Sunday, Aug 10, 2003
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THE CHIEF Justice of India, V. N. Khare's observation on the need to implement a uniform civil code has once again focussed political attention on personal law. By exhorting the Government to create a uniform civil code as a way of achieving national integration, Mr. Khare underlined the curious conflation of issues women's rights with definitions of the nation-state in the debate on the civil code. This has triggered strong reaction, especially as it fits rather snugly into the Bharatiya Janata Party's stated position that a uniform civil code is needed to achieve national integration.
Among those who have been involved with issues of personal law and their impact on women, and those who have been fighting for women's constitutional right to equality, this is a false debate. One that has an "air of unreality" about it since it ignores the core issue of women's rights and focusses on the emotive and easy-to-throw-around idea of "national integration."
Brinda Karat of the All India Democratic Women's Association says that the business of uniformity is viewed very narrowly "from a single perspective." And that, those who propose uniformity of personal law speak from the perspective of uniformity "between communities, not within communities." This is because "they ignore the equality aspect, and look at the issue from the position of men in different communities rather than as an issue of equality between men and women." The issue of personal law is an issue of unequal laws within communities, and between men and women.
The political debate, since the Shah Bano judgment (see box), has revolved around uniformity of civil codes and has largely ignored issues of equality. The courts too have tiptoed around the issue of rights by, for the most part, excluding personal law from the remit of fundamental rights. A Bombay High Court judgment from the 1950s that personal laws did not have to pass the test of fundamental rights, as they were customary practices and not laws as such was characteristic of the manner in which courts sought to distance themselves from the issue.
Fali S. Nariman: "imposition of a common code would be oppressive."
But there is a view that the manner in which personal laws and their impact on women have been dealt with is simply part of a general lack of consideration for the constitutionally guaranteed fundamental rights. Senior advocate, Indira Jaising, says there exists what can be called a "gender plus" formula which is repeatedly applied to subvert the constitutional guarantee of equality. In almost all domains, public and private, women are subjected to injustice and inequality on the basis of their gender, plus something else, she says adding where personal law is concerned, it is gender plus religion and/or culture.
There is no use talking about a common civil code or a uniform civil code with no understanding of equality or gender justice, says Ms. Jaising. "Unless we get these things sorted out there is no point in talking about a uniform civil code or personal law reform. These are only routes to equality, and which route you adopt depends on the needs of the community." The state and its institutions lack a vision of equality or of gender justice, and there is no political will to address the problems of women, she asserts. There is only one common civil code in operation, "common code of inequality," she adds.
Lawyer and jurist Fali S. Nariman's prognosis is equally bleak. He says it is the "thinking" that needs re-orientation. "Men in India still treat women as chattel like they did 200 years ago. They do not think of them as individual human beings who are entitled to consideration separate from their husbands." Mr. Nariman sees no way out of this except women fighting and building a consensus "within their own communities." "Especially now, in this atmosphere of intolerance; any other way would super-charge the atmosphere. The imposition of a common code would be oppressive, like the majority wanting to have its own view."
It is the "atmosphere" or political environment that is not conducive to a generalised debate on changes to personal law, say women activists. The public discussion, led by the BJP, has perpetuated the belief that Muslim personal laws are the only problem. While, as lawyer Kirti Singh puts it, "across the board there is inequality, whether it is in the Muslim personal law, the Hindu personal law or laws dealing with Christian women." There is a need for change and equality has to be its basis, she says pointing out that in the codification of Hindu personal law, equality is not the basis.
Brinda Karat: "an issue of equality between men and women."
The Hindu personal laws were codified in the 1950s. The parliamentary debate, which led to a Hindu Marriage Act that is far from equitable (see box), threw up arguments that were no different from the ones adopted by the orthodox among Muslims with regard to reform of the Muslim personal law. The Jana Sangh and the Hindu Mahasabha, who were among the main opponents of the new Act said it would wound "the religious feelings of Hindus" and that it was "against the fundamental principles of Hinduism." They even proposed an amendment to the clause prohibiting bigamy to make it possible for a Hindu to take a second wife as long as his first wife did not "object." The Act was passed without this amendment.
The codification of Hindu personal laws, with all their infirmities, was possible because it was the religion of the majority community, so says the political scientist, Zoya Hasan. "When Parliament debated the Hindu personal law, Hindus had wide representation in both the Houses."
Muslim-majority countries, including Pakistan, she says, have modified personal laws on the same basis: the Government and the legislature effecting the change were representative of the community whose laws were sought to be changed.
Prof. Hasan feels that the much needed changes in the Muslim personal law cannot come about in the same manner because there is no institution that can claim to represent the interests of Muslims here. Although Muslims constitute 12 per cent of the population, their representation in Parliament is less than 4 per cent, the lowest since Independence. The BJP-led Government, she argues, cannot claim to have the trust of Muslims. And the "Muslim leadership," like the All India Muslim Personal Law Board depends on the Government and the state for its legitimacy.
Changes to the personal laws of Christians (see box), making them more equitable, have been made in the last few years through a carefully built consensus within the community. Jyotsana Chatterjee of the Joint Women's Programme in New Delhi and women's groups from other States spent over 10 years to arrive at an agreement among themselves and the church bodies on changes to divorce laws. The earlier laws made it nearly impossible for women to seek divorce. Two factors, Ms. Chatterjee says, helped this process. First, the laws were codified and second, the church leadership was receptive to change. Although, certain churches do not accept the force of the statutory provision of these laws, Ms. Chatterjee says their existence has given women a choice between accepting the sanction of the church or that of the law.
It is the absence of choice that enforces inequality. And, for long, women rights activists have argued that what is needed is an "optional" common civil code, based on secular laws.
The feminist academic, Kumkum Sangari, says the idea is to "leave personal laws as they are, let them reform or change at their own pace, but make a provision for women to opt for a common civil code." There are issues such as dowry and domestic violence "which not long ago were accepted as traditional" or customary practice, but which are today governed by secular law, she adds.
The proponents of the optional code say that the pool of such laws relating to common circumstances should be widened towards creating it. This is a proposal from women, for women and bears consideration.
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