CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

Gender


UNIFORM CIVIL CODE: A POLITICAL CONUNDRUM


Introduction

In the Indian Constitution, both the individual citizen and the community are the subjects of Fundamental Rights. While the individual citizen is the subject of Articles 14 to 24 which ensure the individual's right to equality and freedom, the community derives its rights from Articles 25 to 30 which protect the rights of religious and cultural communities and minority groups. The latter implies that in India there is a provision where different religious and ethnic communities are governed by their respective personal laws. These laws cover areas of marriage, divorce, maintenance, inheritance, succession and adoption rights and are a legacy of colonial administration. The provision for a Uniform Civil Code (UCC) in the Directive Principles of State Policy seeks to replace such plural personal laws with a common civil law for all communities. This has been a source of debate for various political parties from time to time where the issue of UCC vis-a-vis personal laws, as Ghosh points out, is entangled within the polemics of identity politics, minority rights, women's rights, national integration and uniform citizenry (Ghosh 2007). For instance, invoking Article 44 of the Constitution, the right wing and its electoral face, the BJP[1], have persistently demanded that a uniform civil code be enacted throughout the country for the cause of national integration. On the other hand, parties like Congress, which claim to protect minority rights, contest this by citing Article 25 which protects the religious freedom of all communities. This mainstream discourse is challenged by civil society groups including feminist, left and secular groups who contend that the party politics around UCC subverts the important issue of gender justice and fails to address the real problem at stake in both personal and common laws.

The Issue of Uniform Civil Code

In the context of the political manifestations of the debate, the problem of UCC can at one level be understood as a tension between two bearers of rights (individual vs. community) and at another level, between the secular state and the communally divided society. The UCC thus immediately articulates the problem of these two poles being in a mutual contradiction. T.N. Madan observes how such a contradiction was overlooked by the framers of the constitution within the narrative of Nehruvian Secularism. He says, "On the one hand, there is danger of majoritarianism and on the other that of vesting the religious minorities with a kind of veto power". (Madan 2010, p249). The debate on UCC can be seen as a manifestation of such a dilemma within Indian secularism.

At the same time, opposition to uniform codification of laws also derives its force from the critique of the homogenising thrust of the nation state which denies multiplicities of expressions of different groups in a society. MSS Pandian eloquently captures this nature of the nation state in his article "Stepping Outside History? New Dalit Writings from Tamil Nadu". He writes that in the homogenising and uniformising thrust of the nation state, 'there is a 'particular' that is universalized to further deny other particularities. He adds, "What/who will be represented in the valorised citizen figure is a result of configurations of power at different moments in the nation's biography....' With the BJP in power in India, this power dynamic can be clearly seen manifested in instances like the celebration of International Yoga Day, banning of Beef, valorization of the Bhagavada Gita as the quintessential Indian text, and the programme of conversions.

In the current political milieu, the demand for UCC by the right wing can be seen as an imposition of Hindu identity and Hindu laws as it is targeted primarily at the minority communities. Within the Vishwa Hindu Parishad, the demands for UCC have come not in order to achieve gender justice or equality before law; rather, it invokes UCC to rectify the "demographic imbalance" in the country, claiming that Muslim population will soon overtake Hindus. In the same vein, BJP leader Subramanian Swamy has often raised the issue of UCC to stop love jihad and polygamy among Muslims. However, close analysis reveals that this right wing rhetoric on demographics and the polygamous Muslim male is in complete contradiction with government surveys and census data. Flavia Agnes points out that bigamy is higher among Hindu men (including Buddhists, Jains, Sikhs and other denominations) than among Muslim men[2]. Further it is significant to understand that bigamy is more a problem of a male dominant culture than of religion. We can thus argue that the issue of UCC has been appropriated by the right wing and made to fit perfectly into the Hindutva ideology, which constructs the image of the virile Muslim male engaging in polygamous marriages and love jihad. (See Menon and Nigam 2007,p40) The issue is posed in a way that the BJP can claim itself to protect not just Hindus but also 'minority women' from 'their' men. What is important to note is that an issue that needs to be seen primarily as a gender issue becomes a means to target minority communities and further the Hindutva agenda of the right wing.

