Ayishath Zainaba

In this episode, advocate and scholar Dr. Shalu Nigam critiques the Uttarakhand Uniform Civil Code, arguing that it represents a coercive, top-down measure that reinforces patriarchal and majoritarian interests rather than securing gender justice. Drawing on the history of colonial law-making and the Constituent Assembly, Dr. Nigam contends that the current regime’s approach undermines the constitutional vision of secularism and ignores the diverse struggles of women who have long fought for legal reforms from within their communities. Instead of a monolithic code, she proposes a “Feminist Code” driven by a bottom-up, praxis-based approach that prioritizes women’s lived realities, optionality in legal governance, and genuine intersectional equality.

Ayishath: Hello and good evening! Today, we will be discussing the Uttarakhand Uniform Civil Code with Dr. Shalu Nigam. She is a feminist advocate and researcher working on gender, law, governance, and human rights in India. With a PhD in Social Work and a law degree, she practices in the courts of Delhi and actively engages with various human rights and women’s rights movements and research organizations, such as the People’s Union for Civil Liberties, the Indian Social Institute, the Impact and Policy Research Institute, Delhi, and the Centre for Women’s Development Studies. She was also awarded a senior fellowship by the Indian Council of Social Science Research. Thank you for joining us today, ma’am!

My first question to you is, in your piece, you argue that the Uttarakhand UCC law should be revoked. Could you give an overview of your reasons and your contentions with this law?

Dr. Shalu: This question can be answered in two parts. First of all, when we talk about the Uniform Civil Code or any other law, we should look at its historical process and the intent behind it. Why was it made? Who made it? Is it a people friendly law or is it made by the state to curb the people’s rights? For instance, the British empire formulated the sedition law to suppress dissent in colonial India. In postcolonial India we have made positive laws such as the RTI Act which is about transparency and accountability among several other laws. So, we have laws that are both anti-people and also people-friendly. Law as a tool could either strengthen the rights-based framework or can be used to diminish rights. It is not neutral. I tell all my students to know the history behind the law.

In my work I have tried to explore the history of what happened 100 years back when we were fighting for freedom from the British Rule, making the Constitution, and there was also communal violence and Partition going on.

So, in my other article on Resisting Gendered Citizenship, which I have shared with you, what I observed was that there were three forces acting together: the top-down approach followed by the colonial regime and the nationalists and the progressive approach followed by several Indian leaders as well as the women’s movements in colonial India. The top-down approach sees women belonging to their families and communities whereas the progressive approach saw women as equal citizens and advocated for their citizenship rights.

It is also important to look at the history of the making of the Constitution. I have written a book with one of my colleagues called the Founding Mothers in 2016 which was about 15 women who participated in the making of the Indian Constitution. Sadly, this is not taught in schools or universities. However, women’s movements during colonial times played an active and crucial role to reimagine women’s rights.

The Constitution makers imagined India as a secular country. If you see the Preamble, the Constitution envisages secularism, equality, justice, liberty, fraternity. They use the term Common Civil Code against the process of the making of the Common Criminal Code by the colonial regime.

The Common Civil Code was introduced to eliminate any discrimination against women on the basis of religion. The purpose was to eliminate all harmful practices undermining women’s rights and promote gender justice in line with constitutional morality and human rights. When the constitution was being made, Indian women were also participating in the process of the making of the Universal Declaration of Human Rights. Hence, this human rights perspective came in.

In the Fundamental Rights sub-committee, several men and women, including Dr. BR Ambedkar, Hansa Mehta, Minoo Masani, KT Shah, Alladi Krishnaswamy Ayyar, Maulana Abul Kalam Azad, and Raj Kumari Amrit Kaur came up with this idea.

They advocated for this provision because they wanted a fair and progressive Code as a fundamental right to eliminate hierarchies. The idea was to imagine a secular nation that guarantees equality and justice to all irrespective of gender, religion, class, or caste biases. They wanted to constitute a democratic nation eliminating discrimination between men and women, minority and majority, upper-caste and lower caste, and so on.

Regarding the elimination of gender discrimination, the constitution makers were of the view that once men refuse to discriminate against women there will be no need to assert for women’s rights.

