Civil Codes in India: Towards universal rights and justice - ActionAid India
+91 80 25586293

Civil Codes in India: Towards universal rights and justice

Author: Sandeep Chachra
Posted on: Thursday, 22nd June 2023
Photo: Long pending Prosecutions for compoundable offences have been identified for withdrawal | Finaicial Express
Four years after a previous Law Commission stated that a Uniform Civil Code (UCC) was neither desirable nor necessary, the 22nd Law Commission (LC) on 14th June 2023 called for views from the public and recognized religious institutions on the UCC.
The idea of a UCC is not a new one. When drafting the Constitution, Dr Ambedkar argued and recommended its inclusion in the Constitution of India. However, during the constitutional debates, members of the Constituent Assembly felt that the time was not opportune to ride roughshod over personal laws. So the desire to have a UCC was moved to Article 44 under the Directive Principles of State Policy with intent for progressive realization, but not enforceable by courts.
Meanwhile, there have been various indications from the Supreme Court (SC) and other courts of the land on the need for a UCC. In its intent and content, this has been from the vantage point of seeking gender justice and equality for women. We can see this in the Shah Bano case (1985), where the SC first indicated its desire for UCC and entitled Muslim women to maintenance under Section 125 of the CrPC.  Whether in the Sarla Mudgal Case (1995) or the Pannalal Patil Case (1996), the highest court has indicated the need for a UCC. In the Pannalal Patil case, the SC also recognized the difficulties in realizing UCC and noted that “a uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute.” In all instances, the emphasis was on ensuring an end to discrimination faced by women under different family and personal laws.
Several state governments have advanced the idea of a UCC. Currently, Goa is the only state in India which follows a UCC, inherited from the original Portuguese civil code. Assam, Uttarakhand, Karnataka and Gujarat have initiated the process to bring UCCs, given the issue is on the concurrent list.
Women’s rights groups have generally welcomed the idea of a UCC from the vantage point of gender justice. For example, the question of triple talaq saw many groups, including the Bharatiya Muslim Mahila Andolan (BMMA), championing the abolition of triple talaq.
However, we should also realize that the UCC has a colonial context. Societies, where ideas of uniformity in civil codes emerged, were and are relatively homogenous and certainly less diverse than those of the Global South. The notion of uniformity has intertwined with the effort of nation-building in the Global North starting from the 17th century. In India, The British in 1840 set the foundation for a uniform law on crimes, evidence and annexure; however, they left out the matter of personal laws for later consideration. In colonizing Goa, the Portuguese implemented a civil code later inherited by the state of Goa in 1961 after liberation.
The question that arises in many countries of the Global South, which are socially and culturally very diverse, is whether a UCC will work against diversities. The argument that nation-building and advance need uniform sets of laws across all arenas of social life may not be the desired path ahead, given the overlaps and intertwining of customs, subcultures, traditions, religion and history. Many have argued that uniformity carries the dangers of majoritarian or hegemonic impositions in its womb. The Sikhs, for example, have their own identity, tradition and culture, and it was after a long process that they got the Anand Marriage Act of 2012, which paved the way for the validation of traditional Sikh marriages. Several tribes of India have had a very tangible fear of the question of UCC as one which will, in time, erode and subsume their distinct cultural practices, customs and traditions. The fear is real for tribes and groups which follow matrilineal systems, such as the Khasis, Garo hill tribes of North Eastern India and Nairs of Kerala. A UCC for them may be equivalent to patriarchal uniformity. The fears of majoritarian norms being established arise not just for the varied diversities of our land but also for minority sexualities and the LGBTQIA+ communities.
The way to bring positive change in society’s customs and norms is to build it from the roots and bottom-up and establish this path together. The social need is to create synergies of action and start with practices, customs and traditions, which should and need to see positive futures, such as women’s control of property and dignity in the world of work.
The project of decolonizing laws, therefore, must tread on the footing of interrogating laws for the biases of the past and removing those while also encouraging and flourishing tendencies, customs and traditions for their favourable embodiments. We need to be forward-thinking, considering the values we wish to advance in the 21st century. In the pursuit of uniformity, let us not ignore diversities and justice!
Disclaimer: The article was originally published on Financial Express. The views expressed in the article are the author’s and do not necessarily reflect those of ActionAid Association.