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Social Text 18.4 (2000) 55-82
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Women between Community and State:
Some Implications of the Uniform Civil Code Debates in India
Rajeswari Sunder Rajan
This essay is an attempt to think through the question of women's position in relation to the state and to religious communities, a position that is invariably played out as a conflict between the exercise of women's citizenship rights and the claims of the religious communities they belong to. This issue figures in the debates and conflicts around a Uniform Civil Code (UCC) for India, which are among the most vigorous and divisive in the present Indian intellectual and political scene, concerning as they do the desirability or otherwise of instituting such a set of laws to replace the current personal laws, and, if the first, the manner of doing it and the content of such laws.
This essay is divided broadly into two parts. In the first I set out the main positions on the UCC, identify the relationships among individual, community, and state on which they are premised, and highlight the feminist interventions made on grounds of gender, citizenship, and rights. The second part of the essay seeks to locate women as "national subjects" in relation to, but also beyond, the state and the religion-based community that the UCC debates invoke, as providing the only two alternative resources and identities for the (gendered) Indian citizen.
The operation of separate personal laws for different religious communities in India is a legacy of colonial administration. Four religious communities, the majority Hindu, and the minority Muslim, Christian, and Parsi communities, have their own personal laws (other religious groups such as Sikh, Buddhist, Jain, and tribal and scheduled castes are subsumed under Hindu law). No one is exempt from or may opt out of a religious identity (Indians may choose, however, to be married under a nondenominational Special Marriage Act). Personal laws operate in matters relating to inheritance, marriage, divorce, maintenance, and adoption, which are regarded as "personal" issues, understood to be matters that relate to the family or "personal" sphere. Despite differences among them, the personal laws of all communities are discriminatory toward women.
Personal law, since it is envisaged as a means of securing community [End Page 55] identity and respecting religious difference, operates therefore within rather than despite a constitutional commitment to the secularism of the Indian state. Any proposed reform or removal of personal laws becomes a fraught issue and is perceived as a threat to community identity and/or traditional patriarchal arrangements. Following the Shahbano case (which in 1986 resulted in passage of the regressive Muslim Women's Protection of Rights on Divorce Act), a uniform civil code became an issue of moment in the Indian political scene. 1 Since the Bharatiya Janata Party (BJP), subscribing to a Hindutva ideology and politics, came to power at the Center in 1998 with the promise of instituting such a code, it continues to be a prominent issue on the agenda of the Indian state.
The Uniform Civil Code: Positions
In the contemporary debates on the UCC, the following broad positions may be identified:
- Constitutional secularism: The Indian Constitution approves a UCC in principle but not in practice. The main consideration for the first is that legal uniformity will serve as a means of overcoming religious differences and achieving national unity. The subtext, at least at the time of Independence, was also that secular laws would be in keeping with the modernizing agenda of the postcolonial nation-state. However, the difficult communal situation at the time of Independence, and the opposition to removal of personal laws at such a time, led to the accommodation of a UCC only as a directive principle in the Constitution (directive principles are constitutional injunctions, viewed as policies to be kept in abeyance and implemented in the fullness of time).
- Religious patriarchy: The opposition to reform in personal laws was most vociferous when a reformed Hindu Code bill was proposed in Parliament in the early years of Independence. Its...