Law and Women: Religious personal Laws some thoughts with regard to the Uniform Civil Code


The contemporary Indian society is multicultural that is pluralistic with regard to religious laws. These are laws governing different religious groups according to their religious tenants. These laws sometime come in conflict with the common law laid down by the constitution with the promise of the fundamental rights and legal entitlements for every citizen of India, irrespective of their sex or gender. The constitution also has a provision for a uniform civil code under article 44, to be enacted by the state. Religious Personal laws are often do not treat women at par with men. Unlike the constitution, which treats every citizen equally before it, the personal laws discriminate between men and women regarding similar and some case same provision of the personal Laws. This has led to a stream of thinking that enacting a uniform civil code shall equalise the gender field with regards to these laws. However, would it actually make the personal laws more women friendly, is still very much in doubt, and more importantly whether the promise of equality by the constitution can be delivered through it.

With respect to gender we seem to have entered a life of contradiction, upon the enactment and adoption of the constitution. While the constitution give equality to all citizens unrestrained by any external consideration, the personal laws still operated which subdued the idea of equality. The legal system that is follows is the common law system. It is a relic of the British colonialism. While we in India continue to maintain the convention of the colonial laws. The same concepts have been modified and abandoned in England. Within this preview the personal Law system is one of them. It is time to look in to modification and if necessary desertion of these laws in the interest of gender equality.

The article 44 of the constitution says that;

The state shall endeavor to secure for the citizens a uniform Civil Code throughout the territory of India.[1]

The post-colonial sate in India has been the architect of the many social reforms in the country after independence yet, no government in power in the last 64 years, has been able to either bring a consensus on the issue nor has been able to enact it. However, it will be out of place to ask questions in the “what if” format? What, however is important, is whether the enactment of the Uniform civil Code (UCC) brings about any perceptible change in the position of equality with respect to women. If would be prudent to stop and ask as to what exactly is the UCC?

The UCC in the Indian context means that part of law which deals with personal & family affairs of an individual and denotes uniform law for all citizens, irrespective of his/her religion, caste or tribe or gender.

Laws relating to crime and punishment which is the criminal justice system is uniform for all citizens.  So are the laws relating to commerce, contracts and other economic affairs?   Procedural laws including laws relating evidence etc. are also uniform for everyone.  Laws of taxation are same for all except that it recognises certain religious customs prevalent in the society, like Hindu Undivided Family (HUF), for special treatment.

However, family affairs such as marriage, divorce, inheritance, guardianship and adoption are legally permitted to be governed by customs of their community. This has been a pre-colonial practise, where the British thought it wise not to meddle with these customary laws of the local population. One distinguishing feature of personal laws is that all of them are gender biased in which women have fewer rights when compared to men. So, keeping in view these infirmities in the personal laws, it is assumed that having a UCC would bring about gender equality.

However, this simplistic assumption misses out on the complexities involved in chalking out such a code. Personal laws are not just laws governing communities, the complexities flow from the fact that they have religious sanctity and further, the courts and the legislature acknowledge it. The woman as a subject of the state underwent a transformation from a gender-neutral with law to a well-defined gender within the social space. This perhaps is what needs remedying.

After independence the first Lokh Sabha to the parliament of India enacted the Hindu Code Bill. It reformed the Hindu personal laws with regard to monogamy, inheritance and succession among others. These provisions tried to rationalise the Hindu personal laws and make them gender neutral to some extent. However, they did not go the whole way. The same is true for the Muslim personal law, that the women are not treated at par with men. However, there has been no attempt made by the development state of India to remedy the same at all, which in the case of Hindu law has been done from time to time. The main contention within the underlying assumption of the UCC is that, having enacted the UCC these contours within the Personal laws in particular and civil law in general will be smoothened to effect gender equality. On the one hand the constitution gives every citizen a fundamental right to equality (Article 14) while on the other, it gives the benefit of non-interference to the minorities in the affairs and activities to protect their cultural identity.

The UCC enacted in any form will violate these two principle because the women in India who are from diverse sections, cultural divisions and religious fabric will have to be treated homogenously, which means the blurring of cultural boundaries thereby infringing on their rights to practice and protect their religion and cultural practices. So the whole process is circular within the logic of the UCC and therefore, should not be used as a tool for gender equality. What needs to be noted and appreciated is the context specific situation of women in India. It has to be seen as the site for politics with specific goals, while the whole leads t to it.

The dilemma faced by feminists asking for a common family law for all Indian women is that they must simultaneously answer the mainstream critics of feminism who challenge the demand for gender-sensitive laws and the men and women of minority communities who demand respect for cultural identity.[2] It must be remembered that the legal system imposed or created by the British in India was in response to a very different society, that of England and not India. The idea behind the legal system was also inspired by liberalism and positivism the new streams of thoughts which influenced the European Nations during the Enlightenment. However, these values and ideas were a farcy cry from those instilled in the Indian society. The infusion of these new ideas underlying the system of justice dispensation in colonial India, brought with them the requirement of homogeneity and rule of law where every person was one and equal before it. This is the where the dilemma of the Indians multiplied due the heterogeneity of the status of a person within their personal laws canons and without from the perspective of the other personal laws.

