The Telegraph
Since 1st March, 1999
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- Is the uniform civil code about secularism or gender justice'

As a feminist, one should have lost the capacity to be even mildly surprised by the workings of the world, but I am glad to report that several things about the Telegraph debate managed to intrigue me. To begin with, the topic ' 'To be truly secular India needs a uniform civil code.' Why' Is the issue of the uniform civil code about 'secularism' (the relationship between religious communities and the state), or about 'gender-injustice' (the constitutionally enshrined inequality between men and women)'

The fact is that all laws on marriage, inheritance and guardianship of children discriminate against women. They are discriminated against differently by the different religious laws, but every single one of the religious personal laws discriminates against women. Surely the issue of the uniform civil code should be debated as 'India cannot claim to be truly gender-just as long as discriminatory personal laws exist' Unless of course, the debate is conducted exclusively among men who define secularism as the equal right to discriminate against women ' if we can't have four wives, then neither should they. (Feminists have, of course, long suspected this to be the case.)

Biologically speaking, it very nearly was a debate among men, Vasundhara Raje being the sole woman among eight participants. Along the lines of political affiliation, we get two voices from the Congress (Mani Shankar Aiyar and Salman Khurshid), four from the Bharatiya Janata Party (Vasundhara Raje, Narendra Modi, Arun Jaitley and Seshadri Chari), one member of the All India Muslim Personal Law Board (Syed Shahabuddin) and one independent (Fali Nariman). Not a single voice from the women's movement, different strands of which have been raising this question, in different ways, for nearly sixty years, from as long ago as 1937.

Then, of course, the obsession with uniformity. Each religious community is a heterogeneous one, and 'Hindu' and 'Muslim' practices differ widely from region to region of India, from sect to sect. Some of these practices are better for women than others, and making them all 'uniform' is not only not a solution to gender-based injustice, it is not even a viable option ' what is the uniform standard that will be adopted' The attempt to bring about uniformity has never worked well for women. The Hindu code bills, passed in 1955 and 1956, did not reform Hindu personal laws, they merely codified them, that is, brought them into conformity with what was assumed to be the 'Indian' norm ' north Indian, upper-caste practices. Other practices were explicitly characterized during the debates in parliament as being un-Indian.

Several scholars have shown that ending the diversity of Hindu law as it was practised in different regions destroyed existing, more liberal provisions for women in many cases. Nor did this process give women equal rights to ancestral property. Four states have carried out legislation separately to ensure this, but the rest of the women of India are less equal than their brothers. When the possibility of equal property rights for women was being discussed in parliament during the passage of the Hindu Code, M.A. Ayyangar burst out with 'May God save us from having an army of unmarried daughters.' He had got it right of course ' the only way to save patriarchal arrangements is by keeping women property-less and dependent on fathers, brothers and husbands. At least he was honest about it, unlike our suave 21st-century patriarchs.

Further, the Hindu Guardianship Act, one of the four acts that constitute the Hindu Code, introduced a new principle that was to apply to Hindus alone, despite the fact that there already existed a law of guardianship, the Guardians and Wards Act, that covered all communities. The principle was that, in the case of Hindus, the father was to be seen as the 'natural' guardian, while the existing secular provision recognized as guardian the parent looking after the child. Later, another little lollipop for Hindu men ' the only secular law on marriage, the Special Marriage Act, was amended to exclude Hindu men from its more gender-just property provisions, and to give them the protection of the Hindu Succession Act.

Narendra Modi holds that 'secularism' in India means 'appeasement of minorities'. Pardon me for thinking it means 'appeasement of men'. (The report also tells us he drew applause from the audience for the astute observation that 'the Muslim who goes to the United States of America must practise the civil code there'. Yes of course, and the US-based Hindu funders of the Vishwa Hindu Parishad's anti-minority agenda in India make a very clear case for minority rights in the US ' for the right to build Hindu temples, celebrate Hindu festivals and to contest elections. Strange are the ways of the diaspora!)

Let me reiterate that this is not a defence of the existing personal laws. There is nothing primordial or pristinely apolitical about these laws. The personal laws being defended in the name of religious freedom are colonial constructions of the 19th and 20th centuries. The Hindu Code in 1955 merely completed the process of congealing a 'Hindu' identity, begun in the 19th century, by defining as 'Hindu' anyone who is not Muslim, Christian or Parsi. That is the official definition of Hindu in this country ' if you are not this, that or the other, you are Hindu, despite your protestations to the contrary. Similarly, the Shariat Act of 1937 fixed the boundaries of the 'Muslim' community, while earlier, customary laws had been widely followed.

The following of heterogeneous practices need not be inherently unegalitarian, nor the imposition of a uniform law necessarily the opposite. The women's movement, since 1937, has evolved several different strategies and suggestions to bring about gender-justice. For one thing, ever since the hijacking of the demand for a uniform civil code by the Hindu right, the focus now is on gender-just laws. The women's movement supports initiatives within communities to bring about reforms, so that the rights of women do not become a casualty to the fear of minority communities that the reform of personal laws is only a pretext for eroding their identity in this sharply polarized polity. It is not a paradox that some Islamic states have managed to reform laws in the interests of women. When a minority community is threatened with annihilation, the obvious response is to close ranks. It is when a community is confident that it can afford to be self-critical.

Feminists point out that the term, uniform civil code, has become synonymous in the public mind with reform of what are understood to be barbaric Islamic customs. The focus is never on protection of economic rights of all women in marriage and upon divorce. Therefore, another women's movement strategy is to try to bring about legislation on matters not currently covered by personal laws, such as the right to matrimonial property and against domestic violence. There also exist several versions of an ideal common civil code, if such a code could be put in place as an option for Indian citizens who do not wish to be covered by religious personal laws.

The Telegraph motion was carried, we are told. But when the most vociferous proponents of a uniform civil code are the likes of Narendra Modi, who personally presided over the massacre of Muslims in Gujarat, and Arun Jaitley, who stoutly defended it in every forum, it does not take much political acumen to realize that it is not women's rights that are on the agenda.

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