Editorial 1: Uniform Civil Code: Can the debate be extricated from identity politics and refocused on gender equality?
Context:
- Once again there is a clamour to replace diverse personal laws with a Uniform Civil Code (UCC), applicable to all Indians, irrespective of religion, gender or caste.
- Some states (for example, Uttarakhand) are already drafting one. Yet no one seems to be addressing critical questions on how such a Code would be defined. For example,
- the uniformity of what?
- Existing personal laws govern marriage, inheritance, adoption and guardianship, and each varies by religion and region. Will all these dimensions be consolidated into one Code, or will each be treated separately, as in current laws?
- In either case, what principles will guide uniformity? Will it involve cherry-picking features from divergent personal laws, or choosing one set of existing personal laws, or constituting an entirely new set of laws?
- Most importantly, will the UCC be secular and gender-equal on all counts?
Major areas which are talked under UCC:
- In fact, the UCC discussion has focused largely on marriage, eliding the intricate issue of inheritance.
- Marriage laws are easier to unify, but they too have complexity. The commonly cited issue, polygyny, is a red herring since a few Indians practise it anyway. The figures are: 1.3 per cent Hindus, 1.9 per cent Muslims, and 1.6 per cent others (NFHS-5, 2019-21).
- The complexity lies in divergent social and kinship rules that specify whom one can marry. Even Hindus diverge. Those in northwest India forbid marriage (based on sapinda) between anyone related within five generations on the father’s side and three on the mother’s side.
- Marriages within a village are also forbidden. However, Hindus in the south and northeast India allow uncle-niece and cross-cousin marriages (although uncommon in practice). And Muslims allow marriage even between parallel cousin
- Inheritance laws present a deeper conundrum.
- Today, Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA); Muslims by the Muslim Personal Law (Shariat) Application Act, 1937; Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently), and tribal groups are still subject to custom.
- Among the mentioned laws, at least six major points of divergence will make unification difficult, and possibly untenable.
- First, Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction.
- Second, within Hindu law itself, states diverge. Kerala abolished joint family property altogether in 1976, but other states retained it, and matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus.
- Third, the right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property; and Sunni and Shia Muslims differ on who can get such property and with whose consent.
- Fourth, while the inheritance laws of Hindus, Christians and Parsis are largely gender equal today, under Muslim personal law, based on the Shariat, women’s shares are less than men’s, generically.
- Fifth, land (a key productive resource) is treated differently from other property in some personal laws but not others. The HSAA 2005, for instance, deleted the clause which discriminated against women in agricultural land, but the 1937 Shariat Act governing Muslims continues to exclude agricultural land from its purview, leaving a major source of gender inequality intact.
How to tackle these differences
- Divergence apart, it is a contradiction to allow each state to draft its own UCC which is supposed to apply to all Indians.
- It is important to recall that the current demand for a UCC differs notably from the demand made by women’s organisations in the 1930s. They wanted a UCC for gender equality and lobbied to have it included in the Constitution as a justiciable right.
- Instead, it was incorporated only within the Directive Principles of State policy and put on the back burner. Today, the UCC debate has become enmeshed with “identity politics”, deflecting it from the original aim of gender equality. And the mingling of legal reform with religious identity has sharpened political divisiveness.
- UCC should also be seen in with the vision of Gender Justice:
- There is no easy answer. Discussions among women’s groups in the 1990s highlighted three positions.
- Encourage each religious community to pursue its own reform for gender equality.
- Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood.
- Constitute a gender-equal civil code applicable to all citizens without option, based on the constitutional promise of gender equality, rather than on religious decree or custom.
Conclusion:
- For a start, rather than one code covering inheritance, marriage, etc., we should discuss each separately. On inheritance, which is the most complex, a secular law based on constitutional rights will clearly go the farthest towards gender equality.
- Whether this is possible in today’s divisive political environment remains an open question. But at least we should restart the conversation
Editorial 2: External Affairs Minister S Jaishankar’s visit to Sri Lanka: Key takeaways
Recent Context:
- External Affairs Minister S Jaishankar’s visit to Sri Lanka, after his visit to the Maldives, he conveyed the relation between nations as
- glad tidings
- a much-delayed invitation, and
- two strong messages on India’s expectations of its nearest Indian Ocean neighbours
- Taken together, the three provide an understanding of how Delhi views its relations with Colombo.
