• Equality before uniformity

Two intertwined topics that have recently reclaimed their place in news headlines are the Uniform Civil Code (UCC), and Muslim women’s rights, or rather wrongs. A Law Ministry note prepared for the Law Commission declares that the three impediments to legislating a UCC are “separatism, conservatism, and misconceived notions about personal laws”. The note is unambiguously clear as to which personal laws are getting in the way — those protected by their minority status, that is, Muslim personal law. However, Muslim personal law has also been in the news independently of the UCC issue — because of the PIL supporting Shayara Bano’s demand for the repeal of unilateral divorce (or triple talaq), and the responses this has received.

Comparing Hindu and Muslim women

During the 1990s, the idea of a UCC was extensively criticised by women’s groups who feared the unspoken intentions of the Hindu Right in advocating it. An influential strand of argument questioned public perceptions and assumptions about personal law, namely: Hindu personal law has been successfully reformed; in sharp contrast, Muslim law remains unmodified and imposes the worst vulnerabilities on Muslim women; therefore, Hindu personal law should be made the basis for a UCC. There was much to be questioned in such assumptions. For instance, it was pointed out that, historically, Muslim personal law was way ahead of its Hindu counterpart since marriage was understood to be a contract between individuals with built-in provision for divorce, while Hindu law languished within notions of sacrament, the absence of personhood for Hindu wives, the vagaries of the Hindu Undivided Family, and so on. Much was made of a Census study on marriage and polygamy (which had been cited in the famous ‘Towards Equality’ report of 1974 on the status of Indian women) which showed that the incidence of polygamy (usually bigamy) was in fact greater among Hindus than Muslims. Moreover, such wives had no rights under the reformed Hindu law, unlike the rights available to Muslim women under polygamy.

Now that we are once again faced with the spectre of a UCC being foisted on us, this represents an opportunity to take stock from where we are today. We believe that there are three main lessons to be learnt from our recent past. First, we must stop making dubious comparisons between Muslim and Hindu women. Having studied the comparative data on polygamy that continue to be cited, we noticed the following. One, the data come from a special sample survey conducted by the Census of India in 1960 of one lakh women, which is explicitly acknowledged to be a non-representative sample — that is, it may be suggestive, but cannot stand for entities like India, Hindu women or Muslim women. Two, the survey includes women who were married between 1940 and 1960 — which means that 15 of these 20 years were prior to the enactment in 1955 of the Hindu Code Bill that outlawed polygamy. And three, the overall incidence of polygamy reported for Hindu and Muslim women is 5.7 per cent and 5.6 per cent, respectively. In short, these data do not prove that there was more bigamy among Hindu women than Muslim women even in 1960, let alone in more recent times. (We may note in passing that the authors of the ‘Towards Equality’ report were particularly concerned about the high incidence of polygamy among tribal groups, where rates were increasing over time and had reached 18 per cent during 1951-60.)

The steady slide of Muslim women

Nothing is gained today by simply asserting that Hindu women are worse off than their Muslim counterparts — such careless claims may come back to haunt us in future. Yes, honour killings are sanctioned by khap panchayats in the very Hindu State of Haryana; but the khap campaign to amend the Hindu Marriage Act to enforce gotra and caste prohibitions has failed. Moreover, there is growing evidence that women are claiming their inheritance as daughters under the Hindu Succession (Amendment) Act, 2005, particularly in regions (such as Haryana) where land prices have shot up, and the support of in-laws is forthcoming. While it is nobody’s case that Hindu law has been successfully reformed, decades of Hindu majoritarianism may well have benefited many upper-caste Hindu women, including in courts of law. In contrast, the status of Muslims as delineated in the Sachar Committee report a decade ago is likely to have declined further given their increased marginalisation in social, economic and political terms, making it almost certain that Muslim women are on average worse off today than they were just 10 years ago.

The second lesson from the past decades is that we must learn from and support much more broadly the struggles that have been waged since the 1980s by a wide variety of Muslim women’s organisations. A range of organisations emerged between 1984 and 2013, including Awaaz-e-Niswaan, Muslim Women’s Rights Network, Bharatiya Muslim Mahila Andolan (BMMA), and the Bebaak Collective, to name only a few. They speak in many voices and have different viewpoints. Undoubtedly some do argue that the only available option today is to work for personal law reform “from within”. But this is by no means the only position. In any case, the distinction between what is “internal” and “external” to personal laws is not always clear. For example, while unilateral triple talaq is viewed as being contrary to true Islamic principles by many theological schools, polygamy is considered to be part of mainstream Islam. Yet there are organisations asking for the abolition of polygamy, thus pushing the outer boundaries of personal law reform. Moreover, Muslim women’s organisations have also been demanding economic and political rights. In sum, if a common code is impossible to argue for today, it is not because Muslim women are better off with their existing personal laws, but because of the extreme insecurity and precariousness of Muslim lives and livelihoods in contemporary India. This was shared at a recent national convention organised by the Bebaak Collective, “Muslim Aurton ki Awaaz: Sadak se Sansad Tak”, attended by over 500 Muslim women and others in New Delhi on February 27-28, 2016.

