Written by Sucheta De
We are in the seventh month of 2023. The Lok Sabha election is scheduled for mid-next year. Suddenly, discussions around the Uniform Civil Code (UCC) have been brought in. The 22nd Law Commission has sought suggestions and feedback from religious groups and the public regarding the proposal of the UCC. Prime Minister Narendra Modi has spoken on the issue and TV channels known for their vocal support of the ruling dispensation have started constructing convenient narratives. K J Alphons, former Union minister and a member of the BJP, in a recent article (‘No bad time for a good law’, IE, July 7) asks “Why not now?” An important, self-aware question for the ruling party to ask itself indeed.
For a little context, it is important to remind the present government that the practice of consultation had already been done by the previous, that is, the 21st Law Commission headed by Justice B S Chauhan. The last law commission, after receiving wide-ranging responses from all quarters, had come out with a broad ‘Consultation Paper on Reform of Family Laws’ in 2018.
The paper identifies problems of gender inequality in all personal laws. The commission notes that “various aspects of prevailing personal laws disprivilege women”. It identifies problems of gender inequality in various personal laws in India pertaining to marriage and divorce, custody and guardianship, adoption and maintenance, and succession and inheritance. For example, the paper identifies the provision of restitution of conjugal rights under the Hindu Marriage Act, 1955, as a tool for women’s servitude. It denies maintenance claims filed by wives upon divorce. The lack of equality on the grounds of divorce for both men and women under Muslim Personal Law, 1939 has been mentioned in the consultation paper. Along with existing problems in several personal laws regarding women’s equal rights over ancestral property, the consultation paper has pointed out the need to recognise women’s equal rights on matrimonial property in all personal and family laws. Regarding religion-neutral laws such as the Special Marriage Act, 1954, the commission identifies problems with the provision of a 30-day notice period required before the registration of marriage. The vulnerability of facing threat and intimidation for inter-caste or inter-religion couples in the said notice period has been recognised by the commission. A proposal to either remove the provision or reduce the number of days of the notice period has been made.
Along with the consultation paper by the law commission, the government also has the Report of the High Level Committee on the Status of Women in India headed by Pam Rajput. The report was issued by the Ministry of Women and Child Development in 2015. It observed that “India is still a highly patriarchal society, in which the economic, political, religious, social and cultural institutions are largely controlled by men. Control over women, their livelihood choices and sexuality has developed and evolved over centuries through various social practices and institutions that are governed by patriarchy.” It vividly identified the markers of gender inequality in family laws of all religions and in several criminal and labour laws. The committee recommended several changes in both personal laws of different religions and secular laws. The consultation paper brought out by the 21st Law Commission later echoes several of the concerns of the Pam Rajput Committee.
Both reports also set up some guiding principles to approach the problem of inequality therewith. The Pam Rajput Committee stated that “… the approach should be not one of ensuring that there is one law for all, but rather, that all women, whether they choose to be governed by secular laws or their personal laws, enjoy equality which the Indian Constitution promises them. This requires addressing several aspects in the legal domain in specific ways rather than a diktat of ‘uniformity’, which is conceived of in fundamentalist/majoritarian ways.” Echoing the same concern, the 21st Law Commission has stated that it is “discrimination and not difference which lies at the root of inequality” and finds that the “best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India.”
When both the reports are at the disposal of the present government, one feels compelled to ask: Why has a fresh discussion been stirred up on the issue? This might help us answer the question mentioned at the beginning of this article. The emphasis on uniformity will actually curtail equality.
The emphasis on uniformity must also be seen in the context of the track record of the present regime. Alphons, in his article, asks us not to question the agenda of the RSS behind the pre-election build-up for UCC. Can he also tell us whether the RSS has distanced itself from its history of mobilising against the Hindu Code Bill passed during the 1950s that was enacted to give rights to Hindu women? A Supreme Court verdict in 2017 prohibited triple talaq, a long-standing demand of the Muslim women’s movement for equality. What the BJP regime did just after the SC verdict was criminalise Muslim men for pronouncing triple talaq. Thus, Muslim men are the specific category of population among men, who have been targeted for pronouncing something that is void. This reflects the model code of conduct of the BJP which has, time and again, tried to communalise issues of gender justice. Hence their emphasis on uniformity as opposed to principles of equality. The women’s movement in India has been alive since the very early days of independence and has brought us several progressive laws in favour of women’s rights. The movement is also acutely aware of the present regime’s divide-and-rule agenda. The progressive women’s movement demands equality, not uniformity or communal targeting.
The writer, leader of All India Progressive Women’s Association, AIPWA and a central committee member of the CPI (ML)