In such a situation where the demand for UCC is rife with political propaganda, the following questions can be posed: should a pluralist society like India adopt uniform civil laws to establish equality before the law or should there be a pluralist model of law in order to protect and promote the minority rights of the diverse religious and cultural groups? Moreover, does uniformity promote equality or does it, through the exclusion of a diverse set of practices and ideas take the form of domination of majoritarian ideas? This paper seeks to explore these questions through a brief analysis of the Judiciary's take on cases concerning personal laws, the identity politics that the issue has seeped into and the feminist critique around this issue.

Judicial Interpretations and Political Implications

In the mainstream discourse, the demand for UCC focuses on the need for national integration through legal integration of religious communities. Such a discourse while being derived from judgements in cases relating to personal laws simultaneously influences the position that the court takes in such cases. In cases concerning Muslim Personal Laws, the Supreme Court judgements have explicitly regarded the oneness of the nation and the loyalty to it to be at stake if different minority groups follow different personal laws. We will briefly consider two significant judgements of the Supreme Court to understand the judiciary's take on personal laws.

The issue of Uniform Civil Code re-emerged in the 1980s with the 'Shah Bano case.' The Mohd Ahmed Khan vs Shah Bano Begum case[3] (1985) concerned an old Muslim woman who claimed maintenance from her husband post divorce. The husband invoked the Shariat (Muslim Personal Law) according to which it was not necessary for him to pay beyond three months. The Supreme Court, however, upheld her right to maintenance under Section 125 of the Criminal Procedural Code thus entitling Muslim women to maintenance under a secular provision. The judgement also stated that: 'A common Civil Code will help

the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies'. The judgement sparked protests among the conservative Muslim clergy who saw the judgement as an affront to their identity, even though it was welcomed by many Muslim women. The Rajiv Gandhi government, owing to pressures from the Muslim clergy, and despite opposition from many Muslim women groups, secular and left groups, introduced the Muslim Women (Protection of Rights upon Divorce) Act. This Act overruled the Supreme Court judgement by removing Muslim women from the purview of Criminal Procedural Code. This gave rise to a political controversy wherein the BJP began to project Congress as pseudo-secular while claiming itself to be truly secular and committed to women's rights. This controversy around the Shah Bano case, which further polarised Hindu Muslim identities, needs to be understood in the specific context in which it arose.

This period was marked by the upsurge in Hindu communalism followed by communal violence all over India. In the aftermath of India Gandhi's assassination, anti-Sikh riots broke out in November 1984. In October 1984, the Vishwa Hindu Parishad launched the Ram Janmabhoomi agitation. As the agitation grew strong, Muslim religious leaders and politicians formed a Babri Masjid Action Committee to oppose the demand for Ram temple and defend the status quo. The concurrence of the Babri Masjid issue and Shah Bano case seemed to represent a Hindu communal onslaught on Indian Muslims. (See Radha Kumar, 2008). There began a strong polarisation of identities as both the Congress and the right wing stirred communal sentiments for political gains. The lack of strong opposition to the Ram Janmabhoomi movement led to a growing sense of security and vulnerability within the Muslim community which began to oppose any attempt of reform from outside and even from within. The opposition to the Supreme Court judgement by many Muslims can be understood in this context. The BJP took this opportunity to renew its demand for UCC and further its Hindutva propaganda, projecting the judgement as a victory against the regressive laws of Islam. The media too hailed the judgement as a victory against Islamic obscurantism (Menon 2007, p47).

