Commentary by: Tirthankar Chakraborty
At a time when India is witnessing a rapid deterioration of its constitutional ethos, when the fabled Preamble is reframed and reinterpreted, when the national priorities are shifting from progress and development to the golden traditions of yesteryears, one has to closely observe and study how institutions are being used to achieve all the aforementioned. Rajdeep Johal tries to document the understudied facets of gender rights intertwined with religious doctrines and patriarchal practices from a legal perspective by looking at the formulation of a Uniform Civil Code (UCC) that would seek to bring uniformity in the pluralistic society that has been a cornerstone of the idea of India. India, with its plethora of religious and sectarian groups, has witnessed piecemeal changes with regards to women’s rights. The constituent assembly, after India gained independence, had twelve women members. However, it failed to secure specific rights for women and had to settle with the fundamental rights enshrined in the Constitution of India. The religious personal laws (RPLs), on the other hand, sought to establish practices that would uphold the erstwhile patriarchal views by conveniently resorting to the guarantees of the Constitution gives prohibits the State to impinge on the rights of the people to form religious associations and practise it in accordance to their scriptures.
The paper sets off by genealogically tracing the idea of a UCC. The author makes the point that much before the Hindu Nationalist party suddenly discovered the ‘unequal treatment of women’, the grand old party Indian National Congress had broached the idea but was opposed by the Muslim members of the Constituent Assembly. The many problems that plague the men-dominated religious bodies who define and create the religious laws have been at the forefront of any change to the status quo, perpetuating gender inequality and discrimination. By carefully analyzing the court cases that have been adjudicated in the highest courts, the author tries to make the case of how the RPLs have been seen a mixed reception, based on the personal interpretation of laws by the justices. The author then focuses on the limited advantage of a UCC as it would ideally be free from religious interpretation, drawing an important focus on the need to discern state and religion, and also that a UCC will draw from various charters on women emancipation drafted across the globe that might serve as guiding principle. But the author highlights that all of these can also be possible if there are institutional changes within the RPLs, brought by the governing bodies, which would not only have a wider appeal but would also pay particular attention to nuances of each religion. However, one may ask the progressive change-agents in particular religion would have enough power or influence within the institutional structure to create change by overruling the dominant actors.
The author presents her scepticism about a UCC under the Right-wing Hindu Nationalist Bharatiya Janata Party (BJP). While little light is shed on the nuanced understanding of ‘hindu’, ‘hindutva’, the author gives unsatisfactory reasoning as to why the BJP would not be successful in creating a truely secular UCC. One could argue that against the popular perception of BJP being anti-Muslim or anti-women by pointing out the Muslim wing of the BJP and its parent organization RSS fighting to empower women, and positioning of women BJP leaders in key cabinet positions in the government. Of course, the irony also lies in the fact that a larger section of Hindu women is abandoned or separated and the Hindu men at the helm of a UCC are not too perturbed with their plight. For decades, political parties of all hues and shades have used minorities as vote-banks to tap in during elections, so the scepticism against just one party would be tad bit unfair to the collective patriarchal practices of the rest. The author breaks down the problems of the recent judgements which have criminalized the practice of Triple Talaq but the consternations aired is not just limited to the response of the BJP but also the so-called secular parties, including the Indian National Congress, as they supposed the Triple Talaq legislation. The important point of intersectionality sums up the argument against any uniform policy since women and sexual minorities face many layers of discrimination within and around the structures that bind them.
The article points out the perils of imposing uniformity on an issue which requires a nuanced yet detailed method of proposing reforms, not only because of the nature of the severely-fraught societal structures of the subcontinental politics but also because a broad brush cannot be used to understand or unravel gender and sexuality. The author makes an argument for piecemeal endogenous institutional change within the religion, rather than exerting an exogenous, sudden change brought about by external actors. The author has given an adequate reference to the evolving jurisprudence and legal history, with little recourse to intersectional perspective. The article would have also gained from a thorough methodological framework of understanding institutions, as in inherent in sociology or political science. However, well-written and lucid arguments effectively make the case of the impracticability of a UCC. Overall, one would learn more about the changing dynamics of gender politics in India and the drawbacks that need to be addressed advocacy and reform.