Thursday, June 23, 2016
Uniform Civil Code: Debates and Possibilities
By Sambhavi Ganesh*
Part III of the Indian constitution contains the much-extolled Fundamental Rights. Articles 14 - 24 guarantee the protection of life and liberty, equality before law, and prohibit discrimination. These are clearly based on the abstract, liberal notions of universal citizenship. Articles 25-30 deal with particular collectivities or groups – rights of freedom to religion, cultural and educational rights – that is, freedoms to propagate and practise any religion, freedom to manage religious affairs, protecting the interests of minorities, and the right of minorities to establish educational institutions. These freedoms are a part of our inalienable fundamental rights, and rightly so. However, they are silent about some underlying tensions arising out of these very rights, the primary such tension being individual rights vs. community rights. This conflict is most manifest in the debates around the Uniform Civil Code (henceforth UCC), which the essay deals with. This essay traces the evolving contours of the UCC debate, the community and individual positions, and the women’s rights perspective which is sidelined by both sides of the debate. (Menon, 1998)
UCC debate in the Constituent Assembly
We have a uniform criminal law established by the Indian Penal Code and the Criminal Procedure Code. However, civil matters, or those pertaining to marriage, divorce, maintenance, inheritance, succession and adoption are governed according to the laws of different religious communities. Members of the Constituent Assembly were sharply divided about a Uniform Civil Code or a common civil law for all citizens, irrespective of their cultural backgrounds. Ambedkar strongly felt the need of a UCC because, as he put it, “'I personally do not understand why religion should be given this vast, expansive jurisdiction”. (Jaffrelot, 2003) Those who were opposed to a Uniform Civil Code – members of the Hindu Maha Sabha, Dr. Rajendra Prasad, and some members of the minority communities argued that its provisions would go against their religious beliefs and hence their fundamental rights. Hence, a compromise was arrived at and the UCC became a Directive Principle of State Policy in Article 44, which is not enforceable by a court; it asks the State to ‘endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ (Ministry of Law & Justice)
A sub-committee under Ambedkar had drafted a Hindu Code Bill inspired by the British’s endeavour to modernize the Hindu society. According to Agnes (2015), it was essential to reform the Hindu laws because Hindu women were lagging far behind their counterparts, lacking a right to divorce and right to inherit property. Ambedkar resigned over the lack of support of the Congress and Nehru in questioning the existing social formations. The bill was consecutively diluted to please the Hindu conservatives and finally passed in a piecemeal fashion in the mid-1950s - Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act.
Hindu Code Bill
The Hindu Code Bill provided property and divorce rights for women, set the minimum age of marriage as 18 for women and 21 for men, and prohibited dowry and bigamy, which was a significant improvement compared to the state of women’s rights previously. However, the bill also had to gain the support of hard-line conservatives, who had been opposed to divorce and property rights for women because they were alien to Hindu customs. Hence, it implicitly allowed for the continuation of some patriarchal and Brahminical laws to compensate for its liberty. It is necessary to have a brief understanding of the provisions of the Hindu Succession Act and the Hindu Marriage Act to proceed further in the debate.
Hindu Succession Act, 1956 – This act gave full property rights to women, but did not give daughters inheritance rights in ancestral property, as per the Mitakshara, a Hindu legal text. This was amended only in 2005, when daughters were given equal rights as sons for inheritance. However, it was still not clear if daughters could be ‘kartas’ of a Hindu Undivided Family. It was only in 2016 that a judgment of the Delhi High Court ruled that the eldest female member of a Hindu Undivided Family can be its "karta" (manager of a Hindu Undivided Family).