However, the situation was turbulent. Against the backdrop of communal violence and the legacy of Partition, some members of the Constituent Assembly, although not opposed to feminist reforms, wanted to approach them with caution. Emphasizing the importance of religious freedom and cultural diversity, they believed that imposing a Code might infringe upon the rights of religious communities to uphold their laws. Therefore, instead of putting it as a fundamental right, the UCC was relegated as a Directive Principle of State’s policy.

However, post-independence, women from all backgrounds have approached the courts to demand reforms in the family laws.

Now, coming to your question on the Uttarakhand Code, I am approaching the issue with the lens of citizen’s rights and autonomy. What I see is that the current regime is trying to impose a Uniform Code in a coercive way that is patriarchal, anti-secular, anti-women, anti-minority, and against the vision of the Constitution makers that I have just described. This top-down approach seeks to empower the state while restricting citizen’s rights.

This move introduced an arbitrary law in a hasty and undemocratic manner. When the Law Commission Report in 2018 had recommended that UCC is not required right now, then the government’s eagerness to enforce the Code can be called into question.

The Code neither guarantees women’s rights nor safeguards religious freedoms. It upholds masculine interests. It is enforcing patriarchy to ‘save Muslim women’. They talk about eliminating triple talaq and saving Hindu women from Muslim men by making love jihad laws while ignoring the massive misogyny entrenched in their imagination of Hindu Rashtra, a theocratic state which is oppressing both Hindus and non-Hindu women.

However, no such measures have been proposed to protect oppressed Muslim or Hindu women from the violence inflicted by upper-caste Hindu men in a society which garlands and celebrates rapists and criminals. The state is diminishing women’s rights by infantilizing and belittling them. Also, the state is imposing a discriminatory law based on regressive ideologies while ignoring the diverse practices and the rights of minorities, Dalits, and Adivasi women.

It is heteronormative and criminalizes live-in relationships as well as inter-caste and interfaith marriages. Non-registration of marriages can invite imprisonment. It links mandatory registration of marriage with the provisions to access the government welfare schemes and subsidies, which is unconstitutional. It is not about people’s rights, Viksit Bharat, Nari Shakti or women’s empowerment. It is only empowering the state to morally police its citizens. It is not creating any new rights – instead, it takes away women’s hard-earned rights. Therefore, I believe that this law needs to be revoked. India is known for its policy of unity in diversity. But this Code is against this idea. It is about imposing a monolithic culture. It is also causing a trust deficit among minorities and women because these reforms are not driven by the goal of gender justice or respecting diversity.

Ayishath: You talk about how the UCC has been used to deny sex equality and create distrust among women citizens while aggravating discrimination. What specific aspects of this discourse do you think have this effect, and how could they be different?

Dr. Shalu: As I stated, the top-down approach of the State uses this Code as a tool to morally police women and curtail their freedoms. The law encourages unnecessary parental interference in the lives of adult women. It reinforces what I call majoritarian patriarchy, different from what Professor Uma Chakravarty calls the indigenous Brahminical patriarchy. Here the Hindutva norms influence the Code to target both Hindu and non-Hindu women. Also, the tactic deployed is to dehumanise and control women from all communities while restricting their freedoms and choices. The top-down elitist approach is taking away the rights guaranteed to women in their personal laws and in the constitutional laws.

In contrast to the top-down approach, we have also witnessed a women-led approach which is more positive and oriented towards constitutional values, feminist principles and intersectionality. We know that for the past seventy-five years, thousands of women from all communities have approached the courts to demand their constitutional rights.

Mary Roy in Kerala challenged discriminatory Christian law regarding inheritance. Shah Bano, Shamim Ara, and many Muslim women have pursued their rights to reform Muslim laws. The Gita Hariharan case was about demanding change in the Hindu Guardianship Law. In ABC v State of Delhi, a Christian unwed mother demanded her guardianship rights without using the name of the father. There are numerous cases where women from all communities have challenged discriminatory family laws.

