On June 14, the 22nd Law Commission of India revived the ongoing constitutional debate regarding the Uniform Civil Code (UCC) by inviting suggestions on creating a unified legal framework that would transcend diverse personal laws. On March 13, Uttarakhand became the first state to implement the UCC. This development, coupled with the intensifying election campaigns, has heightened discussions about the possibility of nationwide implementation. The advocacy towards the reform could help realize the substantive equality the constitutional drafting committee imagined for the gender laws in India, as evidenced through this piece.  

During the Constituent Assembly debates, the pressing concern of national integration rightfully took precedence over the equal protection of the law. The applicability of personal laws was given priority to appease the religious groups and preclude the further division of the nation. However, the underlying idea was not entirely abandoned, as Article 44 was enunciated as a non-enforceable clause, with the premise that the contextual implementation of the Uniform Civil Code could ensue when the circumstantial solidarity emanated in the Indian nation.

I argue that the necessary enactment of the Uniform Civil Code as a purposive interpretation aligns it harmoniously with the constitutional mandate of equality and secularism. Despite more than seventy years since the implementation of the Indian Constitution, Indian policymakers remain trapped in a moral dilemma owing to the anticipated protests from religious groups. However, social progress cannot be hindered by clinging to outdated principles as despite overriding general laws such as the law against child marriage,  there persists a wide array of women's rights that are governed by age-old misogynistic personal laws. This results in the reinforcement of the male superiority, despite the substantial presence of equality in the constitutional mandate. Notwithstanding the progressive legislative reforms, such as the Hindu Succession (Amendment) Act, 2005 that granted equal inheritance rights to female heirs, and feminist judicial interventions, like the Shayara Bano vs Union of India & Ors. in 2017, which declared the unilateral oral talaq unconstitutional under Muslim Personal Law, gender bias remains persistent under religious garb. This could be circumvented vis-à-vis the Uniform Civil Code.

Removing gender bias

An example is the natural guardian rights conferred over the father and not on the mother under Section 06 (a) of the Hindu Minority and Guardianship Act, 1956. Concerning this, the Supreme Court advocated for gender justice in Githa Hariharan v. Reserve Bank of India, but it was in vain. Considering the entrenched societal bias against women, one cannot solely rely on legal battles every time, and there must also be a proactive legal assertion. 

Likewise, under Section 2 of the Muslim Personal Law (Shariat) Application Act 1937, Muslim men can indulge in a polygamous marriage, while no such rights are available to Muslim women. At this juncture, it is pertinent to mention that Section 5 of the Hindu Marriage Act 1995 stipulates monogamy for both men and women. Hence, substantive equality would imply monogamy for Muslim men rather than polygamy for Muslim women. The path toward progress does not reside in appending supplementary provisions to existing personal laws. Instead, it hinges on the establishment of progressive, gender-neutral, monogamous practices that are devoid of religious distinctions, achieved through the implementation of a uniform code.

Further, the Special Marriage Act 1954 was enacted to facilitate inter-religious marriages, as neither personal law allowed the same. Regrettably, this led to several violent attacks by religious extremists, which have even resulted in death. Thus, what emanates as a necessity is the implementation of a Uniform Civil Code. Despite progressive judicial interventions such as Sarla Mudgal & Others vs Union of India and John Vallamattom v. Union of India, advocating for ordinary civil law,  blatant human rights infractions are evident. The uniform civil law would nullify the extant gender bias in personal religious laws.

Secular civil law

Moreover, it would shape societal values, as the law does not exist in isolation. To this extent, the implementation would also be legally tenable, as the Indian Constitution, in its preamble and under Articles 14, 15 and 16 posits substantive gender equality, which is enforceable, unlike Article 44. Moreover, this would also include India's adherence to the Convention on the Elimination of Discrimination Against Women and the Beijing Declaration and Platform for Action, the prominent gender justice and empowerment international legal instruments to which India is a ratified state party.

The progressive implementation would also further India's commitment to being a secular democratic republic as a corollary. Articles 25 and 26 of the Indian Constitution guarantee the Indian citizen's religious freedom. Since the Uniform Civil Code would provide a secular civil law, neither of the religious groups would be compelled to partake in religious rituals, ceremonies and observations that are alien to its faith. 

The religious communities need to note that the religious practices that violate human rights are not autonomy but rather oppression, and to circumvent the sacerdotal suffocation of civil and material freedoms, a uniform code is necessary. This would not only protect the persecuted but would also promote national unity and solidarity.

(The author is a graduate of NALSAR University of Law, Hyderabad and takes keen interest in the intersection of human rights and criminal law. Views are personal. He can be contacted at bhavya.johari@nalsar.ac.in )