SPECIAL ARTICLE
Politics of the Uniform Civil Code in India
Peter Ronald deSouza
The debate on the Uniform Civil Code in India has passed
through three phases which have been grounded in
different normative concerns, that is, national
consolidation, equality of laws, and now gender justice.
Since the normative goals of a polity and political
contingency are in a perpetual struggle in India, the time
is appropriate for us to visit the UCC debate with a view to
strengthening our constitutional democracy. This article
after presenting an overview of the debate suggests that
there are mainly two paths to follow to meet this
aspiration: (i) changing the ecology of laws relating to
women, and (ii) adopting the common civil code that is
prevalent in Goa.
Peter Ronald deSouza (peter@csds.in) is at the Centre for the Study of
Developing Societies, Delhi. He also holds the Dr S Radhakrishna Chair
of the Rajya Sabha (2105–17).
50
O
ne of the persistent contradictions that the postcolonial
democratic state in India has had to deal with
concerns the enactment of a Uniform Civil Code (UCC)
for India. This contradiction began life in the Constituent
Assembly itself when it was moved from the Fundamental Rights
chapter to that of the Directive Principles of the Constitution, a
political compromise that made it recommendatory for the state
to enact an UCC, but one which was not justiciable. Over the
objections of Minoo Masani, Hansa Mehta and Rajkumari
Amrit Kaur, members of the Constituent Assembly who saw
this as an unacceptable compromise, Article 44 entered the
Constitution recommending that “The State shall endeavour
to secure for the citizens a uniform civil code throughout the
territory of India.” Over the past 65 years Article 44 has repeatedly
been invoked by courts, whenever a dispute on personal laws
reaches the public sphere, to remind the state of its pending
obligations. This has produced a rich public debate about the
deepening of democracy in India. In this paper I shall look at
the landscape of this debate.
The common issue running through the various phases of
this debate has been the arguments relating to the “terms” of
this politics of compromise. As the classic tension between the
dynamics of politics and the promises of law plays out, advances
and reverses take place on the normative commitments that the
emerging new polity must make. On probing the dynamics of
this tension some interesting subsidiary questions emerge. For
example, if a society is to engage with modernity, in its political
form of a constitutional democracy, how can law facilitate such
engagement? What resistances does such engagement confront?
Do these resistances come from progressive and/or regressive
forces? How should the institutions of politics, and of law, deal
with them? Is a coercive strategy of imposition preferable to a
persuasive strategy of consensus building especially in a politically
stubborn society such as India where mobilisations can often be
very retrogressive? In such a situation what are the obligations
of a secular state faced with a communal society? This paper
will provide a brief overview of the stages and phases through
which this contradiction has evolved. We must through this
narrative, however, not lose sight of the central question that
runs through this saga: What is the role of law as an instru-
ment of social and political reform in a postcolonial state?
Historical Overview
It is perhaps pertinent to begin the analysis in the colonial
period. Two aspects are relevant here. The first concerns the
conflict between the protections of law and the forces of cultural
orthodoxy as was played out in the Rukhmabai case (1884–88).
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The second refers to the process of codification of the personal
laws of the dominant communities by the colonial state.
Rukhmabai was married at the age of 11, a minor, to a person
many years her senior, Dadaji Bhikaji Thakur, who had agreed
to let her stay with her stepfather till she reached puberty.
During this period she studied and developed a personality
that exhibited personal independence of opinion and aspiration.
When she attained majority her husband tried to persuade her,
for many reasons including access to her inheritance, to come
and live with him. She had never lived with him because her
stepfather had insisted that till she attains puberty she would
not enter the marital home. Rukhmabai, whose personality
and views had over the years evolved, refused to enter the
marital home because she had heard about her husband’s
waywardness and had grown to dislike him (Chandra 2008).
When persuasion and even mild threats failed he filed a case
in the Bombay High Court in 1885 for “restitution of conjugal
rights.” He lost the case. He then went in appeal in 1886 and
was given a favourable judgment in spite of which Rukhmabai
still refused to enter the marital home preferring instead to
face the punishment that the courts chose to award.
During this legal contestation a public debate ensued
between the orthodox or anti-reform faction and the reformist
faction of the Hindu community. The orthodox bloc, led by Bal
Gangadhar Tilak and Rao Bahadur Mandalik, forwarded
many arguments, such as marriage customs had religious
sanction since they were practices that were derived from
sacred texts, wives must consent to sexual intercourse with their
husbands, especially since they were instruments of procrea-
tion, it is the wife’s duty to live with her husband, etc. The or-
thodox faction saw the law as interfering with the cultural
practices of the Hindus which was beyond its jurisdiction since
these practices were derived from the shastras. The reformist
faction, led by M G Ranade, G G Agarkar and K T Telang, in
contrast used modernist arguments in defence of Rukhmabai
such as, as a minor she could not be held to the terms of the
marriage contract since she had not consented to it as a
responsible adult, that “restitution” was not possible since
“consummation” had not taken place, and that her wishes on
achieving adulthood were alone relevant to the case.
