UCC - Can BJP End Discrimination In-Built in Personal Laws?

 BJP Equates UCC With Gender Justice. But Can It End Discrimination In-Built in Personal Laws?

Representative image. Photo: Paul Simpson/Flickr CC BY NC ND 2.0

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POLITICSRIGHTSWOMEN

06/JUL/2023

New Delhi: As the BJP continues to push for a Uniform Civil Code (UCC), the party has equated its calls for “One Nation, One Constitution” with the need to ensure gender justice.

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The 21st Law Commission’s report called for amending existing personal laws to end discrimination against women. Its report in 2018 said: “This Commission is of the view that it is discrimination and not difference which lies at the root of inequality.”

However, the 22nd Law Commission last month sought fresh inputs on the issue.

Subsequently, Prime Minister Narendra Modi at a rally in Bhopal also made a strong push for the UCC, which has once again renewed the debate around the contentious issue.

Opposition parties have accused the saffron party of using the issue as a religious polarisation tool and election rhetoric.

For the BJP, however, the push for a UCC has been ensconced in the idea of gender justice since the promise first made an appearance in the party’s manifesto in 1996. 

Speaking to The Wire, R.P. Singh, national spokesperson for the BJP said: “It (UCC) is only for gender justice. A woman should get equal rights across all communities, caste, colour, creed. A Muslim couple cannot adopt a child because they don’t have adoption rights.”

“Why should the girls’ marriage age be 15 and not 18 countrywide for all communities? Or why shouldn’t inheritance law be equal for all women in the country? Why should women suffer polygamy? These are concerns,” he said.

“It is not that a woman from a particular religion will get special rights or my daughter will get special rights but my daughter-in-law will not if she comes from a separate religion,” Singh said.

What BJP manifestos say

As mentioned, earlier, since the UCC first made its appearance in the BJP’s poll manifesto in 1996, it has been presented as a way to ensure gender equality. Here’s what each BJP manifesto says:

In the 1996 manifesto, the UCC is mentioned under the heading “Nari Shakti: Towards Empowerment”.

In the 1998 manifesto, the UCC once again finds mention under the section titled “Nari Shakti: Empowerment of Women”.

In the BJP’s 2004 election manifesto, the UCC first finds mention under the section “Our Basic Mission and Commitments” as “Consensus over Uniform Civil Code”. It also promises a UCC under the section on Nari Shakti to ensure gender equality and end the legal validity of “regressive personal laws”.

In its 2009 manifesto, the BJP once again promised to set up a commission to draft a UCC.

In its 2014 manifesto, the BJP said: “BJP believes that there cannot be gender equality till such time India adopts a Uniform Civil Code..”

The exact same wording for the promise and need for the UCC is also found in the 2019 election manifesto under the Cultural Heritage section.

Representative image. Photo: PTI

Need to reform personal laws

According to legal experts and rights activists, the UCC is not a necessary corollary for gender-just legal reforms.

Speaking to The Wire, women’s rights lawyer Flavia Agnes said that the 21st Law Commission’s recommendation to reform personal laws was a better strategy for gender-just rules.

In its 2018 report, the 21st Law Commission, while noting that a UCC is “neither desirable nor necessary at this stage”, added that “various aspects of prevailing personal laws disprivilege women.”

“They recommended that the discrimination against women in all personal laws should be taken up and amended. So, I think that is a better strategy for gender justice than a UCC which is particularly controversial for the minorities,” Agnes said.

“But the government has not implemented anything [based on the law commission’s recommendations] in the last few years. Instead, the government is adamant on UCC as it is a political move just before the elections because it has become about bashing the Muslims.”

Also Read: The UCC Bogey Is Raked Up for Muslim Bashing and to Serve Electoral Needs: Flavia Agnes

Sarasu Esther Thomas, professor of law at National Law School of India University, Bangalore and an expert in family law, told The Wire that there can be gender justice without a UCC. “Practically you can have smaller laws which are uniform which promote gender justice instead of trying to change all the laws together, which is not a practical exercise at all.”

