In conversation with Flavia Agnes on framing gender-just laws and why a uniform civil code is not the answer.
Women’s rights lawyer Flavia Agnes talked to The Wire about the conduciveness of the political climate to start a discussion on the enforcement of a uniform civil code and why gender justice is hard to achieve with a uniform law.
The statement of intent that uniform laws for all citizens is the properly modern goal for a nation-state is reflected in article 44 of the directive principles of state policy (part IV of the constitution), which calls upon the state to bring about a Uniform Civil Code (UCC). But Article 37 of the constitution says that directive principles are non-justiciable. Is then the formulation of a UCC not unconstitutional? Will it not overstep fundamental rights?
There are many directive principles of state policy and article 44 is just one of them. But the issue is unnecessarily politicised. What the constitution framers thought about this issue is not clear as personal laws are also state subjects and the states can also make laws for the same. The first departure from enacting the UCC was the laws for Hindus enacted in 1955-56.
It is important to understand why this was done. The Hindu laws were extremely gender unjust compared to laws of other communities and needed immediate reforms. Daughters had no right to inherit property, the right of widows was a limited life estate. Women had no right to divorce and there was no restraint upon men regarding polygamy.
Child marriage, abandonment of widows etc. were problems faced by women. Institutions like keeping mistress and concubinage were recognised. The urgency was to reform Hindu laws. However, though this was the stated objective, there was a political motive to acquire the legislative power over Hindus which until then was in the hands of religious heads of different sects. The aim was also to bring all reform religions such as Buddhism, Sikhism and Jainism, etc. within the broad Hindu fold. Finally, the laws enacted were not even gender-just because a common consensus had to be reached by diluting women’s rights.
At the same time, the state did not want to get into the realm of a uniform civil code and ruffle minority sentiments soon after the blood bath of partition. It was presumed that as time passed, communities would get more integrated. The communal violence in subsequent years pushed communities further apart and today the faith of Muslim communities in the present right-wing government is at a very low ebb. Hence the political climate is not conducive to even start a discussion on enforcement of a uniform civil code.
Articles 14-24 under fundamental rights advocate individual rights to equality and freedom while articles 25-30 talk about protection of religious freedom and education and culture rights of minorities. It is from the latter that religious groups derive the right to be governed by ‘personal laws’. How will a UCC deal with this basic constitutional contradiction?
That is precisely the point. It is far better to reform personal laws and ensure that laws of all communities are gender-just rather than enacting a law which is uniformly applicable to everyone across religions. The aim should be uniformity of rights, not a uniform law. This is because all personal laws are gender unjust, but they are not gender unjust in the same way. There is the system of kanyadan where the daughter is “given away” as an essential marriage ritual under section 7 of the Hindu Marriage Act. Hindu women are given dowry and harassed for dowry despite a law prohibiting dowry. Since marriage is considered a sacrament, there is a stigma attached to divorce and women prefer to stay even in a violent marriage than be known as a divorcee. In Muslim law, marriage is a contract and conditions can be incorporated into the contract. Mehr, which must be stipulated by the husband as a future security for the wife is more advantageous for women than the dowry system. For Christian women, it was difficult to get a divorce and mutual consent was not a ground for divorce till 2001 whereas, since its inception, Muslim law advocates negotiations and arbitration and a divorce with consent. These are just a few examples.
It is because of the constitutional right to freedom of religious practices that today AIMPLB (All India Muslim Personal Law Board) stands against UCC when civil society groups have called for a ban on triple talaq and polygamy. Do you think the UCC is targeting minorities?
Yes, it is. The questionnaire circulated by the Law Commission seeking a public view on triple talaq is targeting Muslims and this has resulted in a backlash among the Muslims and caused polarisation of communities. In a 2002 ruling, Shamim Ara already lay down the correct procedure through which a Muslim couple can get divorced and invalidated triple talaq. But this landmark judgement did not receive much media publicity. It is important to know about this judgement and use it when Muslim women are given arbitrary triple talaq. That would have been far more effective than approaching the Supreme Court and challenging triple talaq, which has now led to the present controversy. If an issue is already decided, what is the point of again asking for the same relief from the Supreme Court, that too in a communally vitiated manner?
In a diverse country like India, do you think a common civil code can bring about national integration?
No, the way the questionnaire has been formulated and the response of Muslim organisations like AIMPLB etc. indicates a polarisation. Both men and women Muslims will rally around the board. Now it is difficult to bridge the gap and bring about a consensus. How can this bring about national integration? If national integration was the aim, then the approach had to be different.
Even the UN Declaration of Human Rights, 1948, gives the liberty to each and every human being to follow a religion of their own choice. India is also a signatory to the convention. So does the formulation of a UCC not flout international human rights conventions?
Yes, I agree. Even Convention on the Elimination of all Forms of Discrimination Against Women was signed in 1993 with a reservation that section 16 which deals with uniform personal laws, was not attested. This is because it was felt that a compulsory uniform civil code cannot be enforced. The present government seems to have gone back on this position.
Women’s right advocacy groups like the All India Democratic Women’s Association (AIDWA) have been of a general consensus since the 1990s in favour of
i) reforms in personal laws because an anti-woman bias exists on grounds of marriage, property rights,
ii) bringing about legislation in areas not covered by personal laws like domestic violence or right to matrimonial home and
iii) setting up a comprehensive gender-just framework of rights covering not just areas covered by personal laws but also the ‘public domain’ of work like equal wages, maternity benefits, etc.
What is your view on each of these issues?
I too formulated this position of reforms from within in a book published in 1997. I am a strong proponent of this and agree with the AIDWA’s position totally on all three points. What we must aspire for is uniformity of rights and not a uniform civil code which will be viewed by minorities as an attack on their religious identity.
What is the contemporary feminist movement’s take on a UCC?
The movement does not speak in one voice. There are some who have been advocating for gender-just uniform laws for everyone, moving away from the religious identity, and then there are others like me who are subscribing to the position that reforms from within and changes through judicial intervention are far more relevant and meaningful for women from minority communities.
One of the laws that the UN lists which privilege Indian men over women is the Goa law on polygamy. The Portuguese civil procedure code has been in place since 1939 in Goa. What lesson must one draw from this?
The lesson that must be drawn is that uniform law by itself would not ensure gender justice. And diverse personal laws can be reformed to be gender just. This formulation is based on my own position on the issue.
The fight for UCC has been the prerogative of Babasaheb Ambedkar since pre-independence times. Why do you think the general consensus today declares it a fight of the Hindutva forces to suppress all religious minorities?
This must be viewed in its historic context. Babasaheb’s primary concern was to reform Hindu laws and customs and rid them of their Brahmanical baggage and the oppressive caste system. The reform which he campaigned for was to abolish caste differences, ensure that marriages across caste and sects are permissible, the notion of purity and pollution which oppresses women is abolished, that polygamy should be abolished and Hindu women should have the right to divorce and inherit property. This was opposed by several Congress members. There was also strong opposition to this by right-wing parties such as the RSS and Jan Sangh.
Ambedkar also opposed Sati and other oppressive Hindu practices. His concern was mainly for the upper caste Hindu woman who was devoid of rights. At that moment the Muslim and Christian laws were far more progressive and awarded rights to women. Today, the situation has changed and the society has become even more communal and Article 44 is being used as a stick to beat the minorities with.
S. Naskar is a contributor for The Wire.