Will a uniform civil code help address the problem of gender inequality in India?

India’s personal laws are often discriminatory towards women, particularly in matters of marriage, divorce and inheritance
The Supreme Court has time and again analysed the nature of Article 44 of the Constitution  (Photo | Express)
The Supreme Court has time and again analysed the nature of Article 44 of the Constitution (Photo | Express)

The other day, renowned academician and constitutional expert Prof. Faizan Mustafa was delivering a lecture on Diversity Management under the Constitution of India at the National Law University, Jodhpur. He said that since the DNA of every individual is not the same, diversity is in the very scheme of the creation of human beings by God and thus, diversity management within the Constitution is a hallmark of every successful civilisation.

Relevant to this discourse of diversity management is the recent plea in the Supreme Court to direct the state to implement the Uniform Civil Code (UCC). The court held that it cannot issue the writ of mandamus, ordering Parliament to enact any statute. The formulation of the legislative framework for the enforcement of UCC is a policy matter of the elected representatives. The concern around the enactment of UCC dates back to the Constitutional Assembly debates in 1949. Against the backdrop of gory communal conflicts in the wake of partition, the Constituent Assembly deliberated upon the issue of the nature of personal laws in independent India.

There were primarily two differing opinions amongst the members of the Constituent Assembly.

One faction was advocating using the mandates of the Constitution to advance radical changes in the archaic and conservative structure of religious institutions and their practices. Another group advocated resorting to a more pragmatic approach -- that instead of bringing about a radical change by creating a UCC, the state should extend protection to the personal rights of the minorities at present while at the same time, it should also work in the direction of building consensus among different communities for uniform personal laws. When the matter was put to vote in the Constituent Assembly, it was decided to keep the provision of a UCC outside the purview of fundamental rights and it was thus, included as a directive principle of state policy. This culminated in Article 44 of the Constitution of India, which enumerates that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India".

When in 1954, Prime Minister Pandit Nehru introduced the Hindu Code Bill in place of a UCC, he reasoned that the right moment had not come for the latter's introduction and thus, the government did not want to externally push for its implementation.

The Supreme Court has time and again analysed the nature of Article 44 of the Constitution. In Sarla Mudgal v. Union of India, the court observed that personal laws based on religion had created inconsistencies and discriminatory practices and that a UCC would help to remove these disparities and promote the unity and integrity of the nation. In Lily Thomas vs. Union of India, the court deliberated on the need for coming up with policy guidelines with regard to a UCC. However, at the same time, the court also refrained from directing the government with any binding order in this regard since it falls within the ambit of the directive principles of state policy.

While analysing the question of a UCC, we cannot ignore its perceived effect on religious and cultural minorities. In Sarla Mudgal v. Union of India, Justice RM Sahai observed that the idea of a UCC can be conceptualised in practice only when the "social climate is properly built up by the elite of the society, statesmen amongst leaders, who instead of gaining personal mileage rise above and awaken the masses to accept the change". What he could have meant was that any codification of the personal laws of minorities to make it relatively progressive cannot be successful without ensuring that the subjects, on whom the laws will be applicable, are progressive enough to accept it. With the educational, economic and intellectual development of communities, their archaic conservatism gradually withers away. The 21st Law Commission also noted that a UCC was neither necessary nor desirable as most nations are currently moving towards an acknowledgement of distinction.

India's personal laws are often discriminatory towards women, particularly in matters of marriage, divorce and inheritance. Implementing a UCC could be an opportunity to ensure that all citizens are subject to the same laws and are treated equally before the law, regardless of their gender or religious affiliation. However, Flavia Agnes in her book Personal Laws in India: The Distortion of Equality writes that any proposal for a UCC must focus on the concerns and needs of women from marginalised communities, who may be disproportionately affected by the implementation of a UCC.

The UCC proposal is being presented as a solution to the problem of gender inequality in India, without taking into account the underlying social, economic, and political structures that perpetuate this inequality. The UCC cannot be a magic wand that will solve all the problems of gender inequality overnight. Instead, what is needed is a comprehensive approach that addresses the root causes of gender inequality, including issues such as caste, class, patriarchy, and poverty. At the same time, the Constitution of India extends protection to religious and cultural minorities as a group but it does not extend the same exclusive protection of fundamental rights to sexual minorities as a group. Any policy framework for a UCC must provide equal recognition to their rights as well.

In Pannalal Bansilal Pitti and Ors. v. State of AP. and Anr, the court observed that the directive principles in themselves enshrine the idea of diversity. In a democratic society that follows the rule of law, change should be gradual and progressive. As Naziruddin Ahmad, a Constituent Assembly member from West Bengal, remarked with regard to the UCC, "We should proceed not in haste but with caution, with experience, with statesmanship, and with sympathy."

(Pooja Rajawat is the Deputy Convenor of Legal Aid and Awareness Committee, National Law University, Jodhpur. Jayam Jha is a third-year student of law at National Law University, Jodhpur.)

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