In cases of inheritance rights, honor killings, forced marriages, and child marriages, women have approached the courts to challenge oppression. Also, they have compelled the courts to examine their rights to enter Sabarimala temple and Haji Ali Dargah. So, these cumulative struggles of thousands and thousands of women from different communities have forced them to bargain their citizenship rights with the patriarchal state, negotiate justice, challenge arbitrary laws, and forge new rights within private and public spaces.

These cases demonstrate how family laws affect women directly and how women have led reforms in the laws over the years. This is not merely a few Hindu, Muslim or Christian women occasionally approaching the courts. These are everyday struggles of women within their families and communities.  These struggles are about equality and non-discrimination. They are also about elimination all forms of oppression within families and communities. It is about interpreting the constitutional rights in everyday lives of all of us women and our children. Women, as citizens, as single mothers, non-mothers, abandoned women, divorced or separated, have challenged the heterosexual family norms.

It is not the state, nor the courts or the MPs, MLAs, or Parliamentarians, or the religious leaders, but it is women who were affected because of their situation, who fought for their rights. Ordinary women have approached the courts pointing out problems in family laws, demanding justice. And these women fought without any support provided by the state. Despite the fact that the courts are not women-friendly – there are delays, the huge financial cost, stigma and a lot of other problems – they fought for justice. These struggles need to be respected.

The state through its top-down elitist approach cannot take away these women-led reforms by writing an anti-women UCC law without taking into account these tough struggles. So, how can a state minimise and negate these struggles and exclude women from the process of making the law which affects them the most?

And so, I suggest that women led reforms should guide the process of the making of any law that affects them.  If any amendment has to be made in the existing family laws, the state has to hear women’s voices, and not only the voices of women from any one particular community. Women from diverse background should have a say in the making of law that affects them. I have therefore suggested that it must be a feminist code based on an inclusive approach and feminist principles.  

Ayishath: Why do you think it is important to discuss the UCC in the current context, especially with a feminist lens?

Dr. Shalu: You may know that the Gujarat government is also planning to impose a UCC on a similar format as that of Uttarakhand. And if you see BJP’s manifesto, it talks about imposing a UCC as one of its agendas. So, the same UCC which is detrimental to women’s, minority groups’, and children’s rights may be imposed on other States too. Therefore, it is important that women’s organizations intervene to stop this process and demand a UCC which is gender-just, comprehensive, and inclusive. One which is based on experiences, concerns and realities of women, because any reforms in the family law will directly impact women.

I will go back in history again to the time when attempts to reinforce prevailing hierarchies emerged while framing the Child Marriage Restraint Act of 1929. The conventionalists opposed raising the age of consent by citing Shastras. The women representatives of the AIWC countered this argument by demanding new Shastras. That was the zeal to reform the law. And I think we cannot let that spirit and enthusiasm die.

The point is that family law reform is a critical issue that profoundly impacts women. No single political party or religious organization should have the authority to impose its ideology on over half a billion women. Their diverse voices, concerns, and experiences must be acknowledged and respected. Hansa Mehta in 1949 argued:

“The other item to which I wish to draw the attention of the House is the Common Civil Code. To my mind, this is much more important than even the national language. We have too many personal laws in this country and these personal laws are dividing the nation today. It is therefore very essential if we want to build up one nation to have one Civil Code. It must, however, be remembered that the Civil Code that we wish to have must be on a par with, or in advance of, the most progressive of the personal laws in the country. Otherwise, it will be a retrograde step and it will not be acceptable to all.”

Also, while expanding the feminist reimagination, I have suggested that women from different backgrounds should collaborate to formulate a feminist code with a feminist vision and rights-based principles to achieve the goals of emancipation and demolish the multiple patriarchies that operate. This feminist Code is a tool to achieving gender justice and ensuring that women of all religious backgrounds have equal rights, protections, and opportunities. It addresses patriarchal oppression, respects cultural diversity, and includes women’s voices in shaping the reforms.

The women of previous generations have struggled hard for the rights that this generation enjoys today. Those founding mothers have fought tough battles for women’s rights. We cannot give up that struggle. To honour this commitment, preserve the rich legacy, and reclaim women’s rights, women from diverse communities today are duty-bound to come together in solidarity and take forward this struggle for themselves and future generations by rewriting a feminist code for women, of women, and by women.

