Ever since the BJP led by Prime Minister Narendra Modi took upon itself to protect Muslim women from the scourge of triple talaq, the politics over Muslim personal law is heating up like never before. Contentious issues are being debated in the popular media with emphatic appeal to religious identity at the expense of gender justice. Predictably this communalisation of the debate has reduced the question of gender-just reforms in the putative Muslim community to triple talaq only.
As a matter of fact, there are other serious aspects of Muslim personal law which are waiting to be reformed since Independence, including divorce without maintenance, halala, polygamy and gender discriminatory inheritance laws. Ask any rational Muslim whether she wants to subject her female relatives to such discriminatory aspects of Muslim personal law and the answer is most likely to be in the negative. What then explains the persistence of these laws despite an egalitarian Constitution which promises dignity to all Indians? What explains the enthusiasm of the BJP to protect Muslim women from triple talaq but not from widowhood caused by cow vigilantes?
[I]t is clear that the question of personal law reforms is lost in communal identity politics which feeds into patriarchal notions of society.
A section of Muslim intellectuals, mostly from high caste social locations, are building the argument that reforms, though desirable, should not be undertaken during the current government as it does not have the confidence of Muslims. What about previous governments? If reforms were desirable why could they not be pushed during previous governments which arguably had the confidence of Muslims? In the ugly enterprise of denying justice to Muslim women, even the so-called liberal Muslim voices seem to have aligned with the conservative forces of the community. What explains the relative absence in the debate of progressive "male" voices of the Muslim community?
These questions impel us to take a fresh look into this issue. Historically, the politics of personal laws has worked to reinforce the Hindu-Muslim binary, consequently entrenching both identities as monoliths. This entrenchment of communal identities effectively irons out caste fault-lines in both the communities.
However, the politics around personal laws is not the sole strategy in the task of perpetuating communal antinomies by the caste elite across religions. It is deployed in combination with various other cultural symbols which mark out the caste-ridden diverse populace into two hostile groups. The most prominent among them are Aligarh Muslim University versus Banaras Hindu University, Urdu versus Hindi, mandir versus masjid and so on and so forth. However, the recent deconstruction of all these oppositional symbols, especially by Dalit and Pasmanda discourses, reveals some interesting pointers.
When one employs caste analytics it becomes apparent that so far the controversies around personal laws have been utilised by the dominant caste groups across religions to maintain the dialectic of communal identity formation and repression of caste identity. Naturally, those who produce communal identity also assume leadership positions in their respective religious groups. Thus, the communalisation of personal laws helps to preserve patriarchal privileges which are threatened by the constitutional promise of egalitarianism.
[T]he constitutional promise of a Uniform Civil Code (UCC) could be conceived around the principles of equality, liberty and fraternity committed to gender justice without disturbing cultural sensibilities associated with personal laws.
Dr. BR Ambedkar considered patriarchy as the core of caste order. Unlike polarised religious formations which are only a symptom of caste structure rather than the cause, patriarchy is the central pillar of the caste system itself. Therefore, in the religiously coloured controversies around personal laws, the victims are always women. The male hegemony over the interpretation of personal laws curtails the agency of women willing to go for inter-religious or inter-caste marriage, sometimes risking their lives.
Thus, it is clear that the question of personal law reforms is lost in communal identity politics which feeds into patriarchal notions of society. In this context, Nancy Fraser's advice to disentangle issues of cultural particularities from the domain of gender justice is of particular help. For this purpose, the constitutional promise of a Uniform Civil Code (UCC) could be conceived around the principles of equality, liberty and fraternity committed to gender justice without disturbing cultural sensibilities associated with personal laws.
The most important cultural symbol which is part of personal laws includes the marriage ceremony essential for solemnisation of the marriage. The UCC could recognise all such ceremonies emanating from the cultural preference of either party to the marriage. From here on personal laws take distinctive temporal shape, requiring just and reasonable settlement of inter-personal family disputes. The guiding principle in all such disputes is family welfare. The difficulty here is not divergence of laws relating to family but what constitutes family welfare. At a time when the notion of family itself is under strain, it is desirable to have a flexible legal framework to address such challenges. The Uniform Civil Code could attempt to address these issues by moving the question of personal law reforms beyond religious binaries.