GENDER JUST AND UNIFORM CIVIL CODE

Author: Satyam Maurya,

Campus Law Centre, University of Delhi

INTRODUCTION

India is a multicultural & multi-religious country. People of India belong to different castes, religions, languages, creeds and customs. The constitution of India provides that every citizen irrespective of their caste, creed, region, language and origin should not be deprived of their human dignity. Gender justice is a prominent part of human rights. Kofi Annan, former UN secretary general has stated “Gender equality is more than a goal in itself. It is a precondition for meeting the challenges for reducing poverty, promoting sustainable development and building good governance”[i].Charles Fourier also stated on gender justice that “the extension of women’s privileges is the principle of all social progress.”[ii] Thus, to achieve its goal it requires the express authority of laws in a country. Not only it requires the express laws but also the nature of thought process which helps to achieve its goals and objectives. The nature of thought process is a substance of culture and religion. As we know India is a multi- religious country and all religions that exist in India no doubt respect men and women, but are more inclined toward patriarchy. Therefore, it comes to the society women are treated unequally as compared to men. There is no doubt that women have always been the victims of gender equality. Transgender conditions are worse than women even after recognition in the NALSA vs UOI[iii] case. The constitution of India gives equal rights irrespective of gender.

India needs proper law in order to achieve its goal. Because law is the key that opens the door to turn a right into duty. Uniform criminal law in India contains different types of provisions that protect women from inequality. But laws concerning personal matters such as marriage, adoption, divorce, inheritance, succession etc. were founded on religion and custom. Every religion has its distinct laws related to personal law. Some of them are codified and some not. There is no uniform civil code based on gender just like other countries for instance the United States of America, Pakistan, Bangladesh, Turkey, Indonesia etc.

Article 44 of the Indian constitution says that “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India”[iv]. More than 73 years have passed since the constitution of India came into force but still there is no uniformity in gender just, personal civil code. Even Supreme court referred to Article 44 as a dead letter[v]. It was a very debatable topic from its beginning. The Subcommittee of fundamental rights initially introduced uniform civil code[vi] as a part of fundamental rights and non- justiciable rights. But the dissent notes then goes on to demand that the uniform civil code be put into the justiciable part of the fundamental rights by the women members and on the other hand minority members think it was the right place.

Since the uniform civil code[vii] was a politically sensitive issue, the founding fathers of the constitution arrived at an agreement by replacing it under article 44 as a directive principle of State policy.[viii]

HISTORICAL BACKGROUND OF UCC & GENDER JUSTICE

Implementation of Uniform Civil code was debated from the British rule. In 1840, Report of lex Loci pointed out that India required codified uniform laws relating to Crime, Contract and Evidence but did not consider personal law due to it rigidity and British policy not intervening in religious matter of India. However, they intervened several times due to demands made by Activists and Freedom fighters.

Pre-Independence (Colonial Era) Background

Before colonization people of India followed their religious textbook such as Veda and Smritis followed by Hindu and sharia laws followed by Muslim, but after 1781 company changed the rule and enforced the English law in criminal matters as Muslim law and Hindu laws were so rigid. Towards gender justice and first interference in civil matter of Hindus were taken by lord William Bentek then governor general of India, by introducing Female Infanticide Laws in 1829 by suggestion of Raja Ram.

In 1837, The Special Marriage Act came that opened the door more towards gender equality and humanity than the act of 1829. It validates inter-caste and inter -religion marriage. Soon after it was removed but reintroduced after independence in 1954. Further 1891, Age of Consent Act[ix] that raised the age of consent for sexual intercourse for all girls whether they married or unmarried or not, from ten to twelve years in all jurisdictions[x], and then The Child Marriage Restrict Act[xi](known as Sharada Act), Married women property rights Act, 1874[xii], Hindu inheritance (Removal of Disabilities) Act[xiii] And In 1939, dissolution of Muslim marriage Act[xiv] introduced that forbid evil and derogatory practices in personal law and not only it provided a ground for uniform civil code but also these laws brightened the rights of women though these rights were not equal to as men but played a historical change towards gender justice.

Post- Independence

The demand for a secular uniform civil code grew with the Indian independence movements as such a code was supplied to contribute to unity among the communities and strengthen a common front against British domination.[xv]

In 1941, Sir B. N. Rao, Chairman of the Hindu law committee which was looking at bills on marriage, adoption and succession, including the right of a daughter to inherit a share in fathers property submitted his report to the government of India. The hindu law bill on marriage and intestate succession were introduced by the then law member and sent before select committee and were subsequently dropped. After Independence, it was re-introduced as Ambedkar’s Hindu code which provides the ground for uniform civil code. When uniform civil code was presented before the constituent assembly by the drafting committee it became debatable between members.

