Walter Fernandes
In one of its 15 reports the 21st Law Commission had said in 2018 that a uniform civil code (UCC) is neither necessary nor desirable at this stage. Instead it suggested reforming the existing family laws from a gender justice perspective. It is a just solution because the personal laws, formulated in the feudal colonial age, are essentially patriarchal and ignore gender, class and caste. Reforming them is a step towards gender and class justice while respecting diversity which is basic to unity in the multi-cultural, multi-ethnic and multi-religious land that is India.
However, the 22nd Law Commission seems to think that unity should be based on uniformity. It has asked for responses within a month to its proposal on a UCC, without circulating a draft of the proposed law, so the nature UCC it suggests is unknown. At this stage the only proposal available is from the BJP-RSS combine which wants the Hindu Personal Law or one based on Manusmriti to be the UCC. This thinking forms part of its ‘one nation, one culture, one language, one religion, one law’ Hindutva ideology. There is no talk in this suggestion, of gender and caste-class justice. In reality even the Hindu Personal Law is not gender or class just so that too has to be reformed. But the 22nd Law Commission seems to be tilting towards uniformity without speaking of justice. That tendency goes totally against the justice based reforms suggested by the 21st Law Commission which to some extent reproduces the Supreme Court interpretation of Article 21 on right to life as every person’s right to a life with dignity. A UCC without this vision is not acceptable. That is reason enough to oppose the Law Commission’s request for comments on a UCC with no indication of its direction. However, while opposing it one has to go back to the 21st Law Commission and take a new look at all the personal laws from a gender and class-caste perspective. All the personal laws, Christian, Hindu, Muslim, are patriarchal and are weak on gender justice. Moreover, they do not take diversity within each community into consideration. They ignore the fact that Hindus, Muslims and Christians are divided into hundreds of local cultural groups and marriage is conducted according to such local customs. That goes against diversity as well as caste-based justice.
One has to add at this stage that focus in this national debate on the UCC is on the personal laws of religion-based communities. These laws have been codified and promulgated by the Government of India. But in this debate are ignored the tribal customary laws that have not been codified like the personal laws but have evolved over centuries as intrinsic to the cultural, livelihood, social and political systems and identity of each tribe. A UCC is a threat to all of them and to tribal identity. This danger is equally visible in the demand of an RSS-backed organisation that tribal Christians be delisted from the schedule. That demand to deprive tribal Christians of their tribal status is only the first step in the effort to free their land from all protection under the law. Tribal Christians happen to be the majority in the Northeast where the Act East Policy needs plenty of land. Once they are delisted and their land is freed from legal protection the next step will be to take it over since it is not protected by the law.
These moves show the need to resist the UCC. But one cannot stop at opposing it. The customary laws too are not just from a gender and class perspective. Our study of 14 tribes (two per state in the Seven Sisters), many other studies as well as experience show that tribal women’s status is better than that of their caste counterparts in mainland India but they are not equal to men even in the matrilineal tribes. They have some power in the family but their society is controlled by men. One has, therefore, to apply to the tribal customary laws too, the principle enunciated by the 21st Law Commission that a UCC is neither necessary nor desirable but that the personal laws should be reformed to make them just by giving equal rights in them to men and women. However, there is much resistance to this change from their communities. Take for example the opposition to women’s reservation in the ULBs in Nagaland and the proposal (though not implemented), of the Khasi ADC that Khasi women who marry outside their tribe should be treated as non-Khasi. In 2004 the Arunachal Pradesh Legislative Assembly passed a resolution that the State should be brought under the tribal customary laws. Women’s organisations agreed to it but added that that the laws should be amended to give equal rights to women, before forwarding the resolution to the Centre. The process has stopped at it because of opposition from a large number of men to this demand.
One can give many more examples but let me stop at these few and add that the customary laws should be studied and reformed in favour of gender equality as well as class equality. Tribal societies have traditionally been egalitarian but individualism and class have entered their system during the last few decades. A sign of class differentiation is land alienation which was, till a few decades ago, from tribal to non-tribal owners. That continues to some extent but studies as well as experience of people active in the tribal areas show that today much of it is within the tribe. Rich tribal individuals take over land from their poorer brethren who need money for health emergencies, children’s education and similar purposes. After buying that land not infrequently the rich buyers sell it to outsiders. For example, the Meitei-tribal conflict in Manipur is centred on land. The tribes living in the hill areas want land to be owned by their communities. But there is much land alienation to non-tribal persons and businesses. For example, while travelling from Imphal to Moreh one can see acres and acres of tribal land alienated to outsiders on both sides of the road, much of it sold to outsiders by rich members of the tribe who take over land from their poorer brethren.
These and other instances show that one has to go beyond opposing the UCC to look at the laws that govern us from a justice perspective. All the laws have to be reformed and re-interpreted from a gender and class justice perspective so they become tools of Article 21 on right to life that the Supreme Court has interpreted as every person’s right to a life with dignity.
Dr Walter Fernandes is Director, North Eastern Social Research Centre, Guwahati.
