A Delicate Balance
Religion forms the basis of most reasoning regarding the existence of "law" to govern society. It serves as a foundation for moral and ethical guidelines, thus emphasising its importance within a legal perspective and society. Ignoring this integral interplay of law, morality, and tradition would risk undermining the basis of societal cohesion, potentially leading to a flawed system doomed to collapse.
Personal laws in India reflect the nation’s intricate balance between tradition and modernity, where personal laws rooted in religious doctrines coexist uneasily with the constitutional ideals of equality and secularism. India, home to one of the most diverse populations in the world, has fostered coexistence for millennia. However, this harmony often faces challenges when differences come to the forefront.
Indian laws have their roots in the pre-colonial and colonial eras, where familial relationships, inheritance, and marriage were governed by religious and customary practices. Hindu laws were derived from religious texts such as the Manusmriti and other Dharmashastras. Similarly, Islamic law, or Sharia, introduced during Muslim rule, was based on the Quran and Hadith. These legal systems aimed to preserve religious identity and autonomy in personal matters.
During British rule, the colonial administration sought to govern without disturbing the cultural and religious fabric of Indian society. A non-interfere approach was adopted, in reality, their decisions and interpretations of the law impact family laws even today. During this period the personal laws were codified, with distinct statutes for Hindus, Muslims, Parsis, and Christians. The British did attempt to create a UCC but settled on importing their values and morals into our laws, causing many of our laws to have British elements in them such as restitution of conjugal rights, which interestingly enough was outlawed in the UK in 1970 as it was found to be outdated and fundamentally problematic. [1]
Post-independence, the framers of the Indian Constitution faced the daunting task of creating a secular and egalitarian legal framework while respecting the nation's religious diversity. Personal laws were retained to preserve religious freedoms guaranteed under Articles 25 and 26, which uphold the right to practice and manage religious affairs. However, this decision introduced inherent contradictions with other constitutional principles, such as equality, non-discrimination, and secularism, enshrined in Articles 14, 15, and 21.
The inclusion of Article 44, which mandates the State to strive for a Uniform Civil Code (UCC), was an acknowledgement of the disparities and inequalities perpetuated by personal laws. It reflects the constitutional vision of eventually replacing these disparate legal systems with a unified framework that ensures gender justice and equality across all communities. Yet, the coexistence of our current laws and constitutional values has been fraught with challenges. While they may seem integral to cultural identity, their provisions often clash with the Constitution’s progressive ideals. The judiciary, caught in this tension, has repeatedly stepped in to align personal laws with constitutional values, evoking controversy.
The dual system of personal and secular laws was born out of the necessity of respecting India’s diversity. It remains a reflection of the nation’s pluralistic ethos and a source of significant legal and societal discord. It underscores the ongoing struggle to reconcile tradition with the Constitution's transformative vision. As India marches toward modernity, we must ask ourselves: Is our dependence on personal laws holding us back in societal development?
A Security Blanket That Divides Us
Personal laws in India act as a security blanket, offering comfort through familiarity and cultural identity. They allow communities to navigate marriage, inheritance, and other personal matters in ways that align with their religious doctrines and traditions. While this legal pluralism may appear to promote harmony, it has, in reality, entrenched social divisions and delayed the progress of equality and justice.
Personal laws, by codifying religious practices, ensure communities retain distinct traditions under a secular state. However, this framework has significant costs. Instead of bridging differences, these laws create rigid silos of identity, where individuals are bound by the legal frameworks of their religion rather than unified under a common legal system. This fragmentation manifests in legal disparities that exacerbate social inequalities. For instance, the rights afforded to women under different religious laws vary widely, perpetuating patriarchal norms and denying women equal footing in matters like inheritance or divorce.
The existence of separate personal laws has not only divided people legally but also socially. Codifying religious practices reinforces the idea that communities are fundamentally different, fostering an “us versus them” mentality. This perception spills over into societal interactions, perpetuating stereotypes and deepening divisions. Campaigns that demonise specific groups, such as the trope of “Your Abdul is also the same” a part of the “Love Jihad” conspiracy theory, exploit these divisions and fuel communal tensions. [2]
Furthermore, the judiciary’s attempts to align personal laws with constitutional ideals have often been met with resistance, highlighting the deeply entrenched nature of these divisions. Justice D.Y. Chandrachud’s comparison of constitutional principles in personal laws to "a bull in a china shop" aptly captures the challenge of navigating this sensitive terrain without causing widespread upheaval.
By clinging to the familiarity of these archaic laws, we hinder the embrace of coexistence in diversity. Instead of fostering understanding and dialogue among communities, these laws create a parallel existence, where interaction is restricted by legal and cultural boundaries. This fragmentation obstructs the development of a collective identity as Indians, united by shared rights and responsibilities.
The Disproportionate Burden of Personal Laws
India’s personal laws disproportionately affect women, perpetuating patriarchal norms under the guise of religious and cultural preservation. These laws often place women at a legal and social disadvantage in matters of marriage, divorce, inheritance, and guardianship.
