Instead of a never ending debate on UCC, approaching individual aspects of social institutions presents a more plausible alternative to protecting our women.
It has been a jubilant week for us women in India. The Judiciary’s decision to ban triple talaq led even the most jaded cynics amidst us to hope once more; that we as women can expect to be accorded our basic human right of dignity.
Yet, if we can move away from our myopic celebrations against triple talaq that this verdict heralds, there is a lot of more we can thank our judiciary for. Because with this verdict, they have unequivocally and effectively allowed the debate about women's rights in India to move away from the panacea we call the Uniform Civil Code.
How? Let us start at the beginning.
The Indian Constitution states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, protection, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” in Article14.
Seventy years after we attained independence, equality however, still remains a utopian concept for many of us. It has little to do with the reality of our existence in a country that often figures high in the annual lists of unsafe nations for women. If we aren't being killed in our mothers' wombs for simply being women, it is socially sanctioned and even celebrated when we are assaulted for daring to step out of our homes.
But the double whammy for the fairer sex in India is that if our gender wasn’t reason enough to cruelly discriminate against us, our rights as citizens are subject to further censure depending on the religion we are born into - Hindus, Muslims, Parsis or Christians.
To set right this wrong, our political class responded with the idea of a Uniform Civil Code. The UCC was spoken of as the panacea to most of women’s social problems, a perception that continues to yield political dividends. It also blended well with the narrative of a united nation symbolised by one constitution, one flag and one anthem and one law for everyone.
But there is tiny problem with this proposed solution - nobody knows what it looks like!
In all the time that it has been part of the public discourse, there has never been a draft of the UCC, simply because the political arguments continue to revolve around majoritarianism, secular credentials and minority identity. The UCC debates, frankly, have had very little very little to do with women and their basic rights as a human being.
If we were to indeed imagine it as a collective of gender-just laws that draws from best practices of various personal laws - while it would most certainly abolish polygamy and triple talaq (which has already been done now), will it include the protection of Mehr according to Muslim women? According to this custom, in a Muslim marriage (under Muslim Personal Law), the lady has exclusive right to the financial arrangement given to her during marriage by her husband’s family. Will the Indian Succession Act finally become the law for all of India? It would only create an unimaginable furore, but more importantly we'd still be at square one with regard to women's rights.
Let's not be taken in by the oft-cited Goa Common Civil Code as a possible frame work for the UCC. This law still allows “Gentile Hindus of Goa” to legally practice bigamy, if the woman does not deliver a child by the age 25 or have a male heir by the age of 30. Divorce among Hindus is permitted on account of adultery only by the wife and inheritance of property is a contentious issue because there is no distinction between personal property and communion of assets!
This legally permitted absurdity is true even in 2017!
Goa is also a case and point against those who argue that UCC will ease the problems of women belonging to the minority community and therefore anti-minority in its sentiment. In Goa, Hindus form the majority with more than 60 percent of the population.
Delving into the subject, therefore, makes it clear that UCC as a solution to achieve a gender-just society over simplifies a very complex subject. Uniformity clearly cannot be the answer to the plethora of problems that exist because of the patriarchal setup of religion based personal law.
Regardless of the ideology, our political rhetoric has consistently confused the issue of gender justice with a perceived sense of security for cultural identity. This combination of our political reality and religious sanctioned patriarchy thus makes a gender neutral law to govern our social institutions is a distant dream.
So let’s turn this situation on its head. Clearly pushing for uniformity in a multi religious nation-state, which functions on the rhetoric that its religion based laws are integral to protect its secular credentials, will only waste precious time and get us nowhere near the expected outcome.
We need to protect our women now because it cannot wait.
Where we do start? I argue, we secure them in the most common social denominator that cuts across religious lines – marriage.
Some of those working in the area of women's rights may argue that the institution of marriage was essentially a gender based division of labour that by itself is unfairly stacked against the woman. But in India, the social system almost demands marital security for a woman.
That is our reality largely, regardless of the changing scenario notwithstanding the argument of a rural-urban setup. So legally, a valid marriage ensures her rights because traditionally women were categorised as dependents. Polygamy (in both majority and minority communities) and Triple Talaq became the most effective tool to of repression because it threatened a woman with social ostracisation and financial destitution in a hugely patriarchal set up.
So instead of pushing for an unimagined UCC to address this issue (nowhere in the near future), it works better to push for reforms in personal laws themselves. Instead of advocating UCC as a whole, the government would do better for women by working on individual social institutions that allows for a domino effect within the context of the personal law.
And that is exactly what the Supreme Court did with its verdict on Triple Talaq. Previously, the courts used the “Doctrine of Essentials” while stepping into the realm of religion in the context of law. Another verdict by the Supreme Court a few years ago on polygamy in the context of a Muslim marriage said: “Polygamy was not an integral part of religion and monogamy was a reform within the power of the State under Article 25.”
With these verdicts, the Judiciary has made it more conducive for the Legislature to legislate on matters of religious personal law, giving them political maneuverability regardless of their ideology, without overtly threatening the cultural identity of a minority sect.
The all-or-nothing approach that is been on display with regard to women and their rights hasn’t gotten us too far. We need to get more creative, if women’s’ rights are to be the priority. So instead of a never ending debate on UCC, approaching individual aspects of social institutions presents a more plausible alternative to protecting our women.
Because we simply cannot allow for shackled women in an independent India anymore.
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