The case makes fascinating reading but what is relevant for
our discussion is that even a century earlier the role of modern
law and the juridical institutions of the state was disputed in
terms of its authority to intervene on an issue concerning the
rights and obligation of the two parties to a marriage. In this
instance it was a debate within the Hindu community on
whether it was permissible for the secular law to adjudicate on a
marital dispute governed by religious laws. In spite of the public
protests on the state’s interference the decision of the state was
accepted and a compromise was reached for a monetary
settlement that Rukhmabai’s husband accepted (Ranjan
2005). Similar issues, to those raised in the Rukhmabai case,
find expression in UCC disputes today except that here they
now concern the Muslim community. It is interesting that the
case law on marriage, inheritance, divorce, etc, from England
was unavailable for the colonial courts to draw upon since all
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SPECIAL ARTICLE
the cases concerned a dispute between two persons who were
majors whereas in the Rukhmabai case the marriage was
between a minor and a major. New principles had to be
invoked to decide the case. I mention this interesting snippet
because it is such conundrums that modern law in India has
to deal with as it strives to establish the rule of law in a society
engaging with the forces of modernity. The challenge of
building a modern state is to determine how many of the
aspects of the old social order can be incorporated into the
emerging new constitutional order so that they remain con-
sistent with the principles of this new order for example,
equal citizenship, while giving an impression of continuity
with the old order.
Codification of Personal Laws
The second aspect concerns the process of codification of
personal laws by the colonial state. Because it had to adjudicate
on matters relating to marriage, divorce, adoption, inheritance,
that is, on family and property matters, the colonial state
initiated a process of bringing together the diverse practices of
different groups and regions in India into what came to acquire
a semblance of a common code for the community. By employing
the services of Brahmin priests and experts in the shastras and of
Muslim clerics, who were trained in the Qur’an and the Al-Hadith,
the colonial state produced texts which became the basis for
judges to adjudicate on property and family disputes in the
courts (Ghosh 2007; Menski 2008; Agnes 1999; Parashar
2000). There are several texts that were created as a result of
this codification, such as Thomas Strange’s Elements of Hindu
Law and later the Shariat Act of 1937 and the Dissolution of
Muslim Marriages Act of 1939. The list of texts produced
through such an exercise of codification, during the colonial
period, is extensive and need not be listed here but what is of
relevance for our discussion of the UCC today, from this exercise
of codification, is the active role of the state in the preparation of
a set of legal texts on property and family laws which were
then available to the courts for the adjudication of disputes.
Further, this codification happened with the active assistance
of scholars from both the Hindu and Muslim communities. The
codes then came to be owned by the respective communities. This
role of the state becomes relevant because, under democratic
India, when the politics of communities emerges, there is
resistance to state interference based on the argument that
reform should come from within communities alone. I will
return to this issue in a later section.
The next major historical location for the UCC debate was
when the imagination for a free India was being forged in the
debates in the Constituent Assembly. The decision to place it
in the Directive Principles of State Policy, Article 35 in the
draft and Article 44 in the final Constitution, was based on the
assurance given by Nehru and Gandhi to the ulema that the
enactment of a UCC would be postponed although it would
remain an aspiration of the state (Ghosh 2007: 72). The grounds
of this assurance were the trauma of partition where the Muslims
who had elected to stay back in India were fearful that their
customs and religious practices would be undermined in a
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Hindu India (Mullaly 2004: 677). The debate on the UCC came
before the Constituent Assembly in 1948 after partition had
occurred and hence it took place in the shadow of the horrific
communal killings. Muslim members invoked the religious
source of personal laws and argued against state intervention.
K M Munshi, Alladi Krishnaswamy Iyer and B R Ambedkar in
response argued for its place in the Directive Principles so that
it would serve as a beacon for social reform. Ambedkar was
firm in the view that it was permissible for the state to inter-
vene in the religious domain by formulating laws especially
when this intervention promoted the cause of social justice.
For him, if this non-interference was conceded then no pro-
gress was possible.
Coming to the question of saving personal law …. I should like to say
this, that if such a saving clause was introduced into the Constitution,
it would disable the legislatures in India from enacting any social
measures whatsoever. The religious conceptions of this country are
so vast that they cover every aspect of life, from birth to death. There
is nothing which is not religion and if personal law is to be saved I am
sure about it that in personal matters we will come to a standstill. …
After all what are we having this liberty for? We are having this liberty
in order to reform our social system which is full of inequities, so full
of inequalites, discriminations and other things, which conflict with
our fundamental rights…. Having said that, I should also like to point out
that all that the State is claiming in this matter is a power to legislate
(Ambedkar 1949: 80).
Ambedkar’s statement in the closing stages of the debate in
the Constituent Assembly was a clear acknowledgement of the
role of law as an instrument of social reform, of almost an obli-
gation for the state to use law to put an end to the inequities and
discriminations that marked the social order and that often had
their provenance in the domain of religion. For him, it was a
clear modernist project of aspiring for equal citizenship. As
chairman of the Drafting Committee, he was unwilling to
countenance any undermining of this power of the state to in-
tervene in matters of societal injustice.
