By Dr Saumya Saxena
The vexed debate on a Uniform Civil Code (UCC) predictably picks up around election time. The issue ties up conversations on women’s rights, secularism and national integration in a single albeit unconvincing narrative. National unity is emphasised vociferously by those who often carry a record of hate speech against religious minorities and remain chiefly responsible for provoking religious conflict. Women’s rights are spoken of, often not by women themselves. And secularism remains elastic in these debates; it could be invoked as a protection for minority rights to oppose a universal code and simultaneously be the vocabulary by which religious diversity is opposed. The constitutional commitment to a UCC is therefore impossible to comprehend as a ‘neutral’ law or policy in the absence of the political context in which it is summoned.
The Centre’s affidavit before the Delhi High Court replying to advocate and Bharatiya Janata Party leader Ashwini Upadhyay’s petition evidences the sheer lack of clarity on what a potential UCC entails, for both parties involved here. There is now another petition that seeks the transfer of all such petitions to the Supreme Court from the High Court. The Centre, instead, seeks that the petition be forwarded to Parliament, but pins all its future plans on a report awaited from the Law Commission of India. A report which was supplied in 2018 as a consultation paper by the Law Commission and was not relied upon before the enactment of the Muslim Women’s Protection of Rights on Marriage Act, 2019. It continues to be disregarded in any debate on a UCC.
The Commission in its paper had concluded that instead of a uniform code that applies to all communities, piecemeal reforms through codification of personal law may be a far more effective way to deal with inequalities within communities. The most oft-quoted line of the report that “a uniform civil code is neither necessary nor desirable”, is a fairly unambiguous rejection of the idea of a UCC by the Commission. The Centre, however, continues to pass the buck to the Commission, even as the union law ministry hesitates to appoint the 22nd Commission after the 21st Commission, in multiple reports and papers, had concluded decidedly against government promises.
The Law Commissions have historically responded to legislative, judicial and even civil society concerns and attempted to translate, with very limited success, social demands to the legal register. It is for the first time in Independent India’s history that a Law Commission has simply not been constituted for years on end (since August 2018), perhaps for not toeing the government line.
A law against hate speech, for instance, which would now have been able to convict the increasingly common speeches of majoritarian hate propagandists, was also considered by the 21st Commission. It further produced a ‘consultation paper’ that critiqued sedition – a law which remains incompatible with democracy. Commissions have periodically critiqued existing legislation or provided a blueprint for fresh interventions, often calling out many agencies of the State for inaction or ineffectiveness. For example, in the aftermath of the Mathura case in 1970s, the Law Commission of India proposed amendments to law against sexual violence against women and widened the definition of rape.
Similarly, reports in the past have considered revisions to Hindu succession and inheritance laws and even forwarded bills on irretrievable breakdown of marriage. The latter even made it to parliament but was dropped due to pressures from men’s rights groups and the general disdain that the State shows towards simplifying divorce procedures. The consultation paper on reform of family law by the last Commission also carried multiple suggestions on amending inheritance laws for Muslims and Parsis to give women equal access to ancestral and matrimonial property. Further, it also recommended additional grounds for divorce in Hindu Marriage Laws and also sought simplified procedures for registration of marriages under the Special Marriage Act.
The Justice J.S. Verma Committee too, among other recommendations, sought the removal or marital rape exception and the introduction of sex education in middle school, among other things. It stopped short of recommending a UCC because in multiple consultations held by the Committee, women did not see a direct link between legal uniformity and access to justice, or empowerment. The new petitions seeking UCC before the Delhi High Court must therefore be assessed in light of the fact that the primary stakeholders in the debate – women – have not filed these.
Upadhyay’s petition, his presentation before the Law Commission of India as well as his multiple letters to the Prime Minister carried similar text and almost no legal value. Some unreferenced quotes from the Constituent Assembly Debates and unrelated judgements formed the bulk of his petition with the ultimate prayer being that the judiciary perform the legislative function of creating a uniform law for divorce.
Incidentally, Upadhyay was allegedly seen raising anti-Muslim slogans at a rally, confirming the frivolity of his ‘concerned’ petitions for the rights of Muslim women. He was also present at the recent religious assembly at Haridwar that practically called for a Muslim genocide. He continued to file fresh petitions or join petitions of Muslim women against various practices under Muslim personal law such as nikah halala and bigamy, and this caused some women’s organisations to distance themselves from such petitions or altogether withdraw their own petitions lest they be clubbed with Upadhyay.
The Central government’s response to his plea is an equally redundant affidavit, carelessly authored without much consideration for the debate that has already occurred. While what Upadhyay seeks, is certainly a legislative prerogative, the courts on many occasions have intervened in matters of personal law. Historically, personal law has witnessed multiple court interventions and interpretations of Muslim personal law in particular have evolved primarily through court judgements.
We have also witnessed courts concluding that a ‘feeble no is a yes’ in cases of sexual assault, or that separating a married man from his parental house amounts to ‘cruelty’, while the same for the woman is simply tradition. Same applies to legislative interventions as we witness parliamentarians cling to marital rape exception on the pretext that criminalising it would lead to broken marriages, even as it proceeded to criminalise triple talaq – instead of simply deeming it invalid, which would also have allowed marriages to subsist. Such legal interventions only serve to enhance State capacity to punish rather than providing any genuine entitlement to women. Therefore, using gender or ‘women’ as an entry point in all debates on UCC cannot simply be a convenient trope for the Centre, which refuses to acknowledge the complex debate on the matter over the years, documented by women themselves. (IPA Service)
Courtesy: The Leaflet