Women representatives mainly M. R. Masoni, Hansa Mehta and Rajkumari Amrit Kaur their views on the UCC as non-justiciable as “one of the factors that has kept India back from advancing into nationhood has been the existence of personal law based on religion which keep the nation divided into watertight compartments in many aspects of life. We are of the view that a uniform civil code should be guaranteed to the people of India within period 5 to 10.”[xvi]

On the other hand, Muslim members of the assembly opposed the uniform civil code (UCC) by arguing it violates religious freedom and would create disharmony within Muslim community and operationalize the UCC with the assent of the community.

KM Munshi, Allaldi and Ambedkar set aside the contention made by Muslim member and said that UCC was important for the unity of nation and also for upholding secular credentials of the Indian Constitution and shaped the view towards Gender equality by saying that “How was any reforms possible in the Hindu society – especially with regards to the rights of women– if there was no Uniform Civil Code.[xvii]

Lastly, the Constitutional assembly adopted the article after renumbered it from Article 35 to Article 44.

GENDER JUSTICE AND PERSONAL LAWS

Indian Personal laws were solely based on religion and their custom. Personal law is defined under concurrent list-3, Schedule 7 of Constitution. It reads “as marriage and divorce, infants and minors, adoption wills, intestate, and succession, Joint Family, and Partition, all matters in respect of which parties in judicial proceedings were immediately before the commencement of this constitution subject to their personal law”.[xviii] Both the center and State legislature can enact laws related to Personal law. Personal laws differ from one to another based on their religion and Practices. As we have discussed above from the British era several laws were enacted to eradicate evil practices from religion. However, it offers ‘half measure of equality’ but opened the gate for Gender Justice.

After the independence Hindu Code bill was introduced and after a long fight it became Act. The bill was mainly opposed by Hindu male due to recognition of inter-caste marriage, monogamy, divorce and inheritance. It Introduced divorce which never existed in Hindus. It was against the patriarchal society. However, the rights given by these Acts were like a drop in the ocean because it was based on ancient religious scripture such as Smritis, Shrutis and Upanishad which does not provide equal rights as compared to male. When it Introduced the daughter was not a coparcener in his father’s property but the 2005 Amendment Act made daughter a coparcener in his father’s property. In the recent case Sujata Sharma vs. Manu Gupta,[xix] The Supreme Court held that the right of coparcener and Karta does not dissolve by virtue of her marriage.[xx] Though the legislature and Judicial decision is trying to give equal rights but still there is no equality when it comes to women in state and other matters. If a woman dies and has no husband or children her property will go to her husband’s heir[xxi] and only if they are not alive, generally less possible, the property will go to her father’s heir and lastly to her mother’s heir.

In Islam, their laws were solely based on their religious textbook. It is not codified like Hindu personal laws. Before 1937, converted Muslim followed their old laws but after The Personal law (Shariat) Application Act, 1937, All Muslin bound to follow Sharia laws. It provided Uniformity within the community. It unites Muslim from inheritance, marriage, divorce guardian etc. but sharia law is also deep rooted to patriarchy. Before, Dissolution of Muslim Marriage Act, 1939, there was no right to the Muslim woman to give divorce like men have unless men authorized it. Though there was some reforms made in Muslim personal law but still there is large inequality, context of marriage in Muslim is very different from the other law for instance polygamy, Age of marriage, minor consent through their parents in Islamic personal law etc. there is a big difference in gender equality though the change your made by the judicial decisions for example, in Shah Bano case[xxii] supreme court stated that a Muslim woman comes within under 125 CRPC that provides Maintenance before that Muslim woman is only entitled for Mahar but this decision was null after Muslim Women (Protection of Rights on Divorce) Act, 1986.In Shayara Bano v Union of India,[xxiii] Court held that the practice of talaq-e-biddat or instantaneous triple talaq is unconstitutional[xxiv]. And After 2019, The Muslim Women (Protection of Rights on Marriage) Act[xxv], became a punishable offense. However, these decisions and laws are not enough to provide gender equality.

Christian personal laws were not exempted from gender inequality. These personal laws were codified before Hindu Laws. Prior to 2001, a husband merely needed to show cause of adultery to get the divorce whereas the wife needed to be subject to show bigamy, adultery, dissertation etc. But, the 2001 Amendment Act changes the said scenario and provides equal ground for divorce irrespective of gender. Patriarchal customs in the Syrian Christian minority in Kerala barred women from acquiring property from their father's estate. In Mary Roy vs. State of Kerala[xxvi], Supreme Court ruled that “no personal law could be prioritized or held above the constitution of India.[xxvii] This decision overturned the patriarchal culture and discriminated against women. However, there are other things that need to be changed to maintain gender Justice.

Even Parsi Personal laws contain the same orthodox custom that prevail gender inequality for example if a Parsi Zoroastrian man married outside the community becomes Parsi but if a female does, she would not be a Parsi anymore.

All personal laws whether they are Hindu, Muslim, Christian or Parsi, are based on patriarchal custom and practices. All need a gender just law that provides equal right and opportunity irrespective of their gender as provided by constitution of India.

