Women's Movement and the UCC
It seems that the women’s voices have been marginalised in the current political scenario when the Indian state is implicitly and explicitly being defined as a majoritarian one — Hindu Rashtra.
While the notion of cultural nationalism remains deeply patriarchal and racist to every core, it is important to understand how the demand for UCC — for a secular and culturally integrated nation; assertions for MPL — for a democratic society and cultural identity of minorities —; and the discussions on reforms in personal laws — for ensuring women’s rights without giving up cultural identity — are intrinsically discriminatory against women as citizens. This discrimination refers to the constitutional rights and liberties granted to individuals as citizens and communities. It also refers to the mainstream political discourse, which has communalised the Right to Religious freedom to the extent that it has ceased to be seen from the perspective of women who are central to these laws. It also refers to the proposed drive of community reforms which do not go beyond the masculine definition of religious texts and patriarchal family structures.The constitutional framework of individual and community rights presents a highly complicated scenario at two levels. First, women’s constitutional rights as an individual (Article 14—24 deals with the Right to Equality) comes under direct confrontation with the community’s Fundamental Right to Freedom of Religion (Articles 25—30). From these Articles, religious communities derive their right to be governed by the personal laws/religious dictates, which deals with the matters of marriage, divorce, inheritance and guardianship of children. The personal laws, as we know, are discriminatory against women since most of these laws are driven by a deeply patriarchal interpretation of religion and religious texts.
Thus, it is quite evident, that the configuration of constitutional rights has actually made the question of gender equality very complex. Secondly, it becomes more complicated with the Indian States commitment and constitutional duty to implement UCC under the Directive Principles of State Policy. Apart from creating a constitutional dilemma between the fundamental rightss of citizens and duties of the state, the debates on UCC have set up in terms of secular state versus religious communities in the arena of national politics. It has been rarely discussed as a feminist issue in the public discourse. The two opposite views on UCC — secular identity of state through cultural/legal integrity versus the democratic rights and cultural identity of religious minorities — completely ignores the centrality of women as individuals, citizens, and bearers of equal constitutional rights. While the arguments supporting UCC suffer from propositions of homogenisation and impose north-India Hindu upper-caste patriarchal notions, the glamorisation of personal laws completely undermines internal diversity and leaves women’s fate in the hands of the so-called community elites/representatives.The response of the women’s movement towards UCC has gone through a significant transformation in the last seven decades. In 1937, the All India Women’s Conference first articulated the desirability for a uniform civil code for all religious communities. This demand continued to be amplified by larger sections of the women’s movement until the late 1980s. In the early 1990s, however, there was considerable rethinking. For instance, during the first three decades from the 1960s to 1980s, there was a general consensus that the state is to be held accountable for upholding the fundamental right to equality and should, therefore, be pushed to legislate a gender-just Civil Code applicable to all communities.7 The national integration thesis of the Indian state was never confronted, considering the state as an ally of progressive social and economic transformation.
