The recent comment of the Hon’ble Chief Justice of India hailing Goa’s Uniform Civil Code (UCC) system of justice has brought forth the decades old deliberation on implementation of UCC to limelight. As welcome the thought might be, what is to be weighed in is that the rhetoric of a UCC in India as a response to religion based gender discrimination, given the presence of centripetal forces upholding patriarchal interpretations of practices on the lives of women & gender Justice.
Patriarchal interpretations of religious beliefs have defined and shaped the social and cultural contexts of Indian women that has resulted into their disempowerment and somewhat second-class status. Almost every religious community started as movements presenting themselves as “a way of life”. In fact several of them have their origins in protest against established exclusionary and oppressive religious structures. Although, there is no scholarly consensus over what precisely constitutes a religion, an attempt to define it would involve certain keywords viz. “respect for what is sacred, reverence for the gods, sense of right, moral obligation, sacrament, sanctity etc.” In other words, religion can be said to be a social construct, deviance from which is believed to invite undesirable consequences. Such beliefs could be fallacious in interpretation as, well knit method of conditioning to suit one segment’s ideologies.
Recently, urban migration, female political participation, education, careers, and the activities of social reformers have all helped the public acceptance of new roles for women. As yet, only a segment of women who can afford the alleged disquieting consequences of claiming their human rights, have benefited from the changes. The religion based disparity continues and extends, not limited to menstruation, purity, women’s role in religious leadership, patriarchal interpretation of religious texts, and women’s entry into various religious places. In India, and several other parts of the world, religious values regulate a number of aspects of personal life, from marital relationships and children’s guardianship to inheritance of property and divorce. And these aspects significantly affect women’s dignity and quality of life in plethora of aspects. In balancing equity, if not equality for all women, with religious prerogatives; the legislature and judiciary often find themselves in a blind alley.
The recent uproar with respect to women’s’ entry in the Sabarimala Temple wherein the Supreme Court noted its primary agenda is to evolve a sense of “substantial and complete justice” in such matters, and therefore, the need for an overall judicial review of religious practices across the nation. But, religious institutions have the ability to appeal to a majority of the population in peculiar ways that state cannot. Amidst all these, balancing the fundamental rights of women together with balancing of rights to freedom of religion becomes a herculean task. In such scenario, the plausibility to introduce Uniform Civil Code in India as a response to religion based Gender Discrimination in India, tends to be bleak.
While India’s jurisprudence has in some areas been quite progressive with regard to women’s rights, this has not been the case in the area of personal laws. Though the Supreme Court has adjudicated a plethora of cases balancing the rights of minorities against somewhat more universal ‘civil rights’, the discussion herein is limited in scope to those instances that have affected the rights of women. Back in 1954, a 7 – judge Bench of the Hon’ble Supreme court, in the Shirur Mutt case conceived the doctrine of ‘essentiality’ to protect only such religious practices which were essential and integral to the religion. The question stands if the doctrine has been applied in regulating patriarchial and non – integral practices in religion with regard to women.
In the Shah Bano Begum case, the Hon’ble Supreme Court granted maintenance rights to a poor woman, which led the religious leaders create sufficient pressure on the Parliament to overrule the judgment and the doctrine. Shah Bano, judgement, crossed a few more miles and held that a Muslim man has an ‘obligation’ to pay maintenance to his ex-wife irrespective of the adequacy of the customary payment. However, the agitation against the judgment and the political interests aligned with the community at that time set back those steps to square one. In cases challenging sex inequality in personal laws, our institutions appear paralyzed by the fear of being tarred by the brush of cultural insensitivity.
Even in the landmark case of Shayara Bano Begum, feminists have argued that the gender aspect rather fell short. Although Articles 14 and 15 were cited in the judgement, it did not deal with the intersectionality of gender and religious identity. The Hon’ble Court seemed less concerned with women’s rights, and more with the preservation of marriage, when it found fault with triple talaq on the ground that “the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it”. However, it cannot be denied that the Shayara Bano case is a step forward when it produces attempts to critically evaluate those laws that discriminate against women or are based on patriarchal notions.