The proceedings in the Constituent Assembly had ranged in
the chapter on Fundamental Rights, on the different aspects of
individual rights—Articles 14–19, and group rights—Articles
25–30. In keeping with constitutional principles everywhere
these had been enshrined in the Fundamental Rights chapter
to protect the individual against state tyranny and to both as-
suage India’s minorities and protect India’s cultural diversity.
As I shall show, the UCC controversy in the subsequent decades
has taken place in the space created by this tension between indi-
vidual rights and group rights, on how to reconcile the contrast-
ing positions of inviolability that each set of rights claims for
itself, and what role the state should play in this reconciliation.
The first major moment for this exhibition of state power, by
the democratic state to intervene in reforming personal laws,
comes on the issue of the Hindu Code Bill. Over the resistance
of the President of India, Rajendra Prasad, Sardar Patel and other
conservative Congressmen, who felt that if women were given
the right to divorce along with the right to inherit property, it
would be harmful to Hindu society. Nehru had several acts passed
that were a small step towards giving Hindu women greater
equality of treatment. The Hindu Marriage Act 1955, the Special
52
Marriage Act 1954, the Hindu Minority and Guardianship Act
1956, and the Hindu Adoptions and Maintenance Act 1956, all
of which seek to create a common law that governs the diverse
practices of the Hindu community, were passed after a protracted
political struggle. Two contrasting readings of this intervention
by the state in personal laws of Hindus can be identified. The
first, articulated by Madhu Kishwar in a long essay titled “Codified
Hindu Law: Myth and Reality,” argued that it was a “colonial-
ist mindset of the English educated elite” that saw the state as
an instrument of social reform and in passing these laws un-
dermined the diversity of “community based law that had a
greater implementability and allowed people more options”
(Kishwar 1994: 2147). In contrast is the view of Ambedkar who
felt that the truncation of the comprehensive Hindu Code Bill
into several parts, and that too after extraordinary delay, was a
regrettable step backwards. His resignation speech in the house,
as law minister, records his dismay at the compromises made
by Nehru with the conservative opponents of the reform. His
anguish stems not just from the fact that the compromises were
reached without his approval but also because parliamentary
procedures were subverted to achieve them.
In regard to this Bill, I have been made to go through the greatest mental
torture. The aid of Party machinery was denied to me. The Prime Minister
gave freedom of Vote, an unusual thing in the history of the party. I
do not mind it. But I expected two things. I expected a party whip as
to time limit on speeches and instruction to the Chief Whip to move
closure when sufficient debate had taken place. A whip on time limit
of speeches would have got the Bill through. … For days and hours
filibustering has gone on a single clause. But the Chief whip, whose
duty it is to economise Government time and push on Government
business, has been systematically absent when the Hindu Code has
been under consideration in the house. I have never seen a case of a
Chief whip so disloyal to the Prime Minister and a Prime Minister so
loyal to a disloyal Chief Whip (Ambedkar 1951).
Although the various acts were passed, only after Ambedkar’s
resignation, his speech on the episode highlights the tension
between law and politics particularly when the state seeks to
use law to promote social reform. The question of whether it is
a “colonialist mindset” that seeks to impose a uniform set of laws
and whether a plurality of laws must be encouraged especially
in the domain of personal law (although interestingly the im-
position of a uniform criminal law does not evoke the same
objection) are questions that come into full play decades later
when the Shah Bano case is decided by India’s Supreme Court.
Shah Bano Case
A hundred years after the Rukhmabai case, the Shah Bano case
acquired intense public attention and produced similar arguments
pertaining to the jurisdiction of the secular law and its institu-
tions. In 1985, the Indian Supreme Court ruled that Shah Bano,
a 68-year-old woman, was eligible for maintenance under Section
125 of the Code of Criminal Procedure. Her husband Moham-
med Khan, an advocate, divorced her after 43 years of marriage
when she had asked for maintenance. Her ex-husband had
argued that after divorce his liability to maintain his wife was
governed by the Muslim Personal Law which limited
his responsibility to the three-month iddat period of three
menstrual cycles and to mahr which was committed at the
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time of marriage. After fulfilling these commitments mainte-
nance was the responsibility of the divorced woman’s natal
family and of the community through its Waqf income. The
Court ruled otherwise and held that Section 125(3)(b) applied
to the case and in its judgment noted that “mahr was a sum
payable by the husband to the wife on divorce … an obligation
imposed on the husband as a mark of respect” and therefore
not an excuse for non-fulfilment of the responsibilities under
Section 125. In delivering the judgment the honourable justices
went beyond the statute and sought to give additional legiti-
macy to their judgment by offering an interpretation of sura
2:241 of the Holy Qur’an.
