Updated: Nov 23, 2020
Author: Paikar Mustafa
Law Graduate, 2019
Law College Dehradun, Uttarakhand
Struggle for gender justice or more appropriately women’s right has become a never-ending tale in the country. While crimes against women are at their peak in the nation, safeguards are being formulated to achieve gender equality in broader terms. The most debated and controversial topic since decades has been the declaration of Article 44 of the ever so reverential Constitution of India. It is placed under the chapter of Directive Principles of State Policy, states the state shall endeavour to make Uniform Civil Code for the citizens of India. So far, the plainest language of the article speaks it provides for uniformity of civil laws that govern the citizens likewise criminal laws in the Country are uniform, civil laws so far as they deal with civil matters are codified as such. Civil Procedure Code, Contract Act, Specific Relief Act, Limitation Act etc. are the civil laws applicable to the citizens without discrimination. Thus, Article 44 strives in making personal laws uniform. India being diversity rich nation has multiple personal and religious laws, each having their roots dipped in rigorous patriarchal and misogynistic attitude of the society binding in terms of scriptures interpreted by influential male strata of the society.
By the time and again, the judiciary of India has taken a firm stand against the regressive stances of personal laws be it Shah Bano Begum AIR 1985 SC 945 or Shayara Bano (2017)9 SCC 1 or Vineeta Sharma decided on 11 August 2020. The judiciary acted as a bulwark in defending the women’s right or altogether creating one. The Parliament has amended laws in conformity with changing times and generating demands. The personal law as it stands today can be said to have been modified thus far to inculcate the rights of women.
1.2. CONSTITUTIONAL BACKING TO GENDER JUSTICE
The road to gender justice was realized not an easy one which could be attained by the mere existence of provisions that denotes equality in common sense. Therefore, the constitution besides having a general equality provision contains enabling provisions of equality to conquer the ancient patriarchal predicament in women empowerment.
Article 14 of the constitution provides that, “[t]he state shall not deny to any person equality before the law or equal protection of laws within the territory of India”. Article 15 reinforces this in specific provisions whereby it begins with, “that “[t]he State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.
Clause (3) of Article 15 provides that nothing in Article 15 shall prevent the State from making any special provisions for women and children". The provision gives Carte Blanche to the state in enacting and upholding laws to the benefit of women. Similarly, the right to religion and religious freedoms are placed at par with these rights whereas Article 25 and 26 advocates for the right to freedom of one's religion, however, the bare reading of the provisions make it clear that they are subject to the other fundamental rights, Article 15(3) or Article 14 could be the very well except to these religious freedoms as it can be seen, the religious freedom for some is restrictions on other which happens to be the category of female gender by and large.
1.3. RELIGION AND WOMEN
It would altogether be faulty to say that religious freedoms do not extend to women but it would not be hype to say that religious interpretations are regressive in the context of women. The illustrations can very well be sighted in the case of Haji Ali Dargah's case where the women had to fight for their right to enter into the Holy place of Worship when everyone could enter to exercise their right but them. The judiciary, however, did not disappoint and opened the doors for the women. The same issue came up in the Sabarimala case (Indian Young Lawyers Association v. the State of Kerala) (2019)11 SCC 1 wherein the Apex Court held the practice of excluding women is unconstitutional thereby paving way for gender equality. Notably, in both cases, the defence was the customs and practices that have been followed since inception to have attained their legality without judging their fairness. There are a plethora of instances where personal laws discriminate against women whether it is right to divorce, maintenance, remarriage, succession, and guardianship.
1.4. UNIFORM CIVIL CODE : MONIKER FOR SUBJUGATION
The constitution provides for no timeline within which State has to secure Uniform civil code for its citizens nor any method or manner in which it has to be done. It has thus become the most debated, controversial, and pliable matter to invoke opposition and evoke fears. While it remains a well-known educated fact that the insertion of the Uniform Civil Code was met by high opposition from the members of the Muslim League and the strong protests against the Shah Bano Judgment by the Muslim Community have instilled a common belief among the majority of Muslims that uniform civil code is an attempt to dilute the purity of their sacrosanct religious laws while among Non-Muslims it is that uniform civil code will somewhat bring the Muslims under the subjection of Hindu personal laws. Both the beliefs are preyed upon by the people in power to secure seats and win the election while the objective remains the far cry from why the provision was inserted in the first place.
Therefore, the uniform civil code is not approached with the view of securing women the equal rights which are being daily fought in the court of law and which substantially do not rise with the occasion of ancient texts of personal laws. Be as it may, the constitution-makers predicted the establishment of society without differences as to governing law and fewer conflicts regarding the application of it, howsoever difficult task it may appear to enact a uniform civil code to upend all the oppressions and prejudices long-prevailing against women, it is still not unworthy of further development. It could be used as bait in a platter to attract voters but the plain reality resides in the execution of civil code with a minimum of difference and maximum of accommodation.