NEED OF A GENDER JUST, UNIFORM CIVIL CODE

UCC is advocated by Article 44 of the constitution of India[xxviii]. It reads “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India”[xxix]. As a part of DPSP, it is not enforceable by any court unlike Fundamental rights of the constitution. It creates an obligation to the state to make law on UCC. The 42nd Amendment Act,1976, the term ‘Secular’ was added in the Preamble of the constitution that strengthened the spirit of Uniform Civil Code on Secular aspect.

Now the Question arises whether UCC is against religion? Whether it violates the right to freedom of religion? For this purpose, it is necessary that religion must be understood in the terms of faith. It is a relationship of an individual to his God. However law provides tights to an individual against other individuals or society. One is the religious plane which is entirely personal, and the other is the social plane which deals with a person’s status and self-esteem as a citizen of the country[xxx]. For instance, The Hindu Marriage Act[xxxi] recognized divorce whereas Hindu religion does not recognize it. Therefore, it cannot be said that Article 25 of the constitution is against Article 44 of the Constitution.

Sometimes the question arises why do we need Uniform Civil code if we have personal laws? As Dr. Ambedkar Said that Uniform Civil code already exists through personal laws and after The Special Marriage Act ,1954 Pandit J. Nehru called it ‘the forerunner of the Uniform civil code’[xxxii].

Before coming to conclusion, we need to understand that Personal laws are no doubt male-oriented and there is no uniformity in these laws. If someone is marrying under the Special Marriage Act,1954 then the right of inheritance will not be governed by their personal laws. It is not a problem related to women or gender equality but it is a problem related to equality of rights and their remedies. Why should the Muslim women be at disadvantage as compared to Hindu women? Why a Muslim woman not entitled for maintenance whereas a Hindu woman is entitled? This is because rights and duties provided by personal laws, which are based on religion, are different from other personal laws.

The Supreme Court (SC) in the Shah Bano Case(supra) put the spotlight on Article 44 and held that “It is also a matter of regret that Article 44 of our constitution has remained a dead letter. It emphasized that Uniform Civil Code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”.[xxxiii] SC said this statement while listing a maintenance case related to a Muslim woman where she had only one remedy that was section 125 Crpc,1973[xxxiv] Unfortunately this remedy was snatched by an Act of Parliament.

In Sarla Mudgal vs. Union of India[xxxv] ,Court answered why India needs Uniform civil code. The court in this case said that “When more than 80% of citizens have already been brought under codified personal law, there is no justification whatsoever to keep in abeyance anymore the introduction of a uniform civil code for all citizens.[xxxvi]

Recently while hearing Shayara Bano vs. Union of India[xxxvii], known as Triple Talaq case SC has given positive sign towards UCC and gave the Judgment on basis of Gender Justice.

Uniform Civil code will not infringe freedom of religion i.e., the right to perform religious ceremonies and rituals. It also should not be similar to personal laws that are based on orthodox textbook. Uniform Civil code will not only integrate India but also it will provide Uniformity irrespective of gender, caste, community or religion.

UNIFORM CIVIL CODE A BINDING OBLIGATION UNDER INTERNATIONAL LAW

India has ratified the international Convention on the elimination of all forms of Discrimination against women (CEDAW),1976[xxxviii]. That provides the state to enforce the relevant provision and ensure gender equality under municipal laws. However, women in India, irrespective of their religion, suffer discrimination and inequality in respect to marriage, divorce, maintenance, inheritance, and Succession. The implementation of goals sets by this convention can be achieved through gender just code i.e., Uniform Civil code not only follows the constitution of India but also provision of the international Law.

CONCLUSION

India is known for its diversity. Every religion has its own unique custom and rituals that govern family practices like marriage, maintenance, divorce, inheritance, adoption and succession etc. Unfortunately, these practices are male– oriented. Therefore, to make these practices gender just, Personal laws were enacted. However personal laws failed to provide gender equality. By Judicial decision SC many times gives their judgment going beyond black letter code i.e., Personal laws, to maintain gender justice and also suggest the legislation to enact law related to ‘dead article’ that is Article 44 of the Constitution.[xxxix]

Uniform civil Code was always a political issue[xl] since it was drafted. Every government talked about it but no one took initiative to implement it. Recently the BJP government made a sign to enact the gender just, Uniform civil code. Regarding this Law Commission of India sought the opinions and ideas of the general public and recognized religious organizations about the uniform civil code.

Uniform civil code does not bar religious freedom rather it must integrate India on the basis of uniformity. Goa family law is one example of Uniform civil code. Does it restrict a person from its religion? NO, it does not. It provides an equal set of rules and regulations irrespective of gender, caste, religion and their ethnicity.

We must depoliticize the UCC. UCC will not only help to break down the derogatory practices but also give women and other gender identity as given to male citizens of India. It will give equal share in property rights, preclude polygamy and arbitrary divorce and also provide the right to adopt and inherit and succession irrespective of religion or in other words, conversion of religion does not affect the rights. I must say that Gender Justice can be achieved when the Nation has gender Just, Uniform Civil code which thread all religion into one garland.

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