Why Hindutva chorus for Uniform Civil Code is not about women's rights
Post the verdict on triple talaq, the question on everybody's mind is what this means for the Uniform Civil Code (UCC), given a statement by the ex-attorney general of India, Mukul Rohatgi - who had argued the case on behalf of the Centre - that this is a step towards the ultimate goal of UCC.
Family and religion have been the sites of gender inequality for long (among the many others) and a predominant area of inquiry in the women's movement, one of whose many manifestations was the war against the public-private divide. In fighting against the public-private divide, feminists were waging a war against traditional ideologies, which benefited from keeping women in the realm of the private and away from public scrutiny.
However, in recent times, such endeavours of the feminist movement have been co-opted by religious fundamentalists to further their own agenda of minority suppression. A recent tweet by a senior journalist on the triple talaq verdict stands as a brazen testimony to this.
Given this co-option it becomes very important to examine what this means in terms of the demand for UCC.
In order to better understand the stances enunciated by both communal forces and the feminist movement in India with regard to the UCC, it becomes important to trace the trajectories of both the feminist movement in India as well as the rise of the Hindutva ideology.
The women's movement in India largely gained momentum from the Mathura rape case and the initial years of the movement are marked with protests and unified struggles against rape, sexual assault and domestic violence.
Since, the cause for a united women's struggle was something as basic as bodily integrity, the fractures that other identities such as caste, class and religion bring to a homogenous identity did not immediately find space.
In the Indian scenario however, a large number of events muddled this seemingly uniform women's movement. Post the adoption of the Indian Constitution, demands were made for the reformation of personal laws for their glaring gender inequalities. However, it was only the Hindu code that underwent reformulation as the Parliament was largely Hindu-dominated and therefore could representatively take a call for reforming the Hindu laws only.
The state's reluctance to interfere in the religious laws of the minority community was based on a reluctance to impose majority views over the minority who were already under-represented and disadvantaged.
However, seen from a Hindutva lens, non-interference with the personal laws of other religions implied special protection being offered to other religions while reformative agendas were being imposed on patriarchal Hindu traditionalists. This sowed the seeds of grudges against special protection of minorities.
The other historically significant event was the decision in the Shah Bano case. While the Supreme Court upheld Shah Bano's right to maintenance in the case, on a closer reading of the Quran, the Rajiv Gandhi government overturned the Supreme Court decision by passing
The Muslim Women (Protection of Rights on Divorce) Act which reduced the obligation to pay maintenance to divorcees only till the completion of the iddat period.
This Act faced flak from the women's movement as it was seen as subjugation of women's rights to sustain Congress' policy of vote bank appeasement of traditional Muslim voices.
Proponents of Hindutva, on the other hand, saw this as yet another form of special treatment carved out for Muslim men even as they were being forced to provide maintenance.
For different reasons, the government's response to the Shah Bano case faced criticism from both the women's movement as well as Hindutva proponents and a demand for UCC under Article 44 of the Indian Constitution was put forward.
However, I find that for multiple reasons, it would be a serious disservice to the women's movement if the demands of both Hindutva proponents and feminists were seen as convergent, without analysing the contexts of the demands.
First, the Hindutva fold has always expressed serious suspicions about the minority rights of Muslims "being protected under the umbrella of secularism". The Hindutva ideology is also fraught with disregard for women's rights as can be evidenced in the statements of Hindutva flag bearers themselves who have constantly indulged in victim blaming in issues of rape and seen the duty of women as being the "adarsh beti/biwi/bahu", requiring women to put the interest of men before their own.
Having such strong reservations against minority rights and never having championed women's rights, it seems rather absurd that Hindutva proponents are now championing for the convergence of the two in the form of Muslim women's rights in their demand for UCC!
Second, the Hindutva demand for UCC was traditionally made in the context of national integration and uniformity - seeking a uniform identity. It is only recently that it became couched in the language of gender rights as seen in BJP's 2014 general elections manifesto.
Integration is premised on invisibilising diversity and the existence of multiple identities. On the other hand, the feminist demand for UCC was grounded in a gender inequality approach as compared to an integrationist approach based on obliterating differences.
Third, while the feminist demand for a UCC was premised on flaws in all personal laws and their failure to protect women's rights and therefore a need for laws which call for a reformulation of all personal laws, the Hindutva demand for UCC has been largely in the context of flaws in Muslim and Christian personal laws.
While the feminist movement draws attention to the deficiencies of the Hindu Code in various issues such as practices followed to solemnise marriage - which provide a leeway to bigamy, non-recognition of Hindu wife's right to adopt or give up a child for adoption amongst others - the Hindutva demand for UCC has largely relied on cases such as Shah Bano's and John Vallamattom's that involve adjudication of Muslim and Christian personal laws respectively.
There has been no questioning of Hindu laws so much so that in the Sarla Mudgal case that involved a Hindu man practising bigamy, the demand for UCC was again made on the grounds that bigamy was permitted only due to conversion to Islam and, therefore, a UCC would be required to check the same.
There appears to be a complete refusal to acknowledge that Hindu Code provides as much opportunity for bigamy by requiring strict evidence of religious performances and, in fact, cases of bigamy are as high among Hindus as Muslims, if not more. Thus, largely using the drawbacks in the Muslim and the Christian codes to make any gender rights' argument - as Hindutva proponents continue to do - can be seen as an exercise in touting the Hindu religion as superior and more accommodative of secular ideologies.
Hence, there is a very real fear that a UCC in this context would mean imposition of the Hindu Code on all minorities. Thus, while the feminist position has argued for UCC on the paradigm of fighting against public-private divide and gender inequality, the motivations for a UCC by the Hindutva forces appear quite different and gender rights have been used to cleverly couch the underlying objective.
However, navigating a gender rights argument as against a minority rights argument is hardly a simple exercise. In multicultural societies such as India it is not possible to argue for women's rights without taking into account other entrenched identity conflicts.
Therefore, the UCC - owing to its heavy communal connotations and the current legislative powers that be - is no longer a viable platform for introducing reforms in personal laws.
Legal change cannot be isolated from the larger political context and majoritarian politics in which the UCC has become embroiled.
Given the current political milieu, where even the basic bodily integrity of the minority communities is being violated every day and when Muslim masculinity is being demonised as inferior to the supposedly progressive Hindu male, one cannot help but be wary of this new messiah of gender equality and the implications it may have on the UCC.
At the same time, there is no denying that reforms are required in the realm of personal laws. However, the process has to be one of internal reforms where the transformation in the personal laws and their final form is shaped by voices of women from within the respective communities.
Moreover, there is a need for this paradigm of internal reforms to be operated with the simultaneous creation of a package of gender-just laws created through the participation of women across all faiths and there should be an option to opt for these laws as against personal laws.
This is premised on the ground that it is not the question of whether women should be subjected to the hegemony and patriarchy of the state or the community, but rather a question of women's autonomy.
Therefore, women should have the right to choose the applicability of personal laws. In fact, many have argued that rather than making gender-just laws optional, they should be made directly applicable, leaving the choice to invoke such applicability to women.
Navigating a gender rights argument as against a minority rights argument is hardly simple. Those demanding for the UCC must realise that a broader demand for gender rights cannot be at the cost of failing to take into account the economic, political and social travails that define the everyday experience of belonging to minority communities in present-day India.
Also read: Triple talaq is an incomplete verdict: It doesn't empower Muslim women