Uniform Civil Code necessary for gender justice

AFTER Gujarat, the Uttarakhand Government has constituted a committee of experts to look into the roadmap for the implementation of the Uniform Civil Code (UCC). Chief Ministers of Madhya Pradesh, Himachal Pradesh, Karnataka and Assam have publically announced that they are also in favour of the UCC. Implementation of the constitutional directive enshrined in Article 44 to “secure a uniform UCC throughout the territory of India” has come into focus again.

On several pending public interest litigations seeking directions for the UCC implementation, the Union Government, in reply to the Supreme Court, has admitted that different people following varied laws are an “affront to the nation’s unity”.

As early as 1933, the All-India Women’s Conference had demanded the implementation of the UCC to replace the customary and personal laws, singularly responsible for gender injustice. It had even alleged that the failure to provide a UCC illustrated the state’s accommodation of the traditional interests of a patriarchal society.

It is a reality that Indian women are suffering indignities and discrimination because of some customary practices and gender bias writ large in personal laws. Even the personal laws are not tuned to meet the fast-emerging demand of the LGBTQ community relating to marriage and resultant issues which may arise in future.

The British did not think it proper to tinker with the existing Hindu and Muslim personal laws as the Lex Loci Report (1840) recommended keeping them outside codification, though it emphasised the importance of uniformity in the codification of other Indian laws relating to crime, evidence and contract. Nationalist sentiments prompt us to believe that the separation of Hindus and Muslims before the law in personal matters was part of the British policy of ‘divide and rule’, but this is not the whole truth.

The Constituent Assembly debates on Article 44 suggest that, barring BR Ambedkar, members of all religious communities in the Assembly, especially the Muslims, were against a common civil code for various reasons. This mindset of some communities explains why the agenda of the UCC has been on hold for such a long period, on the plea that it needs consensus and should not be hurried.

On the other hand, the SC has been reminding the government on a regular basis to discharge its constitutional obligation and implement the UCC. In the Sarla Mudgal case (1995), the SC pleaded for a UCC for the protection of the oppressed and the promotion of national unity and solidarity. Later, the apex court in the Lily Thomas vs Union of India case (2000) clarified that its remarks in the Sarla Mudgal case did not mean any direction to the state to enact the UCC, maintaining that it is a matter of public policy, falling exclusively in the domain of the legislature and courts cannot legislate.

It is believed that lack of political will due to fear of social and political backlash, especially from the minority community and orthodox Hindus, compelled successive Central governments to adopt a cautious approach to the UCC. It became evident in the case of Shah Bano (1985), when the government lost no time to enact the Muslim Women (Protection of Rights on Divorce) Act, 1986, to nullify the SC verdict that a Muslim husband is liable to pay maintenance to a divorced wife beyond the ‘Iddat’ period of 90 days. It has also been observed that conservative believers of the majority faith are interested in maintaining the status quo in matters of customary and personal laws.

Those opposed to the UCC justify their stand by referring to freedom of conscience and profession, practice and propagation of religion, guaranteed under Article 25 of the Constitution. It is, however, stated that secular activities are exempted from this guarantee and enacting laws on personal matters between individuals is a secular, sovereign function. It can plausibly be argued that personal laws relating to marriage, divorce, adoption, inheritance, succession etc. squarely fall within the regulatory power of the state. Moreover, in matters of civil rights, India is legally and morally obliged to follow the International Covenant on Civil and Political Rights (1966), which subscribes to equal rights for men and women in all matters of public and personal life.

It is well understood that religious mores, norms and rituals always conform to the socio-political and economic needs and realities of a contemporary society. There is all likelihood that some of these old religious practices and prescriptions might need review over a period of time, if found unscientific, unreasonable and irrational. Who can justify practices like ‘nikah halala’ and polyandry in the modern world? The state is duty-bound to remove such discrepancies to ensure that citizens lead a purposeful, dignified life.

The piecemeal efforts hitherto made by the state in abolishing degrading and gender-discriminatory practices like ‘sati’, child marriage and triple talaq and reforming laws relating to coparcenary rights, widow marriage and abortion are proving inadequate. All gender-discriminatory personal and customary laws need to be rationalised. The Central Government has already stated in the SC that it would consider the implementation of the UCC as soon as the report on the subject is received from the Law Commission.

It is desirable that the UCC should neither be a Hindu code nor a Muslim one. It should be a positive, secular and composite code, subscribing to the universal principles of equality, non-discrimination and human dignity. An ideal UCC should include monogamy, equal rights for son and daughter over the inheritance of parental property, and gender and religious neutrality in matters of marriage, divorce, adoption, succession, will, charity, guardianship and children’s custody.

The UCC should be given an overriding effect so that no customary or religious law becomes a hindrance, in case a citizen seeks to invoke its provisions for the determination of personal rights. Goa has already shown us the way; the UCC, in the form of the Portuguese Civil Code, 1867, continues to be in operation, without any problem.