Religious Personal Laws Are Patriarchal, But Is UCC the Way to Women's Rights?

Should gender equality be prioritised within religious communities rather than between communities?

(Photo: Chetan Bhakuni/The Quint)

Proponents of the Uniform Civil Code (UCC), in the wake of the Law Commission's call for views, cite in chorus that they favour it because it would be the means to guarantee equal rights for women in family law. But it is not that simple and straightforward.

In a civilised society, women should have equal rights in marriage and divorce, maintenance and custody, and of course inheritance.

The advocates see UCC as the only means to guarantee this, as there can be little debate over how discriminatory, patriarchal, and misogynistic India's religious personal laws are towards women.

• Why then are some feminist activists strongly opposing the UCC?

• Who decides what is progressive?

• What is the way forward?

The Quint spoke to experts who break it down.

The History Around UCC

In the 1930s, an All India Women’s Conference sought equal rights for all women irrespective of their religion, in matters concerning the family law like marriage and divorce – most members were women freedom fighters, across various religions.

Two decades later, in 1950, when the Indian Constitution came into effect, it said that State shall endeavour to secure for all citizens a UCC. Eventually, the UCC was to replace the religion-based laws.

In the 1950s, however, the Nehru government codified and reformed several Hindu personal laws despite backlash – guaranteeing Hindu women some basic rights. Many of these have been amended over the years, but a similar codification of personal laws has not happened for Muslims, Christians, Sikhs or the Parsis.

"When we have failed to successfully promulgate and implement a voluntary gender-just law — are we ready to implement a mandatory uniform family law in the name of gender justice? A mandatory uniform code on family laws is against the assurance of Dr BR Ambedkar in the Constituent Assembly who envisioned UCC to be 'purely voluntary' in the beginning with it being applicable 'only to those who make a declaration that they are prepared to be bound by it'."

Nabeela Jamil, Practicing lawyer in the Supreme Court of India and the Delhi High Court, told The Quint

The Supreme Court called for UCC in the 1985 Shah Bano Case, later again in 2017. However, in 2018, the Law Commission of India categorically stated that gender equality must be prioritised within religious communities rather than between communities.

“Cultural difference informs people’s identity, and its preservation guarantees the territorial integrity of the nation,” the Law Commission had said.

"In a utopian world, if UCC is implemented in a manner that is devoid of majoritarianism, then yes, that would empower women. Most of our personal laws are constructed with the view of women being the "weaker sex", which is why in the early 20th century, women's organisations wanted UCC to be implemented for gender equality. However, it's now become less about gender equality and more about religious identity," explained Radhika Roy, a Law Researcher at the Delhi High Court, told The Quint.

Why UCC Is Not the Means to Achieve Women's Rights?

The timing, the context, and the intention are the key reasons why the UCC actually has very little to do with gender justice, experts tell The Quint.

"When 'uniform' was said during the drafting of the Constitution, it actually had to do with getting rid of gender discrimination in specific personal laws. But over the years, the word uniform has come to mean different things politically. It has become an imposition of identity, in the name of uniformity, on minority. Gender has actually vanished from being the crux of it. It has become a competition, rather than about gender," reiterated Kavitha Krishnan, a feminist activist.

"We don't want gender rights to be swallowed up in the politics of Hindu-Muslim. What women suffer, women across the religions suffer. The fact is that polygamy exists across communities. You have to think about how to support women, all of them. Instead of associating one community to one social evil – and make it look regressive to that particular community. No one is saying we don't want gender reforms, but it should not be a transparent pretext at the time of election."

Kavita Krishnan to The Quint

"Gender justice cannot be divorced from justice in general. It is no mystery that in the name of Muslim women’s rights, crimes have been committed against the Muslim community at large. This is the legitimate fear of Muslim women. The latest example can be the Triple Talaq Act. It cemented the fears of the Muslim community of how in the name of gender justice, Muslim men are criminalized. Men and women both make a community," says Jamil.

"If Muslim men are behind bars, it is the Muslim women too who become victims. Naturally, the immediate fallout of the 2019 legislation, in the name of gender justice and the supposed empowerment of Muslim women, has been severely adverse to Muslim women’s cause," she goes on, adding that women from marginalised communities have been portrayed as pawns for political vendetta.

Citing an example, Krishnan points media reports on how BJP MP Sushil Kumar Modi, Chairman of the Parliamentary Standing Committee on Law, has raised concerns about UCC in tribal areas, including those in the North East, since their customs are different, and how the Constitution grants them protection.

"He has woken up to the fact that there is polygamy in sections of the society that are not Muslim. So what happens now? If you exclude a section of tribals, how is that uniform? What happens to the rights of Hindu women whose husbands engage in polygamy? How will they be supported? What happens to same-sex couples, when the government is not giving them basic marital rights? How does all of this encompass as uniform?"

Kavita Krishnan to The Quint

For context, according to the National Family and Health Survey-5 (NFHS-5), at least 1.4 percent of married Indian women surveyed in 2019-2021 said their husbands had another wife or wives. The NFHS also showed that the rate of polygamy was 2.4 percent among STs, 1.5 percent among SCs, 1.3 percent among OBCs, and 1.2 percent among others.

There Are Reasons to Engage With UCC...

But for someone like Zakia Soman, who is a human rights activist and one of the founders of Bharatiya Muslim Mahila Andolan, this is a chance to gender justice.

"I'm not for a moment suggesting that Hindu women are treated as equal citizens, because all women are victims of patriarchy. But you also cannot ignore the fact that Hindu women have benefitted with legal backing because of the codification of laws. They still call the Muslim Personal law as the Sharia law. It has never been reformed, not even to give us the Quranic rights. For example, according to Quran, no wedding can happen without explicit consent. Several minor children are forced into marriage even today."

Zakia Soman to The Quint

But isn't the politicisation a problem?

"Yes, it is being brought by the BJP because it's part of their electoral pitch and we all know what is what is the commitment to gender justice. But why should we not engage? Marriage for Hindus is considered saat janam (seven years) – and there is no concept of divorce. But they have codified it and borrowed heavily from the Islamic law. Married daughters have complete right to their parental property and are not at the mercy of the male relatives. What majoritarian view can be imposed on Muslim women?" Soman adds.

What Is the Way Forward?

Listen to women. Listen to their voices. There is not a uniform problem across laws, but each law comes with a unique set of problems. Such deliberations should be made through active debates, taking into consideration voices of women's rights activists who are working on ground – strengthen personal laws, or have a detailed discussion on UCC when the draft is on the table.

This is not to be implemented in a rush, all experts agree.

"Uniformity will have some value, when you are also looking at a uniform remedy. For example. to create means of support to women who are stuck in polygamy, what do we need? A new law banning it? Or the recognition that women are stuck in such relationships across religions, and create a stream of support system for them?" asks Krishnan.

"If this religious identity aspect is done away with, and UCC is seen once again a women-empowerment tool, then the best way to go about it would be to cull out the most progressive practices of all religions and enmeshing them. In fact, this approach was also espoused in the Law Commission of India's 2018 Consultation Paper.

Soman says that there should be active debate between the lawmakers.

"Although although politicking by those in power is always more dangerous. But I would also say that the Opposition is not being convincing by not actively engaging in the debate. Gender justice is India's agenda, it's the constitutional agenda."

But what if the uniform code does not guarantee implementation?

"That doesn't mean that we should be denied the protection of laws. Does one out of every 1,000 woman who goes to the court gets justice? She fights it out. Lack of implementation should not be an excuse for denying your legal protection," Soman adds.