The good news
- Jaishankar’s January 20 visit came a day after India had conveyed to the International Monetary Fund (IMF) that India strongly supports Sri Lanka’s debt restructuring plan.
- India is the first bilateral creditor to do so. Sri Lanka has sought similar reassurances from China and other creditors as well.
- “As soon as adequate assurances are obtained and remaining requirements are met…a Fund-supported program for Sri Lanka can be presented to the IMF’s Executive Board for approval that would unlock much needed financing,” the IMF said in a statement on Monday.
- As in Last September, Sri Lanka qualified for an IMF Extended Fund Facility of $ 2.9 billion to tide over its economic crisis, but as a precondition, Colombo’s bilateral creditors must provide financing assurances on debt sustainability. China, Japan, and India are Sri Lanka’s main bilateral creditors.
- The creditors’ main concern is that the restructuring plan must treat all creditors equally. India and China did not accept the invitation of the Paris Club; a group of 22 OECD nations of which Japan is part ; to join the platform. India and Japan have been in bilateral discussions with Sri Lanka; China is yet to say clearly what it wants.
India’s stand on Sri Lanka’s financial support mechanism
- MEA said that India is acting on its Neighbourhood First principle in Colombo that in going to the IMF first, India “did not wait on others and decided to do what we believe is right”,
- He hoped other bilateral creditors would follow suit. He did not mention any other country, but said India expected that its first move would not only help Sri Lanka consolidate its position, but that all creditors would would be treated equally.
- The Sri Lankans were appreciative of last year’s $ 4 billion bailout from New Delhi; they would now be even more acutely aware that not only did Beijing not pitch in last year, its seeming reluctance to give the assurance the IMF requires, could derail any recovery plan.
- Of the total bilateral debt, China’s share is 52 per cent, Japan’s 19.5 per cent, and India’s 12 per cent.
Message conveyed to Sri Lanka:
- India has been clear that its cooperation would rest on the “four pillars” of energy security, food security, currency support for foreign exchange, and Indian investment in Sri Lanka; Since end-2020, when Sri Lanka’s then finance minister Basil Rajapaksa arrived in India to seek help to tide over the crisis that was rapidly building up at the time.
- Over the last year, India has managed to push both long pending projects such as the Trinco oil tank farm, as well as new ones such as the Adani investment in wind farms in north-western Sri Lanka.
- The Adani Group is also developing the west container terminal at Colombo port. But rumblings continue in Colombo at the apparent quid pro quo in these deals.
- Jaishankar’s first blunt message was that financial assistance is a quick-fix that cannot on its own put Sri Lanka on the path of economic recovery.
- India was ready to help with the investment it needs, but Colombo must create the right environment. India, Jaishankar made it clear, was interested in the energy, tourism, and infrastructure sectors
- Sri Lanka’s renewable energy potential is said to be much more than it can consume.
- Selling the surplus to India by connecting to an Indian grid through undersea cables is projected as a sustainable source of revenue. Also, the oil storage capacity in Trincomalee could be utilised to provide energy security both to Sri Lanka and the region.
- The second message is one that India has sent loudly and emphatically over the past few months asking the Sri Lankan government to implement the 13th amendment in its constitution.
- The amendment, which provides for elected provincial councils, was introduced at India’s intervention in 1987. It is the only concession in the constitution on the Tamil demand for devolution.
- The amendment opposed tooth and nail by Sinhala-Buddhist nationalists both then and now was intended to create a provincial council in Sri Lanka’s Tamil north-east. As it could not be an exceptional provision, the whole country was carved into provinces for the first time
Conclusion:
- India shares historical, socio-cultural relation with Sri Lanka and Both nations can further strengthen bilateral relation by strengthening trade and commerce and helping out during economic crisis situation; new areas of economy such as renewable energy and port development and providing net security in the Indian ocean.
