UCC Debate | Our diverse lives need justice, not uniformity
If uniformity is to exist, it must be a uniformity of protection of individuals’ rights within different family systems including queer' chosen families
On June 14, the 22nd Law Commission asked people to respond to the idea of a Uniform Civil Code (UCC) within a month. The time ends today, July 14. There are many discussions that must happen around this issue. The one that I would like to start with is the way in which this Law Commission has been set up and the process it has initiated, which is flawed.
The 21st Law Commission also sought public opinion over UCC, and came out with a report in 2018 that clearly stated that the “UCC is neither necessary nor desirable at this stage as it would be counterproductive for the harmony of the nation.” Barely five years on, why do we have another Law Commission looking at the same issue? Why, as they put it, have they “considered it expedient to deliberate afresh”? Their only justification is that there are court orders. This is a vague statement, definitely not what one expects from one of the foremost statutory bodies for legal reforms in the country. They further asked for views from “recognised religious organisations” (without spelling out what these were and recognised by whom) and the public at large.
The vagueness of this call has resulted in a public campaign that is at best uninformed and at worst, actually harmful. A lot of people are sending their opinion as if this were a referendum, with either a Yes or No – a meaningless exercise because we don’t know what we are saying Yes or No to. Leave alone a draft, there isn’t even a framework or basis for the Uniform Civil Code in the public domain for us to refer to, and to agree or disagree with. What makes things worse is that there is an attempt to create an environment where myths about personal laws are being propagated to denigrate laws related to minority communities and generate antagonism between communities. It is a vitiated atmosphere in which the demand for uniformity is being made.
This is precisely why the Uniform Civil Code did not come about in the 1950s, though the Constituent Assembly debated the issue. The legislators said they could not bring a UCC because there was too much mistrust between communities after the violence of the Partition. They noted that they hoped at some point in the future there would be an environment in which it was possible to talk about the UCC. This definitely is not shaping up to be that environment.
A wider discussion is needed on the concerns around UCC. On the face of it, a uniform law that governs marriage, inheritance, custody, adoption and guardianship seems like a good thing. But when we delve deeper into who it is meant for, and what it is meant for, we confront the irrefutable fact that there is no uniformity in family patterns. People's relationships, marriages, methods and means of inheritance vary greatly. If we are going to ask people to leave their existing ways to follow a singular, uniform way, we need to know what are we expecting them to move to, and on whose reality is it modelled on.
There are multifarious communities across the country with matrilineal customs, or collective ownership and use of land. What sort of uniform code can adjudicate on private property as well as such property ownership patterns? The hijra gharanas are recognized in case law, but will the UCC be able to see them as a family where people hold property together, and can bequeath it down their lineage? Uniformity flies in the face of this multiplicity, which is the reality of our existence. This is why we need to look at the different laws and do the work needed to ensure that everybody's realities are reflected in them and the rights protecting them.
The 21st Law Commission also said that uniformity was not needed. What was necessary was the codification of as many practices as possible, and then bringing constitutional principles of equality and justice within each of them. There is no doubt that we need to look at existing laws and existing practices around intimacies. But, within what framework? Feminist work over the decades has shown that the structure of most families is hierarchical. In any discussion of laws related to unequal institutions, the lived realities of those most affected by gender inequality have to be at the centre and laws need to be corrected accordingly. There can be no uniform way of doing that.
Two kinds of people are directly affected when it comes to family and marriage. The first are those who are in conflict with their families, like women facing violence in natal or marital families or adult offspring living lives that are not in consonance with the ways in which their families think they should live. For example, these could be people whose marriages upset the caste and religious norms, as well as queer people or trans people, asserting their gender or sexual identity. The second are those who are excluded from their rights because the families that they may make or wish to make do not have legal sanction – for instance, people in same-gender relationships, those with psychosocial disabilities, transgender people, those living in other kinds of intimacies beyond the traditional family set up. When we speak of gender justice, we need to prioritise those people whose claims for justice are not protected within the personal realm at this point in time.
If uniformity is to exist, it must be a uniformity of protection of individuals’ rights within the multiple family systems – both those that are recognised by the law, and those that aren’t as yet.
This is crucial in a world such as ours, and in a country such as ours in the present, when there is a constant erosion of social security protections. In such a situation, families often become the only source of support and people are forced to stay in them often at the cost of their own individual dignity, autonomy and independence. The State has to take responsibility and not leave care to the family unit. It has to provide shelter and livelihood, and protect the right of an individual to access education and health. Without an assurance of social security, there is no possibility of gender justice for the marginalised.
Since Article 44 of the directive principles is often quoted in the context of the UCC, I would urge everyone to look at the other articles around it as well, from 38 to 51. They speak of the State’s responsibility towards welfare, towards reducing income inequality, towards providing education for all – the many directions that the State would do well to not ignore.
Chayanika Shah is a feminist and queer and trans rights activist. She is one of the petitioners in the marriage equality case currently before the Supreme Court.
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