Ayishath: You mention in your paper how the reason that the constituent assembly restricted the idea of a UCC to the DPSPs was because they were apprehensive of its potential conflicts with religion. You also mention the 2018 Law Commission report had stated how Indian cultural diversity should be respected and that a UCC is neither desirable nor necessary at this stage. Do you agree with the concept of a UCC? And if so, under what circumstances?

Dr. Shalu: As I have said earlier, for the past seventy-five years, women from all communities have approached the courts to demand justice and reformed family laws in the process. This experience shows how women have compelled the courts and the state to constructively interpret laws. So, what we need is access to justice for women through various features: sensitive courts, medical services, quality legal services, a well-informed bureaucracy, and favourable policies that empower women to fight for their rights.

So, the UCC imposed by the current regime is not what we need. Moreover, when worldwide authoritarianism is rising (India’s ranking in the Global Peace Index is 116 out of 163 countries, our ranking in the Democracy Index is 116, it is 112 in the World Press Freedom Index, our Human Development Index is 134 out of 193 countries, and Gender Equality Index 108 out of 193 countries) we need to focus on these aspects. This is not the culture of human rights. Also, certainly no one can expect a fair, neutral law in this situation. The intent of the state becomes questionable in the current circumstances. In this situation, the political rhetoric of a rising Hindu Rashtra is causing fear, and actions by the current regime are viewed as attempts to marginalise minority voices.

So, if we want to have a UCC, it has to be made through a democratic process, in consultation with women who are being impacted the most by changes in the family laws. The state should conduct consultations and dialogue with women’s organizations, lawyers, and judges. Different stakeholders should come together to create a feminist code with the original intent of removing all harmful practices that affect women.   

Ayishath: What is your idea of an ideal UCC as envisaged by the constituent assembly and how is that different from how it is proposed to be introduced now?

Dr. Shalu: The UCC that was envisaged by the Constituent Assembly was about the secularisation of laws. The proponents of the Code felt that secularisation of law may enable the building of a progressive, modern nation. The 1939 Report on Women’s Role in Planned Economy envisaged the proposed Code to be an optional one that will gradually replace the personal laws followed by various communities. Based on the fundamental principle of fairness and rationality rooted in the value of justice, women’s organizations imagined a female subject as an emancipatory citizen. The purpose of introducing such a provision was to separate the law from religion while also introducing the progressive elements of human rights and gender justice in social relations within a hierarchical family structure. They confronted sexism and prejudices while questioning the patriarchal premises and conceived women’s rights as non-negotiable. To address the injustices women suffered for centuries, they waged a relentless battle against paternalist forces. Ambedkar described that:

“It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon the habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.”

Their persistent demands to address family inequalities and their efforts to highlight inconsistencies in the law prompted the discussions around framing the Code. The current Code is an attempt to dominate women and minorities through a masculine and majoritarian framework. So, we have to reshape the ‘woman’s question’ through a feminist framework

Ayishath: Do you think our colonial history has shaped our idea of a Uniform Civil Code, and if so, how?

Dr. Shalu: If you see the history of the freedom struggle, three kinds of narratives existed. I have mentioned this in another article on Gendered Citizenship. The first was the colonial narrative, the second was the orthodox nationalists, and the third was the progressive discourse consisting of women’s organizations and progressive leaders such as Nehru, Ambedkar, MN Roy and women’s organizations. Law-making as well as constitution-making was influenced by these three forces. For instance, progressive leaders and the founding mothers played an influential role in the making of the Constitution; strengthening the discourse around constitutional values of liberty, equality and justice. They talked about women as equal citizens, while the orthodox idea projected women as mothers and wives that belong to their families and communities. For instance, in the context of the Partition and communal violence, if you read the work of Kamla Bhasin, Ritu Menon and Urvashi Butalia you would see how the Partition affected women. Some of the Hindu, Muslim and Sikh women were abducted and raped, some committed mass suicide, some were abandoned, separated from their families, forced to convert, forced into marriage, and then enforced back into what the State considered as their ‘proper homes’.