Hindu women, for instance, only gained equal inheritance rights under the Hindu Succession (Amendment) Act of 2005, after decades of being denied parity with male counterparts. Muslim women faced hurdles such as the unilateral practice of triple talaq, which was only declared unconstitutional in 2017, and unequal inheritance laws that allow them smaller shares compared to male heirs. Christian women historically grappled with discriminatory divorce provisions that treated them more harshly than men.
The patriarchal underpinnings extend to practices like child marriage, which, though outlawed under secular legislation, persist under certain personal laws that recognise such unions as valid. Illegitimate children often face legal ambiguities regarding inheritance, further showcasing the need for a unified framework. Cases like Bachpan Bachao Andolan v. Union of India highlight the judiciary’s struggle to address these disparities within the existing framework.
A UCC offers a solution by advocating a uniform legal framework that prioritises equality and justice over religious prescriptions. For example, it could enforce a uniform legal age for marriage, removing ambiguities that allow harmful practices to persist. Similarly, inheritance laws under a UCC would guarantee equal rights for women, eliminating current disparities. It represents an opportunity to dismantle structures that have long relegated women to secondary status.
The Uniform Civil Code (UCC) has long been debated. The demand for a UCC dates back to pre-independence India when social reformers advocated for uniformity in religious laws to ensure gender justice and national integration. The Constitution's framers acknowledged the need for a UCC but placed it under directive principles.
High-profile cases such as Shah Bano v. Union of India (1985) and Sarla Mudgal v. Union of India (1995) underscored the need for uniform laws to protect women’s rights. However, political and social opposition, particularly from minority communities fearing the erosion of cultural identity, has prevented significant progress.
UCC: A Code to Unite or a Script to Divide?
In recent years, the UCC has resurfaced under the Bharatiya Janata Party (BJP) government, led by Prime Minister Narendra Modi. The BJP’s manifesto cites the UCC as essential for national integration and emphasis on India to attain gender justice legally. [3] Despite the BJP's strong advocacy, the push for a UCC has encountered resistance from various quarters. Even their largest political allies, such as the Janata Dal (United) and the Telugu Desam Party, have urged for broader consultations, reflecting concerns about the potential impact on India's laws and their blended population. [4][5]
Despite the Bharatiya Janata Party (BJP) and its allies emphasising their intention to create an inclusive Uniform Civil Code (UCC) that respects India's minorities, due to the party's history of unsecular endeavours, campaigns, and party politics, many are unconvinced. The BJP's advocacy of Hindutva, an ideology seeking to define Indian culture in terms of Hindu values, has often been at odds with the nation's secular framework. [6]
The BJP's majoritarian politics, seek to unite Hindus of India under a common vote for the party. While they don't focus on caste which is more or less unprecedented, they up the islamophobia and Hindu pride to compensate for the lack in our human tendency to hate. They are altering the "idea of India," traditionally defined by secular values. The party's campaigns have been marked by religious polarisation, as seen in the 2019 elections. [7] Additionally, the BJP's focus on issues like the Ram Mandir consecration has been perceived as prioritising Hindu nationalist sentiments [8], raising concerns about the marginalisation of minority communities. These instances contribute to scepticism regarding the BJP's commitment to implementing a truly inclusive UCC that honours India's pluralistic ethos.
Uniform Yet Unequal
The Goa Civil Code serves as India’s solitary example of a functional UCC, yet its patriarchal norms highlight the inherent challenges of achieving true gender equality even within a supposedly uniform framework. [9] Hindu men under this code are allowed to remarry under specific circumstances, such as if the wife fails to bear children within a stipulated period. However, no equivalent provisions exist for women, reflecting a clear gender disparity. Similarly, property laws often perpetuate male dominance in inheritance, reinforcing the patriarchal structure. Despite its claim to uniformity, the code faces resistance and dissatisfaction from various quarters, demonstrating that even a UCC can struggle to gain universal acceptance. These issues highlight the complexities of codifying personal laws without addressing deep-rooted societal inequalities.
India’s unparalleled diversity poses significant challenges to implementing a UCC. Minority communities view it as a potential threat to their autonomy, fearing it might impose a majoritarian perspective. Political inertia and deeply entrenched sensitivities have further delayed progress.
Bridging Tradition and Tomorrow
A UCC is both a constitutional aspiration and a societal necessity, offering a chance to address systemic injustices, promote gender equality, and unify India's fragmented legal system. However, its success depends on achieving a delicate balance between constitutional ideals and cultural diversity. Without inclusive dialogue and careful implementation, it risks becoming a tool for majoritarian imposition rather than a framework for justice. The BJP's push for a UCC raises valid scepticism, given its history of communal politics and Hindutva campaigns that have often prioritised religious identity over secular values. Genuine reform must prioritise inclusivity, transparency, and the voices of marginalised communities, ensuring that it uplifts all citizens equally.
India’s journey toward a UCC will shape the nation’s legal and social landscape for generations. The question remains: can we create a code that truly reflects the ideals of justice and equality while honouring the diversity that defines us?
Article By:
Divya Krishnan
Editor
PES MUN Society
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