Vol. XL No. 43 October 23, 2016

Uniformity is not Equality

Brinda Karat

THE CPI(M) extends its full support to the movement of Muslim women for abolition of what women have described as the un-Islamic practice of instant and arbitrary triple talaq.  The demand has received substantial support from both men and women within the community. In the last decade, several organisations representing Muslim women have run campaigns including signature campaigns where lakhs have signed up against this grossly unfair practice. But the self appointed representatives of the community such as the All India Muslim Personal Law Board have ignored the voices of those who support reform in personal laws. Several rounds of discussions with the Muslim Personal Law Board have proved fruitless. It should also be noted that there are sects within the Muslim community such as the Ahle Hadees and the Shia community who do not recognize the validity of instant unilateral talaq.

The issue has come into focus because of the ongoing petitions in the Supreme Court. The response of the Muslim Personal Law Board to the Supreme Court also substantiates this point that for them, there is no scope for internal change on this issue. The highly patriarchal statements of these so-called leaders of the community, show that they consider it their fundamental duty to fight for male privilege in the name of upholding religious beliefs even when almost no other Muslim country in the world adopts such a practice. This is less to do with religious belief and much more to do with protection of existing privileges. All secular forces should come out strongly in support of the demand for abolition of this practice.

But this has to be done along with the fight against the shameful attempts of the Modi overnment to utilise the mobilisation of Muslim women for their rights  to push their own communal anti-Muslim agenda all in the name of women's rights.

 Arun Jaitley has spoken about “personal laws having to be compliant with the constitution." Ravi Shankar Prashad has spoken about “secular nation" and that religious freedom does not mean accepting inhumanity and so on. They also claim that it is Muslim law which needs reform since the process is already over as far as Hindu laws are concerned.

The utter hypocrisy of these people has no limits. This is a party whose icons include those like Shama Prasad Mukherjee who were the most vociferous and aggressive opponents of Hindu law reform and who attacked Dr Ambedkar in the most abusive way when he refused to bow before their upper caste Manuvadi ideologies and pushed for Hindu law reform. Today they want to teach the country about constitutional compliance!

Even today the framework of the Hindu personal laws retain discriminatory clauses against women as in the Hindu Succession Act, the guardianship and adoption laws. Why don’t Mr Jaitley and company make these compliant with the constitution? When they talk about their commitment to secular laws, they should also answer when their cohorts in Rajasthan were brandishing naked swords in defense of sati and against anti-sati legislation with the support of the then BJP chief minister – was this to defend women's rights? They should also answer why today they are defending Khap panchayats and refusing to bring a law to ban the khap panchayats’ anti-constitutional dictates. The list is long with many more examples. The point is that all personal laws need reform. By only focusing on Muslim personal laws, the BJP once again wants to communally target the community.

Unfortunately, there are views in the judiciary, including in the apex court which encourage and support this narrow thinking of the BJP. For example it was in the course of a hearing of a petition moved by an aggrieved Hindu woman against discriminatory practices under the Hindu Succession Act that the government prosecutor commented on discriminations in Muslim personal laws. Instead of holding it to be irrelevant in the particular case, the court literally ordered a petition to be filed on such discrimination and an obliging lawyer immediately did so. That petition too is being heard by the court. Judicial prejudice is also seen in unwarranted comments often made by the court which tend to demean the religion itself. 

Such an environment created by the Modi government supported by a range of institutions many of which are now headed by RSS compliant individuals makes the struggle of reformers within the Muslim community even more difficult. The fundamentalists in the community get strengthened by the outright communal assault by the Modi government. The voices of those fighting for gender justice within the community are put on the defensive.

The other aspect is that once again the BJP is deliberately conflating the issue of instant triple talaq with the issue of a uniform civil code.

The Modi government has deliberately brought up the issue of a uniform civil code through an entirely unnecessary questionnaire issued by its appointed Law Commission.  What business does the Law Commission have to issue such a questionnaire unless the government has specifically asked it to do so.  While the government is promoting this, on the other hand it has completely ignored the recommendations of the official committee on status of women which had been set up by the previous government. Headed by Pam Rajput, the committee had specifically recommended, “the approach should be not one of ensuring that there is one law for all, but rather, that all women, whether they choose to be governed by secular laws or their personal laws, enjoy equality which the Indian constitution promises them.”

It is known that some recently appointed members of the Law Commission are loyal to the RSS. The way the Law Commission notice is framed is also questionable. It refers for example to the aim of "harmonising various cultural practices." This is precisely the Hindutva agenda of imposing “one culture, one nation" theories to destroy the pluralistic cultures of India and has nothing to do with women's rights.

The statement of union minister and BJP leader Venkaiah Naidu that it should be looked at separately is another example of the double speak  indulged in by his Party – the aim has always been to target the community as a whole on the issue of a uniform civil code making out that their position is in defense of women's rights.

The CPI(M) while supporting the demand for an end to the practice of arbitrary, instant triple talaq is opposed to the imposition of a uniform civil code.

Sec 44 of the directive principles of the constitution states "The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India." On several occasions various benches of the Supreme Court have expressed dissatisfaction that the central government has not initiated any moves to implement this directive. In 2003, when the Vajpayee government was in office, the CPI(M) in response to one such judgment issued the following statement:  " Given the context of the offensive of communal politics practiced by the Hindutva platform and the ensuing insecurity among the minorities, particularly the Muslim community, the recommendation by the Supreme Court for a uniform civil code, instead of helping “the cause of national integration”, will have the reverse effect.

Many of the personal laws of different communities including those of the majority community discriminate against women and are not in consonance with the rights accorded to Indian citizens by the constitution of India. What is urgently required is reform in various personal laws. This is an exercise that brooks no delay."

At that time, the Vajpayee government was in office. Today the offensive is much more intense. It is communal politics which creates a situation where minority communities feel they are under siege and take refuge in institutions which protect their identity. In the Indian context, one such framework is that of personal laws.

What is the core of the directive for a uniform civil code? It holds a potential democratic content of equality of men and women within all communities and equality of men and women between all communities. In India we are a long way from achieving either. Men and women within communities whether it is between Hindu men and women or Muslim men and women or any other religious community, the laws are still unequal.

As for the second aspect, equality of all communities, that is as citizens, the legal framework provided by the constitution does prohibit discrimination on grounds of religion but the reality is quite different. If there was uniformity between communities the Sachar Commission findings and recommendations would not have been necessary. It showed that because of discrimination and prejudice in many areas, Muslim communities were more deprived than even Scheduled Castes and Tribes. There is no uniformity as far as access to development is concerned for the large majority of the community. We need laws to establish equal access. Sachar Committee had recommended an Equal Opportunities Commission, why is that not being implemented? The Ranganath Mishra Commission report recommended reservations for Muslims. But even the guarantee for reservations on the basis of social and economic backwardness of the community is not being implemented.

The RSS-BJP concept of uniformity is entirely selective. It wants to impose a particular type of uniformity which has nothing to do with equality either between communities or within communities.  Uniformity should not be confused with equality. Uniformity does not guarantee equality.

In the concrete situation in India, what is the best way forward to achieving equal rights for women of all communities? Clearly the path is through personal law reform. Historically this is the most contested of areas because in the ultimate analysis it rests on control of women and the subordination of women within the family. Only recently a union minister informed parliament that the very concept of “marital rape" and therefore the demand for a law against “marital rape" is against Indian culture. Of course this comes under criminal law not personal law, but it is an example of how male privilege within the family is considered sacrosanct. In such a situation, when retrograde forces reign supreme, an umbrella legislation in the name of a uniform civil code would turn out to be the lowest common denominator for women's rights.