But how did the State react? On 6 December 1947, the newly formed hostile countries of India and Pakistan prepared an Inter-Domination Treaty to recover the abducted women and rehabilitate them in their homeland. An Abducted Person (Recovery and Restoration) Bill was introduced by Gopalaswami Ayyangar in 1949 with the object of recovering and restoring abducted persons to their families. It defines an abducted person as a male below 16 years of age and a female of ‘whatever age’. The affected women had no say in deciding their fate, but the state and their families were considered as their legitimate guardians. The state refused to treat them as citizens vested with rights but infantilised them. Abducted women were considered objects, chattels, and property to be recovered from the enemy. The Act gave unlimited power to the police over women to forcibly repatriate them even when their families refused to accept them. Women social workers were designated, and recovered women were kept in the temporary detention camps till they reached their original families. This law created a new legal category of ‘protective detention’ as compared to preventive detention, wherein women victims were kept in the camps to be transferred to their original families. For the state, the rescue operation was premised on the nationalist assumption that bound national honour to women’s bodies. It became a matter of prestige for both nations. This law remained operational till 1956. It criminalised the women victims of violence rather than penalizing the perpetrators of the crime. Efforts were made to find the abducted women, but no such attempts were made to trace the culprits and punish them for their role in violence.

The profound trauma women endured as citizens subjected to violence was ignored. Veena Das illustrated how women’s voices were silenced by applying the best interest theory, where the state colluded with the social workers to uphold the nation’s honour rather than safeguarding women’s rights. The emphasis remained on “purifying” the recovered women and grappling with the legitimacy of children. Some even proposed terminating such pregnancies. The purpose was to demonstrate that women cannot assert their autonomy, but belong to their families, communities, and nations. These trends determine the contestation between identifying the women as citizens or those belonging to their families or communities. Here you see how the citizenship of women is gendered, and this debate continues in post-colonial India. Even today, the orthodox strand is prioritizing women not as equal citizens but as mothers, daughters and wives.

Ayishath: You speak extensively in your piece about how the UCC discourse has been used to perpetuate Islamophobia. What do you think the reasons and motivations are behind this, and what would be the ideal way to tackle it?

Dr. Shalu: Again, I will refer to the continuance of dominant discourse in India, and I request you to see my article on Gendered Citizenship where I elaborated on the top-down, patriarchal and women-led or people-led discourse which insists on human rights, women’s rights, equality and justice. This has been continuing since colonial times. There are those who want to enforce Manusmriti and there are those who talk about gender justice.

So, if you see the history of the Hindu Code Bill, this distinction becomes evident. In January 1941, the B.N. Rau Committee was set up officially to recommend reforming the Hindu laws. The Rau Committee report dealt comprehensively with the laws regarding marriage and maintenance, succession, guardianship, and adoption. The Committee proposed amendments to dilute the sacramental nature of Hindu marriage by introducing the provision relating to its dissolution, abolishing polygamy, and maintenance for the wife. It also raised the issue of an equal share of the daughter in the family’s property.

The orthodox conservative Hindu leaders were not willing to accept these reforms. To delay the process, they demanded the application of the law to the non-Hindus. They argued that if a woman is granted the right to divorce along with the property rights, it would destroy Indian society. Those who opposed the codification evoked ancient religious scriptures and quoted verses from the Manusmriti. This was countered by those who favoured codification while quoting Smritis, Shrutis, and Upanishads to advocate for reforms. Finally, Ambedkar had to resign from his post as a Law Minister. In his speech, he said:

“To leave inequality between class and class, between sex and sex, which is the soul of

Hindu Society untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap. This is the significance I attached to the Hindu Code”

Pandit Nehru later split the Bill into four laws, and only then were these passed. Ambedkar was talking about eliminating caste, Nehru was in favour of science and technology. MN Roy, another visionary, was talking about Humanism. However, the orthodox narrative was preaching about protecting Brahminic ideology and Hindu supremacy. And this preaching of anti-people ideology continues till today. If you read Savarkar and Golwalkar’s work you will observe they were arguing against the Muslim community. They were talking about Manusmriti and Islamophobia.  

