[The Law Commission has sought responses on a flawed and biased questionnaire on personal law reform. Several organizations and activists – including AIPWA – have sent a collective response (below) to the Law Commission.]
Dr B S Chauhan,
Law Commission of India
Sub: Response to Appeal and Questionnaire released by the Law Commission of India on 07 Oct 2016
The above referenced appeal from your office sought inputs and engagement from concerned groups on ‘the comprehensive exercise of the revision and reform of family laws, as the Article 44 of the Indian Constitution provides that ‘the state shall endeavour to provide for its citizens a uniform civil code through the territory of India’. Further, the appeal states that ‘the objective behind this endeavour is to address discrimination against vulnerable groups and harmonise the various cultural practices’.
The Appeal also states that ‘Family Law reform, inter-alia has to view women’s rights as an end in itself rather than a matter of constitutional provisions, religious rights and political debate alone. With this in background the commission opens the debate on Uniform Civil Code and seeks your valuable suggestions towards social and legal reforms.’
There are several concerns we have regarding the entire process – the linking of women’s rights and the UCC, the format of the questionnaire, its timing and the process of seeking opinion. Our concerns are outlined below.
At the outset we would like to state that positioning the Uniform Civil Code as a response to address discrimination against vulnerable groups, or as the only way forward for personal law reform is condemnable. There is no explanation for how a Uniform Civil Code is necessarily a framework to address discrimination nor how it will help bring in gender justice. Neither is it clear as to why a UCC will necessarily serve the cause of women’s rights.
We also question the need to ‘harmonise’ cultural practices. The values our constitution stresses on are equality, plurality and diversity. Uniformity is a different value from equality and one fails to understand how Uniformity will lead to the realisation of constitutional values.
The stress on family law also has the impact of looking at women only as having certain roles to play in a family. Viewing women in this framework is not the way forward to achieving gender justice nor women’s rights.
The questionnaire format itself and each question are drafted intentionally or otherwise in a manner that forces one to assume that we need a UCC. The questionnaire limits responses and is so narrow in scope that it has an undue focus on the personal law of Islam and has tokenistic questions on Hindu Law and Christian Law. There is absolutely no focus on customary practices practiced by several adivasi groups for instance or any other non-codified practice of any community, nor the question of personal laws and the rights of the persons belonging to the LGBTQI community. The questionnaire also seems to exclude the impact of aspects such as caste, changing property relationships, codification etc. A detailed critique of the questionnaire is attached with this email.
The timing of the appeal is also suspect. At this moment, many from the Muslim community, progressive women’s collectives and other organizations which also have men in forefront, are raising issues of gender equality before the Supreme Court. Given that the Supreme Court is hearing petitions challenging some of the gender biased aspects of Muslim Personal law, the timing of this “Appeal” and questionnaire raises many doubts. The timing has certainly contributed to vitiate the atmosphere in the country.
The entire process of consultation does not seem to have the sincerity nor seriousness it deserves. What is required is a committed process of wide-ranging and sincere consultations, aimed at upholding the constitutional values of equality, diversity and plurality. The questionnaire and the process of consultation as it stands does not do justice to the complexity of the problem.
What is urgently required at this point of time is law reform and institutional reform that will lead to gender justice. One way possible is that the chapter on personal law reform in the report of the latest High Level Committee on Status of Women (http://wcd.nic.in/documents/hlc-status-women) be used as a basis for wider structured discussions on how to achieve gender justice through reform of personal law and through institutional reform. The Law Commission can circulate this report and seek wide-ranging inputs on the same. We need to look at reforms which will make justice and institutions of law more accessible to the marginalised. The consultative process needs to be held in a manner that involves all communities and in a manner that makes it possible for the common people to engage with the commission.
We demand that the current appeal and questionnaire be withdrawn and that civil society groups, representatives of various communities and the wider public be consulted on what kind of process will lead us to path of providing gender-just laws. We need to arrive at laws and law reform that reflects our constitutional values – equality, diversity and a secular-socialist state.
All India Progressive Women’s Association, Akhila Vidyasandra, Lawyer and Activist, Alternative Law Forum, Bangalore, Anshi Zacharaiah, Bangalore, Forum Against Oppression of Women , Mumbai, Janasahayog, Bangalore, Jeeva, Bangalore, Karnataka Janaaroyga Chaluvali, LABIA – A Queer Feminist LBT Collective, Madhu Bhushan, Womens’ rights activist, Bangalore, Saheli, Delhi, Sarasu Esther Thomas, Associate Professor, Co-ordinator, Centre for Women and the Law, National Law School of India University, Shakun M, Womens Rights Activist, Sumathi N, Activist, Bangalore, Sunil Mohan, Activist, Bangalore, Zakia Soman, Bharatiya Muslim Mahila Andolan