India: If the BJP is serious about the uniform civil code, it must answer these three questions (Peter Ronald deSouza)

The Scroll
If the BJP is serious about the uniform civil code, it must answer these three questions
Is the call for a uniform civil code being made by the RSS-BJP combine a call for gender justice or to push a particular community into a corner?
Peter Ronald deSouza 5 November 2015

All communities in India have resisted state interference in their personal laws. Such interference, they argue, is outside the state’s jurisdiction since personal laws are exclusively within the private domain of the religious community. Such a claim is historically false. It was the codification exercise of the colonial state, and its regular adjudication in disputes on matters of marriage, inheritance, adoption and related matters, that produced a body of personal laws for each community. This body of laws was accepted by the major communities as their own personal laws.

It is equally false to claim that resistance to interference comes from only one community. The Rakhmabai case of 1884, which has parallels in the Shah Bano case of 1985 and the Mary Roy case of 1986, gives lie to this claim. The democratic state has a right to reform personal laws. It has a right to align them with constitutional principles. Today, when we revisit the obligation of Article 44 – “that the state should endeavour to secure for the citizens a uniform civil code throughout the territory of India” – there is, therefore, little scope for such politics of community one-upmanship.

The raising of the Uniform Civil Code issue, today, can elicit only two possible responses. The first response reads Article 44 narrowly as a result of which it seeks to enact a uniform civil code for India. The second response, in contrast, attempts to go behind the wording of Article 44 and search for the normative goals that underlie it. It campaigns for a body of laws that promote these goals. Such laws may not lead to a uniform civil code but they would meet the ethical aspirations of such a code. I shall, therefore, begin by identifying and examining these ethical aspirations. I will discuss the second response first.

Ethical aspirations

The ethical aspirations of a uniform civil code, since the adoption of the Constitution in 1950, have gone through three stages. As the nation has grown in becoming a society based on the rule of law, it has engaged with the changing global debates about citizenship and women’s rights that have been brought into the public discourse by the women’s movement.

The first of the ethical aspirations, at the time of independence, was to have a “uniform law” for all communities. That is what nation-building required but the trauma of Partition, and the urgent need to reassure the Muslim community that they, as a minority, were not going to be unequal citizens in the new polity, however, prompted the political leadership, led by Nehru, to pass such legislation only for the Hindu community. The Hindu Code Bill that ensued, and the debates that preceded and followed it, were the result of such contingent considerations. The political leadership, in the early years, believed that national consolidation, stabilising the fragile young nation, was a higher goal than having uniform personal laws for all communities.

When consolidation was assured, and the state felt that it could further push the reform exercise in personal laws, the argument shifted to the second stage. Here the women’s movement, aided by the courts, defined the ethical aspiration as an “equality of laws”. In addition to the academic literature it was the judgments in the Shah Bano and the Mary Roy cases the generated a robust public debate. It was unfortunate that the government of Rajiv Gandhi cynically gave in to an electoral calculus to appease the conservative Muslim leadership. In the face of resistance from many in the women’s movement, the government, in a retrogressive step, passed the Muslim Women (Protection of Rights on Divorce) Act 1986. Today this second stage too has passed and we are now in the third stage where the ethical aspiration has now shifted towards “gender justice”.

Gender justice

It is, here, in this third stage where I shall locate my discussion. At this third stage the ethical aspiration of the women’s movement, with respect to personal laws, is to reform the ecosystem of laws concerning women whose outcome is the diminishing of gender injustice. There are five dimensions to this ecosystem:

1. Laws that seek to make public spaces more safe for women – for example, those that emerged from the Justice Verma Committee Report

2. Laws relating to women’s safety in the work place – for example, the Vishaka judgment

3. Laws concerning women’s rights in the home – for example, laws against domestic violence and laws granting right to the matrimonial home,

4. Internally driven reform of personal laws, and

5. Juridification of personal laws – for example, disputes in courts seeking awards under Muslim Women (Protection of Rights on Divorce) Act, 1986, which have resulted in innovative judgements.

These, when taken together, constitute an ecosystem of laws that can be regarded as promoting gender justice.

In addition to the combined effect of the ecosystem there are also aspects, within each of the five dimensions, which can also be pursued to promote gender justice. The women’s movement, concerned with establishing equality of treatment in a patriarchal society, and conscious of the current party politics that seeks to communalise the issue of the uniform civil code, has taken the debate on gender justice beyond uniformity and towards a plurality of laws.

Plurality of laws

When seen analytically, uniformity is desirable because it is the means to promote equality of treatment and justice of outcomes. However it is plurality which is a superior path to achieving these outcomes. Acknowledging the advantages of a plurality of laws is also consistent with the global trend in legal thinking towards legal pluralism which recognises that plurality of laws is more in tune with the requirements of diverse societies.

Let me now move from this brief discussion of the value of legal pluralism, to the second response, the political demand for a uniform civil code. The politics of the Rashtriya Swayamsevak Sangh-Bharatiya Janata Party regime will allow it only to debate the first response of a uniform civil code for India. Even though it may be yesterday’s demand, and even though it may have an anachronistic ring to it, when the global thinking is looking at legal pluralism, the shape of a uniform civil code for India has to be pursued because it is in the BJP manifesto.

What should its elements be? Where should we look to study its working? Why should certain aspects be included and others excluded? To answers these questions we fortunately do not have to look very far.

There is only one state in the Indian Union that has the semblance of a uniform civil code. Goa has practiced a common civil code, for all citizens of Goan origin, for several decades now both pre and post liberation. Ironically this continuity in practice was not interrupted by liberation since the Nehruvian state accepted legal pluralism. It allowed Goa to retain its common civil code although it was a legacy of the colonial regime since all Goans, irrespective of community, accepted it even after liberation from Portugal in 1961. From a gender justice perspective the common civil code in Goa has features which are far superior to any of the personal laws currently operating in other parts of India as the following list illustrates.

The key elements of Goa’s common civil code are (i) registration of marriages, (ii) communion of assets, (iii) equal treatment of sons and daughters, (iv) legitime which implies 50% of assets belong to children, (v) inventory, (vi) deed of succession, (vii) relinquishment of rights, and (viii) registration of wills.

Three tests

From a gender justice perspective the main aspects are three: (a) the requirement of marriage before the civil authorities which must precede a religious ceremony, (b) the communion of assets, and (c) legitime. These have political consequences for the property system in society and it is with respect to these features that the commitment of the RSS-BJP for a uniform civil code can be tested.

The first feature, registration of marriages, in addition to being an impediment to bigamy, since now the state has to certify a marriage before it is performed, implies the priority of the state authority over religious authority. Religious authorities who perform marriages before the civil registration are to be prosecuted for breaking the law. Would the BJP be willing to antagonise its core constituency of assorted godmen by acceding to this feature of a prospective uniform civil code? Would it sacrifice gender justice to appease religious leaders and conceding thereby the priority of religious authority over secular authority?

The second feature is even more politically charged since it results in giving women equal rights to all property listed in the husband’s name. Women in India would thereby have material security. Husbands would not be able to disinherit their wives who would be equal co-owners in all the property. Feudal and corporate India, another core constituency, would baulk at the implications of such a provision.

The third feature has similar implications as the second since it would result in the fragmentation in property holdings. Would the BJP be willing to bite the bullet and fight the patriarchal property systems in India?

Is the call for a uniform civil code being made by the RSS-BJP combine a call for gender justice or to push a particular community into a corner?

Peter Ronald deSouza is professor at CSDS and holds the Dr S Radhakrishnan Chair of the Rajya Sabha (2015-2017).