Personal laws often draw from regressive and patriarchal traditions and threaten vital constitutional rights.
India follows a system of legal pluralism that allows different religious communities to be governed by their own codes of personal law. This has been seen as a way of protecting distinct communal identities and safeguarding the right of citizens to practice their faith, as enshrined in the constitution.
Personal laws, however, often draw from regressive and patriarchal traditions and threaten another vital constitutional right – the right to equality before law, particularly for women.
Cognizant of this potential tussle between the rights of communities and individuals, the authors of the constitution proposed the idea of a generic set of personal laws – a uniform civil code (UCC) applicable to all Indians in the future.
Ulterior motives?
Sixty-five years later, it remains an idealistic goal. Eminent public intellectuals such as Ramchandra Guha and Romila Thapar have argued strongly for a UCC time and again, but on ground it is a political hot potato – a vexatious, convoluted debate in a country where religion is inextricable from sociocultural practices.
The possibility of a collaborative conversation on the topic has been further sabotaged by the manner in which the ruling Bharatiya Janata Party (BJP) has appropriated the debate. Speaking in October this year the Union Law Minister Sadananda Gowda called UCC the “need of the hour” for “national integrity”.
But a closer examination reveals another agenda. In the BJP’s election manifesto the promise of UCC features under the heading “protecting culture and heritage”, alongside the protection of cows and the construction of the Ram temple in Ayodhya. The first step taken to build this temple was the demolition of the Babri mosque that led to communal riots in which more than two thousand Hindus and Muslims died.
Furthermore, the politics over the protection of cows has led to a number of lynchings this year, most infamously with the murder of a Muslim man killed for allegedly eating beef in Dadri. The divisive intent of these two projects and the insidious ways in which they have been executed so far, has cast a shadow over the BJP’s call for a UCC as well.
The worst victims of this standoff are Muslim women. Not only are Islamic personal laws regressive in certain key aspects, they have also not been adequately codified.
In fact, in the 1950s, the parent organisation of the party, the Rashtriya Swayamsevak Sangh (RSS) staunchly opposed reforms that codified Hindu personal laws and corrected some of their inherent caste and gender related biases.
Bias against Muslim women
Similar reforms were instituted for Hindu succession laws in 2005 and Christian divorce laws in 2001. Islamic laws, however, remain deeply biased against women, allowing for practices such as polygamy and “triple talaq” that have ironically been restricted or outlawed in the neighbouring Muslim nations of Pakistan and Bangladesh.
Hindu nationalists, who unsuccessfully opposed reforms in Hindu laws, now use the aberrations of Muslim personal law to demonise the minority community. In its annual conclave in October this year the RSS reiterated its preposterous claim that the growing population of Muslims is a threat to the Hindu community.
The current Prime Minister Narendra Modi echoed this propaganda when he used the phrase, “hum paanch, humaare pachees” (we are a family of five that produce 25 children) to denigrate polygamy among Muslims in an inflammatory speech in 2002.
Evidently, the RSS and the BJP have reduced the debate over personal laws to a ploy in their cultural nationalism project that aims to redefine Indians as those who confirm to Hindu traditions.
The arduous task of writing a UCC acceptable to the impossibly diverse stakeholders has consequently been made more challenging by the deep mistrust that abides between India’s largest minority community and the BJP.
To make matters worse, the All India Muslim Personal Law Board, that was established in 1973 to safeguard the Islamic law and has since developed into a self-appointed and deeply contested representative of the community, is exploiting this mistrust to resist internal debate over reform.
The worst victims of this standoff are Muslim women. Not only are Islamic personal laws regressive in certain key aspects, they have also not been adequately codified.
Consequently, courts often rely on testimony from experts invested in preserving patriarchal traditions. Worse still, most women cannot afford to go to court and depend on clerics or Sharia courts to resolve disputes. There is a dire need for a law that spells out specifics relating to marriage, divorce and inheritance and holds clerics responsible for pronouncements not in line with these specifications.
Muslim women have been seeking reform of Islamic personal laws in the way the laws of the Hindu and Christian communities have been reformed. More specifically they have been demanding codification of the laws in line with uniform principles of gender justice, within the framework of both the Quran and the constitution. And after six decades of continued oppression, they are speaking louder than ever.
Obstacles to reform
The Bharatiya Muslim Mahila Andolan (BMMA), a coalition of over 70,000 women from 13 states wrote a letter to the prime minister in November citing a study that claims Muslim women want an end to regressive practices.
BMMA has prepared a draft code that addresses the concerns of these women and could resolve the conflict between their right to freedom of faith and their right to equality, without the endless wait for a universally acceptable UCC.
The obstacles to reform are likely to come from the same forces that most Muslim women battle every day. On different sides of the triangle of oppression they endure are majoritarian Hindu nationalists determined to reduce minorities to second-class citizens, self-appointed male leaders of the Muslim community liaising with politicians to perpetuate vote bank politics, and the socioeconomic and political marginalisation that afflicts the Muslim community on the whole.
But if their call goes unheeded, India will lose an opportunity to reframe the debate over uniformity in personal laws.
This debate refuses to die down because it goes to the heart of the idea of India and how its people must live together. Complexities of history and politics have rendered elusive the utopia where laws rooted in distinct cultural traditions can be unified.
But a regime of personal laws reformed in keeping with uniform principles of justice and equality, along with the Special Marriages Act – that allows all citizens to contract marriage outside of religious laws – can provide an alternative to a UCC.
The voices of those who bear the brunt of archaic laws have emerged from a cacophony of competing ideologies. They are offering a solution that has evolved out of lived reality and will take the country several steps closer to the aspirational ideal of a Uniform Civil Code. This is as a good a time as any to start listening.
Originally published in Al Jazeera.