PERSONAL LAW
Madhu Kishwar on Uniform Civil Code
Social peace is an absolute pre-condition for strengthening the rights of women. Whenever violence and bloody conflicts come to dominate a society, women tend to get marginalized and their lives become more vulnerable. At such times they are less able to resist their oppression or effectively protest against abuse. As long as the Muslim community continues to face the brunt of riots, as long as they continue to be ghettoized and feel despised and mistrusted, voices of reform within the community will continue to be marginalized and silenced.
Muslim women can be strengthened to fight for their rights as women only when they stop feeling insecure about their rights as Muslims. They will assert their rights as women more vigorously when they do not feel threatened on account of threats to their religious identity. Therefore, all those interested in the welfare of Muslim women ought to focus their energies on building effective communication channels between Hindus and Muslims so that they can resolve their mutual differences directly and amicably and build an atmosphere of mutual trust and peace. This is as much in the interest of Hindus as of Muslims. Those societies where minorities feel unsafe finally end up being unsafe for all. Safety is indeed indivisible, as the example of Pakistan shows.
A genuine democracy must have genuine safeguards against majoritarianism. Those who identify themselves as the majority community must not be allowed to run rough-shod over the sentiments of the minorities even when they are doing so ostensibly in the latter's interest. While one important component of a democracy is majority vote or opinion as the basis for determining policy, an equally important principle in well-functioning democracies is that majorities, no matter how they are constructed, no matter how preponderant, ought not to have the right to make certain decisions that affect minorities such as deciding whether the minority has the right to live within the boundaries of the territorial state, or to make decisions regarding curtailment of the latter's citizenship rights. By imposing a uniform civil code on the unwilling Muslim minority, we would be legitimizing the majoritarian authoritarianism of Pakistani and Bangladeshi politics, as well as that of the Kashmiri Muslim separatists.
There is an element of crude majoritarianism in the insistence of the Hindu leaders that Muslims prove their loyalty to India. By creating further disgruntlement in the Muslim minority in the rest of India, we will only strengthen the majoritarian politics of Muslim separatists in Kashmir. A secure and confident Muslim community in India is the best refutation of the two-nation theory both as practiced in Pakistan and as being currently exported to Kashmir through Pakistan-trained terrorists.
By resisting reform of many of its outdated social practices, the Muslim community is only harming itself. However, by insisting that the Muslim community be forcibly "reformed", the Hindu leaders are harming the entire society because they are using this issue to whip up anti-Muslim hysteria and promoting social strife and violence in the country.
In reality, diverse Muslim communities follow diverse customary practices, depending on their regional, class and caste status. The customs of Kerala or Assamese Muslims, for instance, are substantially different from those of Punjabi or Uttar Pradesh Muslims. By demanding a uniform civil code, the Hindu chauvinist leaders are only facilitating the task of obscurantist Muslim leaders who can then mobilize the diverse Muslim subgroups using the cry of "religion in danger". and pretend to lead them as an all-India monolith. Like the Hindu nationalists, the Muslim leaders are also averse to acknowledging that the Muslim community is as rich in cultural diversity as is the Hindu community.
Most uniform civil code enthusiasts would lose their enthusiasm for a common civil code if it was optional for all citizens, genuinely egalitarian, and actually implemented. If the Muslim leadership in our country were not as shortsighted as they presently are. they would take the lead in the matter and find that the nationalist chauvinists are not really serious about strengthening the rights of women.
In a country like India, where people do not live atomized lives, where community identity (based on caste, jati, religion, language, village and so on) matter a great a deal, social opinion and customs determine social behavior more effectively than government enacted law.
The cause of gender justice can best be served by:
sustained dialogue and discussion within each community as well as among various communities.
providing viable options to women who feel they are being treated unjustly by their family or their community, as well as for those who simply do not wish to be governed by religious laws.
