The Gujarat government has formed a committee headed by Justice Ranjana Desai to draft a Uniform Civil Code for the state. Earlier, Uttarakhand became the first state in India to adopt the UCC. To say that UCC is a contentious matter is an understatement. It is one of the most politicised issues of our polarised times.
Our society remains patriarchal and misogynist even seven decades after Independence, and despite several affirmative laws.
Nehru, Ambedkar, and some prominent women freedom fighters proposed a secular family law or UCC for women’s equality. They feared that discrimination against women citizens at home and outside would continue despite constitutional guarantees of gender equality.
A silver lining
India of the 1940s and 1950s was a different place. Cultural norms and practices ostensibly based on religion were widespread. Child marriages and polygamy were accepted practices amongst Hindus and Muslims. Women didn’t own property. Only male heirs enjoyed ownership over ancestral homes and businesses. Widow ostracisation and dowry were rampant. Ideas such as gender justice were virtually non-existent. Reform in family laws appeared a herculean task for those enlightened few among the government. A UCC was fiercely opposed by leaders from every background. The majority of members of the Constituent Assembly perceived it as a threat to Indian civilisation and ancient heritage. Nehru was forced to abandon the idea and Ambedkar resigned to protest this backtracking.
The UCC was adjusted as Article 44 in the Directive Principles of State Policy of the Constitution.
But there was a silver lining. The Nehru-led government introduced a massive reform through the Hindu Code Bill in the 1950s. Thanks to the Hindu Marriage Act of 1955, marriage is no more “saat janam ka bandhan” (a promise for seven lives). Both a Hindu wife and husband became equally entitled to divorce. Hindu women got legal share in property and other rights in family matters. Over the decades, Christians too reformed their family laws enabling justice for women.
However, thanks to resistance by conservative clergy, Muslim family law could neither be codified nor reformed. Muslims are ruled by Muslim Personal Law (Shariat) Application Act, 1937, which is highly inadequate. It simply states that Muslims would be ruled by Shariat but there is no codified version. Interpretations and misinterpretations abound in a male-dominated religious order.
Consequently, Muslim women face discrimination in family matters. They bear the brunt of practices such as child marriage, unilateral divorce, polygamy, denial of guardianship and custody of children, denial of share in property, mutah or temporary marriages, halala and so on. This happens despite several rights granted by the Quran such as consent, meher, share in property, and just and fair divorce. Many Muslim–majority countries such as Morocco, Tunisia, Turkey, and Indonesia have more gender friendly laws than India. Sadly, Muslim women are denied rights both as Muslims and as citizens in a secular democracy.
Also read: Is UCC a state issue or a national one? Uttarakhand vs the Constitution
Contradictions
The original objective of gender justice and equality at the heart of the UCC is lost in a climate of religious division and hate. The BJP has been promising UCC in its election manifesto since 1985. The Shah Bano episode provided validation of this in the eyes of many voters. The staunch opposition by muslim clergy to the UCC serves as an advantage for the BJP today. But the party’s own record on gender equality is far from satisfactory.
While the Uttarakhand UCC has features like a complete ban on child marriage and polygamy, it also has draconian provisions on live-in relationships. It robs adult citizens of their right to freedom, liberty, and privacy granted by the Constitution. The intent became obvious when Uttarakhand CM Pushkar Singh Dhami while adopting the UCC said the law will ensure “an Aaftab never commits brutality against our daughters or sisters like Shraddha Walkar”. This is apart from other unacceptable moves such as not arresting former Wrestling Federation of India chief Brij Bhushan Sharan Singh who is accused of sexually harassing women wrestlers, granting remission to the rapists of Bilkis Bano, and lack of action against rapist politicians and godmen.
India is a multi-cultural and multi-faith country besides being a secular democracy. Indian society may not be ready for secular family laws but Indian women today are more aware of their rights than ever. The politicisation of such a crucial matter is disappointing and speaks badly of our leadership.
Firstly, I want to pose a few questions to those in the government pushing for UCC. Gender-just laws should be a national priority, why then this state-wise dabbling? Why are tribals being excluded? Tribal women need justice as much as Muslim women do. What about gender identities beyond binaries of male-female? Transgender people too are entitled to justice. The government cannot claim to be adhering to gender justice imperatives by bringing in a UCC while continuing to deny justice in the matter of marital rape. Why the obsession to uphold the institution of marriage at the cost of tremendous agony and violence to women? These contradictions are not convincing for many Indians. Besides, the government needs to be more consultative. The language of majoritarian triumphalism and assertion is not helpful. Gender justice is the objective and not “teaching a lesson to Muslims”.
The opposition parties need to understand the changing nature of Indian muslims. They need to recognise that ordinary Muslims want to do right by women. This was evident in the women-led movement against triple talaq. Certain people with politically vested interests are not the spokespersons for Muslims nor is the conservative ulema.
Lastly, everyone needs to understand that a sort of UCC already exists in the form of the Special Marriage Act 1954. This law can be strengthened by removing problematic provisions like the 30-day prior public notice and by including all aspects concerning marriage, divorce, succession, and adoption. It should be popularised on priority. PM Modi can urge Indians to marry under this law in his next Mann Ki Baat. After a few years, this amended and improvised law could be made mandatory for all.
Zakia Soman is a women’s rights activist and a founding member of Bharatiya Muslim Mahila Andolan. Views are personal.
(Edited by Aamaan Alam Khan)