No community in India has gender-just personal laws so why do feminists continue to oppose a common law for all ?

scroll.in - 2 May 2016

Triple talaq debate: Why women across faiths must unite to reform personal laws
This isn't only about Muslims. No community in India has gender-just personal laws

by Farah Naqvi

Shayara Banu’s spirited PIL in the Supreme Court has challenged the constitutionality of three specific provisions of Muslim personal law, including instant triple talaq. Her claim deserves the support it is getting from many women’s rights groups (including the feisty new Bebaak Collective as well as the older Bharatiya Muslim Mahila Andolan). The worry is how the debate will unfold, and how the dust will finally settle. For when it comes to anything remotely to do with Muslims, the substantive merit of the argument is less important than its optics.

Once again, clouds of confusion threaten to overwhelm us with debates framed around “Muslims and their reactionary religion” when it should be framed simply as an issue of women’s rights. Banu’s petition does not ask for a Uniform Civil Code, nor does it seek to ban triple talaq per se, merely talaq-e-bidat (instant talaq in a single sitting). Yet the conversation on the Uniform Civil Code is inevitable, and it is critical to steer it in a way that it does not end up as yet another Muslim-bashing exercise, with high octave sound and little light.

The BJP’s 2014 manifesto (p. 41) proclaims:

"BJP believes that there cannot be gender equality till such time India adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonising them with the modern times."

This is a worrisome promise. For it is highly unlikely that any community in India will simply roll over and surrender its (patriarchal) personal law privileges even to “best traditions”; even, and perhaps because the threat is, to “harmonize them with modern times.” Each one of these phrases is contentious. For instance, whose best traditions? Who will define a tradition as best? And what exactly do “modern times” and “gender equality” mean to a ruling party whose ideal womanhood is Bharat Mata – a fair, upper caste, north Indian Hindu mother, shackled in gold, and proud bearer of sons to guard the nation?

Besides, uniformity of law is guarantor of neither equality nor justice. This we know well from the discriminatory use of the criminal law against India’s marginal groups. Uniformity is also not a self-evident value in and of itself, especially in a plural nation. Gradual reform is the likely way to go.

Unjust personal laws

Fact: No community in India has gender-just personal laws. This is known, and been written about extensively, yet bears repeating for it does not seem to register. Somehow the erroneous impression sticks that Muslims alone are this privileged “personal law” community. Mere codification of Hindu law into a series of legislations in the 1950s (Hindu Marriage Act, 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act 1956) did not mean Hindu women got their due. Core provisions of these Hindu laws are unjust, resting as they do on patrilineal descent, and allowing for a range of reactionary customary practice.

Opponents to a Uniform Civil Code will surely include the army of Hindu faith leaders whose dhotis have recently been in such a twist protecting their pure sanctums from the polluting, menstruating horde of Hindu women at the temple gate.

According to Parsi personal law, Parsi women who dare to marry outside the community are penalised – they cease to belong to the Parsi community. Goolrookh M Gupta, nee Contractor, challenged the Valsad Parsi Anjuman Trust's bar against her offering prayers at the Agiyari after she married a Hindu. Plenty of Parsi women like her are equally ready to breach the walls of fire temples. Similarly, Muslim Ulema, notably the self-appointed All India Muslim Personal Law Board, continue to defend the abomination of unilateral triple talaq in a single sitting. It’s a practice that many so-called Islamic countries (including neighbors Pakistan and Bangladesh) have found fit for a trash can.

Which one of these bulls does the Bharatiya Janata Party intend to take first by the horns? I would suggest that the majority Hindu community lead the way, and for starters get rid of the Hindu Undivided Family, or HUF. A quick Google search on “how to get tax benefits by forming HUF” will give the reader some measure of how much opposition will be forthcoming to any proposed uniform personal law, and from whom it will come.

Women vs patriarchy

So, the Uniform Civil Code is a mirage, as is the idea that Muslims are somehow more in the thrall of anti-women religious practices than all other communities. The more generous critics say – perhaps it is because of a general lack of education that Muslims accept these medieval ideas. So, what explains the Parsis? Prosperous, educated, English-speaking – bearing all the accouterments of so-called modernity – whose male priests and Anjumans believe it is ok to disown women who marry outside their community, as well as deny their children the right to be called Parsi.

Women of all communities should stand today, with each other, and storm these bastions of patriarchy and cultural rights. Demand reform and make justice systems deliver. But do not make this a Muslim issue. For that will simply be grist to the mill of the anti-Muslim atmospheric that has become the new normal in a BJP-ruled India.

Television channels should get women on their debates – Hindu, Muslim, Christian, and Parsi. And get faith leaders of all hues. Not just the All India Muslim Personal Law Board or Asaduddin Owaisi. Let this debate not be forced into the “Good Muslim-Bad Muslim” binary, which only pushes sane voices either into silence or into becoming polarised caricatures of themselves. Do not call upon Indian Muslims to speak “as Muslims” and Hindus “as Hindus”. All, ironically, in the name of national integration. Let this conversation be only about all women rights and their opponents. Call the bluff of the patriarchs, and not subject the nation to yet another communalised circus, in the guise of women’s rights. For even as we support Shayara Banu’s demand for equality, addressed rightfully to the Supreme Court and the Constitution of India, let us realise that it is not possible to oppress an entire community and seek to liberate its women.