Archana Parashar put the point succinctly in her writing on gender and law;

Liberalism and positivism have joined to formulate a view of modern law as autono­mous of the economy and society, in contrast to earlier conceptions of law that relied on historical or theological explanations. In this widely accepted view, the legitimate authority of law is dependent upon universal, neutral, and abstract principles. The law defines who is a legal subject and everyone who meets these requirements is entitled to the same rights irrespective of their religion, wealth, gender, or any other characteristic. Liberal legalism in particular finds its legitimacy in this guarantee of non-arbitrariness, of fairness to everyone irrespective of their specific characteristics or differences.[3]

If we are to protect the constitutional promise of equality and the protection and flourishing of diversity we have to look beyond the enticement of homogeneity. India has to relook at the relationship between law and how it sees and places women in the context of conflict with equality. The constitution in effect has looked at women favourably including provision which were progressive and ahead of its time. Some of the articles which bring out the concern for a better status of women as equal citizens of this nation.

The Constitution of India assures equality for both sexes. Article 14 of the Constitution provides equality before law. Article 15 prohibits discrimination on the basis of sex, but permits discrimination in favour of women. Some Directive Principles of State Policy of the Constitution of India apply to women specifically. Article 39 states that the State shall direct its policy towards securing that men and women equally have the right to an adequate means of livelihood. That there is equal pay for equal work for both men and women and that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 42 makes provision for just and humane conditions of work and maternity relief. The tone here that can be noticed is one of neutrality. Making everyone equal before the highest law of the land.

The critique of this positivist liberal view of the neutrality and universality of laws flows from the fact that they assume the essential sameness of the male and the female gender. Which led the demand of recognition of this difference in the law and change the laws accordingly by legal feminist. However this went on to raise a debate whether this amounted to preferential treatment. But, the challenge was dissolved with the advent of the post structuralism critique of the unified category of women with differing race, ethnicity, sexuality etc. where every women was construed a different being without a unifying factor and distinct personality based on social and personal memberships.

In the Indian context it would be far better to reason out an approach based on different rights rather than a universalising feature of the UCC. This is also based on the fact, that while the Indian constitution allows for and informs the formal equality of sexes, it does also allow for minority freedoms and religious rights. Within this framework the women in India cannot gain the equality sought without also raising the discourse on secularism and larger concerns of freedom. The recognition of the differences need to be contextualised leading to a fair and just outcome for all the women concerned.

The enactment of the 2005 Domestic Violence [Prevention] Act (DVA) by the Indian Parliament raises a number of relevant issues for Indian women seeking to understand law as a site of struggle, a site where politics can be played out and reasonable outcome expected. The requirements of the women in the south and the north are different. Domestic violence takes place in a very specific and particular socio- economic context, which stems largely from the construction of the women as dependents within law, having no or little economic independence. The religious personal laws deny Indian women even formal legal equality in personal relations be it family or conjugal. In this context it is no surprise that domestic violence becomes a real problem for the Indian women with specific contexts.

This bill has re conceptualised and articulated the problem of domestic violence within the civil law to recognise and redress the problem for the Indian women. However, the redressed mechanisms contained within the laws leave much to be desired. This law empowers the woman to remain at her conjugal home, and make arrangements to come out of the violent marriage. This is made and constructed as a right. The social context of the premium seen on the place of women in her conjugal home serves to block her exit. Moreover, the situation of the women during the time does not change, she still remains a dependent without any actual change in her economic situation. This is where the problem lies, the realistic chance of getting a share in the property remain dull and distant. Till this bill is not placed in the socio-economic context, with regard to the economic situation and maintenance provisions, the act shall remain a chimera.

The religious autonomy that various communities claim in turn invokes a sim­plistic notion of choice. Invariably there is no discussion of who is making the choice and whether the structural nature of hurdles in exercising choice makes it a futile con­cept for most women. With regard to personal matters it could be imagined that law, rather than enforcing religious authority, can facilitate equality by making all family laws gender non-discriminatory. Such a family law would not interfere with anyone’s religious autonomy but neither will it enforce religiously sanctioned inequalities.[4]

Clearly, the promise of gender equality cannot be achieved with the current discourse of the proponents of the UCC. A radical rethinking of the idea of equality promised by the constitution is required and till such time that it is not recognised there can be little hope for the achievement of this promise.

 

Works Cited

[1] The constitution of India

[2] Parashar, Archana. Brown University; 2008. Gender inequality and religious personal laws in India.

[3] Parashar, Archana. Brown University; 2008. Gender inequality and religious personal laws in India.

[4] Ibid.

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