STARTING NEW FIRES UNDER OLD POTS-THE LAW COMMISSION AND SUPREME COURT RE-IGNITE THE UCC DEBATE

STARTING NEW FIRES UNDER OLD POTS

THE LAW COMMISSION AND SUPREME COURT RE-IGNITE THE UNIFORM CIVIL CODE DEBATE

Newsletter April 2016 – July 2017

In our newsletter dated September 2014 – August 2015, we had reported extensively on a series of meetings which we had initiated to debate women’s rights with respect to the family, community and the State. (Do write to us if you missed seeing it). Of course, this followed in the wake of the election of a BJP-led government to power at the centre, and their long held ‘promise to give’ the nation a Uniform Civil Code (UCC). A bogie they have consistently used to threaten minority communities, especially the Muslims in India, of imposing a Hindu-ised civil code on all – in the name of ‘protecting the rights of Muslim women’! As it turns out, our fears were not really ill-founded.

In April 2016, Shayara Bano, a resident of Allahabad filed a motion in the Supreme Court seeking a ban on the instantaneous, unilateral Triple Talaq citing her fundamental rights. Many women and women’s groups, including Saheli, came out in support of her fight. But this was not the first time the question of Muslim women’s rights in the personal domain had taken national centrestage. 31 years ago, in the Shah Bano case, the Supreme Court had urged the government to frame a UCC to ‘help in the cause of national integration.’ Ever since then, the issue has become one of ‘national identity’ defined as Hindu versus minority identity and rights, with the BJP and its allies at the forefront of this campaign! In October 2015, a two-judge bench of the court had suo motu ordered the registration of a public interest litigation petition and asked the Chief Justice to set up a Special Bench to consider gender discrimination suffered by Muslim women owing to ‘arbitrary divorce and second marriage of their husbands during the currency of their first marriage.’ In October 2015, Justices Anil R. Dave and Adarsh Kumar Goel issued notice to the Attorney General of India and the National Legal Services Authority to reply whether ‘gender discrimination’ suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants. The verdict refers to dozens of its judgments since the 1990s to record the court’s growing realisation that gender discrimination violated the Constitutional rights of women. The bench was hearing a matter related to succession when it said it is time to focus on the rights of Muslim women. This matter is now being heard along with Shayara Bano case.

This series of events twisted Shayara Bano’s first case against the particular heinous practices of Triple Talaq and Halala, into a matter of imposing a UCC on all. This was just too good an opportunity for the NDA government in power. By October 2016, the Law Commission had issued an open-ended appeal, also called a questionnaire, seeking to ‘begin a healthy conversation about the viability of a Uniform Civil Code’. But this questionnaire was put out for national feedback without any articulation whatsoever of what the Commission means by a UCC, what discriminations they consider to be violative of women’s rights besides the Triple Talaq and other practices among Muslim communities, what maitri-karaar and other customary practices mean in the cultural context they are practiced, which community laws of tribal and Adivasi communities will be affected by this attempt... making this study of the Law Commission, nothing less than our Brexit Poll!

This call by the Law Commission was followed by several meetings and consultations between women’s groups, queer groups, lawyers, law schools and groups that work on minority rights, etc. At these meetings, we discussed the problematic nature of the Law Commission study, as well as the many challenges this poses, especially for minority and marginalised communities (and more especially for the women within them!). Seven decades after independence it is still evident that the public discussion on this matter continues to be limited within the heteronormative framework of the family, idealised notions of monogamy, private property, primacy of blood relations and familial inheritance. What, then, still remains out of the rubric of this discussion is the recognition and mechanisms to facilitate rights within the personal realm in non-heteronormative social formations of support and care, non-monogamous relationships, for single women and widows, and significantly, the very large population of poor women without property, inheritance or social security. At the same time, as activists we also reflected and acknowledged that in the three decades since the Shah Bano case, we have failed to meaningfully engage and get a full grasp of the community identity versus gender justice debates and issues, especially within tribal communities that live by both, community practices and Constitutional law. The evidence of this is even apparent today in the feud over women’s reservation in the Naga Municipal Council elections. But more on that in another piece in this newsletter!