The judgment produced a massive political outrage in the
Muslim community who, mobilised by their political leaders,
objected to the secular law overriding the Muslim personal
law, and worse to the Court interpreting the Holy Qur’an
which, they argued, only a Muslim “alim” can do (Engineer
1999: 1488). The Court in its judgment had clearly defined the
position that in the case of a conflict of laws, for example,
between religious and secular laws (even though in the Shah
Bano case there was no such conflict), the secular law would
prevail and that was why responsibilities under Section 125
were being imposed (Rahman 1990; Sunder Rajan 2000). The
political mobilisation among the Muslim community conducted
by several Muslim organisations, such as the All India Muslim
Personal Law Board (AIMPLB), Jamiat Ulama-i-Hind, Jamaat-
e-Islami and Muslim League argued that the Supreme Court
had transgressed its jurisdiction since “the Muslim personal
law … was based on the Shariah, which is divine and immuta-
ble, hence no legislative or executive authority could amend or
alter its provisions” (Hasan 2014).1
In the face of these protests the Rajiv Gandhi government
lost its nerve and sought to assuage the community by hurriedly
reversing the many gains of the judgment by enacting the Muslim
Women (Protection of Rights on Divorce) Bill 1985. This was
done to appease what it perceived to be Muslim anger as had
been conveyed to it by the dominant section of the Muslim
leadership. It is pertinent to note that other voices in the Muslim
community, albeit a minority, favoured the judgment as an ad-
vance in Muslim women’s rights but these were not heard. Vote
bank politics played an important part in this reversal since in
the recent past the Congress had lost several elections that had
been held soon after the judgment. The regime needed to do
something to avoid the danger of alienating the crucial Muslim
vote (Hasan 2014).2 Let us disregard, for the moment, the issue of
whether the Supreme Court can interpret a religious text, if
that text prescribes punishment on an individual in an area of
social life which is also within the Court’s jurisdiction—a com-
plex and relevant question that comes up in the Shah Bano case—
and only focus on the judgment. We then need, at this point in
the argument, to illuminate two issues: (i) the provisions of
the secular and religious laws and whether they are in conflict,
and (ii) the political compulsions of the government.
There are four Sunni schools of Law—the Hanafi, Shafi, Malaki
and Hanbali. The jurists in these schools have developed fine
distinctions on the obligations of the husband to his divorced
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wife with respect to the three payments of iddat, mahr and mataa.
While there are different but largely overlapping interpretations
on the first two obligations there is wide disagreement on the
third, mataa.
Mataa, a third, more controversial claim, may also be made. Mataa,
based on Ayat 241 of the Holy Qur’an, requires that an ex-husband
make a reasonable provision for his divorced wife. Opponents of
mataa, including the majority of Islamic scholars from all Sunni
schools, declare that Ayat’s exhortation is directed at the more pious
and orthodox Muslims. This view implies that “sinners” are free to avoid
the obligation of providing maintenance for their ex-wives. Supporters
of mataa, a minority of Sunni Muslim Theologians, declare that this
Ayat is addressed to all Muslims—it is not merely limited to the pious.
However, the mataa claim, which is favorable to women is not usually
enforced in secular courts (Rahman 1990: 476).
No Counter Discourse
The government should have responded to the mobilisation of
the Muslim community by initiating a counter-discourse on
the plurality of interpretations by Islamic jurists on iddat,
mahr and mataa. Not only would this have contributed to a
public education within the Muslim community, especially the
women of the community, but it would also have educated the
larger society about the fine points of Islamic law with respect
to the rights of women.
Rather than take this more difficult road to strengthening
the constitutional values of equality, the state enacted the Muslim
Women (Protection of Rights on Divorce) Act (MWPRDA), 1986
where Article 3 (1)(a) entitles a Muslim woman at the time of
divorce to “a reasonable and fair provision and maintenance to
be paid to her within the iddat period by her former husband,”
(c) “An amount equal to the sum of mahr or dower agreed to
be paid to her at her time of marriage or at any time thereafter
according to Muslim law”; and (e) “All the properties given to her
before or at the time of marriage or after the marriage by her
relatives or friends or the husband or any relatives of the husband
or his friends.” In the case of a dispute, the act (MWPRDA 1986)
gives the power to a magistrate to enforce its provisions. The
act gave the divorced woman and her former husband the
option to be governed by the provisions of Section 125. This
willingness to be governed by Section 125 had to be given on
the date of their first hearing or else it would not apply. As a
result of the MWPRDA, Muslim women went outside the ambit
of Section 125 because of the culture of patriarchy within the
community. The enactment of the MWPRDA 1986 was seen by
feminist groups and progressives as a capitulation to Muslim
orthodoxy. Hindu communalists saw it as minority appeasement.
Muslim progressives were dismayed and saw it as a retrogressive
step against which their internal struggle for reform would now
get so much harder.
The UCC issue, as a result of the Shah Bano case and MWPRDA,
again came to the fore of public debate. In addition to the
courts several civil society organisations entered the debate. A
statement was issued by a women’s group on women’s rights
comprising Amrita Chhachhi, Farida Khan, Gautam Navlakha,
Kumkum Sangari, Neeraj Malik, Nivedita Menon, Ritu Menon,
Tanika Sarkar, Uma Chakravarti, Urvashi Butalia and Zoya
Hasan, on civil codes and personal laws where they offered
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three core ideas: (i) “the preparation and institutionalisation of
a comprehensive package of legislation which would embody
gender justice and would be far wider in its scope than exist-
ing laws, including the personal,” (ii) “all citizens of India
would come under the purview of this framework,” and
(iii) “all citizens would also have the right to choose, at any
point in their lives, to be governed by personal laws if they so
desire” (Gandhi et al 1996). These constitute three axes
around which the debate has subsequently evolved.
