an oath in court, differences on the basis of caste have been accepted.
The positive aspect of Goa’s Civil Code is the Community Property Law, which guarantees each spouse 50% of all assets owned and due to be inherited at the time of marriage. Not only does a woman own half the property of her husband, and vice versa, but each partner must take the spouse’s permission before disposing of any of those assets. However, this provision can be sidestepped in practice, given the power relations in a marriage, and it has not made any impact on the incidence of domestic violence.
It has also been pointed out that the supposed shared income between the spouses is welcome in higher income brackets with one principal earner, because it can result in lower taxes on the joint income.

Are all are other Indian laws non-partisan?

Certain income-tax benefits accrue in secular India only to Hindus who can prove that their income comes from the proceeds of a “Hindu undivided family.” (HUF). The Supreme Court has held that “there need not be more than one male member to form an HUF and the “tax benefits in such a case should be levied on the joint family and not on the male as an individual.”
Even less known is the fact that while an anti-woman bias pervades all existing personal laws, a communal bias is evident not only in some of the provisions of Hindu family laws, but even the supposedly-secular Special Marriages Act. The laws of the land predictably discriminate against all women; they also treat Hindus as a special category as compared to non-Hindus. To cite a few examples:
The anti-women enactment of a special law for divorced Muslim women in the wake of the Shahbano controversy happened in the floodlight of negative publicity. However, an amendment to the Special Marriages Act in 1978, with the primary objective of preventing property accruing to Hindu women, was enacted almost clandestinely and with hardly any murmur of protest. Following this amendment in the avowedly secular law, on contracting a civil marriage, a Muslim, Christian, Parsi or Jew no longer has access to her or his personal law of succession. They are governed by the Indian Succession Act, 1925. But a Hindu, Buddhist, Jain or Sikh shall, on contracting the same civil marriage, retain his or her personal law of succession. The obvious beneficiary of this amendment is the Hindu male and the loser, the Hindu woman.

The women’s movement and the UCC – seven decades of a debate

In 1937, the All India Women’s Conference articulated its demand for a Uniform Civil Code for all religious communities. Until the 1980s this remained the thrust of the demand by the women’s movement. Around this time there began some re-thinking on the issue. This was also the period when a shrill majoritarianism had made its indelible mark on the Indian polity and politics.

By 1995, what emerged was a broad range of positions, from the continued demand for a UCC, to outright rejection of such a move, and calling instead for reforms within Personal Laws. The general consensus in the women’s movement by the end of the 1990s was that the campaign for gender-just laws should be conducted at three levels:

a) Support for and initiation of attempts to bring about reform within Personal Laws
b) bringing about legislation in areas that are not covered by either secular or Personal Laws – such as domestic violence and right to matrimonial home – thus avoiding a direct confrontation with communities and communal politics, and
c) in the long term, setting up a comprehensive gender-just framework of rights covering not just areas covered by Personal Laws, but also the ‘public’ domain of work (crèches, equal wages, maternity benefits etc) which should be available to all citizens.

There have been some achievements in the first two categories. Divorce law for Indian Christians was made more gender just through sustained engagements within the community by feminists, resulting in the passing of the Indian Divorce (Amendment) Act of 2001. Different versions of model nikahnamas that protect the rights of women have been prepared by Muslim reform groups, though these have yet to be accepted by the community leaders.

Interestingly, there have been positive outcomes from even the Muslim Women (Protection of Rights on Divorce) Act of 1986 that was passed to override the Supreme Court decision in the Shah Bano case which asserted that Muslim women were covered by Section 125 of the CRPC, thus entitling them to maintenance under a secular provision. The Muslim Women Act of 1986 took Muslim women out of the purview of this secular provision, provoking outrage from the women’s movement and anti-patriarchal voices from the Muslim community, but studies of the working of the Act in the three decades since its passing, show that Muslim women have benefited from its creative interpretation by courts.

Which are the laws that officially privilege Indian men over Indian women?

A recent UN report lists these as the worstoffenders:

1. Hindu laws of inheritance: Right now different religions have different personal laws that regulate inheritance, marriage, separation and guardianship in India. In the case of Hindus, the property of a woman who dies without a will is handled differently from that of a man. In the absence of spouse and children, the husband’s heirs inherit the woman’s estate. “Even if the deceased woman was ill-treated in her marital home, her husband’s mother or father will get her property instead of her own mother or father,” says Kirti Singh, the family and property lawyer who authored the UN report.

2. Parsi laws of inheritance: Despite shrinking numbers, Parsis still penalise those who marry outside their community – and it’s allowed. A non-Parsi woman who is either a wife or widow of a Parsi cannot inherit. Their children still can, although those born to a Parsi woman married to a non-Parsi man are not considered part of the community.

3. Prohibition of Child Marriage Act: The marriage of a one-year-old or ten-year-old is valid. The law only prevents the marriages of children; it does not render them illegal once they actually happen. According to the UN, this is one of the main reasons why the custom still flourishes in rural areas. The married children, however, have the right to declare it void. A woman can call off a marriage until she turns 20, whereas a man has till age 23.

4. Age of consent: Sexual intercourse with a girl below the age of 18 is considered rape. But since child marriages are not illegal, a man can legally have sex with his wife even if she is a minor, as long as she is above the age of 15. Further, marital rape is not criminalised in India.

5. Rape of a separated wife: The rape of a separated wife carries lesser punishment than the rape of any other woman. Forced sexual intercourse with the former is punishable with two to seven years of imprisonment. The prison sentence for the rape of any other woman ranges from seven years to life imprisonment.

6. Marriageable age: The minimum age for marriage for a boy is 21, but 18 for a girl. This is a legal extension of the patriarchal mindset that believes that a wife should always be younger than the man.

7. Hindu Minority and Guardianship Act: Women are still not equal guardians of their children. A father is considered the “natural guardian” of a child, although the custody of offspring under the age of 5 will ordinarily be awarded to the mother.

8. The Goa Law on polygamy: A law recognises the second marriage of a “Gentile 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.

9. No right to marital property: Upon separation or divorce, an Indian woman is entitled only to maintenance from her husband. She has no right to the assets, such as house or commercial property, bought in her husband’s name during the marriage. So if she leaves him or gets divorced, even years after the marriage, she is potentially without assets. Indian government policies do not consider the work done at home by a woman as having any economic value.

References:

1.March 1994, Communalism Combat, Uniform Civil Code or Gender Justice?’
2. Uniform Civil Code – the women’s movement perspective, http://kafila.org/2014/10/01/uniform-civil-code-state-of-the-debate-in-2014/
3.For a more extensive discussion of the Uniform Civil Code issue in the 1990s, see Nivedita Menon “Women and Citizenship’ in Partha Chatterjee ed Wages of Freedom OUP Delhi 1998.
4, Nandita Haksar “Human Rights Layering: A Feminist Perspective” in Amita Dhanda and Archana Parasher eds., Engendering Law. Essays in Honour of Lotika Sarkar Eastern Book Company, Lucknow, 1999
5.Diksha Madhok, qz.com · a day ago