The Law Commission states that it has received more than 40,000 submissions to its appeal. These, according to many articles in the press, include widespread mobilisation by the likes of the All India Muslim Personal Law Board that is believed to have mobilised the insecurity felt by the Muslim community to assert that they want ‘absolutely no intervention in Shariat Law’. Several other statements and positions emerged. Initiated by women’s groups in Mumbai and endorsed by about a hundred women’s groups (including Saheli) and many individual feminists across the country, this open letter urged the Law Commission to withdraw the study arguing that the ‘drafting of the Constitution on 29 August 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a draft Constitution for India. The assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the Assembly signed the document on 24 January 1950. Not only that, but from 1930 women’s organisations have put out the demand for a comprehensive code. In response to that, under the chairmanship of Law Minister Dr Ambedkar, a committee was formed which further modified the first draft of Hindu Code Bill formulated in 1941. But many Hindu fundamentalist voices from the assembly did not allow passage of this bill and in protest Dr Ambedkar resigned as Law Minister. Thereafter, between 1952-1956, Jawaharlal Nehru managed to get the Hindu Code Bill passed in four separate segments. We state all this to emphasise that no far reaching effective, just legal reform can be carried out without putting in similar sustained and intense efforts.

We are aware that any legal reform follows three phases: Pre-Legislative phase, Legislative phase and Post-Legislative phase. This current effort of the Law Commission will fall within the ambit of Pre-Legislative phase. The Law and Justice Ministry of the Government of India has published the ‘Pre-Legislative Consultation Policy’ on 5 February 2014 which lays down the guiding principles to be followed for the Pre-Legislative consultation. If we look at the ‘Appeal’ published by the 21st Law Commission of India, it fails miserably on all the guidelines stated by the PLCP... [and] makes a mockery of the Pre-Legislative process…

In the current communally charged atmosphere this issue requires utmost sensitivity. In fact some tribal organisations have already approached Supreme Court challenging the notion of a UCC. This ‘Appeal’ without a draft legislation would definitely be used as a tool to vitiate and polarise communities given the fact that elections are soon to be held in some states.

Another submission that we co-signed emerged from a meeting initiated by the National Law School in Bangalore, in which we collectively argued that, ‘The entire process of consultation does not seem to have the sincerity or seriousness it deserves. What is required is a committed process of wide-ranging and sincere consultations, aimed at upholding the Constitutional values of equality, diversity and plurality. The questionnaire and the process of consultation as it stands, does not do justice to the complexity of the problem. What is urgently required at this point of time is law reform and institutional reform that will lead to gender justice. One way possible is that the chapter on personal law reform in the report of the latest High Level Committee on Status of Women (http://wcd.nic.in/documents/hlc-status-women) be used as a basis for wider structured discussions on how to achieve gender justice through reform of personal law and through institutional reform. The Law Commission can circulate this report and seek wide-ranging inputs on the same. We need to look at reforms which will make justice and institutions of law more accessible to the marginalised. The consultative process needs to be held in a manner that involves all communities and holds the possibility for the common people to engage with the Commission…’

But when the Law Commission showed no signs of back-tracking on its dubious venture of a ‘plebiscite’ without purpose or clarity, we also sent in a submission of our own. (See below).

We feel that the issue of women’s rights within the institutions of family and marriage, as circumscribed by religious personal laws and customary laws and practices, is a highly complex one. A single-stroke of having a uniform code may not work for all. It will not work to achieve the goal of gender equality which must be the aim of this exercise. The diverse situations in which women live need to be taken into account before any legal reforms are made. Women’s organisations have always asserted that, uniformity by itself does not translate into equality and have been arguing for locating the rights of women as citizens of the country within the secular democratic framework. This, by itself, is a difficult process that may require multi-pronged strategies and a lot more research on both, the part of the government and women’s movements to understand better the life situations of women who are located in different and precarious situations.

SAHELI SUBMISSION TO THE LAW COMMISSION

21 December 2016

As an autonomous women’s group working on issues related to women’s rights, equality and justice for over 35 years, Saheli expresses its deep discomfort and disagreement with the timing and manner in which the Law Commission has initiated a Questionnaire on the Uniform Civil Code to ‘solicit the ideas and opinions of the public by which family laws reforms could be introduced’. Timed as the Supreme Court is hearing a case against the unilateral Triple Talaq, this ‘Appeal’ (as the covering note to the questionnaire is curiously titled) claims to open a debate on the viability of a Uniform Civil Code (UCC) but the actual questionnaire, lacking in both, depth and substance, defeats this very purpose.

The questionnaire is problematic on several counts. First and foremost, the Law Commission fails to provide any framework of the UCC and yet, seeks simplistic ‘yes’ or ‘no’ votes on it. It is, in fact, impossible to respond to the questionnaire in the absence of any actual draft of the UCC. Women’s organisations 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 been, and must continue to be, gender justice for all.

