EQUALITY OR EQUITY?

WHAT DOES INDIA NEED AND HOW WILL UCC

ENFORCE GENDER JUSTICE IN INDIA?

The topic of real secularism in India has been gaining significant attention lately, with the
belief that a uniform civil code is essential for genuine gender justice and secularism. The
recent ban on triple talaq highlights the importance of rejecting any religious practice that
promotes gender inequality. Personal laws and customary practices have disadvantaged
Indian women, making it necessary to address gender biases. Adopting a UCC could provide
an opportunity for all citizens to be treated equally before the law, regardless of their religion
or gender. It is essential to consider and address the concerns and needs of women from
marginalized communities while proposing a UCC. While some may view the UCC as
contentious, its adoption could have practical benefits for society as a whole. The UCC was
included as a directive principle of state policy by the founding fathers of the Constitution,
underscoring its significance. Emphasizing the importance of equity over equality in India is
crucial. However, it is worth questioning whether a Uniform Civil Code (UCC) can be an
effective solution to address this issue.

The Uniform Civil Code aims to provide a common set of rules that apply to all Indian
citizens, irrespective of their religious beliefs. This means that personal concerns will be
governed by a universal body of law that replaces Personal Laws based on the scriptures and
customs of each major religious community. The term "Uniform" in UCC signifies
uniformity of laws between communities and within communities, ensuring equalities
between the rights of men and women.

The concept of a Uniform Civil Code has been discussed throughout history in various
statutes and cases. Lord Macaulay first proposed the idea in 1833 in the 1st Law Commission
Report, where he also drafted the Indian Penal Code and suggested the enactment of the Civil
Procedure Code (CPC), Indian Penal Code (IPC), and Code of Criminal Procedure (CrPC.).
These statutes were enacted after the establishment of crown rule in India in 1858. The CPC
was enacted in 1859, followed by the IPC in 1860, the CrPC in 1861, the Indian Evidence
Act in 1872, the Indian Contract Act in 1872, and the Oath Act in 1873. By the 19th century,
almost all criminal matters were unified, but civil matters remained personal matters for
Indians, including Hindus, Muslims, Jains, Sikhs, and others, which were not regulated by the
British Government.
Sir Henry Maine introduced The Special Marriage Act in 1873 to unify civil matters by
allowing inter-caste and inter-religion marriages. Although this legislation was later removed,
it was reintroduced in 1954 to promote uniformity in marriage provisions. The Age of
Consent Act was enacted in 1891 and applied to citizens of all religions. The Child Marriage
Restraint Act, also known as the Sharda Act, was introduced in 1929. This act set the age of
marriage at 18 for boys and 14 for girls. The Married Women Property Rights Act was
enacted in 1874 to give Hindu women the right to marriage property, known as Stridhan. In
1928, the Hindu Inheritance (Removal of Disabilities) Act was introduced to provide
property rights to women in ancestral properties. To bring about the Uniform Civil Code,
uneven provisions for women's rights had to be made uniform. The codified Hindu Law
states that anyone who is not a Muslim, Parsi, Christian, or Jew is governed by Hindu Law
and is considered Hindu, so all the above legislation applies to Hindu, Jain, and Sikh women.
The Muslim Personal Law (Shariat Law) Act was enacted in 1937, which stated that any
matter relating to Muslims must be resolved by the Shariat Act only. However, in 1939, the
Dissolution of Muslim Marriage Act was passed, which could only be referred to in cases of
judicial scrutiny.

In the Constituent Assembly Debates Volume VII, Ambedkar concluded that “It is perfectly
possible that the future parliament may make a provision by way of making a beginning that
the Code shall apply only to those who make a declaration that they are prepared to be bound
by it, so that in the initial stage the application of the Code may be purely voluntary…”
During the Constituent Assembly, there were disagreements concerning the Uniform Civil
Code (UCC) that would govern personal matters such as marriage, divorce, adoption,
inheritance, and succession. As a result, the Code was included as a part of the Directive
Principles of State Policy (DPSP) instead of being a fundamental right. Therefore, the
provision was not enforceable.

