Gender discrimination must be brought to end
By asking the Union Government to file before it a panel’s report on Muslim personal law within six weeks, the Supreme Court has maintained its recent focus on the need to review provisions in personal laws that have been widely seen as gender-discriminatory. The report, titled, ‘Women and the law: An Assessment of Family laws with Focus on laws Relating to Marriage, Divorce, Custody, Inheritance and Secession', had been submitted to the Ministry of Women and Child Development last year. Unfortunately, the report was put in the deep-freezer, probably because of political sensitivity. But with the apex court determined to pursue the matter, the Union Government will have to take the bull by the horns sooner than later. At the very least, there is a need to re-visit certain provisions of personal laws that discriminate against women in matters of property, marriage and divorce; at best there can be a case for doing away with the personal laws and bringing all communities under a common code generally referred to as the Uniform Civil Code. It is for the Government, Parliament and the judiciary to determine ways to take the right call. Meanwhile, expectedly, there is stiff opposition from organisations such as the All India Muslim Personal law Board, which has told the court that the Muslim personal law cannot be tampered with as it forms an article of faith for the Muslim community. But while the AIMPlB seeks refuge in the Constitution of India when it cites its right to practise its faith as laid down by the Sharia'h, it does not appreciate that the same Constitution gives equality to all citizens, men or women, and of all faiths. Interestingly, there are Muslim women organisations that have demanded a more equitable share, claiming that their religion gave them rights equal to men and that the AIMPlB was tampering with this doctrine. The Supreme Court's latest directive came in response to a petition filed by a Muslim woman, Shayara Bano, challenging the validity of the triple-talaq practice and polygamy among Muslim men, on the ground that they were discriminatory and went against the Fundamental Rights ensured for all Indian citizens by the Constitution. She claimed that she had been physically tortured and divorced through the triple-talaq process. Months ago, the apex court had been seized by a few other petitions, primarily raising similar questions of gender-discrimination in personal laws.
We would have perhaps not been facing these issues today had the landmark verdict of the Supreme Court in the Shah Bano case of 1985, been allowed to stand. Unfortunately for the country, the then Government of Rajiv Gandhi capitulated to clerics and fundamentalists and got Parliament to amend the Constitution, thus rendering the judgement infructuous. The apex court had ordered alimony to Shah Bano, a destitute petitioner, after she had been summarily divorced by her husband, and this was objected to by the clerics on the premise that the verdict had interfered with Muslim laws. Had the verdict not been negated, it could have triggered other wide-ranging changes in personal laws. It is disappointing that even three decades later, while the society around them has changed, the fundamentalists have not revised their rigid position.