Muslim Personal Laws Alone Targetted
Below we publish the memorandum given by the All India Democratic Women’s Association to the chairperson, National Commission for Women on July 18, 2023, regarding the consultation held by it only on review of Muslim personal laws
THE All India Democratic Women’s Association (AIDWA) is deeply concerned and disappointed that the National Commission for Women recently held a consultation only on review of Muslim personal laws. This followed close on the heels of the Law Commission calling for submission of suggestions on the Uniform Civil Code. Since the entire thrust of the consultation was only on Muslim personal law, the inequities in other personal laws were not highlighted. This toed the communal line of the Modi government’s propaganda that it is Muslim personal law alone, which needs reform. Along with the call for a Uniform Civil Code, this targeting of Muslim personal laws by the central government and BJP run state governments makes it clear that the government is propounding a Uniform Civil Code only to propose changes in Muslim personal laws. This fact has become even more clear, because recently, the union home minister has reportedly assured a 12-member delegation from Nagaland led by the chief minister of Nagaland himself, that the government will consider the exemption of Christians and some pockets of tribal areas from the ambit of the Uniform Civil Code.
AIDWA has, time and again, pointed out that the National Commission for Women seems to have become an institution which only furthers the policy of the present government and does not take up issues of violence amongst other issues, which women are facing across the country. For instance, throughout the struggle and campaign by the wrestlers against Brij Bhushan Sharan Singh, and also during the ongoing violence against women in Manipur, the National Commission for Women was a silent spectator.
The National Commission further made an erroneous statement when it stated that ‘the absence of a Uniform Civil Code has perpetuated inequalities and inconsistencies in our diverse nation, hindering progress towards social harmony, economic growth and gender justice’. We fail to see how diversities can hinder harmony and economic growth or gender justice of laws across communities. Mere uniformity does not promote gender justice. AIDWA is not in favour of a Uniform Civil Code and states that uniformity by itself cannot be translated into equality, as uniform laws need not be equal laws. AIDWA thus advocates reforms within the laws of various communities in a democratic manner. AIDWA apprehends that in the name of uniformity, it is the laws of the majority community which will form the basis of the so-called Uniform Civil Code.
The 21st Law Commission had, after taking extensive evidence, reached a conclusion that it is neither necessary, nor desirable to have a Uniform Civil Code in India today. It had in fact, recognised that various aspects of personal law discriminate against women, and that it is this discrimination that lies at the root of inequality. The Law Commission had said that the ‘mere existence of difference does not imply discrimination but is indicative of a robust democracy’.
We are therefore surprised, as to why the present government, instead of implementing reform in accordance with the parameters set by the 21st Law Commission, has started a push towards a Uniform Civil Code. No blueprint for this Code has, however, been given and it is clear by the incessant discussion on Muslim personal law alone, that the present government is communalising the issue, and wants to fuel a wrong impression that it is only Muslim personal law which needs reform.
AIDWA further states that if the government is interested in reform, it can and should have brought about equality within different personal laws after proper consultation with the community, particularly the women of the community. AIDWA has a two-pronged approach to bring about equality within personal laws and at the same time, to bring about common laws in areas where it can and should be done. For instance, India has several common laws like the Dowry Prohibition Act of 1961, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013, the Prohibition of Child Marriage Act of 2006, and the Protection of Women against Domestic Violence Act of 2005 amongst others. All these laws apply to all communities in certain critical areas. Apart from this, India has a history of reform in various personal laws, like the reforms in the Indian Divorce Act of 1869 applicable to Christians, and the Hindu Succession Act of 1956. Further, the National Commission for Women reportedly spoke of equal guardianship laws. The laws regarding guardianship could easily have been changed, had the government wished to do so by introducing amendments in the Hindu Minority and Guardianship Act of 1956 and in the Guardianship and Wards Act of 1890.
The track record of the present government has, in fact, been bad and no reform has been initiated in personal laws of various communities. For instance, women’s organisations have suggested a stand-alone, comprehensive law on crimes and killings in the name of honour, but this has not been done. For some time, women’s organisations have been campaigning for equal rights in agricultural properties, but states like Uttarakhand, for instance, retain a law which disentitles a married woman from inheriting agricultural land/property. The Hindu Succession Act also needs to be amended to make more equitable laws for inheritance of the self-acquired property of a woman, but this has not been done. Similarly, women’s organisations and groups have also been claiming a right to matrimonial property which allows equal distribution to both the husband and the wife in all the assets including immovable property acquired by either of the spouses. This recognises that both the spouses, whether one is working outside, or the other is a homemaker, do work of equal value to run and manage the household. A recent judgement of the Madras High Court (Kannaian Naidu & Ors. v. Kamsala Ammal &Ors.) recognised the equal value of household work and care work when it divided the assets between the husband and wife equally, even though they had been acquired only by the financial contribution of the husband. The present government has paid no heed to these campaigns for reform. On the other hand, various states have brought about draconian laws which target interfaith marriage and conversions under the garb of the so-called Freedom of Religion Acts. Some BJP ruled states have further propagated the conspiracy theory of ‘love jihad’, which attacks interfaith marriages between a Hindu woman and a Muslim man.
Clearly therefore, the consultation held by the National Commission for Women was only targeted towards Muslim personal law and not towards other inequitable personal laws. We urge the National Commission for Women to work along the lines suggested by the 21st Law Commission and to ask the government to bring about equality within various personal laws in consultation with the community and women’s organisations and groups. We further urge the National Commission for Women to request the government to bring about common stand-alone laws in the area of marital property, honour killings, and to recognise marital rape as a crime.