Hindu Marriage Act, 1956 – Hindu marriages need not be registered; caste and region specific rituals like the ‘saptapadi’ (where the husband and wife take seven steps together), ‘kanyadaan’ (gift of a maiden to the groom) and other customary rites are necessary to solemnize a Hindu marriage. These ambiguities have provided Hindu men with ample scope for a second marriage. (Agnes) The Supreme Court takes pains to uphold the validity of only one marriage, terming the other relationship as “marriage-like”. The other wife has to prove the existence of a marriage, reversing the burden of proof rule; her maintenance rights and social status are foregone. Moreover, a Hindu is defined as someone who is not a Christian, Muslim, or a Parsi, which means that Sikhs, Buddhists, Jains and people belonging to other minority communities fall under this act. (Sikhs have their own marriage act from 2012) A marriage between people of any of these religions coming under the ‘Hindu’ fold or a Hindu inter-caste marriage is treated as a Hindu marriage and not a special marriage. This provision irons out all diversities between and within these communities and treats Hinduism as the quintessential religion of India and an archetype to be followed by the rest of the religious communities.
Communalization of the UCC debate
The UCC debate took a new turn after the landmark judgement in the Shah Bano case (1985) [undone by the ironically named Muslim Women (Protection of Rights on Divorce) Act, 1986]. Shah Bano, a 62-year-old mother of five, was divorced by her husband in 1978. She filed a criminal suit in the Supreme Court in which she won the right to alimony. However, the Indian Parliament reversed the judgement under pressure from Islamic orthodoxy. (Muslim law only provides for 90 days of maintenance) The Muslim Women (Protection of Rights on Divorce) Act, 1986 diluted the judgment of the Supreme Court and denied Muslim divorcées the right to alimony from their former husbands. This was reversed by a later judgement in Danial Latifi vs. Union of India, which provided for fair maintenance not restricted to the iddat (90 days) period only. These developments, coupled with the communal tensions owing to the Ramjanmabhoomi movement made the Hindu right the primary spokespersons for a Uniform Civil Code. They were primarily concerned about the possibility of Hindu men converting to Islam to marry another woman to get heirs, unsuccessfully masking patriarchal privilege and male jealousy with spiritual gains. (Sangari, 1999) Statements have been issued by a BJP MP encouraging Hindu women to have four children and protesting against Muslim polygamy because to set right the demographic imbalance.
The underlying belief being propagated is that while Hindu law has been modified, Hindus were secular and modern, and the rest had to follow suit. However, two caveats are in order. Firstly, The Hindu code was not modified, but merely codified; the existing plurality of legal codes was brought together in the bill. Secondly, since all religious laws discriminate against women, the Hindu code bill has been no different and has incorporated some discriminatory features. As seen earlier, the loopholes in the Hindu Marriage Act have ensured that many Hindu men do away with bigamy and avoid paying maintenance. However, in the case of Muslims or Muslim converts having bigamous relationships, the judgements have held that their laws need to be modified. The Sarla Mudgal (1995) case judgement reinforces this idea that bigamy happens only through conversion to Islam. However, a 1974 government survey shows that Muslims account for 5.6 per cent of all bigamous marriages, whereas upper-caste Hindus account for 5.8 per cent, translating into real numbers as one crore Hindu men and 12 lakh Muslim men. (Agnes, 2015) Moreover, all the wives of a Muslim man are entitled to equal legal and social rights. This is better than the extralegal bigamy of Hindu men. (Menon, 2014) This does not deny the fact that bigamy/polygamy is morally questionable; the implication is that Muslim marriages are contractual and hence women within the marriages have more rights than a sacramental Hindu marriage. The communalization of the UCC debate has sidelined the real issue of gender justice and human rights. Patriarchal privilege, and not religious laws, is the main reason behind differential personal laws. (Agnes, 2015)
Feminists and the Left on the UCC debate
Feminists and the Left were earlier in support of the UCC. However, during the 80s, there was a conflation of the interests of the feminists and the Hindu right in their demand for a UCC. The pro-UCC position taken by the right and the Dalit movements of the 80s raised questions in the feminist movement. It was realized that the feminists had fallen into the trap of assuming identities like caste, community, and region as pre-modern and projecting a Hindu, upper-class, upper-caste, urban woman as the ideal woman. In other words, the biologically determined basis of gender was not considered in tandem with the different cultural settings that people inhabited. To consider law and jurisprudence as the means for a gender-just society banks on the abstract, universalized conception of citizenship and drives the workings of culture underground. (EPW, 1997)
Uma Chakravarty highlights some examples of caste and gender working together in subordinating women. According to her, upper caste women uphold caste norms with as much fervour as men, perhaps more. Upper caste women participate in the very caste system which subordinates them because it gives them a degree of power under the condition of compliance of gender norms. Oppressive institutions like patriarchy are ‘invisibilized’ under the notions of upholding the traditions and culture of families. The Mathura rape case of the 1970s created an image of a ‘chaste and virtuous upper caste woman’ and the rest (lower caste women) being excluded from justice in rape cases. Bhanwari Devi, an activist, was raped in retaliation to her work against child marriage. The judge held that an innocent upper caste man wouldn’t rape a lower caste woman because it is polluting and against Indian culture; it was the victim who was abnormal. (EPW, 1997) Seen in this light, a uniform set of laws would only aggravate social hierarchies in accordance with the existing power structures.