The Sarla Mudgal, President, Kalyani and others vs Union of India and others[4] case concerned a Hindu man who converted to Islam in order to solemnise a second marriage. In its judgement, Supreme Court again reiterated the need for a uniform civil code stating: "In the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain a separate entity on the basis of religion...The Hindus have forsaken their sentiments in the cause of the national unity and integration, some other communities have not." This judgement, as Nivedita Menon points out, explicitly argued that Hindus had willingly accepted reform while other communities continued to cling to diverse and retrogressive laws, thereby threatening the integrity of the nation-state. The Working Group on Women's Rights noted that the judgment ignored the high incidence of Hindu bigamy that exists even without recourse to Muslim personal law. While the Court resorted to a discussion on uniform civil code, 'it did not ask for the strengthening and uniform application of the existing penal provisions for prosecution of bigamy or for better laws on divorce' (WGWR 1996, p1180)

What is important to note is the assumption that Hindu Law had been reformed and is cognisant of women's rights. Menon argues that the Hindu law was 'not reformed but merely codified' and (that too amidst strong opposition from Hindu conservative leaders in the Constituent Assembly, including the then President Rajendra Prasad) which put an end to a diversity of customs and practices within the Hindu community and in the process, destroyed more liberal practices under Hinduism. This is illustrated through various examples that Madhu Kishwar provides in her earlier writings. To take one example,

Kishwar mentions theMarrumakkatyam system in Kerala, whose various provisions were dissolved with the codification of the Hindu Law. With the introduction of the Hindu Succession Act that only recognised patrilineal forms of inheritance, the women from matrilineal communities like the Marrumakkatyam lost their full and inalienable right by birth in inheritance of all forms of parental and ancestral property. Thus, the uniform and homogenised Hindu Code itself was based on the exclusion of different interests andidentities in favour of North Indian and upper caste codes.

Through these examples, we observe that the debate around UCC circulates between strong current of Hindu nationalism on the one hand and growing religious fundamentalism as its consequence on the other. Though, the Shah Bano case concerned women's economic rights and attempted to question the structures of domination within communities, religious leaders and fundamentalists claiming to represent their community raised the alarm of 'community in danger' and closed their ranks. (Roy 2005, p220) This also gave the opportunity to the Hindu right wing to pose the Muslim community's resistance to UCC as its desire to remain a separate identity by refusing to change and integrate reforms. It is also observed that the issue of UCC was brought only in the cases of Muslims and not in the cases of discrimination within Hindu Law (Gangoli 1996, p 9). Thus, while a uniform civil code could be seen as deferent towards women's equality, the issue is deeply caught up in a web of minority rights, religious politics, communalism, women's rights and reform.

Civil Society groups and the Left

One observes that in parliamentary politics, the debate on UCC remains entrenched in the Hindu-Muslim identity politics with both the Congress and BJP manipulating the narratives on secularism and underplaying the issue of women's rights. Civil Society groups and left parties have strongly contested this discourse and have sought to change the terms of the debate that has taken place. Feminists have critiqued both the national integrity argument coming from the nation state and the argument put forward by the community that their religious and cultural freedom be protected. While they recognise the homogenising thrust of the national integrity argument they have argued that the community, like the nation, is also constituted by exclusions; the rights claimed by communities vis-à-vis the state- autonomy, selfhood, access to resources-are denied by communities to their 'women'.(Menon 1998,p249)

There are various strands within the women's movement on the issue of UCC. While prior to the 1980s, women and secular and left groups called for a gender just UCC, in the backdrop of Hindutva politics, some groups now support initiatives for reforms from within the community. There are groups like Joint Women's Programme, Awaz-e-Niswan, Majlis and Nikahnama Group who have worked internally to reform their communities' personal laws. However, While the Indian Divorce (Amendment) Act was implemented by the government in 2001 after a long struggle by the groups like the Joint Women's programme, such initiatives for reforms within personal laws have been limited The model 'Nikahnama' that was announced in 1995 by the India Muslim Personal Law Board (AIMPLB) did not include any of the provisions suggested by Awaz e Niswan and Majlis. In 1995, Working Group for Women's Rights recommended a comprehensive gender just framework of rights covering areas of family laws as well as the 'public' domain of work, while also providing the option to be governed by personal laws. (Menon 1998, p 259)

The All India Democratic Women's Association, (AIDWA) the women's wing of CPI (M), has suggested that work on UCC or personal law reform be rejected in favour of expanding the pool of civil and criminal laws to provide women redressal from violence in areas that would not be seen as threatening or alienating the minority communities which included areas of domestic violence, criminal law, employment and labour laws.

