Uniform Civil Code: Reframe the debate - Hindustan Times
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Uniform Civil Code: Reframe the debate

Dec 27, 2022 08:23 PM IST

The starting point of the discussion should not be whether India needs a UCC, but how to ensure every Indian is governed by a gender-just civil code of their choice

Periodically, debates around the enactment and implementation of a Uniform Civil Code (UCC) flare up, both in our legislatures and the public sphere. With the introduction of a private member’s bill in the just-concluded session of the Lok Sabha, and the proposed formation of legislative committees in several Bharatiya Janata Party (BJP)-ruled states, the debate has gathered steam.

At the time the Constitution was being framed, there was a 150-year-long history of communities being governed by their personal laws. Realising that the overhaul of such structures was impossible in one go, the framers of the Constitution left UCC as an aspirational goal (Shutterstock)
At the time the Constitution was being framed, there was a 150-year-long history of communities being governed by their personal laws. Realising that the overhaul of such structures was impossible in one go, the framers of the Constitution left UCC as an aspirational goal (Shutterstock)

The roots of the issue go back to colonial times. In the late 18th century, as the British sought to consolidate their political and economic rule over the Subcontinent, they decided not to intervene when it came to the social sphere. Consequently, regulations and laws were passed that allowed each community to manage its affairs through its “personal laws”. Of course, disputes often arose about what constituted personal law. Historical records show that here, the British turned to powerful members within communities, relying upon — and enforcing — their opinions. The result of this was that personal law — whether Hindu or Islamic — became rigid, and the subject of diktats by powerful religious figures, rather than the result of evolution within the community.

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At the time the Constitution was being framed, there was thus a 150-year-long history of communities being governed by their respective personal laws. Realising that the overhaul of such entrenched structures was impossible in one go, the framers of the Constitution left UCC as an aspirational goal, and categorised it as an unenforceable, “directive principle of State policy”, which the State was expected to strive towards gradually achieving. In part, this did happen: For example, in the 1950s — and later — the codification of Hindu personal laws saw important progress being made, especially when it came to women’s rights to inherit property. The process is, however, incomplete, as whether codified or uncodified, religious communities continue to be governed by their respective personal laws in India.

It is in this context that periodic debates around UCC are conducted. On one side, the argument goes that a secular State should not apply different sets of rules to different communities, purely on the basis of religion, creed, or ethnicity. Just like criminal law or contract law is uniformly applicable to all, regardless of what religion might say, so should be the case with personal laws. On the other side, the common rebuttal is that any version of UCC will, in effect, turn the dominant religion’s codes and norms into the universal, and require minority religions to assimilate to those norms, while abandoning the tenets of their faith. According to this argument, UCC is just another front for asserting cultural hegemony, in a State that is growing increasingly majoritarian.

The UCC debate is further complicated by the fact that, at its core, it implicates the rights of women. Religious personal laws — historically been set down and interpreted by men — have invariably been disadvantageous to women, whether it is about rights within marriage, or rights to property, inheritance, and in succession. Thus, the argument against UCC is often framed as an argument that seeks to privilege cultural exclusivity over the rights of women.

But it is this argument that should also give us a sense of the direction that the debate should take. As feminists have argued for many years now, what we need is not so much a UCC, but a gender-just civil code (attempts to accomplish this — for example, in Goa — have been made in the past, although they have not been free of controversy). In other words, before we get to the questions of uniformity and difference, we first need to have a conversation about how a civil code will achieve and protect gender equality. And that, in turn, needs prior consensus on what constitutes gender equality in the context of the family.

Once the starting point of the debate is changed, it is also easy to see that much of it becomes superfluous. If there is a baseline consensus — grounded in the Constitution — of what constitutes gender equality and fairness to women, it is clear that the additional goal of “uniformity” serves no intrinsic purpose. Prima facie, as long as personal laws are not violating anyone’s rights, and treating everyone with equal concern and respect, there is no particular reason why — in a country as diverse and plural as India — people should not be given the opportunity to opt in or opt out of those regimes: In other words, if a person is free to choose whether they want to be governed by personal law, or by a non-religious civil code, there is no reason why UCC and personal laws cannot co-exist, instead of one replacing the other. Indeed, we already have an example of this: People who do not wish to marry under personal laws can marry under the Special Marriage Act (albeit not without problems and inconveniences).

Thus, it is important to reframe the debate: Our starting point should not be whether India needs UCC, but how to ensure that every Indian is governed by a gender-just civil code of their choice.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

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