ABSTRACT
Socio-legal discourse about what constitutes ‘gender justice’ increasingly entails the debates around the Uniform Civil Code (UCC). Over three decades of contemplation about enacting a uniform code throughout the country, it remains one of India’s most highly contentious issues for securing women’s equal rights.
This paper presents an overview of UCC and the historical background shaping its demand. It further explains the role of the state and its legal system in securing equal rights for women in the backdrop of important cases citing a uniform code. It also highlights the current discourse around gender justice and aims to examine the issues with UCC, and attempts to answer whether uniformity in law will suffice as women’s equality and empowerment in India.
INTRODUCTION
A Uniform Civil Code’s (UCC) central idea is that all sections of society, irrespective of their religion, shall be treated equally according to a national civil law in matters of marriage, divorce, maintenance, and inheritance.
However, the adoption of uniformity in law will be at odds with the current pluralistic ways of organising relationships through personal law. These are largely drawn from the interpretations of various customs of distinct religions that find their origins in patriarchy (Parashar 1992). Uniformity is put forth as the single solution to a myriad of problems of religion-based personal laws in India.
UCC is placed under Article 44 of the Directive Principles of State Policy (DPSP), which reads that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” (The Constitution of India 1950). It is intended to replace the fragmented personal laws that currently govern civil matters. However, the Directive Principles of State Policy as defined under Article 37 proclaim that “The provisions contained in this Part shall not be enforceable by any court, and the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making” (The Constitution of India 1949). This means that it does not come with a constitutional guarantee. Nonetheless, courts have opined on the matter, calling it a goal towards national unity (Shayara Bano vs Union of India 2017). It often receives scathing attacks by those who believe UCC conflicts with fundamental rights such as freedom of religion and rights of minorities.
HISTORICAL BACKGROUND AND CONSTITUENT ASSEMBLY DEBATES AROUND UCC
The development of civil laws in India is intrinsically linked to the history of personal laws. Lord Warren Hastings believed in the logic of boxing identities in rigid categories under the 1772-73 Regulation Act, which pronounced that Hindus and Muslims should be governed by their respective laws (Menon 1998: 48). Later in 1835, the British Government submitted its report stressing the need for uniformity in the codification of Indian laws on crime, evidence, and contracts, explicitly recommending that Hindu and Muslims ‘personal laws’ be kept out of this codification. These laws remained uncodified to categorise the pluralistic population along the religious lines. It was also done to evolve a judicial system in response to the prevailing social conditions and majorly to appropriate imperial purposes of greater control over the Indian Territory (Agnes 2011). The term ‘personal law’ was first introduced in the Presidencies of Calcutta, Bombay, and Madras only during the eighteenth century when the existing arbitrations were transformed into state-controlled adjudications. Even when the administration shifted from the British East India Company to the British Crown, the practice of saving ‘personal laws’ continued (Agnes 2011).
It was only post-independence, during the drafting of the Indian Constitution, that the Constituent Assembly debated Article 35 on 23 November 1948 and directed the state to implement a Uniform Civil Code across India. It was based on the conception that ‘personal laws’ reflected the divine law of the religious texts and contained anti-women practices projected as customary laws (Parashar 1992). Thus, it was believed that human intervention in the form of a Uniform Civil Code was an effort towards an egalitarian society.
A considerable number of Constituent Assembly members loathed this debate, with most of the opposition coming from Muslim members, who thought that UCC was inimical to the religious and cultural ethos of Indian society. Mohammad Ismail, a member of the Madras legislative assembly, argued that the right to adhere to one’s ‘personal laws’ was one of the fundamental rights and that personal laws are a part of the way of life. While addressing the assembly, he emphasised that a provision be added to Article 35 reading, “Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law” (The Constitution of India 1949). Several Hindu leaders also shared a view similar to that of their Muslim counterparts. M. A. Ayyangar, who was the first Deputy Speaker of the Lok Sabha in the Indian Parliament, argued that the Indian concept of secularism tolerated the existence of all religions with equal honour and dignity and should be allowed to observe their own ‘personal laws’ (Constituent Assembly Debates 1948). Sucheta Kripalani — a freedom fighter, member of the Constituent Assembly, and the first woman Chief Minister of Uttar Pradesh in 1963 — argued that in the light of the prevailing social conditions, it is best not to adopt Uniform Civil Code and visit it in future.
