BY: GEETANJALI BHARDWAJ, B.A.LL.B(HONS.), VII SEMESTER, UNIVERSITY OF ALLAHABAD
Keywords: Constitution, Egalitarian society, Right to equality, Gender justice, Uniform Civil Code, patriarchal traditions
Abstract
This article examines the Indian Constitution’s commitment to fostering an egalitarian society, emphasizing equality and justice for all citizens regardless of religion, caste, sex, or place of birth. Despite constitutional guarantees, such as the right to equality before the law and directive principles promoting social equity, women in India—comprising nearly half the population—continue to face systemic gender-based discrimination rooted in patriarchal traditions, religious norms, and cultural practices. The struggle for gender equality remains hindered by societal biases and institutional barriers, necessitating affirmative action to realize constitutional ideals. Central to this discourse is the Uniform Civil Code (UCC), which seeks to establish a unified legal framework for civil matters, balancing religious freedoms with individual rights.
This paper traces the historical evolution of the UCC, from colonial influences to modern judicial interventions like the Shah Bano case and reforms such as the Hindu Succession Act, which aim to address gender disparities. It also analyzes ongoing challenges, including resistance from conservative groups, administrative complexities, and the tension between cultural diversity and secular principles. Drawing on international perspectives, the article advocates for inclusive dialogue, gender-sensitive legal reforms, and stakeholder engagement to pave the way for a just and equitable legal system that upholds human rights and promotes social justice for all.
Introduction
This analysis delves into the multifaceted debate surrounding the Uniform Civil Code (UCC) in India, particularly its implications for gender justice and equality. The UCC, as envisioned, seeks to replace the existing personal laws—governing marriage, divorce, inheritance, and adoption—with a single, secular legal framework applicable to all citizens, irrespective of religion.
Gender equality, a cornerstone of India’s Constitution, seeks to ensure women’s dignity and equal rights. Enshrined in Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy), the Constitution of India mandates the state to promote gender justice through legislation. While Articles 39 and 42 of Indian Constitution have spurred laws to enhance women’s rights, Article 44, which calls for a Uniform Civil Code (UCC) across India, remains unimplemented even after 75 years.
Given India’s diverse cultural and religious landscape, the debate is both complex and contentious, especially concerning its potential to advance gender justice while respecting cultural identities. This article explores the debate on whether UCC can advance gender justice while respecting India’s diverse cultural fabric.
Historical context of Uniform Civil Code
The Indian Constitution, under Article 44, urges the state to establish a Uniform Civil Code (UCC) across India to promote equality and justice. However, the term “uniform” is undefined, and applying a single codified law to India’s diverse population is challenging. Here, “uniform” implies laws grounded in principles of gender justice and equality, allowing diverse personal laws to coexist under shared values of individual liberty.
During Constituent Assembly debates, Muslim members opposed UCC, citing violations of religious freedom (Article 25) and potential oppression of minorities. Supporters, including K.M. Munshi, countered that personal laws are not sacrosanct and secular matters like marriage and inheritance should be distinct from religion, as reinforced by Article 25(2). Dr. B.R. Ambedkar highlighted that a Uniform Civil Code seeks to address social disparities, promoting fundamental rights to build a cohesive, secular nation. He contended that personal laws, often rooted in religion, should not uphold discriminatory practices.
The Constitution’s framers envisioned UCC to separate law from religion, promoting equality and national unity, though gender justice was less emphasized. Despite its inclusion in the Directive Principles, successive governments, including the current administration, have made little progress toward implementation. In the absence of UCC, the Supreme Court has interpreted personal laws to protect women’s rights in matrimonial disputes, relying on Article 44’s spirit to advance gender justice.
Gender equality in Personal laws
Hindu Personal Laws: The Hindu Code Bills of the 1950s reformed Hindu laws, addressing issues like polygamy, child marriage, and women’s property rights. The Hindu Marriage Act, 1955, and Hindu Succession Act, 1956, advanced gender equality, but challenges persist. For instance, women in some regions face restricted succession rights, and maintenance disputes often disadvantage them, reflecting ongoing gender biases in customary practices.
