Gender justice and equality for Muslim women in India have been the subject of intense debate, particularly regarding the practice of instant triple talaq. The ongoing debate over the implementation of a Uniform Civil Code has added further intricacies to the issue, with political factors exacerbating the complexities
By Sutanu Guru
- The Law Commission has asked citizens and civil society groups to send suggestions on how to draft a bill for UCC for all citizens
- The liberal Muslims have welcomed the new law wholeheartedly and many among them also advocate for the adoption of a Uniform Civil Code
- Post-poll surveys over the last few years indicate that the proportion of Muslims who vote for the BJP rarely reaches double digits
- Nehru is criticised in contemporary times. But India was a different place in the 1950s where politics was yet to become a ruthless pursuit of power
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
Article 44 of the Constitution of India.
“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”.
Article 25 of the Constitution of India.
ON the face of it, it is the seeming conflict between the two articles that has been the source of controversy over the debate on a Uniform Civil Code (UCC) for all citizens of India, irrespective of caste, creed and religion. On the one hand, proponents of the UCC argue that full integration of India as a republic and a democracy is incomplete without all citizens being subject equally to all laws. On the other, opponents vehemently argue that the same Constitution protects the diverse religious identities and practices of minority religions. They further argue it would be divisive, apart from being unconstitutional to force minorities to abandon religious practices they have been following for centuries. At the moment, the most vocal support for the UCC is coming from BJP politicians after Prime Minister Narendra Modi recently issued an impassioned appeal for the UCC to be debated in detail and made into law by the Parliament. The most strident opponents of UCC are Muslim organisations like the All India Muslim Personal Law Board. It is because of noisy and often acrimonious debates between these protagonists that the UCC has become a seemingly hostile battle between the BJP and leaders of the Muslim community.
What exactly is the reality? Before plunging into the contemporary debates and controversies, it would be instructive to understand what happened with civil laws when the Republic of India was an infant. When you carefully read the words in Article 44, it becomes quite clear that the founding fathers who drafted the Constitution did not want the uniform civil code to be made applicable to all Indians in a tearing hurry. That is why the words “shall endeavour to…” have been used. It is equally true that they also did not want the issue to remain unresolved for decades on end and hence inserted the Article in the Constitution. India was a tumultuous place during those first years after independence.
The Muslim League led by Mohammed Ali Jinnah had successfully led a movement to create a separate country Pakistan for Muslims that the departing British rulers carved out of India. The main premise on which Pakistan was created as a nation for Muslims was that the religious, social and economic interests of the Muslims would not be safe in a Hindu-dominated India. Ironically, while an overwhelming majority of Muslims who were entitled to vote opted for a new nation called ‘Pakistan’, most stayed back in India even after the partition. Indian leaders were aware that the Muslim community felt vulnerable in such times even though it had placed trust in India.
The Muslim League led by Mohammed Ali Jinnah had successfully led a movement to create a separate country Pakistan for Muslims that the departing British rulers carved out of India. The main premise on which Pakistan was created as a nation for Muslims was that the religious, social and economic interests of the Muslims would not be safe in a Hindu-dominated India
The then Prime Minister of India Jawaharlal Nehru and many leaders of the ruling Congress party that had spearheaded the freedom movement against British rule were acutely aware of the vulnerable feelings in Muslim and Christian communities as India became a Hindu majority nation after partition. At the same time, they were keen to reform regressive laws and drag India towards modernity. There is a lot of criticism of Nehru in contemporary times. But India was a different place in the 1950s where politics was yet to become a ruthless pursuit of power. A modicum of idealism left over from the freedom movement still existed. Not surprisingly, Nehru chose to reform civil laws for the Hindu community “as a first step” towards a Uniform Civil Code.
EARLY REFORMS: THE HINDU CODE BILL
As the first Law Minister of independent India, Bhimrao Ramji (BR) Ambedkar drafted a comprehensive Hindu Code Bill in 1947. It asked for sweeping reforms in laws related to inheritance, property, marriage, divorce, adoption and even line of succession for the entire Hindu community. Regressive sections of the Hindu community staunchly opposed the proposed Bill. By 1951, when the Bill failed to pass in the Parliament, a dejected Ambedkar slammed Nehru and resigned from the cabinet. It was only between 1955 and 1961 that significantly diluted laws for the Hindu community were passed. It took almost 15 years for the tallest political leader of India Jawaharlal Nehru to persuade fellow lawmakers to pass even diluted laws for the Hindu community. Not surprisingly, there was hardly any move to reform the civil laws of other communities.
STALLING OF MUSLIM LAW REFORMS
By 1973, the All India Muslim Personal Law Board was established. Since then, any attempt to reform Muslim laws has been portrayed by the All India Muslim Personal Law Board (AIMPLB) as an assault on Islam. As a result, while most regressive practices related to divorce, property rights and inheritance have been reformed gradually through judicial intervention for the Christian community, no such progress has been made for Muslims.
By 1973, the All India Muslim Personal Law Board was established. Since then, any attempt to reform Muslim laws has been portrayed by the All India Muslim Personal Law Board as an assault on Islam. As a result, while most regressive practices related to divorce, property rights and inheritance have been reformed gradually through judicial intervention for the Christian community, no such progress has been made for Muslims
There can be little doubt that regressive sections of the Muslim community have successfully stalled any reform that would deliver gender justice and equality to females in the community. Take the age of marriage as an example. As for the law, it is supposed to be 18 for Indian citizens who are females. Violation of the law could even attract stringent provisions of the POCSO Act. However, multiple court verdicts have observed that since civil laws for the Muslim community have not been codified into law by the Parliament, Muslim girls can marry upon attaining puberty as it is their religious practice. It may be noted here that a large number of Hindu girls still get married before the age of 18. But, there exists a law to prevent this and violators can be criminally prosecuted. But Muslim girls are entitled by law to get married before the age of 18. How tenacious and ferocious the regressive sections of Muslim society can be when it comes to gender rights and justice can be witnessed more than 35 years ago during the now legendary Shah Bano case. In a historic verdict in 1985, the Supreme Court had ordered the former husband of Shah Bano, a divorced elderly lady from Madhya Pradesh to pay maintenance and alimony to his estranged wife. Liberal sections of the Muslim community wholeheartedly welcomed the decision terming it a big step towards securing gender justice for Muslim women. But the AIMPLB and other regressive organisations were up in arms immediately after the Supreme Court verdict. It may be recalled here that the Congress then led by Rajiv Gandhi had an overwhelming majority in the Parliament.