So, now we have to make choices again about what kind of nation we want and how we would deal with changes. The Constitution-makers tried to tackle it by separating religion and the State. They used the strategies of rationalising debates, scientific virtues and reasoning. Now the mainstream media is being used to spread hate, toxic masculinity, and irrational thinking. So, we have to deploy whatever tools we have available, such as education, rational thinking, dialogues, debates, and scientific advancements, to promote harmony, peace, and feminist values of compassion. We have to think in terms of collectivism, cooperation, and solidarity against the forces that spread hate. We need to build a movement for solidarity.

Using a human rights framework, and fact-checking to expose propaganda could be some of the strategies in the current scenario. Ensuring the accountability of those spreading hate is important to end the culture of impunity. We need to ask the right questions and resist anything that promotes hate and bigotry. So, when this regime is enforcing an agenda that is anti-women and anti-Constitutional law, we need to present an alternate feminist Code which reinforces the Constitutional morality and takes into account the concerns, experiences and realities of women. We need to keep talking about equality, fraternity and justice.

Ayishath: You talk about how the Hindu religion has been weaponized by the State to reinforce social hierarchies and deepen divisions. What do you think is the ideal way to strike a balance between the religious freedom of the individual and gender equality?

Dr. Shalu: Religion, in my view, is a personal endeavor. How someone connects to God, or whether they choose not to, is a personal issue. Though I have been born in a Hindu family, I may choose to go to a Gurudwara or a Church. I may enjoy all festivals.  Neither the State nor any other entity has a right to interfere in that practice. However, over the ages, religion has been institutionalised, commercialised, and now it is being weaponised to serve the vested interests of the State. Religion is now no longer a connection between a person and her God. There are custodians of every religion, who are deciding what a person should eat, wear, how and whom they should marry, etc. Religions are now competing with each other and occupying every domain of human life; interfering with politics.

The Hindu philosophy as I learnt it consisted of sajhi virasat and Ganga-jamuni Tehzeeb, based on the approach of peace, tolerance, and harmony. In Delhi, most of my life I have stayed in a cosmopolitan environment where multiple castes, religions and communities co-existed. But now this regime is pushing its irrational approach which, in no way, fits into the current modern times. They are using violence when no religion preaches violence.

Gender equality comes in when you engage in dialogue about the feminist principles consisting of compassion, kindness, and solidarity. Feminism is about mutual and peaceful co-existence. It is inclusive. It is about cooperation and not competition. Feminism believes in one’s right to practice religion but opposes all harmful practices propagated by institutionalised religion. Also, reform within religion can come internally. So, as a Hindu woman, I can say that dowry or female foeticide is a harmful practice and it must be eliminated. This is the purpose of making the UCC initially – to do away the harmful religious practices and rituals that threaten women’s lives. Today also, this should be the goal of the feminist code  – to eliminate patriarchy, eradicate misogyny, and end violence. 

Ayishath: How instrumental do you think the judiciary has been over the years in shaping the discourse about the UCC? Do you think the judiciary is gradually adopting a more feminist approach?

Dr. Shalu: Judiciary can play a significant role in elaborating women’s rights. Scholars abroad have spoken about the ideal of transformative constitutionalism. In India, we have seen how during the 1980s, the concept of PILs was deployed to broadly interpret the rights of citizens. Justice Bhagwati and Justice Krishna Iyer have specifically expanded the rights of the marginalized. Cases filed on a wide range of issues have compelled the courts to adopt the role of an “activist court”. The judiciary in several cases has elaborated on the idea of gender justice while hindering it in many others. Specifically, despite positively interpreting constitutional provisions, questions regarding feminist engagement with the law remained challenging.

In my work on how myths and misogyny operate in the courtrooms, I have shown how in cases concerning women’s rights, the Supreme Court often has paid lip service. Specifically, in terms of family law reforms they have adopted a piecemeal approach. In the context of Uniform Civil Code, the court indeed refers to Article 44, but at the same time they have not shown their zeal to do something. For instance, the Ahmedabad Women’s Action Group filed a public interest litigation demanding the repeal of discriminatory provisions in personal laws applicable to Hindus, Muslims, and Christians. The Supreme Court, however, rejected the petition, holding that it would not intervene in the policy matters.