Dr B. R. Ambedkar emphasized, “Independence doesn't mean independence from Britishers

only but it includes independence from old unequal customs for Hindu Women and Dalits."
The Hindu Code Bill was drafted to propose the elimination of polygamy laws, new
provisions for divorce laws, and joint property rights for women in joint families. The final
draft of Article 44 was amended and added to the Constitution of India. The Hindu Code Bill
was then enacted in four forms, which addressed topics such as marriage, succession,
guardianship, adoption, and maintenance. This led to the introduction of the Hindu Marriage
Act 1955, the Hindu Succession Act 1956, the Hindu Guardianship Act 1956, and the Hindu
Adoption and Maintenance Act 1956. Subsequently, the court reviewed the Uniform Civil
Code and made amendments to make it more equitable for women in society.

The Supreme Court has made several significant rulings in various cases related to marriage
and succession. In Sarla Mudgal vs. Union of India, the court ruled that a marriage is not
dissolved until a court grants a divorce, and individuals who commit bigamy without
obtaining a divorce can be punished under section 494 of the Indian Penal Code. The court
also requested an update on the Uniform Civil Code, but this was considered a passing
remark. In Shabana Hashmi vs. Union of India, adoption rights were extended to minorities
under the Juvenile Justice Act. While provisions for uniformity among Hindus have been
met, minorities such as Christians, Parsis, and Muslims still lack uniformity.

In Mrs. Mary Roy etc. vs. State of Kerala & Ors, the Supreme Court declared that the Hindu
Succession Act applies throughout India, although it did not apply to Kerala under the
Travancore Succession Act 1916. The court also recommended the legislature consider the
Uniform Civil Code when addressing succession matters. In The State of Bombay vs. Narasu
Appa Mali, the court held that bigamy was valid for Muslims and not a matter for the court.
The Supreme Court declared Triple Talaq unconstitutional in Shayara Bano vs. Union of
India in 2017 due to the failure to follow the doctrine of essentiality. While the judiciary
rarely interfered in religious matters, the Shah Bano and Shayra Bano cases were exceptions.

Although there have been judicial interventions, the Legislature has shown sensitivity
towards the diversity of socio-cultural practices. This is evident from the adoption of the
Sixth Schedule which allows for autonomous districts and regions. The district councils have
the legislative power to handle matters of inheritance, succession, marriage, and divorce.
Article 371A was added by the Constitution (13th Amendment) Act, 1962. It states that no
Act of Parliament can apply to the state of Nagaland concerning religious and social practices
of the Nagas, Naga customary law, and procedure, unless the legislative assembly of
Nagaland decides so by a resolution. Article 371A provides differential treatment to
Nagaland, while Articles 371B-371I offer similar exceptions to other States in the northeast
due to different social conditions prevalent in those areas.

In its latest deliberation, the 21st Law Commission recognized the need to approach the
complex issue of family law with caution and consideration. With over 75,000 responses
received from the public on the matter, it is evident that many people are concerned about the
state of personal laws. The Commission's exhaustive consultation paper, spanning 185 pages,
suggests that a Uniform Civil Code (UCC) may not be the best solution to ensure the
protection of the rights of vulnerable individuals such as women and children. Instead, the
Commission recommends implementing reforms in family laws of different religions to
promote diversity and balance. The Commission promoted reforms in family laws of
different religions over UCC which, it said, was “neither desirable nor necessary”.

“This Commission has, therefore, dealt with laws that are discriminatory rather than
providing a UCC which is neither necessary nor desirable at this stage. Most countries are
now moving towards recognition of difference, and the mere existence of difference does not
imply discrimination butt is indicative of a robust democracy,” it said. “Cultural diversity
cannot be compromised to the extent that our urge for uniformity itself becomes a threat to
the territorial integrity of the country,” said the comprehensive report.

