‘Containing the discussion of India’s personal laws within the Hindu-Muslim binary, their potential to empower a broad segment of the population through comprehensive change has been overlooked’ | Photo credit: Getty Images/iStockphoto
The 22nd Law Commission has sought feedback on the proposal for a Uniform Civil Code in India. This has sparked a debate, which has often been heated. But this debate is much needed because Indians have never been consulted on the personal laws by which they are governed. These laws were established by the British colonial government without giving a cursory hearing to the clergy or religious scholars in the matter of any religion. The result was a set of religion-based personal laws for Hindus, Muslims and Christians. Whether the colonialists did this out of deep concern for the sentiments of the natives or it was intended to be another tool in the divide and rule strategy to occupy India is irrelevant, but let us look at the origins of India’s personal laws. Should pay attention.
boxed laws
Personal laws in India are decided according to the religion or social origin of the citizen. However, it doesn’t take long to see an uncanny symmetry between them. It is their unmistakably patriarchal framework, under which men are privileged at every turn. Thus, only a man can be the ‘karta’ or head of a Hindu undivided family, a divorced Muslim woman is not entitled to maintenance beyond a certain period, the custom among some tribes of India is that women are given patrimony Property is not inherited, and a Parsi woman who marries outside the community is ostracised. Therefore, the Civil Code of India is already uniform from the point of view of women empowerment. As for the part of the population that we today refer to as the LGBT community, the British colonizers completely ignored them, treating them as mere flotsam and jetsam. Not only did they not deserve personal law, but their actions should be declared crimes, even if they were done with consent.
Now we can see why we cannot consider ourselves a democracy as long as we continue with the present approach to personal law. This is not because it is not the same for different religious groups, but because their equally patriarchal origin denies women equality before the law. Prime Minister Narendra Modi’s widely reported query on how a country can be run on two laws leaves it out. But so does the opposition when it rushes to defend inaction on these individual laws on the grounds of diversity, which they hold sacred.
Both the antiquity of India’s customs and the diversity of its people are brought up to build a case around existing personal laws despite unequal rights for men and women. But is this a valid argument at all? The caste system of India is ancient, but the law makers of India were wise enough to convert it into law very early in the history of independent India.
matter of diversity
Then comes diversity. It seems that the opponents of reform are unaware that they are praising diversity based on religion. Here it is necessary to remind political scientist Pratap Bhanu Mehta that India was not conceived as a “federation of religions”. Similarly, during the deliberations of the Constituent Assembly, BR Ambedkar is said to have expressed surprise that so much importance was being given to religion while choosing India’s political system. These comments have an impact on what is being debated today. Whether the Civil Code of India conforms to the injunctions of all religions is irrelevant. Importantly, it should be in consonance with the democratic principles of liberty, equality and dignity. It is entirely possible to draft a civil code that preserves these ideals without reference to religious practices. It will have the quality of being secular, in line with the defined character of the Constitution of India.
Self-appointed heads of religious groups have opposed the demand for a uniform civil code, arguing that it violates religious freedom. They fail to see that religious freedom means the freedom to practice the faith of one’s choice. In the area of expression of faith, such as public worship, Indian courts have declared that it must conform to constitutional principles. In what can be considered as one of the most important social changes in India, the ban on temple entry for Avarnas was discontinued almost a century ago. Much later, the Supreme Court of India struck down the practice of restricting the entry of women to the Sabarimala temple.
These milestones point to an understanding of the right to religion as limited to the choice of one’s faith, and not to its extra-constitutional expression, such as the regulation of women’s autonomy by men. This leads us to the question of the efficacy of law in furtherance of rights. For example, when it comes to temple entry, we still find instances of Dalits being denied entry. In some areas, more cases of bigamy have also been reported among Hindus than among Muslims. But this leads to the conclusion that banning polygamy among Muslims is discriminatory. The reaction to the discovery of bigamy among Hindus hardly invalidates calls for an end to the provision of polygamy among Muslims. The correct response would be to prosecute Hindus who violate the law.
What is relevant here is not equality between men of different religious groups in the matter of marriage, it is the rights of women in every religious group. The demand that any section of the population, be it tribal or Muslim, deserves separate personal laws even when there is gender injustice fails to acknowledge that they are equal beneficiaries of India’s democracy. Democracy guarantees them freedom and equality in all spheres of life, including access to the rule of law, freeing them from arbitrary rule. To eliminate gender discrimination, nothing more than reforming their personal laws, making them democracy friendly, finding a balance between their rights and their responsibilities will do.
bridging a gap
India’s obsession with equality among men in its religion-based personal code sidesteps the issue of rights for the LGBT community. No amount of reform in Hindu, Muslim and Christian personal codes can reach them, as these colonial-era constructions have made them invisible. If there was a uniform civil code applicable to all Indians irrespective of faith, gender and sexual orientation, the LGBT population could be accommodated. In its absence, some alternative has to be imagined. Given the recognition accorded to them in 2018 with the highly candid hearing of a petition in the Supreme Court to read down Section 377 of the Indian Penal Code and allow same-sex marriages, which ended recently, the question of a personal interest in this group For the law can no longer be postponed.
To be credible, the current debate on personal law must include LGBTs, as questions of civil partnership, inheritance and adoption are as relevant to them as to other Indians. Even mundane tasks like opening a bank account or buying life insurance will make one aware of it. Confining the discussion of India’s personal laws within the Hindu-Muslim binary, their potential to empower a broad segment of the population through radical change has been overlooked. The combination of equally gender unjust personal laws and a disempowered LGBT population point to the benefits of a universal civil code that covers all Indians. On Independence Day in 1947, Prime Minister Jawaharlal Nehru said in a message to the nation that the task before India was “to build social, economic and political institutions that will ensure justice and fullness of life for every man and woman”. . No social cleavage is envisaged in this vision. Universal Civil Code would be a step in that direction.
Pulapre Balakrishnan is an economist