ELABORATING OUR CONCERNS

·  At the outset, it is unclear why the Commission’s letter uses the phrase, ‘Common Civil Code’, while quoting Article 44 of the Indian Constitution that specifically uses the term ‘Uniform Civil Code’. The covering letter of the Law Commission titled ‘Appeal’ invites suggestions on all possible models and templates of a ‘Common Civil Code’ whereas the questions are being asked in context of ‘Uniform Civil Code’.

·  There is no draft of ‘Uniform Civil Code’ shared by the Law Commission, and yet there are numerous references to it in the ‘Appeal’. In the absence of any draft it is impossible to provide an informed and considered response to many of the questions raised. If anything, such a move by the Law Commission only whips up an ill-informed debate on the matter, based on populist rhetoric, thus evoking uncertainty among communities, especially minorities, and in particular, women.

SPECIFIC PROBLEMS WITH THE QUESTIONNAIRE

·         Overall, the questions themselves are very sketchy. Most of them are posed in a simplistic, binary manner that grossly limits the scope of the answers that they actually require. In fact, most of the issues raised in the questions cannot be confined to yes-no/one word/multiple choice answers, but should be part of long debates, and consultative processes which should follow from detailed presentation of a specific draft.

·         It would be an even greater miscarriage of justice if the feedback on such a questionnaire was subjected to statistical analyses (as is the case with most multiple choice questionnaires), and legal reform be recommended on that basis. This would lead to nothing but the imposition of a majoritarian view/culture/practice(s) on minorities and marginalised communities. Is that what the Law Commission seeks to do?

·         It is evident that the questionnaire has been framed on a very cursory understanding of personal laws. Question no. 2 states, ‘The various religious denominations are governed by personal laws and customary practices in India on matters of family laws…’ which seems to suggest that the Law Commission believes the entire population of India belongs to one or the other religious community. In doing so, it completely fails to address the concerns of a huge section of tribal, rural and Adivasi communities living under large array of customary practices, some of which are protected by the Constitution: eg. Article 371 (A) in Nagaland; and Article 371(G) in Mizoram.

·         There is a need to have a comprehensive understanding of the various customary laws and practices of different tribal, Dalits, Adivasi groups along with the personal laws relating to various religious minorities. There is no mention as to which methodology would be adopted to understand and address gender discrimination prevalent in customary laws and practices. There are regional, socio-economic and cultural contexts of all these practices which need to be understood before addressing the issues of inequalities and discriminations through one uniform law. 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. This will further enrich our understanding of the debates and challenges around the UCC. Only such an exercise will aid the government (or the Law Commission, in this case) to lay out a proper framework for evolving possible directions of reforms in personal laws, or a set of common principles towards gender justice for women in matters governing the personal arena of rights.

·         On the matter of religious laws itself, the questionnaire itself is blatantly biased in the way it frames the issues. Speaking in a loose, populist language, question nos. 6 and 7, raise the issue of polygamy, polyandry, maitri-karaar and Triple Talaq as practices to be ‘banned/regulated’, while question no. 8 pertaining to reform in Hindu Law, provides as an option which states that ‘Legal provisions will not help in what is primarily a cultural practice, steps have to be taken to sensitise the society instead’. It appears as if the Law Commission assumes that only the Hindu Community is capable of sensitisation and hence, there is no need to change cultural or customary practices, but for all the other communities, such internal reform is not possible. This is of course, an indication of how ill-informed the basis of the questionnaire is, because over the last few decades, Muslim and Christian women/women’s organisations in particular have been working systematically to reform their practices from within the community.

·         In question no. 14, the Law Commission’s questionnaire cursorily addresses the question of ‘measures to protect couples who enter into inter-caste and inter-religious marriages’ without placing any information on the working of already secular laws like the Special Marriages Act (SMA) and Indian Succession Act (ISA). These need particular attention for many reasons, including the fact that even the SMA is not a completely secular law. As is well known, in case of a marriage solemnised under the SMA, any person who professes to being Hindu, Buddhist, Sikh or Jain religion with a person of Hindu, Buddhist, Sikh or Jain religion, is still bound by their respective religious law in matters of inheritance, etc.

OTHER FAILURES

The Law Commission fails to address several other nuances with regard to personal laws and their impact on women in particular. To cite a few:

·         The fact that no personal law (and most customary practices) guarantees matrimonial property to women. How does the proposed UCC (or the Law Commission) intend to address that discrimination against women in their marital home?

·         Specific privileges such as the Hindu Undivided Family enjoyed only by some communities in the country. Shouldn’t such inequalities within the law also have been brought within the ambit of such a study?

·         The Hindu Succession Act and different State Tenancy Acts, which need to be studied to understand what they really mean for ownership of land by women.

