Who Decides Morality? Uniform Civil Code and the Delusion of Gender Justice

How did UCC change from a minority rights debate to a women’s rights debate?

(Photo: Altered by The Quint)

The Uniform Civil Code (UCC) would advance the cause of gender justice, they say. The answer to this is in one couplet of Mirza Ghalib: ki ḳhushi se marr na jaate agar aitbar hota. We certainly would have died of happiness only if we did not know the delusion that this promise is.

The reason I call the promise of gender justice, through uniform family law, a delusion is not rhetorical. The reasons for such a blunt judgment are embedded both in our legal and political histories.

The Muslim community, in general, has registered strong objections against UCC since the very inception of the debate. The Muslim community representatives in the Constituent Assembly were the most vocal against such a law.

The objections, interestingly, had nothing to do with Muslim women. In fact, the Constituent Assembly Debate, only at a single place, passingly infers ‘equality to women’ as a supposed objective of the proposed code. The Debate, by and large, was focused on a reading of nationalism and minority rights.

The term ‘gender’ was not even used in the 1949 Debate. It was with time, especially with the Supreme Court obiters, UCC was given the primary objective of being a proposed tool against gender injustices perpetuated in different personal laws, particularly Muslim personal laws.

How did UCC change from a minority rights debate to a women’s rights debate? And interestingly, why did the response of the Muslim community remain the same?

The answer, in my opinion, is that the Muslim community could see through the façade of gender justice which became a misnomer for the tyranny of the majority long back.

The promise of gender justice through UCC is delusionary but the threat to minority rights is real. UCC is not a mere procedural-legal technicality. UCC not only has the potential to permanently alter the course of family laws in India, it has the perilous capacity of seriously shrinking particular identities that are seen as a misfit to the Brahmanical worldview.

Whose Morality?

Whose perspective of morality flows in law? Victorian morality has often been recognised and questioned for being the definitive factor in many laws (the criticism of Victorian morality during the challenge against Section 377 IPC, during marriage equality proceedings, et al).

Similarly, Brahmanical morality has been at the heart of codified family laws in India. In Special Marriage Act, 1954 (SMA), for instance, the prohibited degrees in marriage relates to the Hindu Marriage Act, 1955, the dilution of customary laws, and the maintenance of the caste Hindu succession structure – whose morality has found a place in the primary general family law of India?

This is the same fear tribal communities are grappling with and the same is evident from the opposition of a UCC from the Northeastern parts of the country and the Adivasi communities.

The extent of the protests in Northeast India can be estimated from a reported threat by a Naga organisation to burn the official quarters of the sixty legislators to ashes if the Legislative Assembly “succumbs to outside forces and passes a bill in support of UCC”.

The Question of a Blueprint

From the late 1940s till today, there has been no draft blueprint for a UCC. UCC remained an enigma from its very inception. An enigma that attracted strong criticism from minorities and Adivasis.

Is this a fear of the unknown? How can you hate something that you do not know?

On the face of it, it does look unreasonable (these bizarre communities and their trust issues, I tell you!). However, it requires a certain level of privilege to not see the obvious. How can one divorce politics from the law? There is a clear political context of UCC.

There are whispers already of exempting tribal communities and the northeastern states from the application of UCC.

Sikhs, Buddhists, and Jains are already considered in the Hindu fold under Hindu laws. It is the followers of the ‘non-indic’ faiths such as Islam, Christianity, Zoroastrianism, and Judaism who are left to be merged in a ‘uniform’ fold. It is true that a draft of a proposed UCC does not exist today but can we assure these minorities that the draft will not every bit be what is feared from it?

When the Supreme Court questions certain communities for not forsaking “their sentiments” attached to personal laws for a common civil code to further the cause of gender justice, the inhibitions are not sufficient to only be recognised but certainly be analysed.

Why is UCC seen as a threat by these minority communities even after its projection as a possible solution against gender injustice – a concern across the board?

Gender Justice Cannot Be Divorced From Justice

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 Muslim Women (Protection of Rights on Marriage) Act, 2019 i.e. the Triple Talaq Act. An Act that cemented the fears of the Muslim community of how in the name of gender justice, Muslim men are criminalised.

Men and women both make a community. 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.

Moreover, how empathetic the law is towards the women of marginalised communities who have been portrayed as pawns for political vendetta for decades with their voices being hushed when they demand their rights –the Hijab controversy is the latest example.

Paradox of Gender Justice in Existing General Family Laws

No community-based family law in India today, no general family law in India today, is uniform. The other aspect is the presence of gender equity gaps in these laws.

Family laws in Goa and the SMA often projected as successful models, fail on the gender-justice paradigm. Laws in Goa provide that a Hindu husband can take a second wife in the absence of a child if the wife has attained the age of 25, and also if she has attained age 30 without having a son.

The SMA takes a person professing Hindu, Buddhist, Sikh, or Jain religion registering marriage under the Act with another person of either of the four religions to the Hindu Succession Act (HSA). Needless to mention, HSA follows a patrilineal family structure.

The argument that I put forth is 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."

The Solution

The fact on the ground remains that religious institutions derive their legitimacy from the followers of the faith. It is Muslim women themselves who have kept institutions such as Dar-ul-Qazas relevant (Vatuk, S). The same is the case with tribal customary laws and institutions.

In Arunachal Pradesh, the prominence of Gaon Buras and Gaon Buris as the highest village councils cannot be denied. It can be argued that the reason for this relevance is embedded in the patriarchal social structures or the socio-political disadvantaged positioning women inhabit.

The answer to this is – any law, together with being just, should also be effective and acceptable. Can law, divorced from the socio-political context and realities of a society, be effective?

Muslims in India, in 1939, from all schools of thought, accepted one school of thought i.e. Maliki, in order to ease the problems faced by Muslim women with respect to divorce.

Whether it’s the minority communities or the tribal communities, the apprehension lies in replacing indigenous systems by creating a vague mirage of gender justice as has been done in the past.

The solution, clearly, lies in the approach. Until this approach is fixed and made empathetic, transparent, and organic – the promise of gender justice will remain a delusion, a framework to facilitate the majoritarian urge to ‘discipline’ the minorities.

(The author practices law in the Supreme Court of India and the Delhi High Court. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)