By Aman Chain
Abstract
The article critically examines the ongoing debate surrounding the proposal for a Uniform Civil Code (UCC) in India. Against the backdrop of religious and cultural diversity, the article delves into the historical context and opposing perspectives on the UCC, highlighting concerns about its potential impact on religious freedom and cultural autonomy. The analysis underscores the need for an intersectional framework that ensures a gender-just, culturally diverse, and egalitarian civil code. It also highlights the often-overlooked exclusion of the LGBTQ community and advocates for a gender-neutral approach that encompasses all Indians, irrespective of their gender, religion, or sexual orientation.
The 22nd Law Commission of India has recently called for public response, including from religious organizations, on the proposal of a Uniform Civil Code in India. This has sparked a heated debate among all sections of society. With the ruling government, including our Prime Minister Narendra Modi, advocating for a Uniform Civil Code, the opposition and a few religious organizations do not appear to be on the same page. Though the debate has now taken a political turn, it was much needed for Indians. The personal laws we are governed with today are a result of imperialism and oppression imbibed within the colonial skeleton, for which no prior consultation of the general public was conducted by the Britishers. Initially, the 21st law commission of India too examined the subject of the Uniform Civil Code and after soliciting responses from concerned stakeholders, issued a consultation paper on the ‘reform of family law’ in 2018. It held that formulation of the “Uniform Civil Code is neither necessary nor desirable at this stage.” The Commission also commented that the “mere existence of difference does not imply discrimination but is indicative of a robust democracy.”
This ongoing debate surrounding the Uniform Civil Code (UCC) necessitates a comprehensive analysis through an intersectional framework. Should India ultimately opt to amalgamate the diverse personal laws pertaining to marriage, divorce, inheritance, and adoption from various religious segments into a uniform code, it becomes imperative to first eschew any heteronormative biases. The ensuing debates and deliberations must diligently aspire to forge an all-encompassing, gender-just, culturally diverse and egalitarian civil code.
Religious and Cultural Diversity
When UCC was brought up for discussion in the Constituent Assembly, it was strongly opposed by Hindus and Muslims alike. UCC was seen as a threat to religious minorities and was perceived as anti-secular, with the potential of dismantling the religious and cultural ethos of the people. Several organizations criticized it against the backdrop of secularism demanding that the right to religious freedom include the freedom to practice one’s religion and culture, as well as the right to safeguard one’s laws. Dr. B.R. Ambedkar, the chairman of the drafting committee, on one hand, disagreed with its implementation, and on the other thought it was absurd to part such importance to religion in civil matters.
Even today, few religious leaders are opposing UCC on the grounds that it violates an individual’s religious freedom. Opponents see Uniform Civil Code as a threat to the cultural autonomy of different religious groups. These arguments arise out of India’s attempt to safeguard its title of multiculturalism, which is often at crossroads with secularism. It fails to see that religious freedom is internally linked with the idea of faith. Religion is a means to express one’s faith. The Indian judiciary has made it abundantly clear that public expression of one’s faith cannot conflict with constitutional mandates and principles. The Sabarimala judgement appears to be the perfect example of this adherence to constitutional principles, in which the Supreme Court of India invalidated the practice of prohibiting menstruating women from entering temples. Religious customs and practices cannot be given blanket legal protection in the name of personal laws. Cultural relativism is no justification for unjust personal laws.
Difference or Discrimination?
These opposing debates reinforce patriarchy in the name of religion in order to keep male dominance over women intact. Clearly, personal laws favour men over women at every juncture. According to the Hindu Adoptions and Maintenance Act 1956, a married Hindu woman does not have the right to adopt a child even with the consent of her husband as it is the sole domain of the latter. In fact, with respect to women’s right to adopt, the court in the case of Malati Roy Chowdhury v. Sudhindranath Majumdar accepted the fact that there still exists a bias, in personal laws, based on gender and marital status. In addition, a divorced Muslim woman is only entitled to maintenance for a limited time. In certain communities, men have unrestricted power over women in matters of divorce. All these examples are just a few of the many discriminatory provisions that still exist in various personal laws in India.
Then, going by this analysis it may not be wrong to conclude that there already exists a uniformity in civil matters; a uniformity of oppression and exclusion against women, resulting in discrimination at every point and denying “equality” before the law. Apart from women, another community that faces double oppression and social boycott in their daily lives and is often completely left out of the discussion of UCC is the LGBTQ community. Even when the colonizers were drafting personal laws, the queer community was completely excluded. Sodomy was a crime. Homosexuality had no place in the British Raj.
It is time to amend these faults. If UCC is to be applicable it must take a gender-neutral stance. With the same-sex marriage debate raging in the county and a decision pending in the Supreme Court, deliberations over personal laws for the LGBT community should not be postponed any longer as clearly here the problem is not the mere existence of a ‘difference’ but unequal treatment, sourcing itself from the deeply rooted patriarchy which fuels the cycle of systemic discrimination and violence in both democratic and non-democratic societies.
In conclusion, it is quite evident that the current personal laws in the country perpetuate gender-biased norms and practices, inclined towards social orthodoxy and religious revivalism, granting women unequal rights and treatment compared to men, while completely neglecting the LGBTQ community. For a diverse and multicultural polity such as India, Uniform Civil Code will only be uniform in the true sense when it includes within its fold each and every Indian irrespective of gender, religion or sexual orientation.
Author’s Bio
Aman Chain is a second-year law student at Jindal Global Law School. His areas of interest are Constitutional law, queer studies, and intersections of religion and law.
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