Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Uniform Civil Code, Identity politics and the gender equality

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NA

Mains level : Uniform Civil Code analysis

Civil

Context

  • Once again there is a clamour to replace diverse personal laws with a Uniform Civil Code (UCC), applicable to all Indians, irrespective of religion, gender or caste. Some states (for example, Uttarakhand) are already drafting one.

What is a Uniform Civil Code?

  • A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption, etc.
  • Article 44, one of the directive principles of the Constitution lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.
  • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

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Inheritance laws at present

  • Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA);
  • Muslims by the Muslim Personal Law (Shariat) Application Act, 1937;
  • Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently), and
  • Tribal groups are still subject to custom.

Civil

What makes unification difficult?

  • Distinction in Hindu inheritance laws: Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction.
  • Within Hindu law itself, states diverge: Kerala abolished joint family property altogether in 1976, but other states retained it, and matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus. Even among the latter, Hindus historically governed by Dayabhagha (West Bengal and Assam) differ from those in the rest of India who were governed historically by Mitakshara.
  • unrestricted right to will: The right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property; and Sunni and Shia Muslims differ on who can get such property and with whose consent.
  • Complex gender equal laws specifically in Muslims: for while the inheritance laws of Hindus, Christians and Parsis are largely gender equal today, under Muslim personal law, based on the Shariat, women’s shares are less than men’s, generically. Being embedded in the Koran, this complex structure of rules leaves little scope for reform towards gender equality.
  • Land is treated differently from other property: The HSAA 2005, for instance, deleted the clause which discriminated against women in agricultural land, but the 1937 Shariat Act governing Muslims continues to exclude agricultural land from its purview, leaving a major source of gender inequality intact. Although Tamil Nadu, Andhra Pradesh and Kerala later amended the Shariat Act to include agricultural land, in many other states, landed property is still subject to tenurial laws which exclude Muslim women from inheriting it, contrary to their rights under the Shariat.
  • Social justifications on who deserves to inherit differ: Hindus emphasise sapinda (“shared body particles” in Mitakshara and religious efficacy in Dayabhaga); other communities privilege blood or marital ties; and yet others favour proximity of children’s post-marital residence to provide parents care in old age.

Civil

Main concern: Deflection from the original aim of Gender equality

  • Today, the UCC debate has become enmeshed with identity politics, deflecting it from the original aim of gender equality. And the mingling of legal reform with religious identity has sharpened political divisiveness.

Answer probably lies in: The discussions among women’s groups in the 1990s

  1. Encourage each religious community to pursue its own reform for gender equality.
  2. Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood.
  3. Constitute a gender-equal civil code applicable to all citizens without option, based on the constitutional promise of gender equality, rather than on religious decree or custom.

Conclusion

  • For a start, rather than one code covering inheritance, marriage, etc., we should discuss each separately. On inheritance, which is the most complex, a secular law based on constitutional rights will clearly go the farthest towards gender equality. Whether this is possible in today’s divisive political environment remains an open question. But at least we should restart the conversation.

Mains question

Q. What is Uniform civil code? Highlight some of the major points which makes the unification difficult.

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