In trying to capture some of the ideas a model Nikahnama
(contract of Muslim marriage) was prepared (Engineer 2005).
Some Muslim groups challenged the authority of the AIMPLB
to represent them, since it was seen as dominated by the
Hanafi Sunni Ulama and so the All India Shia Muslim Law
Board was formed. The establishment of NGOs such as the
Awaaz-e-Niswaan in Mumbai created a new movement advocat-
ing “women’s rights and the spread of legal awareness, not
through languages of secularism but through Islamic scriptures
and reinterpretations of the Sharia” (De 2013). This nuanced and
wide-ranging public debate involving NGOs who come from dif-
ferent political perspectives, political parties, the lower judici-
ary, academics, and the media, has raised several important
issues for our discussion on the role of the law in addressing
issues of social reform in India.
Before we engage with these issues, however, we need to
put two significant issues on the analyst’s table. The first is the
growth of civil society in the decades beyond the 1980s in
India. In contrast to the situation of the 1950s and 1960s,
where the debate on UCC was more state-driven, today the
debate is fuelled by civil society organisations. Feminist
groups, Islamic groups, legal scholars, and political parties,
share and challenge each other’s ideas resulting in a diversity
of views whose spread has been assisted by the liberalisation
of the electronic media. In addition, the Indian debate has got
internationalised with different aspects of the conflict of rights
being flagged in global law journals.3 This has also brought
the global debates on rights, especially women’s rights, into
the Indian debate. This has given the UCC discussion in India,
especially post Shah Bano, a layered character that ranges
from a discussion of the dynamics of local community politics,
to the logic of electoral politics at the national level, to the
domain of comparative politics of those Islamic countries that
have responded to personal law issues by reinterpreting the
Sharia, to women’s rights and substantive equality (Nussbaum
2001), to a defence of pluralism of laws and to reviews of resolu-
tions in a situation of a conflict of laws (Jain 2005).
This layered debate has come about because of several
factors which need just to be acknowledged here but not
elaborated upon. The first is the expansion of the intellectual
landscape in India and its engagement with global debates.
This has meant the emergence of nuanced formulations on a
range of issues such as women’s rights in postcolonial socie-
ties, the limits of multiculturalism in Indian democracy, the
balance between individual and group rights in a plural polity,
the virtues of internal versus external reform of community
practices, etc. The debate has become more nuanced not just
54
because it is now a global debate but also because the global
debate has itself evolved in its use of core concepts. To this
evolution of ideas and formulations is a generational shift in
participants as a result of which feminist articulations which
were more on the margins of public discourse, several decades
ago, have today become more mainstream as young women
who join the debate have grown up with ideas of gender equality
and gender justice.
The second relates to the fact that the UCC debate is embedded
in not just feminist politics but in party politics as well. In
addition to a discussion of the obvious aspect of the consolidation
of the Muslim and Hindu vote banks, by a politics of appeasement
in the one case and a politics of opposing this appeasement in
the other, is the allied issue that what is at stake in the UCC
debate is two contrasting ideas of India. On the one hand is the
idea of India being a majoritarian Hindu country and hence a
uniformity of laws must be imposed similar to those enacted
in the 1950s for the Hindu community, a position espoused by
political groups linked to the Rashtriya Swayamsevak Sangh
parivar, and on the other is the view of India as a plural secular
polity which is willing to accept a future based on legal plural-
ism, a view that has been espoused by a range of political parties.
The UCC controversy allows for this shadow-boxing to take
place among political parties as they compete in the electoral
arena. It also is a site for a similar politics of positioning by
various civil society groups. My purpose here is not to attempt
a mapping of these different positions but just to acknowledge
their existence and regard them as constituting the background
to what I wish to say. The extensive literature on UCC has re-
corded these political shifts among parties and civil society
groups and so, with clear conscience, I can bypass this political
landscape and focus instead on the arguments advanced.
Normative Issues for a Democratising Polity
The evolution of the normative grounds for a UCC has broadly
gone through three phases. The first was the aspiration, in the
early decades, for “national integration” so that the emerging
nation could be consolidated. After signing the standstill
agreement with the Nizam of Hyderabad, Nehru wrote to the
chief ministers, as early as 2 December 1947, that the “political
consolidation” had “advanced considerably” and “India instead
of falling apart as many people feared and some evil ones had
hoped, is now a political entity and its foundations are deeper
than before 15 August” (Nehru 1947). During this period of
consolidation, political compromises were necessary such as
postponing the enactment of the UCC to assuage the insecurity
of the Muslims. National integration was the goal and if this
required conceding to different minority groups their own
personal laws over a uniform law then so be it. Interestingly 14
years later when Goa became part of the Indian Union, it too
was allowed to retain its civil code which, in contrast to those
elsewhere in the country, was a common civil code for all reli-
gious communities in Goa (Noronha 2008). In the second
phase, as India gained more self-confidence, the normative
goal shifted to looking at laws through an “equality” prism
and hence the UCC debate had to engage with the issue of
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whether Muslim women, because of their personal laws, are
at a disadvantage compared to Hindu women who have the
protection of the laws enacted in the 1950s under the reforms of
the Hindu Code. Equality of laws was the aspiration. We have
now entered the third phase dominated by the concern with
“gender justice.” The discussion has moved to exploring the legal
and political strategy to be adopted in creating a package of
laws, both personal and general, that would advance this goal.
