The UCC Bogey Is Raked Up for Muslim Bashing and to Serve Electoral Needs: Flavia Agnes

Flavia Agnes, an eminent scholar of family laws and women’s rights lawyer, has questioned the timing and intention of raking up the Uniform Civil Code in the context of the general elections in 2024. Interestingly, the Modi government has done nothing on the suggestions of the 21st Law Commission Report that called for ending gender discrimination and removing unequal property rights.

Lawyer and scholar Flavia Agnes is disappointed by the false impression that is being created that only Muslims are opposed to the proposed Uniform Civil Code (UCC). In an online interview, she told the author that the truth is that Adivasis, the people of Mizoram, and even some Hindu communities are against it. 

The author of widely acclaimed books on family laws, Agnes criticised the Narendra Modi government for “doing nothing” to implement the 21st Law Commission report to achieve gender equality; yet the controversial issue of the UCC is being whipped up to serve political needs. She, therefore, termed the call for the UCC, a “political act”. 

According to her, the call for seeking opinions on the UCC aims at agitating the Muslim leadership and reaping political dividends for the ruling party. Through Muslim bashing, the ground for furthering right-wing politics is being prepared, she says. “As the issue gets controversial, it will be benefiting the ruling party. This is the main purpose of calling for opinions. The whole idea is to bring the UCC controversy into the political arena in the context of the elections that are coming soon,” Agnes said.

Edited excerpts from the interview follow.

Chequered past of the UCC

Since the 1980s, the BJP’s electoral manifesto has promised the implementation of the UCC. However, the party knows that its imposition is easier said than done. While the previous BJP governments did take up the issue, the current Modi government has been more vigorous in pursuing it. This issue of the UCC has allowed the forces of the Hindu right to attack their political opponents, including the Congress, for being ‘silent’ on the question of the oppression of Muslim women due to catering to a minority ‘vote bank’. Recently, a key RSS organisation said that it would run an awareness campaign for the UCC among Muslims as it would address the backwardness of Muslims. On many occasions, the Hindu right has presented the implementation of the UCC as a solution to the “dangerous trend” of the rising Muslim population.

However, they have deliberately hidden the information that there has been a sharp decline in the population growth of Muslims. In 2001, the growth rate of the Muslim population was 29%, which fell sharply to 24% in 2011. Moreover, Muslims are adopting a large number of family planning measures. Social and economic factors have little to do with religion. Yet, one of the most anti-democratic and anti-Muslim statements came from RSS ideologue, M.G. Vaidya, in 2016. In a piece for the Indian Express in November 2016, he threatened Muslims and other minorities, calling for their right to vote to be taken away if they don’t comply with the idea of the UCC. Vaidya spewed venom:

“…those who do not want to be governed by Article 44 [the UCC] will forfeit their right to vote in the elections to the state legislature and Parliament.”

Acting on “the reference” of the Ministry of Law and Justice dated June 17, 2016, the 21st Law Commission began “examining” the “vast matters” of the UCC and prepared a detailed report after conducting research and holding consultations with experts. Two years later on August 31, 2018, the Commission published an 182-page-long consultation paper on “Reform of Family Law”.  

22nd Law Commission chairperson Justice Rituraj Awasthi. Photos: Allahabad HC official website and Matthias Müller/Flickr CC BY-NC-ND 2.0

UCC ‘neither necessary nor desirable’: 21st Law Commission

Flavia Agnes even questioned the intention of the 22nd Law Commission to solicit people’s views on the UCC, even as the previous Law Commission’s compressive report on the same issue is gathering dust. As she put it, “The issue of UCC has been decided by the 21st Law Commission. But the 22nd Law Commission is again asking whether you want UCC. But what the Civil Code contains, we have no idea. The 22nd Law Commission has also no idea. So, it is a very complicated issue.”

The 21st Law Commission report contains a lot of suggestions for ending discrimination and giving economic rights to women while opposing the imposition of the UCC. For example, on the first page of the consultation paper, the 21st Law Commission made it clear that no consensus could emerge on the UCC, and therefore, the need of the hour is “to preserve the diversity” without contradicting the fundamental rights. The consultation paper said:

“In the absence of any consensus on a uniform civil code the Commission felt that the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India.”

Crucially, the 21st Law Commission not only called the UCC “neither necessary nor desirable,” but also supported ending gender discrimination and doing away with inequality:

“This Commission has therefore dealt with discriminatory laws rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.”