Earlier, the Supreme Court upheld Muslim women’s rights in a catena of judgements. For instance, in Bai Tahira, and Fuzlunbi, the Supreme Court ruled that Muslim women are entitled to maintenance under Section 125 CrPC. We have seen how the controversy erupted in Shah Bano. But if you read the judgement it says, “It will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” Several scholars see this judgment as controversial because of its language, which unnecessarily links Article 44 to the topic of national integration, deploys negative stereotypes against Islam, and singles out vulnerable Muslim women. The Working Group for Women’s Rights held that these binaries of nation versus community, individual versus collective, and majority versus minorities rendered `women as a category invisible’

In Shayara Bano, a Muslim woman challenged the practice of triple talaq, which allowed Muslim men to instantly divorce their wives by pronouncing “talaq” three times. The Supreme Court observed that the practice was arbitrary, unconstitutional, and discriminatory. At the same time, to cash out the political benefits of this case, the current regime immediately brought the Muslim Women (Protection of Rights on Marriage) Act of 2019, criminalizing triple talaq. This move was criticized for being hasty, against democratic norms, projecting the Muslim men as barbaric and lustful, and denying Muslim women their agency and rights.

More recently, the courts have begun to weaponize the law to deny justice to both Hindu and Muslim women. For instance, in Prakash v Phulvati, the Supreme Court, while dealing with a matter under the Hindu Succession Act, 1956, suddenly turned its attention to Muslim women’s rights and suo moto directed the registry to take action. The Hindutva ideology of the ruling regime permeated the language of courts when, in Ayodhya dispute case, the Supreme Court evoked God as a litigant and backed the communal campaign. Tragically, divine interventions, and not constitutional laws, were upheld by the former Chief Justice. What we need is sensitive courts and activist judges who can push for transformative constitutionalism. So, over the years, from early activism, the courts are now pushing for divinity, theocracy, and diluting the spirit of the constitution. Also, wherever favourable judgements are given, these are because women have pushed for the same. 

Ayishath: How do you think the UCC can be made truly inclusive? Do you think we could take examples from other jurisdictions and if so, which ones?

Dr. Shalu: In Western countries, they talk about secularism in terms of separation of the church and the state. In USA or Europe, personal laws reflect broader political or social ideologies that prioritise individual rights. Family laws have been liberalised in these countries to promote gender equality. In some Middle Eastern countries, personal laws are shaped by traditional Islamic norms. However, over the years, some progressive changes have been introduced gradually to increase women’s participation in public life.

In British colonies such as India, colonialism made a drastic impact. In South Asia, for example, before colonialism, indigenous patriarchy already undermined women’s rights. The colonial rulers deepened these disparities by imposing Victorian morality, which further entrenched gender roles. They decided not to directly interfere with the family laws of the native population. The Warren Hasting Plan clearly prescribes Shastric Law for Hindus and Islamic laws for Muslims. This decision allowed personal laws to remain influenced by religion. However, indirectly, while adjudicating the family or property disputes, the colonisers interpreted and codified personal laws through their imperial lens, shaping them around male-dominated practices. In doing so, colonial rulers reinforced patriarchal structures, institutionalizing laws supporting male authority within the family and society

India declared itself a secular nation upon gaining independence; its family laws were not secularised. The UCC was an attempt to secularise the religious laws. However, among constitutional values of equality and liberty, the principle of non-interference with personal laws allowed the continuation of separate family regulations based on religion. Successive governments strategised to avoid offending the religious sentiments. Though attempts were made to codify Hindu law, sex inequalities persist. Hence, colonialism has severely affected gender justice. However, now we can think of secularising each religion from within, because religions can adapt themselves with the changing times. Also, considering the current situation and pressure to create a theocratic state, the ideal would be to separate religion from the state.

Ayishath: You mention how some women’s organizations have advocated for an optional gender-neutral code. Could you elaborate on what exactly this “optional” code would entail? Do you think it is a viable option and why?