There are several important normative issues for our constitu-
tional polity which emerge from this extensive literature on UCC.4
The first is the movement towards justifying legal pluralism as a
progressive project. To insist on the uniformity of personal
laws is, in fact, in the comparative international law literature,
seen as a step backwards for the polity (Sousa Santos 2006;
Tamonaha 2008). The recognition of a plurality of personal laws,
in a society where the Constitution is the primary ethical–legal
text that governs social and political life, the text of last resort,
implies that this plurality of personal laws must pass the test of
consistency with the first principles of the Constitution. In the
case of family laws, therefore, not only must they pass the test
of “non-discrimination” and “equal treatment” but they must
also satisfy the conditions of “gender justice.”
Conflict of Interpretation
In such a situation, a conflict of interpretation would necessar-
ily emerge. The parties to the conflict must concede that it will
be the secular judicial system under the Constitution that is
the institutional site for the resolution of these differences of
interpretation. Its authority must be accepted and to argue, as
some have done, that the Supreme Court has exceeded its
jurisdiction, or is a colonial construct, is to adopt a position
that is plainly unacceptable since it steps on the slippery slope
of ethical–legal relativism. Pluralism of laws is not anarchy of
laws. It is a concession to the diversity of cultural life in India,
a recognition that communities have worked out the rules that
are to govern their daily lives and that provide meaning to
their members. Interference with these rules is unnecessary
unless they violate core principles of the Constitution. It is an
acceptance that all aspects of social life need not be governed
by a uniform set of rules. To argue for limits on the jurisdiction
of the Supreme Court, especially when issues of gender justice
are involved in personal law cases, is to claim a degree of
autonomy which is unacceptable. There may be a plurality of
personal laws but we must be clear that in a situation of a conflict
of laws, a single authority has the overriding authority of inter-
pretation. There can be no fudging on this issue as is sometimes
seen to be the case. It is not enough to espouse the plurality
position without also taking a position on what happens when
a conflict of laws occurs. The question on who has the authority
to adjudicate in such a conflict situation, the secular authority or
the religious authority, cannot be side-stepped.
This is the case in Goa. The civil code in Goa, which had its
genesis in the colonial period of Portuguese rule, is a secular
code that is often referred to as a model for the whole country
since it is a common code for all communities and has been
accepted by them, although there are some exceptions for the
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SPECIAL ARTICLE
Catholics. All Goans, that is, those born to Goan parents, can chose
to marry under the Common Civil Code. I shall not go into its
genealogy here or how it varies from the code in Portugal
today (which was the basis for its original formulation but
which has since undergone changes while the Goa code has
not) but shall limit myself to listing some of its key features
and offer an occasional comment on some of them. In the Goa
civil code, all areas of civil law, such as civil capacity, citizen-
ship, contracts, succession, matrimony, property, etc, are
interwoven together and “interlinked by a single formula of
systematisation” (Noronha 2008).
The key features are registration of marriages, communion
of assets, equal treatment of sons and daughters, legitime
which implies 50% of assets to children, inventory, deed of suc-
cession, relinquishment of rights, registration of wills, etc. The
aspects which can be regarded as an advance, over the existing
laws, in terms of gender justice are in the main three: (i) The
requirement of registration of marriage before the civil authori-
ties which must precede a religious ceremony. This protects the
women from bigamy since the state is now a witness to the
marriage contract and since bigamy is unlawful, a second
marriage cannot be entered into. It also places a responsibility
on the state to provide the documentation of the marriage.
(ii) The communion of assets gives the woman a legal and
equal share into the husband’s assets and so, in a situation of a
contested divorce, similar to the Shah Bano case, the woman
has an equal portfolio of assets to that of the man and would
not have to face destitution if the family has assets. (iii) The
aspect of legitime which ensures security to the children, male
and female in equal measure, since they too have rights to half
the assets. In the civil code in Goa, the state undertakes the obli-
gation to extend protection since the marriage is registered and
all transactions such as wills, etc, also have to be registered.
These aspects of the common civil law are an advance over
many of the other personal laws prevalent in India, especially
when seen from the viewpoint of gender justice.
While the law may be progressive, feminist activists view its
operation as being hamstrung by the patriarchal character of
Goan society. In practice this translates to the woman being
compelled, at the time of marriage, to sign away her rights
after receiving a token compensation (dowry) from her brothers
the designated heirs of family property (Almeida 2013). Further,
although the civil code in Goa guarantees the rights to owner-
ship of property, feminists argue, because it has not been
updated for the modern age, it does not give rights to the new
forms of property that have emerged such as the membership
of housing societies, tenanted properties, digital products, etc.