Resisting statist agendas a new

The third lesson is that feminists must remember and recover the creativity and energy of the 1990s. While being trapped in a reactive relationship to the state with respect to the UCC, feminists and women’s organisations did much more in the 1990s than simply resist majoritarianism agendas. Despite bitter and acrimonious debates, many creative alternative visions emerged of how genuine equality could be brought into the realm of family life and related institutions. In the decades since, we have been exploring rights in intimate relations, rights in economic and political spheres more generally, and observing the innovative use of secular laws by minority groups, such as the Juvenile Justice (Care and Protection of Children) Rules, 2007 for adoption of children by Muslims and Christians. Today, we must revive and re-energise these visions and reassert our refusal to think within the confines of statist agendas.

It is amply evident that the Law Ministry’s note on the UCC does not venture beyond the old desire for uniformity, and barely finds room for equality. This makes it all the more imperative to nurture and promote alternative perspectives — diverse voices must be empowered to enter public discourse, whether or not the state is ready to listen. After all, the common goal is gender justice, whether it is uniform or plural.



  • Polygamy no longer progressive, SC told

Polygamy may have been “progressive and path-breaking” centuries ago, but not now when women and notions of gender justice have evolved, the Centre told the Supreme Court on Friday.

If Muslim countries, where Islam is the State religion, have disregarded polygamy and triple talaq, why should India, a secular country, continue to deny Muslim women their rights under the Constitution, the Centre asked.

It said that there was no legal bar against abolishing polygamy and triple talaq, given the “march of time and the need for social reform”.

“It may be true that only some women are directly affected by a polygamous marriage, but the fact remains that every woman to whom the law applies lives under the fear, threat or prospect of being subject to these practices, which impacts her confidence and dignity,” the Centre said in an affidavit.




‘Undesirable cannot be essential’

The government listed names of “theocratic States”, which Pakistan at the top, followed by Bangladesh, Afghanistan and Iran, who have “regulated” their divorce law and polygamy in order to show that these are not “essential religious practices” that are beyond reform.

The government was responding to a nearly 70-page affidavit filed by the All India Muslim Personal Law Board (AIMPLB) in the Supreme Court. The Muslim body had strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq, saying that as men, they were better at controlling their emotions, unlike women. The Board has also said that polygamy prevents illicit sex and protects women.

The government pointed to how the AIMPLB had also referred to triple talaq and polygamy in the Supreme Court as “undesirable”. The Board had told the SC that though practices like triple talaq and polygamy were “undesirable”, their hands were tried because the Sharia permitted these practices.

“No undesirable practice can be elevated to the status of an essential religious practice,” the Centre countered the Board.

Concern for women

It said “any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of men folk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution”.

The government said Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths.

The Centre sought the Supreme Court to answer “whether in a secular democracy, religion can be a reason to deny the equal status and dignity available to women under the Constitution of India”.

“Behind the preservation of personal was the preservation of plurality and diversity among the people of India. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens,” the Centre said.



  • Personal laws and the Constitution

The Centre’s categorical stand that personal laws should be in conformity with the Constitution will be of immense assistance to the Supreme Court in determining the validity of practices such as triple talaq and polygamy. By arguing that such practices impact adversely on the right of women to a life of dignity, the Centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights. The distinction between practices essential or integral to a particular religion, which are protected under Article 25, a provision that seeks to preserve the freedom to practise and propagate any religion, and those that go against the concepts of equality and dignity, which are fundamental rights, is something that the court will have to carefully evaluate while adjudicating the validity of the Muslim practices under challenge. From the point of view of the fundamental rights of those affected, mostly women, there is a strong case for these practices to be invalidated. The idea that personal laws of religions should be beyond the scope of judicial review, and that they are not subject to the Constitution, is inherently abhorrent. The affidavit in which the All India Muslim Personal Law Board sought to defend triple talaq and polygamy is but an execrable summary of the patriarchal notions entrenched in conservative sections of society.

This is not the first time that aspects of Muslim personal law have come up for judicial adjudication. On triple talaq, courts have adopted the view that Islam does not sanction divorce without reason or any attempt at reconciliation, and that talaq would not be valid unless some conditions are fulfilled. There are judgments that say the presence of witnesses during the pronouncement of talaq, sound reasons for the husband to seek a divorce and some proof that an attempt was made for conciliation are conditions precedent for upholding a divorce. The present petition before the Supreme Court seeks a categorical ruling that talaq-e-bidat — an irrevocable form of triple talaq that is permitted but considered undesirable in Islam — is unconstitutional. There are many who contend that instant divorce is not allowed, and that the triple talaq has to be spread over a specified time period, during which there are two opportunities to revoke it. Only the articulation of the third makes it irrevocable. It should be possible for the court to test these practices for compliance with the Constitution.