Dr. Shalu: The idea of an optional code is not only mentioned by women’s organizations but even in the 1939 Report on the Role of Women in the Planned Economy when the issue of the Common Civil Code first came up and also within the Constituent Assembly when the UCC was discussed, some members suggested for the voluntary Code or the optional code.

Optional Code implies that the current system of personal law continues and the state say brings in a new Feminist Code. This code is not forced upon people. If I want, I can stick to the old law. So, the choice is with me as a litigant if I want to go by the existing law or the new law.  The idea is to protect individual autonomy, dignity, and rights. The state has to provide options. The makers of the Common Civil Code imagined that gradually the personal laws will be replaced by the Code. This idea entails a Code that could go hand in hand with legal reforms.

Another option discussed was the strategy of reverse optionality which entails that any person can revert to personal law if she desires. Also, suggestion have been made to enforce a separate codification of each personal law and the amendments for the secular and non-sexist provisions under the Special Marriage Act with the option to be given to people. While this secular law was initially enacted to perform intergroup marriages, its mechanism of civil marriage can be utilised by members of the same faith. Some organizations suggested that this act could be considered as a starting point for a secular Code while weaving in mechanisms to tackle issues such as sexual violence and women’s economic rights.

This is a viable option because people can choose by which law they should be governed. Meanwhile, the state can take up education, awareness and sensitization program to inform the communities about the idea of gender justice. It can also build trust among women and communities. It is non-coercive way of enforcing a law. It upholds an individual’s autonomy

Ayishath: Final question – on a personal note, do you have any personal experiences as a lawyer that you think distinguishes your perspective on the UCC from that of someone looking at it from a purely academic point of view?

Dr. Shalu: If you read my paper, it is a mix of research with advocacy which I have called as a Praxis approach where you relate theory with practice at the ground level and vice versa. I will not go into details here, but you may read my book on Human Rights in Everyday Life: A Praxis. You can also read Paulo Freire’s work, The Pedagogy of the Oppressed. He talks about developing critical, consciousness, awareness, and sensitisation, not academic jargon, because the basic purpose of research is to take it back to the people. It is not funding-driven and I am not writing for an academic or niche audience, I have learned by working on the streets. The purpose is to share your work. It is about transparency and accountability. Communicate your findings, demystify the laws. Research has to advocate for policy change. Different from the top-down academic approach, my work is about a bottom up approach where you communicate the people’s voice to the policymakers and the lawmakers and impact decisions.

So, I am talking about the feminist code. I am advocating for women-led reforms because I have worked with women litigants from different communities who have approached the courts with various issues such as divorce, custody, maintenance, domestic violence, dowry abuse, and so on. Despite facing numerous difficulties, women are demanding justice for themselves and their children. Of course, working in the Delhi courts, there may be a bias from dealing with urban women. But most of these women include women from diverse backgrounds. Some were from slums and those living in posh areas, educated as well as lesser educated women, those having finances and those not. But I could see that one thing that is common among all these women is the courage to fight for justice. It is this grit and determination that has given me the confidence to say that any law affecting women should be made by women.

Not just that. Even during the protests against CAA, and the farmers’ protest, we have seen how women from all over the country joined the wider protests – because they felt that they were affected by the laws pushed by the state. The huge participation of women in contesting laws shows that they are not passive recipients.

During my engagement with women’s organizations and human rights organizations, I have learned how people-friendly laws are being made, implemented, monitored, and revised over the years. For instance, the Domestic Violence Law, the POSH Act or the Sexual Harassment Law, the RTI, the NREGA, and the National Food Security Act, are all being made at the ground-level where proactive citizens and social organizations came together to demand these rights. I can say that because I was a part of some of these struggles. These women-led efforts start from the problem and build up to the top levels with the solutions. These laws, therefore, empower people and are concerned with people’s participation. They are based on the experiences of women, their concerns, their needs, and their realities. What I am suggesting is the strengthening of this feminist approach.

We have witnessed that men’s law, across the world, or the top-down approach, has led to war, destruction, trauma, violence, and the erosion of civilizations, so it’s time to change that. Therefore, I am advocating for a feminist code. Laws and policies are to be made for people and not the other way round. #ReplaceManusmritiwithMahilaHaqSmriti