The Supreme Court has set the cat among the pigeons. Last week a bench of Justices AK Goel and AR Dave asked Chief Justice of India HL Dattu to constitute a larger bench to review the rights of Muslim women under Muslim personal law.
Lack of gender equality among Muslims has been kept under a veil for far too long. The main offenders are triple talaq and polygamy.
Justices Goel and Dave want Muslim women to have the same protection the Indian Constitution affords women of other faiths. The Constitution prohibits discrimination on the basis of gender. Triple talaq and polygamy are therefore in conflict with both the Constitution and women's rights. Indian feminists, women's NGO and human rights activists have mostly turned a blind eye to the gender discrimination Muslim women in the country face.
This is what Justices Goel and Dave ruled: "There is no safeguard against arbitrary divorce and second marriage by her (a Muslim woman's) husband during currency of the first marriage, resulting in a denial of dignity and security to her. Laws dealing with marriage and succession are not part of religion. Law has to change with time."
The justices have issued a notice to attorney general Mukul Rohatgi to respond by November 23. Notice has also been issued to the National Legal Services Authority to respond by the same date.
The matter has already raised hackles among members of the All India Muslim Personal Law Board (AIMPLB). The body has resisted reform on gender equality and Muslim women's rights for over 50 years. Hindu family laws were partially reformed in the 1950s but Muslim and Christian personal laws on marriage, succession, adoption and maintenance remain untouched.
Who suffers? Mainly Muslim and Christian women. Patriarchy that feminists decry in every other context has remained largely immune to criticism.
Matters are set to become more complicated soon. In another recent judgment (October 12), Supreme Court Justices Vikramjit Sen and Shiva Kirti Singh prodded the government on implementing a uniform civil code (UCC). This is what the two-judge bench said: "There is total confusion. We should work on the uniform civil code. What happened to it? If you (government) want to do it, then you should do it. Why don't you frame and implement it?"
I have long been a votary of a uniform civil code. In an article in DNA (March 26, 2006), barely two years into the UPA government's first term, I wrote: "A uniform civil code is in India's national interest. An enlightened Indian Parliament must at some early stage put aside politics and implement the uniform civil code. It will be the finest long-term gift the Lok Sabha could give India's Muslims."
On Thursday, November 5, 2015, the Gujarat High Court entered the debate. Justice JB Pardiwala made out a strong case for a uniform civil code and the abolition of polygamy. He quoted Article 44 (Part IV) of the Constitution which requires "the state to endeavour to secure for the citizens a uniform civil code throughout the territory".
Justice Pardiwala observed: "If the state tolerates this (current) law, it becomes an accomplice in the discrimination of the female, which is illegal under its own laws." He wrote in his judgment: "On the basis of modern progressive thinking, India must shun the practice (of polygamy) and establish a uniform civil code."
Quoting the Quran, Justice Pardiwala said in his landmark judgment: "The Quran allowed conditional polygamy to protect orphans and their mothers from an exploitative society... When men use that provision today they do it for a selfish reason."
Those who posit the debate around a uniform civil code as a communal issue miss the point, often deliberately. Multiple surveys show that an overwhelming majority of Muslim women oppose polygamy and triple talaq.
The UCC debate is therefore about empowering Muslim women. That is a notion Muslim men are notably unenthusiastic about. Nudged by a slice of the Hindu secularate in the media, they cleverly couch their opposition in secular terms. Anyone who urges reform in the Muslim personal law is dubbed anti-Muslim. Most Hindus, sensitive to the charge of communalism, are embarrassed into silence.
Now that both the Supreme Court and high court have spoken, this will change. Conservative Muslim and Christian society too will need to change. Old mindsets that treat women as second-class citizens must go. NGOs and the media, dominated by self-declared liberals, have rarely stood up for the rights of Muslim and Christian women. The Supreme Court's intervention could be the catalyst needed to reform laws that today shackle women.
Set up during then prime minister Indira Gandhi's tenure in 1973, the AIMPLB is mandated to protect the Muslim Law (Shariat) Application Act of 1937 in personal matters. Shias split from the board and formed a separate All India Shia Personal Law Board. Muslim feminists too have formed their own All India Muslim Women's Personal Law Board.
Among others, former Supreme Court Justice Markandey Katju and former minister in the Rajiv Gandhi government Arif Mohammad Khan have sought the abolition of the AIMPLB on the grounds that some of its diktats, especially on women's rights, are deeply regressive. Sixty years after Hindu personal law gave women a degree of fairness and freedom, the time surely has come to give the same rights to Muslim and Christian women.
Hindu personal law was partially reformed in 1956 when Parliament legislated the Hindu Code Bill despite opposition from conservative MPs. Incremental reforms have followed. As Amulya Gopalakrishnan, writing last week in The Times of India, says: "Hindu succession was reformed considerably in 2005, making all daughters coparceners in joint family property and giving them equal claims to agricultural land. In 2001, Christian women and men were brought on par in terms of divorce rights."
A uniform civil code will complete the reform of Hindu personal laws that began in 1956 but remain patriarchal. Conservative Hindu groups will oppose the UCC because it will further empower Hindu women. Muslim groups will oppose it because it will begin the process of empowering Muslim women. (Goa remains the only state in India at present with a uniform civil code: the Goa Family Law, a set of civil laws which have their origin in the Portuguese Civil Code.)
Former President APJ Abdul Kalam strongly advocated a uniform civil code during his term in Rashtrapati Bhawan. The objections of conservative Muslim clerics and Christian clergy now need to be countered in the courts. But as law minister Sadananda Gowda's recent statement indicated, the government, buffeted on all sides by controversies, may opt to duck its responsibility. When the attorney general replies on November 23 to the Supreme Court's notice on reforming Muslim and Christian personal laws, we will know where women's rights figure in the NDA government's priorities.
We will also know in the coming days where women's rights activists, so voluble and visible on other issues, stand on giving their Muslim and Christian sisters the same rights they themselves enjoy.