Against this background, Flavia Agnes expressed disappointment that while the government did not take any step on the 21st Law Commission Report for ending gender discrimination and the 22nd Law Commission is now raking up the issue of UCC by seeking views and opinions from the public at large. By citing the reason that the consultation paper is now more than three-years-old, the present Law Commission has again solicited the views on the UCC by issuing a notice on June 14. The Law Commission was controversially kept vacant for years for its tenure to be over and soon after belated appointments were made, it was awarded an extension till August 31, 2024 on February 20, 2023. 

When asked to comment on how a public institution like the Law Commission was being misused for political gains, Agnes said, “I am very sad. Women’s rights are not looked upon properly.” However, she appreciated the efforts made by the 21st Law Commission while examining the issues of gender discrimination. “Earlier, the 21st Law Commission spent a lot of time and took the opinions of a lot of people and brought out a very comprehensive report in August 2018.” 

Giving details about the main features of the 2018 consultation report, Agnes said that it “concentrated on economic rights” and “non-discrimination”. The 21st Law Commission report, according to her, aimed at “weeding out” discrimination wherever it existed in various personal laws. Moreover, it underscored the fact that the Hindu undivided family property was “discriminatory” against women but it was used for “tax-evasion only by Hindus” and called for ending this practice. 

According to her, “The main concern of the 21st Law Commission was that the Hindu undivided family property should be scrapped and the tax benefits to Hindus should be taken out. Similarly, it also suggested the codification of Muslim Personal Laws regarding property rights and the difference between Sunnis and Shias should not be there. Women and widows including child-less widows should get their property rights. There are also suggestions regarding Christians and Parsis. If a Parsi marries outside the Parsi community, she loses her right. The recommendation was such practices should not be permitted. Regarding Christians, whatever discrimination regarding widows and inheritance exists, it should go. Even regarding the Special Marriage Act, whatever discrimination is there, that should be taken out.” 

While calling these suggestions “important”, Agnes, who is the co-founder of the “legal and cultural resource centre” Majlis, said that another key suggestion of the 21st Law Commission was about the division of matrimonial property upon divorce – which does not exist anywhere in law and it recommended “equal division of property acquired after marriage”. Four years after the publication of the report, the Union government has not moved a finger.

“And suddenly, they say they want to have a fresh look… UCC is a bogey. It is to be whipped up to serve political needs. Otherwise, the government is not interested at all. Government is not interested in gender justice, otherwise, it would have implemented a small recommendation from the 21st Law Commission report… Even the media likes controversies. And an impression is being created that only Muslims are opposing the UCC and not the other people.” 

Also Read: The BJP is Promising a Uniform Civil Code, But How About a Uniform Moral Code First?

Tribal communities, Hindus and more: Many sections oppose UCC

However, she said that the reality was different. She maintains that it is wrong to say that only the Muslim community is opposing the UCC. She expressed disappointment that the media was not disclosing the fact that opposition is widespread. As she put it:

“A false impression is being created that other people [minus Muslims] are welcoming it. But the truth is that all communities are opposing. If the Hindu undivided family property is touched, entire Hindu communities will be against it. But these aspects are not highlighted and only the [issues of] polygamy [among Muslims], triple talaq and maintenance of divorced Muslim wives are highlighted and thereby a controversy is created.”

Furthermore, Agnes said Adivasi communities and people from Mizoram were also against the UCC. “All the tribal communities have their laws. Some are pro-women and some are not. And they have local councils and they will determine what will apply to them and what will not. Referring to the northeastern states, she said that the people of Mizoram have also opposed the UCC and it should not apply to them. She said that various provisions of the constitution protect tribal communities and their land rights. “In a situation of such diverse customs and practices and customary laws, which are very vibrant and followed, how are you going to overturn them with the UCC brought in with the particular mindset of the Hindus? It is impossible.” 

Fundamental rights vs directive principles?

Another persisting controversy around the UCC is whether it is about pitching Fundamental Rights versus Directive Principles. For instance, the UCC is justified by its supporters by citing the Directive Principles of State Policy given in part IV of the constitution.

But unlike fundamental rights, the Directive Principles of State Policy are simply guidelines for governments. They are not enforceable in court until they are made law. Article 44 of the Directive Principle of State Policy, thus, asks the state “to endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”. On the contrary, the fundamental rights guarantee religious freedom and cultural diversity.

The supporters of the Muslim personal laws base their arguments on fundamental rights, unlike the supporters of the UCC. As she is regarded as an authority on legal and constitutional matters, Flavia Agnes was asked about the fundamental rights and the Directive Principles clashing. She said that fundamental rights were supreme. “The right to practice religion and customary laws are part of the fundamental rights. And fundamental rights are more important. One cannot stumble over people’s customary practices and impose the UCC. India is a diverse and pluralistic country. Even Hindu laws are not uniformly applicable. Hindu laws have ample provision for customary practices. There are so many exceptions in the Hindu laws,” she said.

