SOCIAL reform movements for women’s rights have historically fought the uniformity of male privilege and each step forward has been in a specific socio-economic and political context. Admittedly in India, in the 75th year of our independence, the legal framework for women’s rights, though certainly vastly improved, is still ridden with discriminations, biases and cultural prejudice. There is little doubt that much needs to be done. The question is, in the India of 2023, which is the best way to achieve this goal?
The Modi government promotes a uniform civil code on the slogan of one country, one law. One law does not equate with gender justice in the Indian context. The CPI(M) advocates a two pronged strategy to reach the goal of equal rights for women of all communities. The first is to strengthen and expand existing secular laws that apply to women of all communities. The second is to ensure movement forward in reform in personal and customary laws of all communities in consultation with representatives, both men and women of the respective communities. This translates into equal rights for women within communities such as between Hindu men and Hindu women, Muslim men and Muslim women, tribal men and tribal women and so on as well as between communities such as between Hindus, Muslims, tribals, Parsis, Christians, Sikhs etc. It is significant, that after a thorough exercise, the 21st Law Commission, appointed by the Modi government in 2016 under the chairmanship of Justice BS Chauhan, had reached a similar conclusion expressed in its consultation paper entitled Reforms of Family Laws in August 2018.
LAW COMMISSION FINDINGS
The Law Commission was specifically mandated by the government to look into the question of a uniform civil code. It has categorically rejected the path of a uniform civil code as being “neither necessary nor desirable.” Firstly, it has made detailed recommendations on both strengthening and expansion of secular laws such as the Special Marriage Act, the Protection from Domestic Violence Act and others. Secondly after a detailed study of different personal and customary laws applicable to Hindus, Muslims (both Sunnis and Shias), Christians, Parsis, Sikhs, various tribal communities, it has made recommendations on most important matters on family laws such as marriage, divorce, custody of children, adoption, inheritance and succession and so on, which advocate targeted reform within the personal laws of different communities.
After widespread consultations and receiving 75,378 responses, it has produced a most useful blueprint which could certainly take forward the struggles of women of all communities for equal laws. The report gives details of the multiple discriminations faced by Hindu women in existing Hindu personal laws. It recommends the abolition of the Hindu law concept of co-parcenary, holding it unfair to women even after the 2005 reform; it also recommends abolition of tax concessions flowing from the concept of the Hindu Undivided Family. Is it because of such recommendations which knock the bottom out of the BJP narrative that the only reform required is for Muslims, that the Law Commission report has been put into the deep freezer?
Perhaps even more embarrassing for the Modi government’s claims that it is the only government to have acted to help “our Muslim daughters” by its law against triple talaq, is the Law Commission report which puts the record straight that it was the Supreme Court that illegalised it on grounds that it was not an essential religious practice. While not directly criticising the Modi government law, it does however state that what is required is action to protect the Muslim woman victim which should be done by applying the provisions of the civil law on prevention of domestic violence. This is because the law brought by the Modi government does not provide any relief to the woman – it just sends the Muslim man to jail.
It is most unfortunate that allowing narrow political considerations to determine its agenda, the Modi government has ignored this valuable report which was presented to the government in 2018, and wasted its entire second term without a single law or even serious consultations for personal law reform with any community. After its push for UCC was rejected by the 21st Law Commission, it has without any reasons, mandated the 22nd Law Commission under its recently appointed chairperson Justice Ritu Raj Awasthi to once again examine the issue. So once again opinions have been asked for. This is a clear waste of public time, money and diverting the Commission from its own duties and priorities. But under the Modi government, even this absurdity is possible. Clearly the agenda has nothing to do with women’s rights and everything to do with an electoral agenda to polarise society.
Meanwhile all the pending secular laws which would enhance equality for all women have been either ignored or rejected, such as the Women’s Reservation Bill, the law against so-called honour related crimes, the law for community of property of all assets created during a marriage (joint ownership of all assets acquired during marriage), and the criminalisation of marital rape. There is not a single pro-woman law adopted by the Modi government either in its first term or in its second term, till now.
UNDERMINING LEGAL PROVISIONS FOR TRIBALS
Speaking at a function in Bhopal recently, Prime Minister Narendra Modi reiterated his government’s determination to bring a uniform civil code and accused all those who opposed it of following the politics of “appeasement.” He said, “In one house, if one member has one law and another member has another law, can that household, family run? So how will the country run with a dual system?” He made it clear that in his understanding the “dual” system to be targeted was that of the personal laws of the Muslim community, with his repeated references to “our Muslim daughters.”
Is the prime minister of India so unaware that it is the Constitution of India which has provided for “dual systems.” Unfortunately for India, it is not the constitutional lens through which the prime minister views India, but through the political lens of the sangh parivar. That is why he deliberately ignores the implications that the imposition of a uniform civil code will have in India as a whole beyond his communal obsession with the Muslim community. The Law Commission in its report specifically states (Para 1.23) “the first foreseeable problem as to the feasibility (of a uniform civil code) is with respect to the sixth schedule of the constitution.” The sixth schedule under Article 244 which is applicable to certain areas of Tripura, Assam, Mizoram and Meghalaya specifically gives the constituted district and regional councils under this schedule the right to legislate on matters which include family law such as on marriage, divorce, property rights, and so on with the consent of the governor. In addition Articles 371 A, B, C, F, G and H provide special rights and exemptions for six north east states. For example 371 A for Naga communities and 371 G for Mizo communities provide special provisions to protect religious and social practices, civil and criminal justice regarding customary law etc. How will tribal communities in these states in the north east already disaffected on several counts, such as in the hill areas of Manipur, react to any measures which impact on their constitutional rights regarding customary law? In Fifth Schedule areas, through the enactment of the Panchayat Extension to Scheduled Areas Act (PESAA), legal rights are given to gram sabhas and for protection for customary and social practices through self-governance. Tribal communities in central and eastern India are already under attack through economic policies which are taking over their forests and land. A uniform civil code will come into direct conflict with these constitutional and legal provisions for tribal communities across India.
