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What does the proposed Uniform Civil Code (UCC) look like?
In the popular imagination, the UCC will do away with personal laws. The votaries of the UCC within the Bharatiya Janata Party posit it as a necessary step towards gender equality. This is a thinly veiled reference to personal laws, which have not kept pace with modern times.
Hindu laws have, of course, been updated since the Hindu Code reforms of the 1950s to the extent that Hindu succession and divorce laws are now in a position to be called gender just. On the other hand, Muslim personal laws provided women a much fairer deal than traditional Hindu law, but with the Hindu Code reforms, culminating in the 2005 amendments to the Hindu Succession Act, they are a step behind in terms of gender justice regarding the law of succession.
While the reform of laws for the cause of gender justice is welcome, the form of the proposed UCC remains a mystery, unaddressed by polemical speakers.
What is required to make our laws gender just? A declaration of equal property rights and equal rights to seek divorce, to seek maintenance and adoption are definitely a good start, but are not sufficient by themselves to achieve gender justice. These are reforms to personal laws alone.
Article 44 of the constitution reads as follows: “Uniform civil code for the citizens – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
This mandate is not restricted to personal laws at all.
This call for a uniform civil code has to be seen for what it is: a constitutional call for equality in all walks of life. The proposed UCC would be effective if, and only if, it is truly a new civil code and not just a mere declaration of rights.
Need for a comprehensive civil code
A Joint Hindu family, which is a bit of an anomaly in the current times, is already on its way out owing to the 2005 Hindu Succession Act reforms. Property is now being inherited by women, and they are now equally capable of disposing it off as the men in their families. As such, the family unit continually changes within the rules of the patriarchal system where the woman is supposed to go and live with her husband and his family. A ‘joint family’ is now more relevant to the tax law than property law. Yet, the vast majority of Indians are not heirs to any appreciable amount of property.
Issues of tenancy, access to housing, and access to stable and equal employment are more pressing issues for the vast majority of people than a Joint Hindu family or the proportion in which properties are to be divided under Hanafi jurisprudence.
It is fairly well-known how difficult it is for a single woman to rent a house. It only gets complicated when it is a single mother, or if the woman in question is a Dalit, Muslim, or from northeast India. In the case of such women, the process of leasing a house can further prove to be difficult. Opportunities of employment are heavily slanted against women as is the wage gap.
A gender-just UCC has to address such issues, by which landlords are penalised for denying a house to woman, and making our society pay for its bigotry and discrimination against women. An employer practicing discrimination ought to be punished. These are indeed the reforms the proposed UCC ought to focus upon.
On the other hand, it should address other inequalities as well. Similar to the law protecting transgender persons was enacted to end discrimination against them in the matter of housing, access to services, employment, among others, a similar raft of protections ought to be extended to other protected categories of people, including women, Dalits, minorities and Adivasis.
Sexual minorities are also a category that deserves special protection, and the present dispensation has been markedly more sympathetic to their cause than to other disadvantaged groups. Some of the challenges faced by them are also faced by other groups as well.
Developing a new code grounded in progressive justice
The political pitch for the UCC seems to be a blatant communal one, albeit one couched in the language of progressive gender justice.
The framers of the constitution included Article 44 as a guarantee of equal citizenship, not in furtherance of any majoritarian principles. The communal pitch has to be countered by a progressive one, which not only exposes the hollowness of the communal demand but shows with clarity the true purpose and benefit of constitutionalism and the rule of law.
A new UCC, aimed at clearing the functional bottlenecks that choke the lived experiences of so many Indians, could be as revolutionary as the reforms brought in by Jawaharlal Nehru and Dr. Ambedkar with the Hindu Code.
The Hindu law reforms were an act of imagination that fundamentally changed the nature of Hindu, and consequently, Indian society. Nehru especially faced opposition from within the Congress and had to politically manoeuvre a diluted version of the Hindu Code, which over the decades has expanded its scope to incorporate all that was envisaged originally.
Even this diluted version has set in motion social processes that changed the country. Even for Muslims, the laws have become increasingly gender-just by giving Muslim women an option to adopt remedies under secular laws if they wish.
These reforms opened up possibilities for so many Indians, women in particular, which would otherwise have been unthinkable. An imaginative new UCC aimed at real reform than furthering a communal agenda will be a seminal event in the history of the Republic.
Sarim Naved is a Delhi-based lawyer.