Despite the 21st Law Commission of India's clear statement in August 2018 that a uniform
civil code (UCC) "is neither necessary nor desirable at this stage," the 22nd Law Commission
has issued a fresh notification on Wednesday, June 14, 2023, seeking public and religious
organizations' opinions on the Uniform Civil Code (UCC). In a public notice, the
Commission headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi stated:
“Initially the 21st Law Commission of India had examined the subject of Uniform Civil Code
and solicited the views of all the stakeholders through its appeal along with a questionnaire
dated October 7, 2016 and further … (periodic) public appeals. Pursuant to the above
overwhelming responses have been received by the Commission. The 21st Law Commission
of India issued a consultation paper on the Reform of Family Law on August 31, 2018. Since
more than three years have lapsed from the date of issuance of the said consultation paper,
bearing in mind the relevance and importance of the subject and also various court orders on
the subject, the Law Commission of India considered it expedient to deliberate afresh over
the subject.”

The Commission was referring to a consultation paper on “Reform of Family Law” by the
previous Commission. According to the paper, the 21st Law Commission, headed by former
Supreme Court judge Balbir Singh Chauhan, held that the “formulation of a Uniform Civil
Code is neither necessary nor desirable at this stage”. The recommendations were significant,
and the Commission stated that the existence of differences does not imply discrimination but
indicates a robust democracy. It was also noted that most countries are moving towards
recognizing differences instead of legal provisions founded on uniformity, which is unfair to
the weaker and vulnerable sections of culturally diverse people.

In India, the issue of a Uniform Civil Code continues to be a sensitive topic despite ongoing
discussions. UCC, aims to provide protection to the weaker sections of society and promote
national sentiment. The main argument for introducing UCC has always been gender
equality. It claims that the UCC will create equal laws for everyone when it comes to
individual rights.

Gender justice refers to the equal treatment and opportunities for individuals of all genders,
including women, men, and individuals who identify as non-binary or transgender. It
encompasses a wide range of issues, including access to education, employment, healthcare,
and political representation. Despite progress in recent years, gender inequality and
discrimination continue to be pervasive issues in India, particularly in rural areas and among
marginalized communities. Efforts to promote gender justice in India include policy changes,
legal reforms, and grassroots activism aimed at raising awareness and empowering
individuals to challenge gender-based discrimination and violence.

The Indian personal law has been a topic of debate for a long time, especially when it comes
to gender justice. It is an undeniable fact that personal laws are oppressive towards women.
Despite amendments, laws have faced long battles of cases in almost all religions. For
instance, the practice of Triple Talaq in Muslim personal law has come under scrutiny as it is
seen as discriminatory towards women. Similarly, the Hindu Succession Act, which was
amended in 2005 to give equal rights to daughters in ancestral property, is still not
implemented properly in many parts of the country. Nonetheless, it is crucial to note that this
is not the only prejudiced personal law in India.

According to the Hindu Minority and Guardianship Act, the father is considered the primary
natural guardian under Hindu law. This preference excludes women from being natural
guardian’s altogether and reflects patriarchal notions that violate the principles enshrined in
the Constitution. Similarly, in Christian law, gender bias exists in divorce laws where men
can obtain a divorce based on adultery while women cannot unless it is accompanied by
bestiality, sodomy, or desertion. Gender bias also exists in various provisions of personal
Parsi laws, where a Parsi woman marrying a non-Parsi man loses her property rights and
rights to practice her religion, while a Parsi man marrying a non-Parsi woman does not face
the same consequences. These are just a few examples of discrimination that personal laws
perpetuate, as they stem from beliefs and faith within specific communities and vary in
nature. Overall, there is a need to ensure that all personal laws in India are in line with the
principles of gender justice and do not discriminate against any gender.

But I wonder, can UCC truly guarantee gender justice in India? The Union government
advocate that the implementation of the Uniform Civil Code (UCC) is a necessary measure to
ensure gender justice. However, women's rights activists, who come from various religious
and political backgrounds, have expressed a different opinion, arguing that the first step
towards achieving gender justice should be the codification of the existing personal laws of
all religions. These laws need to be reviewed and revised, where necessary, to address
women's issues more effectively. The activists believe that the sudden implementation of the
UCC would only lead to needless political complications and cause discomfort among
women. Therefore, a more gradual approach that takes into account the diverse cultural and
religious sensitivities of the country is necessary to ensure that all women are treated fairly
and with respect.