Let the prime minister answer: Is he, his government and party against the “dual systems”, the constitutional and legal provisions for tribal communities? Is he going to scrap these protections to impose a uniform civil code? Or will the uniform civil code not be applicable to tribal communities but only for Muslims? Let him make his position clear.
DUAL HYPOCRISY OF BJP: NAGALAND EXAMPLE
While the prime minister and BJP leaders were waxing eloquent of the need for uniformity – one law for the country – the BJP was playing a most hypocritical role on women’s rights in Nagaland. Since 2012, there have been no local body elections in Nagaland because of the opposition of many of the Naga groups to one third reservation for women which they hold as being against Naga customary law. Naga women under the leadership of their organization, the Naga Women’s Association, and supported by women’s organisations across the country, have strongly demanded the provision for one third reservations stating that this is a male dominated interpretation and there is nothing in Naga customary law against such reservation. A petition is being heard by the Supreme Court. On the last few dates, an irate court has criticised the central government for deliberately not submitting its affidavit on the matter. Here is a clear case of women’s rights. The prime minister so concerned for “Muslim daughters” is totally silent on “Naga daughters” being deprived of a constitutional right to reservation? Why is the central government silent on this? In April this year, soon after the elections, it was the newly elected government with the BJP as a partner, its leader holding the post of deputy chief minister which passed a resolution denying women the right to one third reservations in local bodies. The BJP state president Temjen Imna defended his government saying more time was needed to discuss with the tribal bodies. When it suits the BJP, “dual system” is fine, when it wants to target a particular community, it talks of one law!
What does this Nagaland example prove? Firstly the utter hypocrisy of the BJP theory of uniform civil code being promoted for women’s rights. In Nagaland, it accepted uniformity of rights of men over women, by denying one third reservation to women even though Naga “daughters” demanded it. Secondly, in Nagaland, BJP stood with fundamentalists who made a patriarchal interpretation of customary law. Thirdly, it shows that for change, it is essential to have a dialogue with the community including most importantly the women.
While supporting the constitutional provisions which give special protection to tribal communities including over family law, the CPI(M) supports and promotes all those within communities working to ensure equal rights for women in the communities through reform. The argument is not that the customary law should be abolished, but that it should be reformed.
REFORM IN PERSONAL LAWS
Reform in personal and customary laws are urgently required. It is the BJP and its governments which support those with political clout within communities who oppose any reform as is shown in the Nagaland case. Even as far as reforms in the Church are concerned, the BJP has been on the side of those who hold conservative views. It is only when it concerns the Muslim community, that the BJP and its government aggressively target the community. This gives space to conservative forces within the community to raise the flag of religion itself being in danger and mobilising against any change. Also, it is true that the majoritarian political framework of the BJP pushes reformers within communities on the defensive. Fundamentalists within the Muslim community have refused to engage with the demands of Muslim women for reform. Moreover political forces who identify themselves as being representative of the Muslim community have also never spoken of the need for reform and on the contrary have used the BJP’s majoritarianism to strengthen the unequal status quo. Such regressive positions only help the BJP in its targeted campaign. It is all the more necessary to counter the different trends that seek to divert from the very real and urgent issue of equal rights for women of all communities. Historically this is the most contested of areas because in the ultimate analysis it rests on control of women and the subordination of women within the family. There can be no compromise with fundamentalist forces but mechanisms have to be set up with communities to ensure the reform process moves forward. The CPI(M) is committed to this process. It supports the demand of women in different communities, including Muslim women for an end to anti-women customs, practices in personal law, which are man-made interpretations of the personal law.
THE EXAMPLE OF GOA CIVIL CODE
The BJP makes much of the Goa civil code. Recently, the defence minister Rajnath Singh, in a public meeting in Uttarakhand, congratulated the chief minister for taking the initiative for drafting a UCC for the state. “If there is a UCC in Goa why not in the rest of India” he asked. He should study the facts before making such a claim. In fact, the Goa civil code is a good example of why such a code does not work. Although in certain areas of the Goa code, common laws do apply, in many other areas it is a package of family laws of different communities which are unequal. For example, Catholics have separate rules regarding proof of marriage and those married in church are excluded from divorce provisions under the civil law. While Muslims cannot have polygamous marriages, under certain circumstances, Hindu men are allowed bigamous marriages. This is under a separate section of the Goa code called “The Gentile Hindu Customs and Usages Code.” Its provisions are highly regressive. If a Hindu wife fails to deliver a child before she is 25 or if she fails to deliver a son before she is 30 then the Hindu man can marry a second wife. If a Hindu woman commits adultery then it is a ground for divorce but if a Hindu man does so, it is not a ground. Is this why the BJP keeps quoting the Goa code? They have been running the government. Why do these anti-women provisions still remain as the law?
The Goa code shows that sometimes, an umbrella legislation reflects the lowest common denominator for women’s rights and secondly, the Goa civil code too has had to take into account personal laws.
The position of the CPI(M) has been informed by the courageous struggles of women themselves, belonging to all communities and their organisations, who have made great sacrifices for social and legal reform within their own communities as well as for all women. The CPI(M) opposes the BJP move to communalise a vital issue for women such as that of equal legal rights and its efforts to polarise society in the name of a uniform civil code. For the CPI(M), women’s equal rights across communities is the central question. Uniformity cannot be equated with equality. The 21st Law Commission report can and should form the basis for taking forward the struggle. The BJP government should inform the people of India why it is refusing to discuss this report.
(From Peoples Democracy)