It is also worth noting the conundrum of the legal system in
Goa that the judiciary has the burden of interpreting a law that
was designed for a civil law system while being trained only in
and for a common law system.
The foregoing brief discussion of the civil code in Goa raises
several issues. It illustrates the existence of plural systems of
personal law in India and shows that all communities accept
this common code which was imposed on them in 1910 by the
colonial state. Imposition, it seems, over time as a society
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modernises, produces its own concurrence. It demonstrates
not only the disjunction between the letter and the practice of
the law but it also points to a social landscape that sets Goa
apart from other regions in India since, even with the deficien-
cies in implementation noted by women’s groups, women in
Goa today enjoy greater protections and security because of
their legal right to family property. The “inventory” system of
family property that has to be followed in the event of the death
of a parent or relative gives all members of a family an opportu-
nity to make their claim to the property. Women can be stub-
born and do not have to be docile and submit to the domina-
tion of the men on these issues. When they do, the law is on
their side. The huge number of civil litigation cases in Goa, on
property matters, is a pointer to this trend towards equalisation of
claims and thereby to some semblance of gender justice as the
market in land escalates (deSouza 2007; SriRanjani 2008).
Goa is in fact a good case study to examine the impact of a
progressive law on a patriarchal social structure. One can
trace here the resistances the law confronts as it seeks to align
the society with its normative provisions. This dynamic frame
throws up the interesting “inconvenient fact,” for example,
that as the internal composition of the Muslim community in
Goa changes, with more Muslim migrants from outside with
their own orthodoxies settling in Goa, a resistance to acceptance
by the community of the common code is emerging and a case is
being articulated for the adoption of the Sharia instead (Desai
1996). The internal political battle is on between the old resi-
dents, who are happy with the civil code because of its protec-
tions, and the new residents who bring the cultural baggage of
orthodoxy to their new residential location.
Conflict between Secular and Religious Law
Let me now return to the discussion of the other normative is-
sues that can be culled from the UCC literature. Moving on
from the tension between legal pluralism and the situation of a
conflict of laws, let me now turn to the situation of conflict
between the secular and the religious law. While the same
principle of granting overriding authority to the Indian higher
judiciary applies here as well, in cases where both the secular and
religious laws apply, the variation comes from the procedure
that must be adopted by the judiciary in such disputes. This
procedure must be religion and culture sensitive.5 It must
listen to the cultural meanings behind practices and find a way
to move these practices in a gender-just direction. The judicial
system must publicly consult, as part of the legal process, with
religious scholars on the range of juridical positions that are
part of the religious interpretations. These must then be used
to arrive at a judgment that is gender-just and consistent with
the principles of the Constitution. The religious scholarship must
aid the secular judgment. Even when such a sensitive procedure
is followed there will be protests, since the political interests of
dominant groups will be at risk, but these protests have to be
met by support from within the community.
Another normative issue on which a position needs to be
taken is the tension between individual rights and group
rights. While the comfort zone in the argument is to say that
56
we must support both, since they are both valuable, the
former on the grounds of individual rights enables the
individual to do, be, or become whatever he or she wishes to
do, be, or become, and the latter on the grounds that group
rights enable community identity to be maintained which in
turn results in the production of a cultural diversity from
which all can benefit, the situation on the ground highlights
situations where the two sets of rights do not cohabit easily.
Again, like in the two earlier mentioned instances, we have to
take a position on a situation where the two sets of rights
conflict. One of the two has to be given trumping powers.
This tension is most starkly brought out, in recent years, by
the social response to inter-caste and inter-community
marriages especially in Northern India. When young couples
marry across caste and community, without the permissions
of their families, the community has ostracised them and in
some cases even eliminated them. The offending couple, by
exercising their individual rights, is seen to have transgressed
caste and community boundaries. They are “alleged” to have
brought “dishonour” to the community. In several parts of
North India, the institution that issues orders on such matters
is the “khap” panchayat. It is a particularly vicious institution
that has been in the forefront of this culture of killings to
restore community “honour.” The khap is a committee of the
elders of the community. In case after case, in the last decade,
khaps have ordered that the members of the transgressors
family themselves carry out the execution. A modernising
and democratising India cannot allow such practices in the
name of group rights. The decision on whom to marry is an
individual’s decision. And yet the Indian state, where such
killings have taken place, has been lethargic in prosecuting
the members of the khaps because the political leadership
realises that such action would be electorally expensive in a
society dominated by such orthodoxies. Group rights have to
be trumped by individual rights in such a situation of conflict.
