By striking down instant triple talaq, the Supreme Court drew a clear line between constitutional rights and discriminatory social practices of a religion. But that clarity must now go further – no matter what their faith, all Indians must have equal rights in the eyes of the law. TOI feels that it is time we think seriously about a Uniform Civil Code, envisaged by Article 44 of the Constitution, but left unaddressed by our governments.
While we are governed by the same criminal and civil laws, in matters of marriage, inheritance, succession, divorce, and adoption, we live largely by the personal laws of our religion. Each community has its own distinctive practices, but they are all unfair to women in their different ways. While Hindu, Christian and Parsi laws have been codified and amended over time, many aspects of Muslim personal law remain unlegislated, and left to the vagaries of Islamic jurisprudence and practice. This must change – we need a fair family law code that can apply to all Indians equally.
Of course, the Uniform Civil Code is easier said than done be cause nobody has agreed on what such a common code would look like. Will it harness the best bits from each personal law? Will it forge a neutral standard? Will it be made in the mould of the Hindu majority, which is a widespread fear, given the communal tension over the years and the current composition of Parliament? It is a delicate endeavour, but we should not be afraid of a conversation about it.
Over the next few weeks, TOI will take you through the issues at stake. We will examine the background of our various personal laws, and the concerns voiced during the Constituent Assembly debates. We will see how those positions were borne out by later events. We will examine the legal and legislative landmarks along the way. Hindu personal law was codified into four acts in the 1950s, and amended over the years. While it is still not fully gender-just, it was certainly a radical leap for women’s rights. Christian personal law, already codified, has been reformed by Parliament and the courts, after much community mobilisation. Muslim personal law remains uncodified in many aspects, though the courts have steadily expanded rights for Muslim women. Over the years, many judges have also called upon legislators to enact a Uniform Civil Code, rather than relying on slow and creeping reform by the courts.
We will bring you the range of views on the Uniform Civil Code, from strict assimilationists to those who argue for legal pluralism, and suggest an optional code. While it is easy to make rhetorical arguments about gender equality and secularism, it is much harder to apply these principles across the uneven terrain of inheritance and property, marriage and divorce, adoption and guardianship. But we will compare these rights as they exist under various personal laws, and try to imagine what gender-equal laws might look like. While there is a patchwork of civil laws for those who want recourse outside personal law, from the Special Marriages Act to the Domestic Violence Act that protects all women, or Juvenile Justice Act that extends adoption, we do not have a comprehensive family code yet.
Different communities can have far-apart worldviews on the same subject -a Hindu marriage is a sacrament, a Muslim marriage is a civil contract with spelt-out obligations – so a common code would have to be acceptable to all.It should aim not to deprive any woman of the benefits that she currently has, under any personal law. Even the Hindu codified law is not currently uniform, and lets local practices be. There are also a variety of customary practices in India, which will be hard to be flatten into a single set of norms. But in any case, whether this Uniform Civil Code picks gender-just provisions from each community, or stands equally apart from them, it will have to engage with them all.
The Uniform Civil Code is not just a matter of gender justice, it is also a question of how a nation accommodates its own diversity.In India, freedom of religion exists with other rights like equality and non-discrimination. Instead of reaching in indiscriminately or leaving cultures entirely to themselves, India’s liberal multiculturalism strikes a balance. It has been more ready to reform majority practices, while offering protections to vulnerable individuals within minority groups.
Is there a better way for India to negotiate this? We will examine how other countries reconcile these issues. Many of us view Western democracies as a template for lib But how do the US and France conceptualise law and religious freedom, the balance between majority and minority group rights? What do Canada and the UK do? We will also compare India with other nations that were decolonised around the same time, and the choices they made – from Turkey’s early full-tilt Western-style secularisation to those like Indonesia that chose to slowly reform their own norms.
Even as we push for a Uniform Civil Code, we know that law cannot exist too far apart from social norms. Without social support, or state capacities to implement our own principles, we risk pushing people into seeking alternative community justice, like sharia courts or khap panchayats. A common civil code will have to be careful in its choices. Then there remains the question of whether it should be obligatory, erasing all personal law, or whether it should allow Indians the option of choosing to live under their own religious umbrellas, if they prefer.
Either way, it is time that we outline our ideals and disagreements, in the pursuit of a dream common civil code. In the seven decades since the Constitution was enacted, there has been no sincere effort to even start such a dialogue. TOI believes that we need to imagine a common civil code for the sake of more fairness in our families, our religious communities, and our nation. All women, across faiths, are owed the rights of equal citizenship.
Source : timesofindia