The three words that you will not find anywhere in the 7,944-word affidavit filed by the government in the Shayara Bano v Union of India case are “uniform civil code” (UCC).
Bano, a 35-year-old sociology postgraduate from Uttarakhand, who was divorced in 2015, has challenged the Constitutional validity of three aspects of Muslim personal law: polygamy, triple talaq and nikah halala (a practice under which a woman who wishes to remarry her former husband must first consummate a nikah with another man).
On potentially the most contentious and significant legal matter of our times, the government affidavit has restricted itself to “solely a legal and Constitutional point of view,” says Madhavi Divan, the lawyer who drafted it.
“The fundamental question before the Supreme Court is to determine whether in a secular democracy, religion can be a reason to deny equal status and dignity guaranteed to women by our Constitution,” she says.
In the ensuing din, magnified by TV’s nightly “news debates”, you’d be forgiven for believing that we are not facing a simple issue of gender justice but, in fact, the end of the world as we know it.
It hasn’t helped that the Law Commission earlier this month shot off an incredibly ill-timed questionnaire to various stakeholders “in order to begin a healthy conversation on the viability of the UCC.” Conflating discriminatory practices like polygamy and triple talaq with a UCC has unnecessarily vitiated the environment.
It hasn’t helped that, swollen with indignation, the All India Muslim Personal Law Board (AIMPLB) says it will boycott the questionnaire. Personal laws cannot be rewritten in the name of social reform, it says, and for the court to do so would amount to legislative over-reach.
Its affidavit filed in court defends triple talaq as preferable to a long-drawn legal process as an impatient husband may “otherwise resort to illegal, criminal ways of murdering or burning her alive.” Or that polygamy “ensures sexual purity and chastity.” Indeed.
It certainly hasn’t helped that political parties are already grandstanding. The Congress says a UCC is “impossible.” Parties like the Janata Dal (United) see this as an election ploy. And the Bharatiya Janata Party’s (BJP) own record with both minority and women’s rights is suspect.
Through the cow politics of present times and the opposition by the erstwhile Jana Sangh, the precursor to the BJP, to Hindu personal law reform in the 1950s, it will first need to address a trust deficit with minorities.
Yet, everyone loves the idea of gender justice. Everyone, even the AIMPLB, agrees that triple talaq, polygamy and halala—banned in many theocratic Islamic states—are terrible.
So who’s talking of a UCC, and why, and why now?
The idea of a UCC is as old as the Constitution. Every few years it raises its head, causes a commotion and then is swiftly mothballed.
To deliberately bring it up now when the only issue is the non-negotiable right to equality is a perverse attempt to obfuscate. The desirability (or not) of a common Indian code for marriage, divorce, inheritance and adoption is a wider debate that can wait. What cannot is the basic issue of justice and equality.
“The right on both sides complement each other,” says Zakia Soman of the Bharatiya Muslim Mahila Andolan (BMMA), a social organization and one of the petitioners in Bano’s case.
“The minute you start talking about a UCC, everyone gets worked up and the question of gender justice gets derailed,” she continues. “We are, however, not deterred and are going to continue fighting for the abolition of triple talaq and ensure women’s rights based on Quranic principles.”
The courts have shown some remarkable misogyny, including the observation this past week that a wife’s refusal to live with her in-laws is “cruelty” and, therefore, grounds for divorce.
Yet, there is cause for hope as the apex court has generally in cases where gender rights have clashed with personal laws tilted towards the former—whether in matters of adoption (Shabnam Hashmi) or guardianship (Githa Hariharan).
Some compare this to the 1986 Shah Bano judgement, and the granting of rights beyond personal law to an abandoned wife. A panicky Rajiv Gandhi government then shamefully gave in to the clerics and reversed those rights by passing a law.
There is one crucial difference though, and it is that 30 years later women are more vociferous about their rights, less patient with patriarchy.
Shayara Bano will have her day in court. And it cannot come soon enough.
Namita Bhandare is gender editor of Mint.
Her Twitter handle is @namitabhandare.