One Nation, One Code: Exploring The Quest For A Gender-Just Uniform Civil Code With Advocate Sarthak Chaturvedi

The quest for a Uniform Civil Code (UCC) in India has remained a contentious and long-standing issue since the country's independence. As the political landscape evolves and several BJP-ruled states join the call to implement the UCC, this topic continues to gain prominence in Indian politics and society. Senior Lawyer Sarthak Chaturvedi explains the intricacies of the UCC debate, its potential impact on family law, and how the drive for a gender-just civil code can contribute to Indian society. 

Explanation of the Uniform Civil Code: A Historical Perspective

In India, there are two types of laws: public laws that uniformly apply to everyone irrespective of their religion, class, or creed (e.g., Indian Penal Code, Evidence Act, Income Tax Act) and personal laws that apply specifically to certain communities (e.g., Muslim Personal Law and Hindu Personal Law).  Personal laws deal with matters related to marriage, divorce, adoption, maintenance, etc., within a community.

The Uniform Civil Code, as the name suggests, refers to a single, comprehensive code of law governing matters related to marriage, divorce, adoption, inheritance, and other family matters, applicable to all citizens of India, irrespective of their religion, caste, or community. 

The demand for a UCC dates back to the drafting of the Indian Constitution when Dr. B.R. Ambedkar, the chief architect of the Constitution, strongly advocated for a UCC to be enshrined as a directive principle in the Constitution. 

The UCC is mentioned as a Directive Principle in Article 44 of the Constitution. However, it has not been implemented due to the delicate balance of Indian society's religious and cultural fabric. 

The landmark Shah Bano case (1985) brought the debate on UCC to the forefront of Indian politics, showcasing the inherent tensions between personal laws and the need for a uniform, gender-just civil code.

How is the Shah Bano case related to the UCC debate?

The Mohd. Ahmed Khan v. Shah Bano Begum case, often referred to as the Shah Bano case, was a landmark judgment delivered by the Supreme Court of India in 1985. 

In this case, Shah Bano, a 62-year-old Muslim woman, sought maintenance from her husband, Mohd. Ahmed Khan, after he divorced her through the triple talaq system. 

The Supreme Court ruled in favor of Shah Bano, granting her the right to maintenance under Section 125 of the Code of Criminal Procedure (CrPC), which is applicable to all Indian citizens irrespective of religion.

The judgment ignited controversy as it was seen as an interference in the Muslim personal law. The uproar proved unfavorable for Rajiv Gandhi's Congress government, as they risked losing the support of Muslim voters. 

Rajiv Gandhi, who had an overwhelming majority in the Parliament, faced significant pressure from conservative Muslim groups who opposed the Supreme Court's decision in the Shah Bano case.

To appease these groups, the government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which effectively overturned the Supreme Court's verdict and restricted the rights of Muslim women to maintenance. 

The move to overturn the Shah Bano verdict was met with widespread criticism from various sections of society, including women's rights activists, progressive Muslim groups, and opposition political parties. 

They accused the Congress government of compromising secular values and gender justice in an attempt to gain political support from the Muslim community.

Thus, the Shah Bano case and its aftermath brought the UCC debate to the forefront in India, with many arguing that a uniform set of laws would have prevented such inconsistencies and contradictions in the legal system.

Family Laws in India: A Complex Landscape

India's family law system consists of multiple personal laws specific to different religious communities, including Hindu, Muslim, Christian, and Parsi Personal Laws, as well as the secular Special Marriage Act, 1954. 

Though intended to respect India's religious and cultural diversity, these personal laws often perpetuate patriarchal norms and, at times, discriminate against women.

Here are some examples of such issues in Muslim, Christian, and Parsi personal laws:

Muslim Personal Law:

1- Polygamy: Muslim men are allowed to have up to four wives, provided they can treat them all equally. This is seen as discriminatory towards women, as they do not have a similar right.

2- Triple Talaq: Although banned by the Supreme Court in 2017, the practice of Triple Talaq (instant divorce) allowed a Muslim man to divorce his wife simply by saying "talaq" thrice. This created a significant gender bias as women did not have an equivalent method to end their marriage.

3- Inheritance: In Muslim law, a daughter receives only half the share of a son in inheritance. This perpetuates gender discrimination in property rights.

Christian Personal Law:

1- Divorce: Divorce provisions under Christian law have been criticized for being less favorable to women. For instance, while men could obtain a divorce on the grounds of adultery, women must prove adultery in conjunction with other offenses, such as cruelty or desertion.

2- Custody of children: Christian law traditionally favors granting custody of children to the father, perpetuating gender bias against women.

