A Uniform Civil Code or Gender Discrimination?

The term Uniform Civil Code is talked about in Article 44 of the Constitution of India

under the Directive Principles of State Policy. The Article aims to secure justice by

bringing forward an alternate meaning to the term “Secular” mentioned in the

Preamble. In the current form of secularism, all religious personal laws are left

untouched, under the presumption that non-interference amounts to equal treatment.

This was the interpretation of secularism by Warren Hastings who said, “The laws of

the Koran with respect to the Mahomedans and those of the Shastra with respect to

the Gentoos (Hindus) shall be invariably adhered to.” Nevertheless, there are

inequalities within these religious customary laws that violate Article 15 of the

Constitution, making this form of secularism inadequate. However, the UCC form of

secularism promotes Article 14 by embracing equality among equals. Our legislation

has been striving to form a UCC on the same lines of secularism, where they intend to

keep in mind all the minority communities while drafting a singular Civil Code that

draws upon the best customs suitable for the liberal generations ahead.

The custom of merely saying the word Talaq to divorce is a practice that subsists for

Muslim men but not for women. When a Muslim man is unhappy in a marriage, he

can say Talaq thrice in front of a group of people, mostly family members, in order to

divorce his wife. In the case of Muslim women, they do not have this option of Talaq

making dissolution of marriage significantly harder for them. There are many such

customs that are present in favour of men. These customs that turn into laws by

practice are inherently unconstitutional in nature and prevail in the society,

discriminating between citizens based only on their gender. This violates Article 15 of

the Constitution, a Fundamental Right that prohibits any form of gender

discrimination.

The Shariat Act is merely an advisory. The Muslim personal laws remain uncodified

even after the constitutionality of the Act was questioned in 2001, on the grounds that

there were discrepancies and gender discrimination within the religious customs itself.

However, codification does not help as the Hindu laws are codified but the same

loopholes and discriminatory laws are present in it. In the Hindu law of inheritance,

there is a discrimination between men and women where Section 16 of the Hindu

Succession Act says that when a woman dies intestate in the absence of her heirs, her

property will be inherited by her husband’s heirs only in the absence of whom it will

go to her own father’s heirs. Whereas this does not apply to a man as Section 15 of

the Act says that in the absence of a man’s class I and class II heirs, the property will

devolve to his agnates. This is again violative of Article 15 of the Constitution of

India and shows how there isn’t uniformity within the codified laws either.

UCC should not be understood to be against religion, as the very existence of Article

25 in the Constitution is a Fundamental Right that allows every citizen to practice and

propagate any religion of their choice and will protect them even if the legislation

drafts a UCC that is not in favour of their religion. By way of an alternate form of

secularism, prejudices of gender discriminatory laws will be removed by the UCC,

which will aid in treating every gender equally under the eyes of the law. The Goa

Civil Code is a type of UCC sustaining without discriminating on the basis of gender.

Dr. B.R. Ambedkar and other framers of our Constitution said that Article 44 should

be actionable only when the Muslim community and other minority communities

come to a consensus that a UCC is necessary. After the issue of Triple Talaq, a large

section of the Muslim community is in dire need of progressive laws. As the

codification of the Hindu Code Bill clearly hasn’t removed the gender discriminatory

laws existing within these customs, there is a need for UCC.