Uniform Civil Code: Can the debate be extricated from identity politics and refocused on gender equality?

Source: The post is based on the article “Uniform Civil Code: Can the debate be extricated from identity politics and refocused on gender equality?” published in the Indian Express on 25th January 2023.

Syllabus: GS 2 – Indian Constitution—significant provisions and basic structure.

Relevance: About Uniform Civil Code.

News: Uniform Civil Code (UCC) in India can be taken into consideration in India only after addressing a slew of concerns.

What is Uniform Civil Code (UCC)?

What are the status and judicial views on implementing UCC in India?

What is the view of the constituent Assembly on implementing UCC?

What are the two key challenges in implementing UCC?

Intricate issue of marriage: According to NFHS-5, 1.3% of Hindus, 1.9% of Muslims, and 1.6% of others still practising polygyny. This is due to divergent social and kinship rules among various regions.

For instance, northwest India forbid marriage (based on sapinda) between anyone related within five generations on the father’s side and three on the mother’s side. On the other hand, the south and northeast India allow uncle-niece and cross-cousin marriages among Hindus and Muslims allow marriage even between parallel cousins. Hence, this is hard to unify under one single code.

Intricate issue of inheritance: Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA); Muslims by the Muslim Personal Law (Shariat) Application Act, 1937; Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently), and tribal groups are still subject to custom.

At least six major points of divergence in the above-mentioned laws make unification difficult, and possibly untenable. These are,

a) Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction.

b) Within Hindu law itself, states diverge. Kerala abolished joint family property altogether in 1976, but other states retained it, and matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus.

c) The right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property.

d) The inheritance laws of Hindus, Christians and Parsis are largely gender-equal today. But, under Muslim personal law, based on the Shariat, women’s shares are less than men’s generically.

e) Land (a key productive resource) is treated differently from other property in some personal laws but not others.

f) Social justifications on who deserves to inherit differ. Hindus emphasise sapinda (“shared body particles” in Mitakshara and religious efficacy in Dayabhaga); other communities privilege blood or marital ties.

What should be done to implement the UCC?

The government should refocus on gender equality, while also allowing democratic choice. This can be done by

-Discussions among women’s groups in the 1990s highlighted three positions.

1) Encourage each religious community to pursue its own reform for gender equality, 2) Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood, and 3) Constitute a gender-equal civil code applicable to all citizens without option based on the constitutional promise of gender equality.

–Cover inheritance and marriage issues separately: On inheritance, a secular law based on constitutional rights will ensure gender equality.