The Constitution of India. Photo: Wikimedia Commons

Threat to federalism too

Agnes further argues that apart from posing a threat to cultural diversity and pluralism, the imposition of the UCC is also against the federal structure of the Constitution itself. Elaborating on this point, she stated that the personal laws are listed in the concurrent list of the 7th Schedule of the Constitution and both the Centre and the states have the power to legislate on them. Given that, the law made from the top and its imposition throughout the country would go against the federal structure of the Constitution. As she explained her argument, “Even the CrPC [the Criminal Procedure Code] and IPC [Indian Penal Code] are not uniformly practised. Every state has made its amendments. How could you have the Uniform Civil Code that is brought out by the Centre and which will be thrust upon the states? It is also going to affect the protection given to the tribal community”.  

On the Hindu right’s allegation that the opposition to the UCC was aimed at protecting the interests of Muslim men against women, she clarified, “I am not for Muslims against the rights of Muslim women. It is misunderstood that I am for Muslim leadership against Muslim women. I am for women’s rights everywhere, including the Muslim community.” Linked to this is the conflict between community rights and gender rights. Elaborating, she said, “Gender rights become more important and as discrimination against women exists everywhere; we need to go against community rights to protect gender rights if the need arises.”

Busting false claims

The lawyer also busted the myth that Hindu laws, unlike Muslim personal laws, were “all good and uniform”. During her interview, she underlined the lack of uniformity among Hindu laws and the concessions given to Hindus under personal laws. “Hindu laws are supposed to be uniform but they are not so. State-wise, many amendments are conceding to customary and local practices.” 

But what about the claim of the BJP that it has liberated Muslim women by launching a campaign against triple talaq? Even support for the UCC is being sought by the Hindu right in the name of ensuring gender justice for Muslim women. When asked whether the BJP had initiated a progressive move over triple talaq, she said that the BJP had rather “victimised the Muslim community”. Referring to the laws criminalising the act of instant divorce – which has already been outlawed – by which a Muslim man may be imprisoned, she said, “After the Supreme Court decision on triple talaq, there was no need to criminalise triple talaq. By sending Muslim men to jail, the BJP harms Muslim women as well. Once the man goes to jail, he is not in a position to support his wife. Therefore, it is not against Muslim men but also harms Muslim women. So, it was not a good move at all. It was an anti-community act and it is not pro-women.”

File photo of a protest against triple talaq. Credit: PTI

Questions for Muslim Personal Law Board 

However, she has also criticised the Muslim ‘leadership’ as well as previous governments for not doing away with the practice of triple talaq even though there was a demand from Muslim women to the All India Muslim Personal Law Board (AIMPLB). “They could have done away with the triple talaq before the Supreme Court intervened. There was a demand from the Muslim women themselves before the Board for amendment. Although they have [AIMPLB] said that such a practice [triple talaq] is against the Quran, there was no declaration against it. That has caused a lot of harm to the Muslim community and given the scope to the BJP to take up these issues, saying that Muslim leadership is regressive and they [the BJP] needed to step in to protect Muslim women.”  

When asked to comment on the claim of the AIMPLB that Muslim personal laws were ‘divine’ and therefore could not be amended and interfered with, she rejected such a claim. After the Supreme Court judgment on triple talaq, the Board was present and it accepted the decision. “They [the Board] had conceded the authority of the Supreme Court to examine the issue. So, what they say is not important. Since the Supreme Court decision came and it called triple talaq invalid, it superseded the decision of the Board. Since the Board was present there in the Court, it is a positive sign that they have accepted the Court’s authority. Therefore, any issue can go to the Supreme Court and it can decide on it. So, the claim that Muslim laws are ‘divine’ and cannot be touched does not hold anymore. Similarly, it cannot be claimed that Hindu laws or Christian laws are divine.”

No ‘one nation, one law’

Flavia Agnes also opposed the BJP’s slogan of ‘one nation, one law’. Instead, she said that the cardinal question was to choose between imposing uniformity and ensuring gender justice. “And if the goal is to achieve gender justice, then the need of the hour is to go back to the 21st Law Commission report and see where changes can happen.” 

Abhay Kumar is an independent journalist. Awarded in 2020 by JNU, his doctoral thesis is Modern State, Secular Law and the Minorities: The Cultural Politics of All India Muslim Personal Law Board (1973-2010). Email: [email protected].