Conclusion

One notes that while various women's groups and other democratic platforms have articulated their opposition to BJP's demand for a UCC, their stances have not been able to bring about a significant rupture in the hegemonic discourse of Hindutva outfits, which have termed the issue as 'non-negotiable'. Similarly, while left parties have been articulate in their opposition to Uniform Civil Code, they are incapable of preventing the BJP from its advances towards it, primarily due to their miniscule presence in the Lok Sabha (12 seats as opposed to 282 seats of BJP). In addition the Left movement has been fraught with internal conflicts and erosion of a strong ideological stand. Thus, while its position on the UCC has potential of bringing about an egalitarian and a genuine gender-just dialogue on the personal laws within and between communities, it remains but a distant possibility. Further, in a post-colonial and multicultural nation state, the problems of the 'universal' lead us to deeper questions about the very nature of the state, which constantly attempts to impose particularity by eliminating multiplicities. The issue of Uniform Civil Code thus remains a political conundrum.

References

Books 

Gangoli, Geetanjali.2007. Indian Feminisms: Law, Patriarchies and Violence in India. Hampshire: Ashgate Pub Co. 

Ghosh, Partha S.2007.The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code. New Delhi: Routledge.

Madan,T.N. 2009.Modern Myths, Locked Minds. New Delhi: Oxford University Press

Menon,Nivedita & Nigam,Aditya 2007.Power and Contestation Since 1989.

Roy, Anupama. 2005. Gendered Citizenship: Historical and Conceptual Explorations .New Delhi: Oriental Longman Private Limited.

Articles

Agnes, Flavia. 2014. 'Don't Wrong a Right'. In Deccan Chronicle, 25 July

Kishwar, Madhu. 1994. 'Codified Hindu Law: Myth and Reality'. In Economic and Political Weekly, 13 August

Kumar, Radha.2008 'The Shah Bano case' In Women's Studies in India. Edited by Mary E. John. New Delhi: Penguin Group

Menon, Nivedita.1998. 'Women and Citizenship'. In Wages of Freedom. Edited by Partha Chatterjee. Delhi: Oxford University Press

Pandian, MSS. 1998. Stepping Outside History? New Dalit Writing from Tamil Nadu'. In Wages of Freedom. Edited by Partha Chatterjee. Delhi: Oxford University Press

Women's Group of Working Rights. 1996. 'Reversing the Option Civil Codes and Personal Laws'. In Economic and Political Weekly, 18 May

[1] The UCC is one of the core Hindutva agendas of the BJP. It is important to note that only the BJP has this issue on its national agenda; other parties have adopted a policy of non interference in personal laws. The 2014 election manifesto of BJP states: "BJP believes that there cannot be gender equality till such time India adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonizing them with the modern times".

[2] A 1974 government survey found Muslims to account for 5.6 per cent of all bigamous marriages, with upper-caste Hindus accounting for 5.8 per cent. In real terms, this would amount to a huge difference. The 1971 census records 45.3 crore Hindus and six crore Muslims. Allowing for women and children to make up 65 per cent of each group, as many as one crore Hindu men had more than one wife in 1971, compared to 12 lakh Muslim men.

[3] Mohd Ahmed Khan vs Shah Bano Begum, 1985, Sol Case No 085.

[4] Sarla Mudgal, Smt, President, Kalyani and Others vs Union of India, 1995, 3 SCC 635