Friday, 21 October 2016

Equality before the law

As the All India Muslim Women Personal Law Board (AIMWPLB) filed a petition in the Supreme Court (SC) asking for a ban on triple talaq, ‘e- talaq’and ‘postal talaq’ to be declared invalid,the great debate over Uniform Civil Code erupted and took over the nation again. You must have heard all sorts of Articles of Constitution being cited on all the big news channels, everyone giving their own logic and reasoning for their points of view. In this blog I am putting forth mine. 

Right off the block, I am all in favour of a Uniform Civil Code (UCC), not just to address the whole gender equality issue, giving men and women equal rights in terms of marriage, inheritance and divorce. But, I want UCC because in a wide diverse nation such as ours, I believe we need a little more homogeny. That doesn't mean I am advocating 'Hindu rashtra' and just to be clear, I firmly believe that UCC should not be based on the template of Hindu Law. None of the personal laws are perfect, UCC should be getting the best of all of the personal laws and keeping behind the negatives. I want this ‘One Nation, One Law’ because I think it will be the first step to achieve the goal of 'equality' set out in the Preamble of the Constitution.
Any student of law will give you a list of various laws existing in India enacted by British Raj which are not in the spirit of gender equality. That is all those laws do not spell out rights, obligations and duties equally to all men and women. A perusal through some of them will give us some idea of the inequality contained therein.
First of all, Section 497(Adultery) of Indian Penal Code (IPC) gives right to the male spouse alone to invoke this section. This means that the wife has no right punish the women having sexual relation with her husband. Anyone even casually reading section 497 of IPC will understand that women is actually equated as property of the husband. Second such provision  isSection 125 (Maintenance) of Code of Criminal Procedure (CrPC) where the right is given onlyto the female to claim maintenance from the male. To be precise, the son and the father can also claim maintenance, subject to age and other factors. However between the spouses, the husband is expected to pay maintenance to the wife and no such right is available to the husband as against the wife. There is also the Domestic Violence Act, 2005 but I will get to it later and yes, all these legislations are applicable to all of us, despite the religion you follow.
Then there are the once categorised as personal laws, those laws that apply to persons based on their religion. The most messed up of them all I think is the Muslim Law. The divorce law for example gives right to the husband to give talaq (divorce) without any cause or reason, whereas the wife has to satisfy the court that she is eligible for divorce under various grounds mentioned in the law, such as mental or physical cruelty. Also, Under The Muslim Women (Protection of Rights on Divorce) Act a Muslim woman can get maintenance from Husband and if she desires to apply under CrPC, it can be done only after taking permission from her husband.
CrPC is infact a secular law and actually meant to apply to all irrespective of caste, religion or gender. These are only some of laws that we all know of, I am not even going into analysisof succession and inheritance laws. These biases, predominantly in patriarchal laws exist even in Hindu personal laws, inspite of the gender equality that can be seen in Vedas, the oldest and the most sacred texts of the Hindu community. Nowhere in these texts is it mentioned that women were any less than men. They were not forced to sit behind four walls and confine themselves to household chores, instead they received education, took part in Shastrartha(debates), observed Brahmacharya and Upnayana and some even went to the battle field with their husbands. They were given equal legal rights and enjoyed equality of status unsurpassed ever since. A man was even considered to be incomplete without his spouse and she was known as his ‘Ardhangini’. In this blog for brevity, I have also avoided section 377 of IPC, taking away right from adult individual to choose his or her partner and complete void in the law with respect to transgender.
The question in your mind would be “How come these laws which are completely opposite to the principle of equality still be enforced even after giving ourselves the Constitution in 1950?” Importantly Article 14 states that "State shall not deny to any person equality before the law or equal protection of law". Also important is Article 13 that clearly states that "All laws in force in India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this part, shall to the extent of such inconsistency, be void." The answer to this question is the Supreme Court of India (SC). Whenever by petition the validity of such laws had been challenged, the SC had refused to interfere in these matters or uphold the validity on such laws. But all fingers cannot be only pointed solely at the SC. When the Muslim practice of payment of maintenance by husband only during 'iddat' period (three months after divorce) was challenged, The SC has been stern by declaring it void. But, then the political class of the time for their reasons (votes) decided to nullify the effect of such judgment by passing legislation. All this history makes us realize that neither the SC nor the Legislators had been of any help in this matter. 
