Indicating the need for wider consultation before taking a call on a uniform civil code, the government on Friday, asked the Law Commission to examine the issue.
In October 2015, Professor Zoya Hasan had written for The Quint about how the issue hinges on gender equality.
Why the Delay?
- In its recent judgment on unwed mothers, the Supreme Court has hinted towards the Uniform Civil Code once again
- UCC among electoral promises of BJP in 1998, party used it to embarrass the Congress which was reluctant
- UCC issue largely ignores the issue of equality
- Proposals given by various women’s groups to widen the ambit of gender justice
In a recent judgment the Supreme Court decided that an unwed Christian mother, who had challenged a Delhi High Court order directing her to reveal the name of the child’s father when she sought guardianship, can be the sole guardian. While ruling in her favour, the court made an observation in favour of the need to implement a Uniform Civil Code (UCC). This has once again focused political attention on the UCC.
There is agreement that religious personal laws are discriminatory towards women and must therefore change. There are, however, disagreements over the means to achieve this objective, whether through a state-sponsored civil code or community-based internal reform. There is also disagreement whether such a code would be a UCC or a gender-just common civil code.
Fear Among Minorities
The Sangh Parivar is the strongest advocate of a UCC while Muslim conservatives are among its strongest opponents. After the Shah Bano controversy resulted in the 1986 Muslim Women’s (Protection of Rights on Divorce) Act, 1986, which denied divorced Muslim women the same rights to maintenance as other Indian women under the Criminal Procedure Code, Hindu organisations stepped up their advocacy of uniform laws, primarily as a means of eradicating the ‘privileges’ of minority men.
In 1998, the BJP promised to institute a UCC if it came to power. Until then, the party had raised the UCC issue principally to embarrass the Congress which was reluctant to change the status quo in the face of Muslim opposition to it. To its way of thinking, leaving Muslim personal law untouched implies unequal and asymmetrical treatment. This asymmetry has formed the basis for the charge that secularism, especially secular practice, implies pandering to Muslims for electoral gains. The Muslim leadership, on the other hand, fears that such laws would inevitably lead to uniform cultural practices and alien customs being foisted upon them.
Over the last three decades, the UCC has run into considerable opposition resulting in most political parties and women’s organisations distancing themselves from it.
The decisive shift occurred in the wake of the Ayodhya conflict and the dramatic growth of Hindu nationalism which increased Muslim fears of the imposition of a ‘Hindu’ code. This led to the move away from the long term goal of homogenisation of family law to the reform of group specific personal laws. The strategic change from demanding a UCC to personal law reform was particularly significant for women’s organisations as they were wary that the BJP’s real interest is in imposing a Hindu code.
Aware that legal change cannot be isolated from wider political conflicts, women’s groups had pressed for greater advances in women’s rights. Earlier they believed that UCC was the optimal path to women’s empowerment in family law, now they support a more nuanced position which combines the options of reform from within personal laws with the formulation of gender-just laws deriving from the concept of a common civil code.
Widening UCC’s Ambit
From the outset, the problem with the UCC debate was its gratuitous emphasis on uniformity which found its reflection in terming it a UCC. The UCC issue has largely ignored matters related to equality and revolved around uniformity of civil codes thought to be essential for national integrity, while plural systems of law undermine it.
Hindu nationalists underpinned their calls for a UCC with criticisms of gender-unequal features of Muslim personal law, but not similar infirmities in Hindu law. But despite considerable disparagement of secular parties for opposing a UCC, the BJP did not devise proposals to advance this project when it was in power in a coalition from 1998 to 2004. It remains to be seen whether the Modi government with a majority in the Lok Sabha can go beyond the rhetoric of reviling Muslims for their refusal to embrace a UCC.
A number of proposals have been mooted by women’s groups to enlarge the scope of gender justice on grounds of equality. One is to devise secular laws and encourage people to opt for them. Such an idea was advanced as early as 1945 when it was suggested that the UCC be made optional. India already has optional civil code in the form of the Special Marriages Act, 1954. This Act read with other similar Acts such as the Indian Succession Act, 1925, provides a legal framework for matters concerning marriage, divorce, maintenance and succession for those who wish to avoid religion-based laws.
However, successive governments failed to create the machinery for implementing an optional code. Had they done so, it may well have expanded the ground of secular laws, besides building up pressure for reform of community laws. Such options would result in the regime of personal laws becoming voluntary.
(The writer, formerly Professor of Political Science at the Jawaharlal Nehru University, is currently National Fellow, Indian Council of Social Science Research)
Here’s Nishtha Gautam’s Counter-view on the same topic