In all the three cases discussed, paramountcy is given to
individual rights over religious rights, group rights, or
pluralism of rights and the secular judiciary is given the
authority to adjudicate. Two strategies are available to ensure
that such situations of conflict of rights are minimised. The
first is what could be referred to as the “outflanking strategy,”
that is, a strategy to outflank the resistances that are encoun-
tered by the attempts to evolve a gender-just and minority
sensitive UCC. Here as the women’s group on women’s rights
have stated a package of laws would have to be enacted cover-
ing both the personal law but also laws relating to violence
and discrimination in the workplace and in the home, such
that the responsibility of promoting gender justice, in the face
of an asymmetric system of social power, is not carried by the
personal law alone (EPW 1996). In addition, as Nivedita Menon
has argued, a three-part strategy can be followed: (i) support
attempts to bring about reform within personal laws, (ii) bring
about legislation in areas not covered by either secular or per-
sonal laws, such as domestic violence and right to matrimo-
nial home, thus avoiding direct confrontation with communities
and communal politics, and (iii) setting up a comprehensive
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gender-just framework of rights covering not just areas cov-
ered by personal laws but also the “public” domain of work
(creches, equal wages, maternity benefits, etc) (Menon 2014: 4).
The second strategy is “reform through juridification.” Since
it is obvious at this stage (the National Democratic Alliance
government of 2014 with a Bharatiya Janata Party majority) in
the politics of India that an initiative to prepare a comprehensive
common code for all communities is politically unfeasible,
because of the lack of trust in the intentions of the regime,
gender justice is being pursued through a number of court cases
across the country and as a result the judiciary is creating
laws, through interpretation of MWPRDA, which the legislature
did not. This process of juridification can be seen in the in-
creasing number of cases in states such as Kerala where courts
have given compensation and maintenance decisions favoura-
ble to the divorced women. Paradoxically the law that was
considered a compromise with the Muslim orthodoxy, the
MWPRDA 1986, is being used by litigants and the courts to advance
the cause. Clause 3(1)(a), especially the words “reasonable and
fair maintenance,” is being interpreted by courts in different
parts of India to give women awards that are considerably
higher than what they would have got under Section 125.
Flavia Agnes has provided a list of cases from Gujarat, Kerala,
Madras (Chennai) and Bombay (Mumbai) where this provision
has been interpreted to benefit women.
In 2000 a Full Bench of the Bombay High Court further explained
that the words ‘maintenance’ and ‘reasonable and fair provision’ carry
distinct meaning. The word “provision” has a future content. It is an
amount kept aside to meet future liability. The husband must make a
reasonable and fair provision for her, which should take care of her
future needs. It cannot be substituted by the word ‘for’. The amount of
‘maintenance’ and ‘reasonable and fair provision’ cannot be confused
with mehr. Mehr is a liability which does not get absolved by any other
payment or consequences (Agnes 2006: 5).
Both strategies of “outflanking the resistance” and of
“juridification” have advanced the cause of gender justice in In-
dia. There is still a long way to go since advances in the law have
to be met with advances in social practice and community be-
haviour. As education and communication technologies spread
to even remote villages, stories of resistances to structures of
gender injustice become known. Kerala is seeing many cases of
divorced women seeking relief in the courts under MWPRDA
1986. Perhaps this movement will grow.

Notes References Jain, Pratiba (2005): “Balancing Minority Rights

1 It is interesting to note here that both Pakistan
and Bangladesh have modified the Shariat as per
the needs of modern Pakistan and Bangladesh.
2 One of the most prominent proponents of the
opposing view to that of the AIMPLB was Arif
Mohammed Khan, a prominent Muslim MP who
resigned from the party because of what he con-
sidered as the capitulation by the Congress
leadership to the orthodox sections of the Mus-
lim community.
3 Pratiba Jain, Siobhan Mulallay, Anika Rahman,
Martha Nussbaum, Werner Minski and Rajeshwari
Sunder Rajan, among others, have published on
the issue of UCC in India in the Columbia Journal
of Translational Law, Berkeley Journal of Inter-
national Law, Oxford Journal of Legal Studies,
German Law Journal and Chicago Journal of
International Law.
4 Some of the participants to this debate are
Archana Parashar, Albertina Almeida, Asghar
Ali Engineer, Anika Rahman, Amrita Chhachhi,
Farida Khan, Flavia Agnes, F E Noronha, Gautam
Navlakha, Kumkum Sangari, Nalini Rajan,
Neeraj Malik, Nishtha Desai, Nivedita Menon,
Madhu Kishwar, Martha Nussbaum, Pratibha Jain,
Rajeshwari Sunder Rajan, Rohit De, Ritu Menon,
Siobhan Mullally, Tanika Sarkar, Uma Chakravarti,
Urvashi Butalia, V Sriranjani, Werner Menski,
and Zoya Hasan. Their works have been refer-
enced earlier and later in this article.
5 A good illustration of how in the case of a reli-
gious dispute within a community the secular
courts are relied upon to adjudicate on the dis-
pute: The succession of the 53rd Syedna, the
head of the Dawoodi Bohra community, has
been disputed by an influential faction. The
two claimants are arguing their case using sen-
ior advocates before a Bench of the Mumbai
High Court (http://www.hindustantimes.com/
india-news/dawoodi-bohra-succession-issue-
former-chief-justice-pledges-allegiance-to-syed-
na-s-uncle/article1-1178939.aspx; http://www.
dnaindia.com/mumbai/report-social-boycott-of-
khuzaima-qutbuddin-oppressive-say-progressi-
ve-bohras-seeking-its-complete-ban-1955460).
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