This brings us to bigger question "Why is it so?" and "How can it change?" I believe that the Constitution has been misused with respect to these matters.  Dr.B. R. Ambedkar had said "If I find the constitution being misused, I shall be the first to burn it.”
I am not saying that, what I am saying is "What are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequality, discrimination and other things, which conflict with our fundamental rights.” (words of B.R. Ambedkar again). These two quotes of Ambedkar put things into the right perspective. We have not used the Constitution properly and our system can be reformed if we do use it properly. Furthermore, SC seems to be getting the right idea now.
Above I had mentioned about a post- independence law that was also not in the spirit of equality. The law is the Domestic Violence Act, 2005 (DVA), a law which is absurdly pro-women. Men are vested with statutory obligation to provide maintenance, a separate place of living and ridiculous other rights. All of these are fine as long as the women also are made liable for any physical or mental torture extended towards the husband. Under the law, if the husband beats up the wife, the husband is shown his place by the law (which is fair. You cannot under any circumstance resort to violence and it is rightfully punished). But if the wife does so, then no action, no remedy, nothing at all.
All of you, Husbands  you were all on your own. But don't you worry now, the SC on 7th October 2016 in an important pronouncement in Hiral PHarsora and ors Vs. Kusum Narottamdas Harsora & Ors, has struck down the words “adult male” before the word “person” in Section 2(q) of DVA holding that these words discriminate between persons similarly situated, and is contrary to the object sought to be achieved by the DVA. SC has done another marvellous pronouncement in D.Velusamy vs. D.Patchaiammal in the recent past by including "live-in-relations" within the scope of DVA. That means partner will have right to maintenance among other things. SC has not stopped there, and in Tulsa & Ors vs. Durghatiya & Ors,, the SC provided legal status to the children born from live in relationship. That means SC is not all that bad in these aspects, actually it has done a great job. It has only hesitated in the past regarding personal laws and at the same time advocating UCC.
As I've mentioned above, the only reason I'm advocating for UCC is to achieve 'equality' that the constitution is set out to do. Not forgetting that the whole issue has arisen again on basis of the petition before SC by AIMWPLB and they have specifically stated that they are not asking or advocating for a UCC, they merely want triple talaq to be declared as invalid. "The petition is asking for triple talaq in its present form to be banned and there should be an element of counselling. Lots of issues can be resolved by counselling. Often when a man gives talaq in a fit of rage but regrets it afterward, the couple has no option of going back because the Maulana says divorce has happened. We want that to change. Neither should talaq given over phone, by post or SMS be recognised,” said Shaista Amber, president of the AIMWPLB. Surprisingly, there have been stern opposition to this from All India Muslim Personal Law Board (AIMPLB). Even the Central Government’s affidavit before the SC has been heavily criticised by AIMPLB. The only point both the Boards appear to have in common is opposing to Government getting UCC. Both of them have made it clear that any attempt to codify Muslim law or bring in UCC will be interfering with their personal right to practice religion. Personally I do not understand how a non-government entity can stop the legislators from enacting anything. Everyone has right to judicial review, if the law doesn't pass the test of the constitution.
The real question is "What will SC do now?" SC has said in the past, "If anyone challenges the validity of triple talaq, it will look into its legality". Not to forget that SC also in the past except 'the maintenance to Muslim in iddat period only', have never interfered in personal law and that when it interfered also it was nullified by legislation.
Another question is "How will the AIMPLB react?" The AIMPLB has stated its opposition against government action. "What will they do if SC acts?"
This petition is specifically regarding one specific practice not in accordance with the spirit of equality.
 "Will this open floodgates for all other such laws being challenged again?"
 "Is UCC the solution?" or "Is there a third option?"
Many experts have said Special Marriage Act, 1954 is already in the nature of UCC, if extended to other facets of marriage, inheritance and succession. Only time will reveal the answers to these. (Follow this space for same!)
In conclusion, what can we do? How do we get ourselves heard in this shouting game? Or is upto the constitution experts only to take a decision on this matter for u?
Fear not, The Law Commission of India on 7th October has released a questionnaire and welcomed all concerned to engage with them in the comprehensive exercise of the revision and reforms of family laws as the Constitution provides.
So click on this link and exercise your right; Get involved! As B. R. Ambedkar said "Democracy is not merely a form of Government. It is primarily a mode of associated living, of conjoint communicated experien