Muslim Personal Laws: Derived from Sharia and interpreted by religious authorities, Muslim personal laws regulate marriage, divorce, and inheritance. Practices like polygamy and triple talaq (until banned in 2017) have historically marginalized women, offering limited divorce and inheritance rights. These laws often reinforce patriarchal norms, restricting women’s agency and economic empowerment.
Christian Personal Laws: Governed by statutes like the Indian Christian Marriage Act, 1872, and Indian Succession Act, 1925, Christian laws offer relatively progressive provisions. However, disparities in divorce and property rights persist, with women facing challenges in asserting legal entitlements, particularly in inheritance disputes.
Parsi Personal Laws: The Parsi Marriage and Divorce Act, 1936, provides progressive rights for women in marriage and divorce. Yet, conflicts between statutory provisions and customary practices in succession create legal uncertainties, often affecting women’s inheritance rights within the Parsi community.
Other Communities: Sikhs, Buddhists, Jains, and tribal communities follow distinct personal laws, many of which reflect patriarchal norms. Discriminatory practices, such as restricted property rights for women, persist, and reform efforts face resistance from conservative groups, complicating the pursuit of gender equality.
Arguments in favour of UCC for Gender Justice
Elimination of Discriminatory Practices
UCC can abolish gender-biased practices embedded in personal laws, such as polygamy and unilateral divorce (e.g., triple talaq in Muslim law, banned in 2017) or unequal inheritance rights in Hindu and Muslim laws. A unified code would ensure equal treatment in marriage, divorce, and property rights, aligning with Article 14’s guarantee of equality.
Standardized Legal Protections
By harmonizing laws, UCC would provide consistent legal protections for women across communities. For example, Goa’s UCC ensures equal property division for spouses, a model that could prevent disparities like limited maintenance rights for Muslim women or restricted succession rights for Hindu women in certain regions.
Empowerment through Legal Clarity
A single legal code would simplify judicial processes, reducing complexities arising from varying personal laws. This clarity would empower women to assert their rights more effectively, ensuring access to justice in matters like divorce and inheritance, as seen in progressive international models like Turkey’s civil code.
Promotion of Social Justice
UCC aligns with constitutional goals of social justice by dismantling patriarchal norms embedded in personal laws. By ensuring equal rights, it fosters women’s economic and social empowerment, reducing systemic inequalities across communities.
The Supreme Court and Law Commission, notably under Justice B.S. Chauhan, have supported UCC for gender equality, with efforts to gather public input.
International examples, such as Turkey and Tunisia, demonstrate how UCCs have advanced women’s rights in marriage, divorce, and inheritance, offering potential models for India.
Arguments Against UCC for Gender Justice
Opponents, particularly from minority communities like Muslims, argue that the UCC could infringe upon their religious freedoms, as guaranteed under Article 25. The All India Muslim Personal Law Board (AIMPLB) contends that Muslim personal law, derived from the Quran, is not subject to judicial review under Article 13, viewing UCC as an attack on religious identity. Critics highlight that the debate often focuses on Muslim law’s negatives while ignoring discriminatory practices in other personal laws, such as dowry deaths and kanyadan rituals under Hindu law.
There is also concern that a UCC might not address all forms of gender discrimination uniformly.
For instance, while Hindu law was codified in 1955-1956 to reduce some discrimination, issues like women not being coparceners in all states (only Andhra Pradesh, Maharashtra, Karnataka, Tamil Nadu) and restrictions on adoption persist.
Additionally, the lack of political consensus, driven by fears of losing minority vote banks, hinders implementation, potentially leading to communal tensions. Suggestions include codifying Muslim Personal Law first and holding referendums to gauge minority opinions, ensuring a more inclusive approach.
Landmark Judgments and Their Impact
Several landmark judgments have underscored the need for legal uniformity to ensure gender justice, highlighting the judiciary’s role in pushing for reforms:
– Shah Bano Case (1985): In Mohd. Ahmed Khan v. Shah Bano Begum (AIR 945, 1985), the Supreme Court ruled that a Muslim woman is entitled to maintenance under Section 125 of the CrPC, beyond the iddat period, sparking debates on reforming Muslim personal law. This case emphasized the need for legal uniformity for gender justice.
– Sarla Mudgal Case (1995): In Sarla Mudgal v. Union of India (3 SCC 635, 1995), the Court called for a UCC to address discrepancies in marriage and divorce laws across religions, stressing secularism and equality.
