Rethinking the UCC debate

In a recent opinion piece I argue that the rather hackneyed debate on the UCC and Indian multiculturalism needs to be reimagined given certain significant shifts in ground realities.

"Legislative reforms in Hindu and Christian law and the increasing juridification of Muslim law have created a greater degree of uniformity between the different personal laws. Secondly, there has been greater democratization inside communities and a concerted attempt to reform family law from within. Third, new social surveys have demonstrated that the differences in gender dynamics and family structures bear a greater correlation to economic class and geography than to religious identity. Finally, the focus in family law reform has expanded to address questions of domestic violence and the right to a matrimonial home which cut across community identities"

Because of the limits of the format I was not able to supply all the references that I would have liked, but for those who are interested I would recommend

-on the juridification of Muslim family law
Flavia Agnes, Law, Justice and Gender: Family Law and Constitutional Provisions in India (Oxford, New Delhi, 2010)

- on fragmentation within Muslim organizations

Justin Jones, ‘Signs of churning’: Muslim Personal Law and public contestation in twenty-first century India"

Sylvia Vatuk, “Islamic Feminism in India? Indian Muslim Women Activists and the Reform of Muslim Person Law.” In F. Osella and C. Osella, eds., Islamic Reform in India, Special Issue, Modern Asian Studies 42/2 & 3, 2008.

-on survey data on the conditions of Indian women

Zoya Hasan and Ritu Menon, Unequal Citizens: A Study of Muslim Women in India (Oxford University Press, 2004)

Criminal Law (Amendment) Bill, 2010

The draft Criminal Law (Amendment) Bill, 2010 is available here for comments and suggestions. The Bill seeks to make sweeping changes to the Indian rape law regime. Interesting features include the following:

1. The term "sexual assault" replaces "rape". The definition is widened to include object and digital penetration (but the requirement of penetration as an element of rape is retained).

2. The bill retains the man-on-woman concept of sexual assault, instead of making the crime gender-neutral.

2. The Bill raises the age of consent to 18. This means that consent of a woman below the age of 18 is immaterial. Whether or not this is too high a threshold needs to be evaluated.

3. The Bill retains the marital rape exemption, a deeply problematic provision in any case. The problems with the section are compounded by the provision that under the age of 18, sexual intercourse by a man with his wife amounts to rape. While the intention seems good, as long as child marriage itself is not invalidated, any beneficial purpose of the provision would be largely lost.

4. The Bill imposes higher sentences for certain forms of acquaintance rape, particularly by relatives, those in positions of trust and those in positions of economic, social or political dominance.

5. Section 376C deals with sexual abuse of minors. Surprisingly the Bill amends the CrPC to include Section 198B to provide that cognizance shall not be taken of an offence under this section except on a police report or when a complaint is made by the victim or certain close relatives. This provision seems to fly in the face of logic, given clear evidence that children face the biggest threat of abuse from family members; that the culture of shame and silence surrounding sexual abuse ensures that children and their families will not readily speak out against such offences; and that other care-givers like educators might be equally well (if not better) placed to complain about such offences.

These are some initial thoughts on the draft Bill. A comparison with the 172nd Law Commission Report recommendations would be instructive in determining the pros and cons of the Bill.