In the August 2020, the Hon’ble Supreme Court passed a progressive, rather revolutionary judgement in the case of Vineeta Sharma V Rakesh Sharma granting equal coparcenary rights to daughters. The Indian judiciary, especially the Supreme Court, in its role as the defender of the Constitution, has been the forerunner in protecting minorities and safeguarding the multicultural ethos of the polity. It can be concluded that Indian courts have proved a more hospitable forum for protecting and promoting women’s rights, at least more than the religious institutions.
These issues stem from the fact that our religious institutions are spearheaded by male clergies. By allowing these religious leaders to continue exercising their authority over women of their respective communities, coupled with the state’s policy of reinforcing the split on the pretext that no change is possible in the personal law unless the call for such change comes from the community itself; the state can be said to have abandoned women to patriarchal interpretations of their respective personal laws and has the effect of legitimizing it. An example could be the Shariat courts or darulqazas (dispute resolution platform with their decisions based on Islamic law) which proclaim that “only obedient, moral, battered, and materially neglected women are deemed worthy of the qazi’s support”.
CAN IT NOW BE SAID THAT THE RECOGNITION OF PERSONAL LAWS UNDER THE GUISE OF PROTECTING MINORITIES FROM A SO-CALLED DOMINANT MAJORITY CULTURE HAS FACILITATED INSTITUTIONALIZATION OF PATRIARCHAL TRADITIONAL PRACTICES THAT DISADVANTAGE INDIAN WOMEN?
There is a much discussed about suggestion which provides for the “introduction of a uniform non-discriminatory law for all Indian women, which would also provide for adequate economic rights for them (maintenance, inheritance, an equal share of matrimonial property and economic independence for women after separation or divorce)”. However, what stands in way is the perception that the personal laws are as good as ‘facts’ for a legal system which has embraced secularism. Suggestions of “Optional Code” in line of one drafted by the ‘Forum Against the Oppression of Women’ in the 1990s have been put forth, provisions of which would apply “a sex-equal family law” to all religious communities with the consent of the women belonging to the respective communities.
Other suggestions include a system combining the enactment of a UCC with a regulated and state-recognized regime of alternative dispute resolution platform involving religious rules. This would help accommodate the women’s rights and their respective religious identities. However, such an enactment, if made optional, at the discretion of women would seldom reflect women’s own free will, given the social conditions as well as community costs. Another suggestion that has been made is ‘community led’ law reforms which accepts legal pluralism as a fact and “acknowledges the intersection of gender and religion”. This suggestion stems from the assumption that UCC would inadvertently situate minority women in an antagonistic relationship against their own communities, and hence may not receive the support of women from these communities. The continued existence of two parallel socio- legal justice systems (the religious clergy and the courts) has etched a cynical impact on the rights of Indian women. Claims have quite aptly been made that the support for the adoption of a uniform civil code in India has not been based on a recognition that women’s rights might otherwise suffer under the personal laws.
The concept of UCC statutorily stems from Article 44 of the Indian Constitution. In practice, the Sarla Mudgal case affirmed, “Freedom of religion is the core of our culture. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression. Therefore, a uniform civil code is imperative both for protection of the oppressed and promotion of national unity and solidarity.” Although the question before the court did not pertain to uniform civil code, however, an inference can be drawn from the Court’s language that there seems a judicial willingness for such a code that would protect all individuals, even within the framework of group rights. In the case of John Vallamattom v. Union of India, the Court again made reference to a uniform civil code. The Court expressed regret that Parliament had still not framed a common civil code in order to fulfill the urging of Article 44 and urged that “a common civil code will help the cause of national integration by removing the contradictions based on ideologies.”
India has the requisite statutory and interpretational bedrock for the implementation of the Uniform Civil Code. The questions that we need to ask ourselves before accepting or dismissing the idea of UCC are:
Should it be enforced?
Will lead to true equality among the citizens ?
Will it strengthen gender justice, without which there can be no equality at all?
Is UCC a tool of secularism & communal politics or an instrument enabling gender justice, equity & intersectional equality?