Why India doesn’t have a Uniform Civil Code

Source:- economictimes.indiatimes.com

Now that Supreme Court has made instant triple talaq illegal, the debate on personal laws is gaining centre-stage yet again. Should India allow each community its personal laws or should all Indians follow a uniform civil code? Personal laws deal in the main with family issues such as marriage, divorce, inheritance and are by and large skewed against women across communities and religions. Yet, some voices even from women’s movements are wary about a uniform civil code. What is their say? Why is a uniform code desirable and what fears does it trigger? Here, a primer on the issue

What is Uniform Civil Code? 

It was first raised as a demand in the 1930s by the All India Women’s Conference, seeking equal rights for women, irrespective of religion, in marriage, inheritance, divorce, adoption and succession.

While the Constituent Assembly and Parliament considered such a Uniform Civil Code desirable, they did not want to force it upon any religious community in a time of strife and insecurity. They left it as a Directive Principle of the Constitution, hoping it would be enacted when the time was right.

Why does India have personal laws? 

Each religious community in India has certain unique practices in family life, from marriage to inheritance and from marital separation to maintenance and adoption. Many of these are unfair to women, in different ways. India allows each community to practise its personal law, but these cannot violate constitutional rights.

There are also civil alternatives like the Special Marriages Act which any citizen can opt to follow.

Under Ambedkar’s stewardship, Hindu personal law was codified in the 1950s by Parliament, erasing distinct practices, though inequalities between men and women still persist and custom prevails in some aspects. The majority religion is easier to reform; Pakistan, Bangladesh, etc. have reformed Muslim law while being cautious with Hindu practices. Indian lawmakers have also been more hesitant to change religious laws for minorities.

In 1986, the Supreme Court’s Shah Bano judgment for maintenance was amended by Parliament, in a way that placated the Muslim clergy. Muslim personal law has not been codified by Parliament, except through the Shariat Act of 1937 and the Muslim Women (Protection of Rights of Divorce) Act of 1986. Judges have to rely on Islamic jurisprudence in a case-by-case manner. The Bharatiya Muslim Mahila Andolan, which fought triple talaq in court, has sought codification of Muslim law to remove unjust practices.

Meanwhile, incremental change has happened over the decades.

Hindu succession was reformed by Parliament in 2005, and Christian divorce rights were made genderequal in 2001. The courts have steadily affirmed women’s rights of maintenance, adoption, etc. in various judgments, strengthening reform in minority communities.

Who is pushing for a Uniform Civil Code? 

There is vocal support for the idea from people with different motivations. Some feel that only the Hindu community has had its practices codified by Parliament so far and want minority practices to be similarly disciplined.

Some feel that secularism means taking out all traces of religion from family law and submitting to a single civil code that applies to all Indians in the same way. Some feel that all religious laws discriminate against women, and that the state owes its citizens a single, genderequal set of laws.

Who is against the Uniform Civil Code right now? 

Many voices in the women’s movement, people from minority communities, and others of a multicultural secular bent resist the Uniform Civil Code, saying that the state should push for uniform rights rather than a single code. They call for rooting out gender bias within existing personal laws, rather than flattening religious difference under a code that they fear may be created in the mould of the Hindu majority.

They also argue for expanding civil alternatives like the Special Marriages Act, the Domestic Violence Act, the Juvenile Justice Act, etc. which apply to all women, irrespective of personal law. In their view, a Uniform Civil Code would be desirable only if it is fair to all communities, and not in a situation where minorities feel insecure.

What would a Uniform Civil Code look like? 

An ideal Uniform Civil Code is easier to discuss than enact; there has never been a clear draft of such a code. It would have to restructure many laws, and forge a neutral standard. While polygamy and arbitrary divorce associated with Islam would go, so would the tax benefits of the Hindu undivided family.

Reservation would have to be extended to all religions. Distinctive practices of Buddhism, Jainism and Sikhism might also have to end, in the domain of family law. In some aspects, Muslim law is better for women, since they recognise individual rights to property, and because marriages are civil contracts with fixed obligations, rather than sacraments.

All these would have to be taken into consideration for a just Uniform Civil Code.