She said one good example of such implementation is the Domestic Violence Act, which is applicable to all women regardless of their personal laws – which, she said, “is a uniform civil code in that sense in a particular area”.

“These small incremental changes are what would be useful instead of having something big which may not be deliverable,” Thomas said.

Zakia Soman, a founding member of the rights group Bharatiya Muslim Mahila Andolan, said that while the UCC was originally about bringing gender justice, Muslim women have “lost out” in the absence of codified personal laws.

“Originally, the UCC has been about gender justice then other ways were found and Hindu women benefited from it through codified laws (Hindu Code Bill),” she told The Wire.

“For the last 20 years we have been demanding codified Muslim laws but no one has been listening to us, whether the clergy or government. There is a disparity and discrimination that Muslim women are facing because we don’t have rights like Hindu and Christian women because our laws are not reformed and in the absence of codified Muslim family laws, the only opportunity is UCC,” she said.

However, concerns remain around the Hindu Code Bill – which includes laws relating to marriage, succession and inheritance that were codified and passed in the 1950s – that it continues to discriminate on the basis of gender.

“Different laws that apply to Hindus are not all gender-just. If you look at the Hindu Succession Act, for instance, if a man dies and his wife has predeceased him and they don’t have children, then his property goes to his family. But if a woman dies and her husband has died earlier and they don’t have children, then her property does not go to her family but goes to her husband’s relatives,” said Thomas.

There are various provisions that make it clear that these laws cannot be a blueprint for a UCC because they are not gender-just, she said. In that regard, the Parsi or Christian systems are better, Thomas opined.

Complicating matters further is the diversity built into personal laws.

“Though there is a Hindu Marriage Act, it is not uniform. It recognises diversity and has provisions for customary divorce and varies from custom to custom. Neither is it uniform nor gender-just,” she added.

Representative image. Photo: An4shubam/Wikimedia Commons, CC BY-SA 4.0

Several BJP-ruled states – including Madhya Pradesh, Assam, Uttar Pradesh and Haryana – have considered the implementation of a UCC. 

The Uttarakhand government has recently said that a draft of its UCC is ready. According to an Indian Express report, the Uttarakhand draft may serve as a template for the Union government.

At present, the only state in the country with a uniform code in Goa. The Goa Civil Code is derived from the Portuguese Civil Code of 1867.

Goa’s BJP chief minister Pramod Sawant has also held up the Goa Civil Code as a potential model for the UCC, and said that those opposing such a law “do not want gender equality and women’s empowerment”.

According to Agnes, while the Goa Code receives much attention and praise, it is by no means gender-just.

“It is not uniform at all and codified Hindu law does not apply to Goa. For instance, in Goa, if a Hindu man’s wife doesn’t bear a child till 25 or a male child till the age of 30, the husband can marry again. We are not understanding the intricacies of each of these laws and pronouncing Goa as a shining example.”

Uniformity in gender justice is the goal

Experts say that any new legislation that seeks to bring uniformity must first ensure an end to gender discrimination.

“The first non-negotiable aspect of any future code, whether the UCC or common law or secular law, is upholding gender justice under all circumstances,” said Soman.

“So that would also mean legally allowing same-sex marriages, allowing entry to all women across all castes and faiths to all places of worship, rooting out killings in the name of ‘love jihad’, and protection to women against marital rape.”

The Modi government has opposed same-sex marriages in the Supreme Court, and has earlier also said that criminalising marital rape will have “social implications”.

“So the contradictions in the government’s policy also have to be brought out and need to be addressed,” said Soman.

Also Read: What a Gender-Just Uniform Civil Code Could Look Like

According to Thomas, there is already a range of problems that need to be addressed in the existing laws urgently.

“This includes talking about succession beyond the gender binary. If you have a transgender child, do you treat them as a son or a daughter? If a transgender person dies, do you apply the succession laws of a Hindu man or a Hindu woman? These problems are already there which need to be sorted out and dealt with urgently.”

“In addition, some laws entirely exclude the LGBTQI community, illegitimate children and women who are in non-marital relationships. So, those have to be addressed as well.”