SECOND SAHELI SUBMISSION ON LAW COMMISSION QUESTIONNAIRE ON UNIFORM CIVIL CODE

July 6, 2018

To

Law Commission,

Justice Dr. B S Chauhan

lci-dla@nic.in

Subject: RESPONSE ON LAW COMMISSION QUESTIONNAIRE ON UNIFORM CIVIL CODE

As an autonomous women’s group working on issues related to women’s rights, equality and justice for over 35 years, Saheli is grateful for the opportunity to meet with and discuss the crucial issue of equal and just laws for women within the institutions of marriage and family with the Commission.

At the outset, we would like to state that we stand by our submission dated 21 December 2016 in response to the Law Commission’s Questionnaire on Uniform Civil Code; and would like, in addition, to add the following:

Since the mid-1980s when an active public debate on personal laws began in India, the understanding of women’s rights within personal laws has expanded to include the issues of women living within various customary laws and practices, as also on the understanding of the institutions of marriage and family. There have also been larger issues of changing political and economic contexts adversely impacting on the rights of women of various religious communities, as also of poor rural and Dalit women living in remote areas where the concept of individual rights does not hold good. In that sense, the 1980s are behind us, and a newer, more confident voice of women is being heard today, that is ready to challenge both, religious orthodoxy, communal forces and struggle for Constitutional equality. We urge the Commission to recognise and include all such voices in its consultations.

At Saheli, we have held a series of national level consultations over the last four years with women’s groups working on issues relating to violence on women particularly on matters relating to personal and customary laws, civil rights and criminal law. Emerging from these consultations and our own experience over the decades, are the following concerns:

    • We believe that in order to achieve Constitutional values of gender justice and equality, there is an urgent need to revisit and re-assess all personal laws and customary practices across the country because they all, without exception, continue to have gender discriminatory provisions.

  • In fact, customary laws and practices across the country need to be documented to avoid selective interpretations, and a robust public debate on these practices needs to be initiated. While no formal change has happened in customary laws and practices in the last 60 years, we need to look at how interpretations/implementation of customary law has changed, and seek opportunities within for gender justice.

    • In providing recourse from gender inequity and injustice, it is crucial that the Commission recommend the strengthening of civil remedies and de-criminalising of consensual adult relationships and their dissolution.

    • There is an urgent need to re-orient laws like the hurriedly drafted Triple Talaq Bill that criminalises the breakdown of marriage by a now invalid practice. Such a legislation would end up not just making all Muslim men vulnerable to police complaints from any vested third party, it would also mean that Muslim women who are being deserted by their husbands would be entitled to a ‘subsistence maintenance’, which is much less than what all women in the country are entitled to under The Protection Of Women From Domestic Violence Act, 2005 in terms of women’s right to residence, violence within the domestic, etc. Hence the Triple Talaq Bill must be sent to a Select Committee for further deliberations, and amended suitably after wider consultations with women’s organizations, and women rights’ activists to ensure that this Bill, in letter and in spirit, truly serves the purpose for which it has been created – the protection of rights of Muslim women.

  • In cases where the marriage/divorce involves mental, physical and economic cruelty, provisions as ensured under the Protection of Women from Domestic Violence Act, 2005 and S.498A IPC must be invoked, and their implementation strengthened. These secular laws are already available to all women across castes and communities and offer us a crucial secular framework for dispute resolution.’

    • Also, the efforts of the Law Commission cannot be limited to thinking about gender justice only for those with land and property. The issues of women’s rights in the propertied class and those among the property-less are different. These issues can’t come under UCC. For this we need to look at the struggles of tribals, dalits and the poor in rural India for whom ownership of such commons by communities is deeply complicated by ‘other, non-personal’ laws such as the Forests Rights Act and the Land Acquisition Act but these have not been brought into the ambit of discussion by the Law Commission, thus rendering this entire effort meaningless to all those communities covered by it. In this regard, our concerns, are, briefly:

o The need to talk about community rights along with individual rights. Commons are very important for the rural and tribal poor, especially women. These are controlled by the powerful in rural economies or by the State Forest Department.

o Any reform in property rights must also be translated into revenue laws, for them to have any meaning. The only state to have done that is U.P. under the Chief Ministership of Ms Mayawati, but many women don’t even know they have the right to land.

o Various nuances related to personal laws also need to be studied and brought to the fore. The Hindu Succession Act and different State’s Tenancy Acts, for instance, need to be studied to understand what they really mean for ownership of land by women.

  • With all this in view, the Commission also needs to consider related matters of social security such as pension for widows, elderly women, etc., and people who do not fall under the realm of personal laws related to matrimony.

  • Lastly, the Law Commission must not limit this effort to ‘reform’ personal laws to be boxed within traditional definitions of ‘family’, ‘marriage’ and ‘community’ within which personal (and several other) laws have been framed. In doing so, it fails to address the rights of those who have been left out of the debate for far too long: single women, queer and gender non-conforming people. It is critical that the Commission bring into its ambit of concerns other networks of love, care, co-habitation, partnership and community that people in India live by. This includes legally recognized ones such as live-in heterosexual partnerships as well as those yet awaiting legal status such as same-sex relationships, or others that transgress hetero-normative definitions of gender and family. The legal developments on ‘gender’ as now defined by NALSA judgment of the Supreme Court, April 2014 is a landmark that should guide the Commission in this regard. In this context, we urge the Commission to widen its consultations to include queer and LBTI (lesbian, bisexual, trans* and intersex) groups as well.

As women’s organisations, we have always opposed the idea of blanket ‘uniformity’ especially in a diverse heterogeneous country like India. The goal of any such law reform has always and must continue to be, gender justice for all.

In view of the above, we believe there is still need for the Commission to initiate a wider, and deeper consultative process, especially among women’s groups and other stakeholders from across the country, since it is primarily groups from Delhi and a few other urban centres who have been able to have direct access to meetings such as the one we have been granted today.

With regards

SAHELI WOMEN’S RESOURCE CENTRE

A few words about Saheli: Saheli was set up in 1981 in New Delhi, India, primarily as a crisis intervention centre. Early struggles against oppression and violence within marriage, family and community led to campaigns against dowry, domestic violence, rape, sexual harassment, communalism, war and discrimination against women in the law. Our work on women's health includes long standing campaigns against coercive population control policies, hazardous contraceptives, sex-determination, the unethical sale of emergency contraceptives and vaccines against cervical cancer. Increasing conservatisms, militarisation, globalisation and state repression are some of the other challenges we meet jointly with queer, dalit, adivasi and democratic rights’ groups, and other peoples’ movements. An integral part of the autonomous women's movement in India, Saheli continues today as a non-funded feminist collective, working on volunteer power, individual donations, the solidarity of friends and supporters, and of course, the strength of our convictions. We believe our work contributes towards the creation of an egalitarian society where women and men can live with courage, justice and hope.