Parsi Personal Law:

1- Marriage: A Parsi woman marrying a non-Parsi loses her religious identity and rights within the community. However, Parsi men marrying non-Parsi women are allowed to retain their identity and rights, showcasing a clear gender bias.

2- Adoption: Parsi law does not recognize adoption, which can be particularly disadvantageous for women who cannot have biological children.

The Uniform Civil Code aims to address these inconsistencies, biases, and discrimination by providing a common legal framework to ensure equal treatment of all citizens, regardless of their religion or gender.

The Supreme Court's Persuasion for a Uniform Civil Code in India- 

Here are some instances where the court has advocated for a UCC:

1- Sarla Mudgal v. Union of India (1995):

In this case, the Supreme Court addressed the issue of bigamy among Hindu men who converted to Islam to take advantage of the provisions under Muslim personal law. The court held that conversion to Islam solely for the purpose of bigamy was invalid and emphasized the need for a Uniform Civil Code. It observed that a common civil code would help promote national integration and eliminate disparities based on religious beliefs.

2- Shayara Bano v. Union of India (2017):

Popularly known as the Triple Talaq case, this judgment dealt with the practice of instant triple talaq in the Muslim community. The court declared the practice unconstitutional and emphasized the importance of gender justice and the rights of women. The majority judgment highlighted the need for a UCC to promote equal rights for women across religions and communities.

3- Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019):

This case dealt with the application of the Portuguese Civil Code of 1867 in Goa, which is the only state in India that has a uniform civil code in place. The Supreme Court held that the Portuguese Civil Code would continue to govern certain aspects of family law in Goa, even after India gained independence. While this judgment does not directly advocate for a UCC, it does showcase the possibility of implementing a uniform code that accommodates the diverse nature of Indian society.

Arguments for and against the implementation of a Uniform Civil Code

The call for a UCC is supported by various political parties, legal experts, and social activists who argue that a single, comprehensive code would promote gender equality, social harmony, and legal consistency across different communities. 

They highlight that the UCC would:

1- Ensure gender equality by replacing patriarchal personal laws with a uniform law based on principles of equality and justice.

2- Eliminate legal complexities arising from the multiplicity of personal laws.

3- Promote national integration by removing religious barriers in civil matters.

However, opponents of the UCC argue that it:

1- Infringes upon the fundamental right to religious freedom and cultural autonomy, guaranteed under Articles 25-28 of the Indian Constitution.

2- May not resolve the issue of gender inequality, as societal norms play a more significant role in perpetuating discrimination.

3- Imposes a majoritarian legal framework, undermining the diverse cultural fabric of India.

How can a Uniform Civil Code strengthen family laws and their impact on families?

The implementation of a UCC holds the potential to strengthen family laws by:

1- Establishing a common, gender-just legal framework that safeguards the rights of all citizens, irrespective of their religious or cultural background.

2- Addressing patriarchal biases and discriminatory provisions present in current personal laws, thereby promoting gender equality and women's empowerment.

3- Simplifying the legal process and reducing confusion arising from multiple personal laws, making it easier for citizens to navigate the system and seek justice.

4- Encouraging social harmony and interfaith understanding by fostering a shared legal identity among diverse communities.

India's Journey Towards a Uniform Civil Code: Progress and Efforts

The debate on the UCC continues to be a hotly contested topic in Indian politics and society. Here are some important milestones:

1- In August 2017, the Supreme Court of India declared the practice of instant triple talaq unconstitutional, a significant step towards addressing gender discrimination within Muslim Personal Law.

2- In September 2018, the Supreme Court of India decriminalized adultery, stating that it violated the fundamental rights to equality and life, thereby promoting gender equality.

3- In November 2019, the Law Commission of India released a consultation paper recommending the codification of personal laws while protecting religious and cultural diversity, as an alternative to a UCC.

4- Recently, Uttarakhand Chief Minister Pushkar Singh Dhami announced that Uttarakhand will soon begin the implementation of the Uniform Civil Code. 

5- The home minister of Gujarat has also recently announced the formation of a committee in the state to implement the Uniform Civil Code.

In conclusion, the implementation of a gender-just Uniform Civil Code holds the potential to significantly alter India's legal landscape, promote gender equality, and ensure consistency across communities.

With several BJP-ruled states joining the call for the UCC, it has become an increasingly prominent topic in Indian politics and society.  While the debate around the UCC may face opposition from various quarters, the aspiration for a UCC remains rooted in the principles enshrined in the Indian Constitution, emphasizing the need for a unified, egalitarian legal framework that serves the diverse and evolving needs of India's citizens.