Rajiv Gandhi was also considered to be a modern and liberal leader who would ignore and shrug off threats and demands issued by outfits like AIMPLB. Yet, in what subsequently proved to be a disastrous political decision, his government introduced and passed a new law in early 1986 that completely overturned the Supreme Court verdict. It was a defining moment for the Muslim community in India; a decisive victory for reactionary forces over liberals. Since then, Congress has not been able to successfully fend off the charge made by rivals that it practises the politics of “minority appeasement”.
Coincidentally, the Shah Bano disaster happened when the Ram Temple movement was gathering momentum. Indian politics structurally and fundamentally changed after that, the full impact being felt in the 2014 Lok Sabha elections when the once mighty Congress was reduced to a paltry 44 seats in the Lok Sabha.
CHALLENGES FACED BY MUSLIM WOMEN
The struggle of Muslim women to get rid of the pernicious instant triple talaq phenomenon is yet another testimony to the power of reactionary forces who yell “Islam” is in danger whenever any effort to deliver gender justice to females is undertaken. Tens of thousands of Muslim women would be thrown out of their homes, often with children after their husbands uttered triple talaq thrice. Matters had reached a point where husbands started divorcing their wives by sending triple talaq three times via WhatsApp.
A Muslim woman had no recourse to justice. It was after decades of struggle that the Supreme Court finally delivered a verdict that declared Instant triple talaq to be illegal. During his debate, many argued that tens of thousands of Hindu women too are abandoned by their husbands and left to fend for themselves. That is indeed true as social evils take generations for society as a whole to accept as evil. In the interim, Hindu women have recourse to a codified law.
After the Supreme Court verdict, the Indian Parliament passed a law that prohibits instant triple talaq and has adopted punitive measures for violators. Like with the Hindu community, it will almost certainly take longer for the society and community to accept that such acts are immoral apart from being illegal. In the meanwhile, liberal Muslims have welcomed the new law wholeheartedly and many among them also advocate for the adoption of a Uniform Civil Code. In their opinion and experience, Muslim women still suffer as Muslim civil laws remain unmodified by Parliament and corrupt or obscurantist Maulanas still exploit women and treat them unfairly.
BJP’S PUSH AND MUSLIM COMMUNITY
All eyes are on Uttarakhand where a bill to implement a Uniform Civil Code (UCC) in the state has been tabled in the assembly after detailed talks with all stakeholders. Simultaneously, the Law Commission of India has asked citizens and civil society groups to send suggestions on how to draft a bill for Uniform Civil Code for all citizens that is acceptable to all groups, communities and ethnicities. Hundreds of thousands of suggestions have poured in.
More importantly, top BJP leaders have started arguing loudly that India now needs a UCC. And therein lies the rub. Just like the Congress is now perceived by a big enough chunk of voters as being “pro-Muslim”, a large chunk of voters also perceive the BJP to be “anti-Muslim”. No matter how many times, spokespersons of the BJP list out the various welfare schemes of the BJP-led NDA government that has substantively helped Muslims, a big majority of the community still doesn’t trust the party; nor likes it.
Post-poll surveys by credible organisations like Cvoter and LokNiti-CSDS over the last few years indicate that the proportion of Muslims who vote for the BJP rarely reaches double digits. There is a reason for that. Narendra Modi may project a larger-than-life statesman-like image. But in many states and regions across India, extremist Muslims and Hindus fight each other at the street level. Both sides kill workers belonging to rival outfits. In such a scenario, local BJP leaders do project hardcore Hindutva that pushes Muslim voters even further away. Whenever they see the Congress as strong, like recently during the Karnataka assembly elections, they vote for the party. In other states where the Congress is weak, they vote for regional parties opposed to the BJP.
Rajiv Gandhi was also considered to be a modern and liberal leader who would ignore and shrug off threats and demands issued by outfits like AIMPLB. Yet, in what subsequently proved to be a disastrous political decision, his government introduced and passed a new law in early 1986 that completely overturned the Supreme Court verdict. It was a defining moment for the Muslim community in India; a decisive victory for reactionary forces
COLLATERAL DAMAGE: MUSLIM WOMEN
It is precisely for this reason that the Uniform Civil Code has become such a contentious issue in recent times. The collateral damage has been Muslim women. Because it is the “majoritarian” BJP that is aggressively pushing for the adoption of the UCC, large swathes of the Muslim community find it suspicious and think the BJP is merely pushing for more laws to harass the Muslim community. This perception gets reinforced by regressive bodies like the AIMPLB and, more importantly, by political parties that remain convinced that “minority appeasement” is a good enough way to say politically relevant and win elections. The average Muslim woman s thus trapped between the “majoritarianism” of the BJP and the “minorityism” of the Congress and other parties.
It would have been so much better if the matter had been treated as purely related to gender justice and equality for all female citizens in the country. It would have been so much better if all the women bodies, comprising women of all faiths, were formed by civil society groups from the district to the national level to discuss and debate issues related to the UCC. But then, that is being utopian and politicians have already hijacked the agenda.