Amend personal laws to ensure gender justice, say activists

Experts also agree that in case the amendments and codification of personal laws are not possible due to opposition from clergy or community heads in general, a UCC may be the best way forward

Updated - July 10, 2023 01:55 am IST

Published - July 08, 2023 08:38 pm IST - New Delhi

The Law Commission should first identify the problems with the personal laws of all communities and religions as far as gender justice is concerned and then go about addressing them. File

The Law Commission should first identify the problems with the personal laws of all communities and religions as far as gender justice is concerned and then go about addressing them. File | Photo Credit: The Hindu

The overarching aim ofa Uniform Civil Code (UCC) is to ensure gender justice, the Union government holds, but is such a common law actually needed for the women’s cause? Women’s rights activists across the religious and political spectrum are unanimous in their view that the first preference towards gender justice is the codification of existing personal laws of all religions and amending them where necessary. This can help address the women’s cause better than a UCC, which will unnecessarily stir up a political conundrum, they feel.

“Ideally, I would have liked codified Muslim family laws as opposed to a UCC. All the affirmative rights in the Quran should translate into reality,” Zakia Soman, one of the petitioners in the triple talaq case, said.

Also read | Uniform Civil Code and the infinite variety of custom

In addition to this, amendments in the Muslim personal law — increasing the age of marriage to 18 years from puberty; a ban on polygamy and practices like Nikah Halal; ensuring guardianship and custody of children for the mother; and an equal share in property and inheritance for women; along with a well laid out procedure for divorce — can suffice at this time, a source said. A petition for banning polygamy in Muslim personal law is already pending in the courts.

Similarly, in Christianity, only marriage and divorce are governed by the church. Inheritance and share in property are in accordance with traditional laws, which need to be brought under a single umbrella, a senior leader of the community told The Hindu.

However, experts agree that in case the amendments and codification of personal laws are not possible due to opposition from clergy or community heads in general, UCC was the best way to go forward.

Also read | India needs a Uniform Civil Code

One of the first steps taken toward a UCC is concerned was by State of Uttarakhand, which has come out with a draft of the proposed law for the State to be submitted on July 15. The draft is said to have recommended raising the age of marriage of women to 21 years; ending polygamy and polyandry; an equal share in property for women; and ending coparcenary rights in property for men in the Hindu Joint Family.

According to highly-placed government sources, the Uttarakhand UCC is expected to be the template for a Central exercise.

It is here that social activist Patricia Mukhim strikes a note of caution. “How can a law for Uttarakhand be a template for the entire country? For example, in the northeast, where the realities are completely different,” Ms. Mukhim said.

In the northeast, tribes have their own traditional laws governing them. A good example is of the Khasi matrilineal society, which gives property rights to younger daughters as they have to look after the parents till they are alive.

If a UCC is arrived at, it’s unclear what will happen to the Sixth Schedule of the Constitution, which was created to conserve and protect the customary laws and practices of different communities, including practices that may be seen as anti-women.

Also read | PM Modi’s pitch for Uniform Civil Code is on the same lines as Centre’s affidavit in Supreme Court

The Centre has to first address these concerns, and for that, a draft of the UCC proposed by the Centre has to be seen first. Pending that, “The best way is for any change has to come from within a community,” Ms. Mukhim said.

The Law Commission in June sought views from the public as well as various stakeholder departments of the government on the UCC, including the Women and Child Development Ministry. Till now, it has received over two million responses.

However, in 2018, in a 183-page consultation paper, the Law Commission had said that such a common code was “neither desirable nor necessary” at this stage.

“This is understandable as there are inherent contradictions in some rights which the Constitution promises to various communities and the proposal for a Uniform Civil Code,” Alok Prasanna of the Vidhi Centre for Legal Policy said.

For example, Article 371(A) of the Constitution promises protection to religious and social practices as well as the customary laws of Nagaland “notwithstanding anything in this Constitution”. Similarly, the Santhal Pargana Act and the Chotanagpur Act were enacted during the British period to provide protection to the customary laws of tribal communities.

This is a point of objection for many. Recently, a delegation from Nagaland met Union Home Minister Amit Shah to express its concern. According to media reports quoting sources in the delegation, the Home Minister assured them that the Centre was actively considering giving exemption to certain tribal areas, and to Christians, from the UCC.

If such a scenario is even considered, then the plan for a UCC could stir up the religio-political pot in the country further, without addressing key issues relating to gender equality.

The Law Commission, which is the nodal agency for securing people’s views, should first identify the problems with the personal laws of all communities and religions as far as gender justice is concerned and then go about addressing them, Mr. Prasanna said.

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