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Why a common civil code may not be a great idea -Amulya Gopalakrishnan
-The Times of India

The Uniform Civil Code (UCC) is a dream long deferred, and now it looks like the courts can barely conceal their impatience. A Supreme Court bench, hearing a case on a Hindu woman's petition on inheritance, was recently stirred into ordering an examination of practices like polygamy and triple talaq in Muslim personal law, which it declared "injurious to public morals".

The Centre is already on a deadline from another SC bench to present its views on the UCC. Though the BJP once claimed the UCC as a burning priority, the government has been guarded in its response so far, calling for "consensus among all stakeholders".

First raised by the All India Women's Conference in the 1930s, the UCC was once a simple demand for equal rights in marriage, divorce, adoption and succession for all women irrespective of religious laws. But since India was born in inter-religious strife, and was a pact between religious groups of unequal clout, the Constituent Assembly left this plan to the future.

At this point, who is Team UCC? The Hindu right-wing, which is aggrieved that minority cultures remain unscathed, even though Hindu practices were painfully codified in the 1950s. Liberals also believe that secular citizenship means strict equality before law, that the state and religion should be walled off from each other, and that India's regime of distinct personal laws, which discriminate against women in various ways, should be replaced by a fair civil code.

Those who resist the UCC include many believers, and also those who say that secularism is not a one-size-fits-all model, and that instead of uniform laws, the state should push for uniform principles of gender justice and individual freedom. It could root out gender-bias from various personal laws, as the courts and legislatures to a lesser extent have indeed been doing, rather than boiling everyone down to a common citizenship, they say.

Then there are those who do want a common civil code in the future, one that reflects the state's vision rather than majoritarian norms, but not in a situation where minorities feel anxious and alienated.

What Muslim women want

Many who argue for a UCC speak in tones of concern for Muslim women. Yet, among them, there has been no audible voice asking for it.

Most Muslim women's groups oppose polygamy and triple talaq, but do not want religious laws to be steamrollered. "If you follow Quranic injunctions correctly, women have more rights than men," says Shaista Amber of the All India Women's Personal Law Board, suggesting that courts should consult female muftis rather than self-appointed spokesmen of the community like the All India Muslim Law Board. "Islam is our religion, our conviction, we want to live and die within it."

For Noorjehan Safia Naz of the Bharatiya Muslim Mahila Andolan, the problem is that "Muslim personal law is not codified, and therefore open to all kinds of contentions". Apart from the Muslim Personal Law (Shariat) Application Act of 1937, the Dissolution of Muslim Marriages Act (1939) and the Muslim Women (Protection of Rights of Divorce) Act and Rules (1986), judges have to rely on scholars of Islamic jurisprudence in a case-by-case manner. Naz advocates a comprehensive personal law code that removes triple talaq, polygamy and other unfair practices, and has drafted exactly such a model.

But not all Muslim women's groups are averse to the idea of a common code. "We want a gender-just set of family laws that is formed after listening to what women's groups want," says Yasmeen Aga of the Mumbai-based Awaaze-Niswan. But in parallel, "if a woman wants to follow the personal law of her religion, that choice should also be available," she adds.

Towards gender parity

"The general attitude is that Hindu law is reformed, Muslim law is anti-women," says lawyer Flavia Agnes. "But in terms of economic rights, the Muslim marriage-as-contract works out better for women, in terms of dower and traditional maintenance. Even with polygamy, the multiple wives have legal and social rights." She points out that the Hindu woman in a non marital domestic partnership is utterly without recourse — in 2010 the Supreme Court ruled that maintenance under the Domestic Violence Act did not cover such cohabiting couples, even referring to them as "concubines".

Legislation has made Hindu and Christian laws more receptive to women's rights — Hindu succession was reformed considerably in 2005, making all daughters coparceners in joint family property and giving them equal claims to agricultural land; in 2001, Christian women and men were brought on par, in terms of divorce rights.

"Meanwhile, the courts have done a creditable job in affirming the rights of Muslim women," says political scientist Narendra Subramanian, whose book Nation and Family: Personal Law, Cultural Pluralism and Gendered Citizenship covers this ground.

Subramanian details this remarkable reform process, showing how the courts have harnessed Islamic traditions and constitutional principles to expand individual rights. Even the ambiguously-worded Muslim Women (Protection of Rights on Divorce) Act of 1986 that followed Shah Bano ruling has had a happier arc than commonly assumed, as courts have used it to award generous alimony payments to divorcees, and established, through the 2001 Danial Latifi ruling, that Muslim men owed their ex-wives ongoing maintenance. Apart from bending various personal laws towards justice, women's groups have focused on creating criminal and civil laws that apply to everyone, obviating the UCC — for instance, the Juvenile Justice Act now makes adoption equally available, the Domestic Violence Act and its protections apply to all citizens. The Special Marriage Act has been a way of opting out of personal law.

"Why does there have to be a uniform code for gender justice?" asks political scientist and feminist scholar Nivedita Menon. She argues that codification of Hindu law, in the image of north Indian upper castes, actually hurt certain women by ending matriliny and other practices that women gained from. Similarly, practices like mehr are unique to Muslim women, and they actually stand to lose from a civil code that doesn't accommodate it. Which is why, she says, much of the women's movement has abandoned the demand for a flattening UCC, likely to be shaped by dominant norms. Instead of standardization, they press for principles like gender justice and individual autonomy within diverse personal laws.

How to be secular

The debate over UCC, then, is an argument about secularism. Contrasted with US-style "assimilative secularism", India has its own kind of "ameliorative secularism" that moulds the majority religion towards social equality, but gives minorities greater space. It may be infuriating to some and not good enough for others, but it does have an appreciation of minority group rights and multiculturalism, in ways that western liberal democracies have been lately contending with.

But there is a common view, recently voiced by historian Romila Thapar, that India must gradually remove any religious considerations from the law, to be strictly secular. "This would not be a cosmetic change; or mean uniformity only in personal law, but all the codes we conform to that are determined by religion or caste", she says. That kind of strict uniform secularization would upset many vote banks, apart from Muslims — it would end the Hindu undivided family's tax benefits, it would extend reservations to eligible castes in all religions. Assume that Parliament irons out all the conflicts and designs a dream civil code — through what Subramanian calls an "amplification of the Special Marriage Act" — extending across all domains of family law. (Many women's groups have indeed floated versions of such a code). Should this be obligatory or optional?

"If it is made obligatory in an environment where there is no social support for it or state capacity to implement, then you may be pushing women into sharia courts or other dispute resolution forums, as happened in Turkey. Look at the way khap panchayats reject the state's authority even in criminal and civil law," Subramanian says. If it is optional, it would give citizens a common set of rights, and also let them choose the sphere of personal law if they prefer. This might prompt further reform of personal law, to keep women within the fold. And conversely, for those who hope for secularization in the Western mode, this would make the advantages of civil law obvious enough that personal law could slowly wither away.