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26-october-2023

1.  The question of gender equality is central to the debate on Uniform Civil Code. In this light what are the challenges in reconciling UCC with gender equality as enshrined in the constitution?

ANSWER

  • Uniform Civil Code (UCC) is a composite code subscribing to the universal principles of equality, non-discrimination, and human dignity. The implementation of UCC is a principle that is enshrined in Article 44 of the Constitution. The central focus of all the UCC laws focuses in one way or the other on gender equality. Since the society largely is patrilineal in India, UCC focuses on engendering major personal laws like inheritance, marriage, divorce, adoption, etc.

GENDER EQUALITY IN INDIAN CONSTITUTION

  • While the Preamble of the constitution talks about equality, fairness, and justice as ideals that must be upheld, Fundamental rights like Article 14 provides for Equality before the law, Article 15 prohibits discrimination on the grounds of sex and Article 16 provides for equal opportunity for all the citizens. Article 39 urges the state to ensure adequate livelihood for all, and ensure equal pay for equal work while Article 42 asks the government to ensure adequate maternity benefits.

CHALLENGES IN RECONCILING UCC WITH GENDER EQUALITY

  1. Inequality: While the constitution treats all citizens equally, most of the personal laws regardless of religion treat women as not equal to a man. They are discriminated against in marriage, inheritance and have to deal with issues like adultery, bigamy, polygamy, divorce, etc. This is the biggest challenge in the implementation of UCC in India.
  2. Article 25-28: Article 25-28 provides all sections of societies to profess, practice, and propagate their religion. Under this, almost all personal laws are protected from judicial review creating legal challenges for implementation of UCC.
  3. Resistance from Communities: There is a diversity of traditions and cultures across India. Implementation of UCC may face challenges from the communities within. For e.g., temple entry of women in Sabarimala is still not effectively accepted by the communities in Kerala.
  4. No Clear Definition: There is no uniformity of definition under the UCC. There are concerns that everything will become subjective to the interpretation of different societies.
  5. Implementation Issues: It is very difficult to implement a uniform code in family laws. This can be seen in the case of Child Marriage, which though banned by legislation, still prevails in several sections of society.
  6. Socio-Cultural Challenges – UCC at times is viewed as an encroachment on the fundamental right to freedom of religion under articles 25-28 in the name of gender equality.
  7. State Paternalism: UCC, if imposed by the State, might lead to an impression of the State’s moral policing in the personal sphere of the citizenry. This might be seen as a violation of Right to Privacy and Equality.
  8. Polarization Challenge: The introduction of UCC can lead to polarization in society between different communities and also within communities which can hamper the social fabric of the country.
  • The Supreme Court through various judgements, made efforts to bring in uniformity in personal laws. For e.g., In 2014, SC stated that Muslim women had an equal right to legally adopt children like any other Indian citizen, in 2022, SC stated that Hindu women enjoy inheritance right retrospectively, in 2017, SC abolished the practice of triple talaq, in 2019 SC allowed entry of women in Sabarimala temple.
  • As suggested by the 21st Law Commission report, at present Uniform Civil Code is very difficult to implement in a diverse country like India.
  • However, steps must be taken to reform the personal laws of different communities to end gender-based discrimination. It will not only usher in gender equality but also protect the socio-cultural diversity of Indian society.

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