In fact, until the 1970s the women’s movement, like other social movements, settled an unproblematised relationship with the state to cooperate in development programs and gradual institutionalisation.8 However, the failure of development planning, a political and economic crisis leading to the imposition of a National Emergency and the resurgence of militancy in every section of society triggered a ‘second wave’ of the women’s movement. It was marked by the active political participation of middle- and working-class women in mass movements on every front.9 At the front of UCC, the changing contours of national politics after the 1980s played an important role in shaping the political arguments and positions of women’s organisations. The Shah Bano verdict in 1985, which deprived Muslim women from the right to maintenance, coincided with the growing organised form of Hindu communalism with the Babri Masjid-Ram Janam Bhoomi dispute raised at an alarming pace. Similarly, in 1987, Roop Kanwar, an eighteen- year-old widow was made a sati in the presence of about 3,000 spectators. This act was glamorised as a ‘Hindu’ tradition with claims of Rajput velour.10 With these developments, the question of UCC becomes more complicated with the fears of it being appropriated by the Hindu-majoritarian politics with greater possibilities of the imposed notion of a masculine ‘Hindu identity’. The rise of the Bhartiya Janata Party (BJP) and the re-emergence of Rashtriya Swayamsevak Sangh (RSS) and other Hindutva organisations actually communalised the whole issue of the rights of religious minorities, especially in relation to MPL.11 A number of other significant judgments in the following years, like the Allahabad High Court’s judgement on triple talaq (1994) and the Supreme Court’s judgment in the Sarla Mudgal case (1996), consistently put the burden of the integration of the Indian ‘nation-state’ on the Muslim community for not rejecting MPL for the sake of UCC. This process of ‘othering’ was carried out with an admiration for the Hindu community being progressive enough to have accepted reforms in the Hindu Law.12Such claims not only forced the women’s movement to rethink the question of UCC but also encouraged them to question women’s relationship with the idea of ‘nation’ and the nation-state.13 In this sense, it is really important to look at the perspectives offered by different women’s organisations on the debates on UCC, MPL and the drive to community reform. Nivedita Menon argues that over the last few decades, feminist critique of personal laws has shifted its position from the national integrity argument for UCC. At the same time, the movement has distinguished itself from the uncritical support of ‘community rights’ in their criticism of the authoritarian nature of state power.14
Menon, in her highly celebrated work on women and citizenship rights, discusses multiple positions within the women’s movement that have emerged in the last few decades. She also identifies three broad significant shifts that have taken place in the Indian feminist positions against the need for a communal politics- driven UCC. The first shift is marked by the dropping of the term ‘uniform’ from UCC. Menon argues that though there is a sharp difference of opinion on the need and nature of UCC in the current political scenario, different organisations like the Saheli, People’s Union for Democratic Rights (PUDR), Forum Against Oppression of Women, and Working Women’s Organisation have come up to argue for a ‘common’, ‘gender-just’ or ‘egalitarian’ code. The organisations like All India Democratic Women's Association (AIDWA), the women's wing of the CPI(M), who had been a strong supporter for the common code for all communities, have also shifted its position. AIDWA also argue for a reform in personal laws from within the community like the Majlis, Nikahanama Group and the Women’s Research and Action Group (WRAG); however, it also urges women’s groups to struggle for reform rather than bei a mere spectator of change and leave the fate of women to the community leaders and patriarchal interpretations of religious norms.
This overall disavowal of uniformity is significant because it forces to redline both the nation as a homogeneous entity and also the legitimacy of the state to bring about social reform.15The second significant shift is the reassertion of women’s citizenship. All feminist responses to UCC implicitly and explicitly prioritise women as citizens and bearers of equal fundamental rights. Even the proponents of reforms in the personal laws focuses upon creating more and more democratic and secure spaces for women within the community.16 Similarly, since the 1990s there are stronger efforts to counter the heteronormative family structure, which is at the center of personal laws. Women’s organisations like Forum Against the Oppression of Women have broadened the concept of “family” to include homosexual relations and heterosexual couples living together outside marriage. Menon argues, it is extremely important to ‘reconceptualize all intimate relationships in contractual terms... so that men in bigamous and polygamous relationships that are not formal marriages are forced to take responsibility for. the women concerned.’17
A third shift is about the question of women’s equal rights to property, which needs to be reformulated radically while discussing UCC. The personal laws on succession and property represent a point of conflict between the imperatives of the state and those of the family in terms of the right to inheritance. This question requires a thorough discussion on women’s negotiations with a liberal state/ economy/patriarchal family structures for their right to property.18 The question is a complex one but the feminist movement has added a new spirit to the debate on UCC as well as the personal laws. These shifts in trajectory within the women’s movement on state, community and citizenship is, Menon argues, a reflection that ‘secularism’ in India cannot continue to remain an entirely elite project of modernisation, as it was in the initial phases. There is a need ‘to renegotiate the terms for a democratic project.’19
III.