There are a couple of important points to consider with this argument. Firstly, there is a lack
of clarity regarding what exactly the UCC should contain, as there is no concrete definition of
it. Even the Constituent Assembly had some trouble understanding it. It's worth noting that
the much-praised Goa UCC or Portuguese civil procedure code doesn't apply equally to
everyone. Different communities are subject to different rules, which isn't very consistent.

Secondly, there's no guarantee that the UCC won't be discriminatory. Ultimately, it's going to
be passed by men who hold a majority in both houses of government. Even the inspiration
behind this debate, Goa's UCC, isn't gender-just. For example, it allows Hindu men to have
bigamous marriages under specific circumstances like when the woman can't produce a son.
This highlights the potential for gender discrimination, which is a significant concern.

Even if the idea of a Uniform Civil Code may promote gender equality, it is important to
remember that there are still instances of people breaking the law. This is especially true with
child marriage and dowries, which continue to happen in secret. Unfortunately, even when
these crimes are reported, they're often ignored. This highlights the deep-rooted issues within
our society and the importance of enforcing the law effectively.

As a country that embraces "Unity in Diversity," India needs to take a holistic approach to
address the issue of gender inequality. While many see UCC as a quick solution, it's
important to acknowledge that the underlying social, economic, and political structures that
perpetuate inequality must also be addressed. UCC has been a long-time dream for India, but
it's important to not get lost in the fantasy and instead focus on reality.

A just and fair code is more important than a uniform one. The goal of UCC should be
reached in a step-by-step approach, with consideration for the social adaptability of such
changes. It's crucial that any policy framework for a UCC provides equal recognition of the
rights of all groups, including sexual minorities.

To address this issue, we must take a proactive approach and implement measures that can
significantly impact our society. Firstly, we should focus on amending existing laws to ensure
that they uphold an individual's freedom of religion. For instance, the current age of marriage
for men and women is set at 21 and 18, respectively. This creates a patriarchal notion that
favours younger brides. To counter this, there should be a uniform age of marriage for both
men and women, which would ensure that both genders have equal rights when it comes to
marriage.

Another issue that needs to be addressed is polygamy, which should be illegalized across all
religions, including Islam. This is because it infringes upon the rights of women, and it is
necessary to ensure that all individuals have equal rights and opportunities in our society.

Secondly, women should be given the choice to follow a Uniform Civil Code (UCC) or their
preferred personal laws. This would ensure that women have the freedom to choose the legal
system that best suits their needs and beliefs. Lastly, a woman's decisions regarding marriage
should not impede her inheritance or religious rights. By taking these measures, we can
promote gender equality and prevent religious discrimination, resulting in a fair and just
society.

In addition to these measures, it is also important to consider the rights of the LGBTQA+
community in our law-making process. By recognizing and respecting the diversity of our
society, we can create a legal system that is fair and just for all individuals, regardless of their
gender, sexuality, or religion. Ultimately, it is only by working together and taking a
proactive approach that we can create a society that is truly inclusive and equitable for
everyone.

Whether a single law is created for all religions or personal laws are reformed, they must be
based on gender justice and ensure that the principle of equality enshrined in our Constitution
remains intact. The government and society must work together to build trust in order to
proceed towards a Uniform Civil Society that respects human rights and promotes gender
equality. While the argument that UCC will bring gender equality may not stand until the
final draft, we must continue to work towards creating a society where all individuals are
treated equally. Until we can resolve these issues, India cannot be ready for UCC. The issue
of personal laws, which are derived from religious texts, has been a topic of much discussion
and debate in our society. While these laws have been adapted to conform to the Constitution,
some personal laws are more intertwined with religion and are influenced by socio-political
factors. It is important to recognize that the problem at hand is not solely attributable to the
laws themselves but also the general mind-set of society. Unfortunately, these mind-sets are
often exploited by political parties to gain votes.

In summary, it is important to understand that the main goal of the Uniform Civil Code or
any other legal code is not to change someone's religious beliefs or offend them. The ultimate
aim should be to establish a universal legal framework that guarantees EQUITY and
EQUALITY for everyone.