– Shayara Bano Case (2017): In Shayara Bano v. Union of India (9 SCC 1, 2017), the Court struck down instant triple talaq (talaq-e-biddat) as unconstitutional, highlighting the need for gender justice and the broader necessity of a UCC.
– Mary Roy Case: This case challenged discriminatory Christian succession laws, upholding gender equality in inheritance, though specific citation details are less prominent in recent discussions.
– Daniel Latifi Case (2001): Ensured Muslim women’s maintenance rights beyond the iddat period, reinforcing gender justice in personal laws.
These judgments illustrate the judiciary’s efforts to bridge gaps in personal laws, often in the absence of a UCC, and underscore the potential for legal reforms to advance women’s rights.
Constitutional Provisions and UCC
The constitutional framework is central to the UCC debate. Article 44, under the Directive Principles of State Policy, mandates the state to secure a UCC, reflecting the constitutional commitment to gender equality and social justice. However, its non-binding nature contrasts with Article 25, which guarantees freedom of religion, often cited by opponents to preserve personal laws.
Professor S.P. Sathe has argued that personal laws are not part of freedom of religion, subject to public order, morality, and health, suggesting they must align with constitutional equality principles.
The tension between these provisions highlights the need for a balanced approach, ensuring that UCC implementation respects religious freedoms while promoting gender justice. The Law Commission report has also emphasized the need for reforms in personal laws to ensure gender equality, aligning with Article 14’s guarantee of equality before the law.
Challenges and Prospects
Enacting a Uniform Civil Code encounters major obstacles, such as opposition from entrenched traditional and patriarchal values, concerns among minority groups about preserving their cultural identities, and difficulties in achieving political agreement due to vote bank considerations.
The recent implementation in Uttarakhand faced opposition from minorities, highlighting the difficulty in balancing gender justice with cultural diversity. Diversity within personal laws, such as tribal customary laws where women cannot hold property among Santhal and Bhil, or regional variations like Goa’s UCC, adds complexity.
However, prospects for reform exist. The codification of Hindu law in the 1950s reduced some discrimination, and recent bans on triple talaq are steps towards gender justice. A carefully designed UCC, incorporating best practices from various personal laws and international standards, could pave the way for greater gender equality.
Suggestions include creating a Gender Equal Family Code, culling the best from all laws, or reforming within existing personal laws to preserve community identities, ensuring a pluralistic and non-discriminatory approach.
Conclusion
The debate on UCC is complex, involving issues of religion, culture, and gender justice. Research suggests that a UCC has the potential to eliminate gender biases in personal laws and promote equality, as seen in landmark judgments and international examples. However, it seems likely that its success depends on addressing concerns raised by minority groups, ensuring it does not infringe on religious freedoms or marginalize communities. The evidence leans toward supporting UCC for gender justice, but implementation must balance uniformity with diversity, respecting India’s multicultural fabric.
The ongoing discourse must focus on reforming personal laws to make them more gender-just, whether through a UCC or targeted amendments. Ultimately, gender justice and equality under a prospective UCC require careful consideration of legal reforms and societal attitudes towards women’s rights, ensuring a dialogue-based approach that empowers all citizens, especially women, in a diverse nation like India.
References
– [Uniform Civil Code: Towards Gender Justice] (https://www.tscld.com/uniform-civil-code-towards-gender-justice)
– [Uniform Civil Code or Gender Justice?] (https://cjp.org.in/uniform-civil-code-or-gender-justice/)
– [Uniform Civil Code: A Critical Analysis] (https://www.tscld.com/uniform-civil-code-a-critical-analysis)
– [India’s Uniform Civil Code: Legal Perspectives and Challenges] (https://www.alec.co.in/show-blog-page/indias-uniform-civil-code-legal-perspectives-and-challenges)
– Shah Bano v. Union of India (1985) AIR 945 (https://indiankanoon.org/doc/1955396/)
– Sarla Mudgal v. Union of India (1995) 3 SCC 635 (https://indiankanoon.org/doc/1955396/)
– Shayara Bano v. Union of India (2017) 9 SCC 1 (https://indiankanoon.org/doc/1955396/)
