The current debate on triple talaq and Muslim personal law has provoked questions about who the state and society have historically recognised as the custodians of religion and of religious laws.
Despite differences, contesting parties seem to be agreed on the need for change. There seem to be at least two (if not more) recognisable positions taken in the debate about the way forward. One, that a uniform civil code should bring about a wholesale replacement of all personal laws with a new legislation. Two, that personal laws be codified and aligned with fundamental rights, if not also with finer interpretations of religion itself.
With their boycott of the questionnaire recently published by the Law Commission of India, the All India Muslim Personal Law Board has reconfirmed that their opposition to uniform civil code stands on shaky grounds, given that the Law Commission had categorically steered clear of endorsing a uniform civil code.
The Hindu Mahasabha, Rashtriya Swayamsevak Sangh and the Vishwa Hindu Parishad, on the other hand, appear to be strongly advocating the need for a uniform civil code.
The Bharatiya Janata Party seems to have rapidly toned down its vociferous demands for a uniform civil code to replace personal laws. They now appear to be asking for a more achievable revision or reform of personal laws.
In August, a Congress Party member, Husain Dalwai, introduced a private member’s bill opposing triple talaq.
The reasons behind these stances range from "inviolability of religion" to "demographic imbalance" to "vote banks". Thus, the eagerness to slot voices as either pro or anti uniform civil code is but one technique to stall the discussion from deeper questions of exactly what type of legislative change would in fact address gender equality.
Which is why it is important not to fall in the trap of the labels of "uniform civil code" or "personal law" and to ensure that the question of women’s rights is not lost in the process. The target here is neither uniformity nor absolute equality, but reform.
So long as a law satisfies the constitutional test of fundamental rights, a democratic codification of personal laws will have far-reaching implications for both women’s rights and democracy.
Codification and democratisation
The lack of codification of Muslim personal law has led to the emergence of multiple versions of law. While it was possible to locate the textual sources, the non-textual interpretations of the Hadees came from diverse sources and were often neither representative of Islam, nor members of the Muslim community.
The contemporary women’s movements led by organisation such as Bharatiya Muslim Mahila Andolan, Bebaak Collective, Awaaz-e-Niswan and Majlis have proved to be an effective way of recognising everyday discrimination faced by Muslim women. These voices have consistently become stronger and confrontational.
These movements have further dented the idea of a public-private divide as the private realm of the family and religion found dedicated public spaces in the form of Mahila Adalats on one hand and Dar-ul-Qazas, or religious courts, on the other, where versions of religious personal law contested against each other.
The idea of representation of the members of a community through personal law, therefore, became more complex in the recent decades when the state could no longer steer these conversations effectively through legislations produced after closed-door consultations as attempted by Rajiv Gandhi in 1986 with the Muslim Women’s Act.
Even the courts found ingenious ways to move towards a more liberal interpretation of personal law which increasingly began to obliterate the need to unify the law as the interpretations of law produced uniform consequences.
For instance, in the judicial pronouncements in the recent decades there is increasingly a trend towards weeding out redundant tradition from the legal domain of religion.
A judgement in 2014 reconfirmed that rulings of Dar-ul-Qazas are indeed neither legal nor binding. Subsequently, judgements also upheld the law against bigamy even when parties were Muslim.
We have also come a long way since the Hindu Code Bill debates, when issues such as divorce and monogamy encountered tremendous opposition. We should remember that even the Hindu Marriage Act 1955 and Hindu Succession Act 1956 slowly inched towards diversity in the years following their enactment. It took decades before they shed their Brahmanical bearings by incorporation of different property and inheritance laws and acknowledging regional difference (Madras Amendment 1967) with respect to recognition of coparcenary, or marriages within prohibited degrees of relationships (Sapinda), and finally granting women equal rights in inheritance in as late at 2005.
Thus, we see that the Muslim and Hindu religious codes have slowly been democratised to accommodate a wider spectrum of identities within a religious community.
Community identity
In recent years, Muslim Personal Law and the Khap Panchayat or Caste Panchayat judgements have collectively come to symbolise the oppression of women in India.
Personal law as a representation of a community thus becomes significant, given that Muslim Personal Law has frequently been used as a symbol of the community’s backwardness. With so-called honour killings, “corrective” rapes, and other brutalities emerging as punitive actions against transgression of local custom, a defence of personal law theoretically began to resemble an argument for cultural relativism. However, it is necessary here to unpack such crimes to understand the particularities of each case.
In the infamous Imrana case in 2005, a woman was raped by her father-in-law and was subsequently asked by the Muslim caste panchayat to divorce her husband and treat him as her son.
The case was similar to many of the Khap panchayat judgements which ordered “corrective rape” for inter-caste Hindu marriages, but since the persons involved in the Imrana case happened to be Muslim, the issue was conflated with Muslim personal law.
The Khap panchayat judgements, on the other hand, are rarely if ever seen to possess any relation with Hindu law. They are marked off as cultural beliefs that are very localised and peripheral to mainstream Hinduism. It is worth noting that such beliefs are never considered ‘representative’ of Hinduism. Thus, while Hindu law and customary law are seen as distinct, the difference between Muslim law and local authority is blurred.
In Hindu Nationalist propaganda, such cases are used to demonstrate the “bestiality of the Muslims”, while they themselves propagate orthodox stereotypes of women – such as “Hindu women should have 10 children”, or that Hindu women embody virtues of "sacrifice". Thus the end-goal for them is an artificial “uniformity” between different religious communities, here Hindus and Muslims rather than between men and women within these communities.
It is important therefore to be able to question the monolithic idea of religious communities as also the self-appointed, socially conservative and male-dominated guardians and representatives who claim to speak on their behalf. Thus both the defence of uniformity as well as of preservation of personal law has to be approached with the underlying agenda of women’s rights, for both positions have the potential to perpetuate patriarchy.
We should also remember that the idea of uniformity in any law has never been absolute. The very first sections of the Criminal Procedures Code, as well as the Civil Procedures Code, categorically state that they recognise exceptions made for the state of Jammu and Kashmir and Nagaland, and a number of tribal laws find protections under the sixth schedule of the Constitution. The debate about uniform civil code thus needs to be understood in a similar light. One can only hope that obsession over labels therefore does not distract us from the objective of achieving gender justice.
Saumya Saxena is a PhD from the University of Cambridge, MSc from University of Oxford specialising on Family Law in India. She is a Consultant for the Law Commission of India, but the views expressed in this article are her own, derived from her PhD thesis, and do not represent the views of the Commission.