This latter purpose can be better served by enacting a genuinely nondiscriminatory civil code which is available as an option to any citizen on demand. The nation's secular courts should not be handling cases involving religious personal laws - be it those of Hindus, Muslims, Sikhs or Christians. Those who wish to be governed by their respective religious laws or biradari norms on civil matters should made their own arrangements and choose proper experts within their community for voluntary mediation or arbitration of disputes. If a group or community has the confidence to command the voluntary allegiance of its believers who wish to be governed by their religious customs and laws, the state or other communities have no business to intervene, even if the mutually accepted settlement or judgement is not what the state would consider fair or egalitarian. It is important that the community concerned not be able to use the might of the State to enforce the allegiance of those who are unwilling to abide by their community leaders' or biradari elders' rulings and decisions.
Our secular civil courts must not entertain or decide disputes involving personal laws such as the Hindu Marriage or Succession Act nor Muslim or Christian personal laws. The jurisdiction of the secular state starts when a citizen chooses to exercise her option to present her case to be judged under the common civil code. This option should especially be available to persons who feels dissatisfied with the dictate of their community's religious laws or customs.
It starts with the realistic premise that in actual practice most people in India Hindus, Muslims, Sikhs, or Christians continue to govern their family affairs according to their prevailing community norms. The state can do nothing if the women concerned do not approach it for help. Thus, a common civil code, even if it gets. enacted, will come into effect only for those who seek its adjudication. However, by presenting it as an option available to any citizen manor woman on demand, rather than something forced on unwilling communities, the opponents of reform will have less legitimacy in opposing the enactment of an optional civil code.
Our courts will be freed of their overload to some extent if all those desirous of being governed by their religious or customary laws have to make their own arrangements and cannot demand that our secular courts adjudicate their religious laws. This will make it more likely that those who come to seek protection under the non-discriminatory civil code get speedier justice and better attention from judges.
If our civil courts actually begin to offer justice to those who opt for the non-discriminatory civil code, various communities will have an incentive to attempt to provide women with a better deal within customary religious laws, or else’ they will find women opting for the nondiscriminatory civil code. The availability of this option would create a continuing pressure for reform within each community to adapt their personal laws to be fairer to women. At present too many women are forced into surrendering their rights due to lack of viable options.
A Working Proposal
The broad principles of the code would be as follows:
When one argues that different communities should be allowed to retain the right to decide issues of personal law among believers who voluntarily accept their jurisdiction, one does not thereby imply that women be left at the mercy of men in their respective communities who are allowed to tyrannize women into submission in the name of upholding community customs or religious traditions. No one giving a judgement regarding a case in customary or religious law will have the right to invoke sanctions using the power of the State, or enforce their personal laws through physical violence or even threats of violence. Threatening or administering punishments by any other authority but the country's criminal courts is considered a criminal act and would be punishable as such. Similarly, the enforcement through violence of certain taboos among various Hindu communities regarding who one can or cannot marry would be impermissible. For example, there are a number of instances of daughters being done to death by their own fathers and other male relatives because they dare to marry a man of another case or religion. This power to kill, maim, or cause bodily harm cannot be allowed to biradari panchayats. In case physical violence is used on a dissenting member to ensure submission, the State would treat it as a cognizable offence even without the person concerned complaining about it.
The common civil code would have to rule out gender discrimination, starting with the rights of daughters, and not just focus on relationships between spouses. For example, a father's will disinheriting a daughter would be considered an invalid legal document under the common civil code. Nor would the secular law courts be permitted to discriminate against women in the inheritance of joint family property women will be equal co-sharers in their property and daughters have full coparcenary rights.
When any party to a dispute chooses the civil court, the case must be governed by that person's decision. For instance, if an adult daughter feels aggrieved at being excluded from Hindu joint family property, she would have the option to come to court and demand that property distribution be made according to a non-discriminatory civil code so that her interests are protected. However, if she voluntarily commits herself to some other system of inheritance, and does not approach the court, the courts cannot interfere.
Similarly, a Muslim woman could suè her husband for bigamy through the civil courts if she feels that the Muslim personal law will not give her justice and that for her, it is more important to get justice than to submit to the decisions of her community's religious leaders. Thus, law would not be indiscriminately forced on all but will be applied only when the community is unable to satisfy both the parties in a dispute. This is bound to generate pressure within each community to adapt their personal laws to be less discriminatory and acceptable to resolution by consensus, rather than allowing women to be coerced into self-harming situations due to lack of real options.
(Source: The Manushi, No. 89)
