Why a uniform civil code for all is not a good idea
In the last post, we discussed the various opinions and trajectories surrounding the UCC and triple talaq in India. In this post, we discuss SAHR’s response to the UCC questionnaire as a whole, with emphasis on gender equality and justice.
Art. 44 of the Indian Constitution states “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”. This is a directive principle added to Part IV of the Indian Constitution. As with all directive principles of state policy, it is not enforceable in courts of law, but provides direction to legislative intent as a progressively realizable right.
At SAHR, we have suggested in our response to the Law Commission’s questionnaire not to push for the UCC, for the following key reasons:
Heterogeneity of India
India is not a homogeneous society. In fact, it is heterogenous in many ways. As such, we do not believe a UCC would be an effective means to secure equal rights for the entire populace of India. The effects of such a uniform code would be felt in drastically different ways by each community and not always for the better. By way of example, if the practice of polygamy was banned in a UCC, rights afforded to Hindu women would likely not be much affected, since the Hindu Code Bill banned bigamy in 1955. On the other hand, Muslim women, who are part of a community that practices polygamy and whose rights are protected under Muslim personal law, as 2nd, 3rd and 4th wives, would in fact under a UCC, find themselves “illegal” and no longer entitled to the protections that they currently have such as each wife being entitled to maintenance.
Limited voice or representation
UCC would be a blanket imposition on the Indian society as a whole with only certain limited voices being reflected in the legislation. Since various communities exist in India, there are various different customary practices that are followed. It is not possible for a UCC to reflect all these customary practices. Since a UCC will be passed by a Hindu legislature on Muslim, Christian, Buddhist, Sikh, various tribal etc. populations, it is to be expected that there would be keen resistance to such forceful change. Further, even within Hinduism, the community is not entirely homogenous, and thus, only voices of the majority Hindu community would likely be reflected at the expense of others. This was also a contention when Sikhs and Buddhists were made subjects of Hindu Code Bill 1955 due to wordings of Art. 25 of the Indian Constitution. Thus, this issue of representation, which is true for any democracy, would silence the many minority voices, and be detrimental to minority interests.
Triggering identity tensions at the expense of rights
Although UCC has been successful in societies like Turkey, Cyprus, etc., it is unlikely to have the same result in India, which is Hindu-majority state. These are countries with Muslim majorities where a top-down approach by Muslims for Muslims does not trigger the same level of identity tensions. This is however not the case in India. Muslims and people of other communities and faiths constitute minorities in India. It seems such communities will see a UCC as a forced compulsion to accept a uniform code by the government against their freedom of religion. In forcing the implementation such a mechanism, rights may instead of being protected, be further limited as communities hold on to their customs even more closely as they see their very identity as being threatened.
Community-led change through the courts and other means
Personal law has seen modernisation in the past due to judicial activism and initiatives by the community. In Githa Hariharan v. Reserve Bank of India (1999), struck down the provision of Hindu Minority and Guardianship Act, 1956, which holds the father to be born the natural guardian of a Hindu child as unconstitutional. The court held that the father cannot have a preferential right over the mother in the matter of guardianship. This example is given to show that the absence of UCC has not meant that personal laws are not being modified at all. Although change can be slower and at the will of the community, gradual development continues. Importantly, this type of change brings a level social acceptance as well, which a UCC is unable to do. Given this, development and changes should be left to the relevant stakeholders, such as the AIMPLB and Muslim women communities in cases of triple talaq. For example, the Jamiat ulema-e-hind’s recognition of invalidation of instantaneous triple talaq by the Supreme Court in Shamin Ara v. State of Uttar Pradesh 2002 (7) SCC 518, will likely give it a level of social recognition which means the change is more readily accepted by the Muslim community. In stark contrast, the UCC is being rejected by large sections of the community on grounds of identity politics. This goes on to show the reluctance of communities to be ‘forced’ to change, versus, their acceptance of change coming from within the community. We asked the State initiative to be refocused on long-term and systemic efforts in encouraging communities to bring about change from within, instead of forcing them to adopt a legally ‘uniform’ law. This will also increase interaction and contribution of communities in bringing about required changes to securing equal rights within diverse societal frameworks in harmony with the law.
We believe that any measure which impacts the rights of an individual should be preceded by an inclusive and transparent public consultation. Due to the heterogeneous nature of Indian society, multiple sources and interpretations of personal laws and customary practices exist. Neither the Law Commission of India, the legislature nor the AIMPLB are the sole experts on personal laws and matters related to them. Indeed, if the objective of law is to respond to women’s needs, then a public consultation should be set around those needs. Diverse stakeholders should be consulted in order to discuss the diverse interpretations of personal laws and customary practices and more importantly, bring them in line with women’s needs and their fundamental rights. We also expressed a willingness to contribute to discussions with the State as to how such a consultation should be carried out with stakeholders to ensure that the process in inclusive, especially with respect to groups whose rights and dignity are most at stake.
Further, we believe that formal equality under law does not translate into substantive equality in practice. Codification of personal law and customary practices can lead to the codification of gender-unequal practices as well. As we know, the passing of legislation (rights on paper) does not automatically guarantee the protection of gender equality in practice. We thus called upon the State to see to their CEDAW obligations, which require them to take other positive action to eliminate discrimination and to end violence against women. This may, inter alia, entail State support to women’s groups and women communities who are bringing change from within.
Therefore, we believe that the State should not be sensitizing the society towards a uniform or a common code. Instead, the State should facilitate conversations with women communities as to what they think could be done to address gender-equal practices. Importantly, this goes to the core of SAHR’s approach to change. By working closely with the affected women, putting their voices at the forefront, we are able to work towards securing a type of justice that is valuable and meaningful to them whether or not the rest of society agrees.