·         The implications for women in such communities where they traditionally inherit property and land, but lose their right to do so if they marry ‘outside their community’. While such a practice is argued as a mechanism for protecting commons, it is clearly antiwomen, and needs to be engaged with more deeply.

·         Also, the efforts of the Law Commission cannot be limited to thinking about gender justice only vis-a-vis those with land and property. Today the 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 unfortunately, these have not been brought into the ambit of discussion, thus rendering this entire effort meaningless to all those covered by such legislations.

Lastly, the Law Commission has allowed its effort to ‘reform’ personal laws to still be boxed within the most traditional definitions of family and community. In addressing the matter only within the framework of religious laws, it fails to create a truly secular space in women’s rights, including for those who do not wish to live within the realm of religion and the customs/practices it defines. In seeing women only as wives, sisters, daughters and mothers, the Commission further fails to recognise other networks of love, care, co-habitation, partnership and community that people in India live by. This includes legally recognised ones such as live-in heterosexual partnerships as well as those yet awaiting legal status such as same-sex relationships, or others that transgress heteronormative definitions of family. In fact, this effort of the Law Commission also fails to keep pace with legal developments on ‘gender’ as now defined by the April 2014 judgment of the Supreme Court in the National Legal Services Authority of India (NALSA) case.

Hence, we reiterate that many complexities need to be understood and efforts be made before the Law Commission recommends reform in the law. Codification does not always translate into reform. The Law Commission must use this opportunity to build a better and more nuanced understanding of the issues involved. The first step towards doing so is to withdraw its current questionnaire and initiate a wider, and deeper consultative process, especially among women’s groups that have been long debating and working on this issue.

As we go to press, the final hearings on the Triple Talaq case have concluded in the Supreme Court. At the same time, many powerful voices have emerged.

On 3 May 2017, Indian Muslims for Secular Democracy (IMSD) spoke to the press in Delhi stating in unequivocal terms that ‘Triple Talaq (instant divorce), Halala and polygamy as currently practiced amongst some Muslims must be declared unconstitutional. Triple Talaq not only violates the Constitutional Rights guaranteed to Muslim women, it is, in fact, anathema to Islam itself... IMSD deplores the attempt of certain political parties to politicise and communalise what is clearly a straightforward issue of gender justice and fundamental rights guaranteed under our Constitution. We also appeal to the electronic media to refrain from turning the issue of gender justice into TV shows pitching Muslim women against moulvis especially chosen for their regressive views. We assert that those who engage in or rationalise the lynching of Muslim men, initiate or endorse government measures that at one stroke snatch away the livelihood of tens of thousands of Muslim families may posture as but can never be well-wishers of Muslim women.’

Addressing another press conference in Mumbai titled ‘Rights of Muslim Women Beyond Triple Talaq’, Bebaak Collective, Awaaz-e-Niswaan, Parvaaz Sangathan, Janvikas, Sahiyar and Muslim Mahila Manch argued that, ‘The strategic sympathy of the BJP led government for Muslim women and clarion call for the intellectuals of the community to reform the Personal Law evokes mistrust as the government is maintaining an absolute silence on the issues of beef ban and the rise of cow vigilantes in the country who are consciously targeting the community engaged in cattle industry, or depend on the cattle for cheap source of protein. We firmly believe that Triple Talaq is gender discriminatory; as well as any reformulation around this will prove sterile if we do not address the social security for the community especially women in this pretext. No force should try to appease the community by looking at only the ‘women’s issues’ rejecting their daily struggle which derives from denial of their rights and access to health, education and livelihood and denial of opportunities to bring in change in their daily life.’

In May 2017, the Supreme Court heard seven petitions challenging the Constitutional validity of the Triple Talaq but reserved its judgement. Initially along with Triple Talaq, Nikaah Halala and polygamy were to be heared as well, but the court decided only to hear arguments regarding Triple Talaq, citing paucity of time as the reason. Counsels appearing on behalf of individual women and women’s groups such as Indira Jaising, Anand Grover and Amit Singh Chadha argued for an end to these practices because they are unconstitutional  and anti-women. At the heart of the arguments is the submission that all laws, including religious personal laws, should guarantee the fundamental rights of every citizen, women and men alike. Contrarily Kapil Sibal, arguing for the All India Muslim Personal Law Board, upheld the validity of these practices by saying that all societies are patriarchal, and divine law cannot be tweaked by secular law, for it is beyond human intervention! We hope that the Supreme Court in its final judgement will uphold women’s Constitutional rights, and not religious values.