The Hindu right has assumed the progressive nature of the Hindu Code and may want a UCC modelled on its lines. The judiciary has given landmark judgements pertaining to gender justice in the case of uncodified laws, but has stuck to the letter of the codified Hindu law. The feminists and the left are of the opinion that a UCC might imperil the cultural diversity and divide the feminist movement further. As we have seen, the constitution has only given a single-sentence guideline to implement the UCC, not going into the details of what it would contain. Hence, all the aforementioned actors assume a certain kind of UCC; the arguments are not based on a solid body of laws. The Supreme Court has rightly left the task of framing a UCC to the Parliament. Only when the Parliament brings about a bill on the UCC would the stakeholders be able to debate on its various provisions. Till then, the issue would be debated over and over again without any solution in sight. On the other hand, it should not be assumed that a body of laws bypassing cultural change would bring about any substantial improvement in the questions of gender justice and rights. To this end, more laws should be enacted which are not covered by personal laws and pertaining to equality and gender justice.
I am grateful for the insights provided by Sukriti Sharma’s paper, ‘Uniform Civil Code: A Political Conundrum’, published by Centre for Policy Analysis, August 2015.
*Sambhavi Ganesh is an Intern at CPPR. The Views expressed by the author is personal.
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Agnes, Flavia. 2015. ‘Liberating Hindu Women’, Economic and Political Weekly. Vol. 50, issue 10. http://www.epw.in.iproxy.inflibnet.ac.in:2048/journal/2015/10/commentary/
Ali, Mohammed. 7th January 2015. ‘Produce 4 kids to protect Hinduism: Sakshi Maharaj’. The Hindu. http://www.thehindu.com/news/national/sakshi-stokes-another-controversy-asks-hindus-to-have-4-kids/article6763837.ece
Chakravarty, Uma. 2003. Gendering caste through a feminist lens. Popular Prakashan. pp 139-170
‘Is Gender Justice Only a Legal Issue? Political Stakes in UCC Debate’, Economic and Political Weekly, Vol. 32, No. 9/10 (Mar. 1-14, 1997), pp. 453-458 http://www.jstor.org/stable/4405147
Jaffrelot, Christophe. 2003. ‘Ambedkar And The Uniform Civil Code.’ Outlook, from Jaffrelot. C. 2004. ‘Ambedkar and Untouchability- Analysing and Fighting Caste’, Permanent Black. http://www.outlookindia.com/website/story/ambedkar-and-the-uniform-civil-code/221068
Sangari, Kumkum. 1999. ‘Gender Lines: Personal Laws, Uniform Laws, Conversion’ Social Scientist, Vol. 27, No. 5/6 (May - Jun., 1999), pp. 24 http://www.jstor.org/stable/3518142
The Constitution of India. Ministry of Law and Justice. http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm
 In Sarla Mudgal v. Union of India, the SC in1995 laid down the principles against the solemnizing second marriage by conversion to Islam, with first marriage not being dissolved. The judge held, “The Hindus have forsaken their sentiments in the cause of the national unity and integration, some other communities have not.” (Source: Wikipedia)