Karnataka Civil Society’s Response to the Law Commission of India’s public notice inviting public inputs on the Uniform Civil Code (UCC) 

Jul 15, 2023


The Hon’ble Chairperson and members
Law Commission of India
4th Floor, B Wing, Lok Nayak Bhawan,
Khan Market,
New Delhi-110 003

Subject: Response to the Law Commission of India’s public notice dated 14.06.2023 inviting public inputs on the Uniform Civil Code (UCC).

Respected Chairperson and the members of the Law Commission of India,

We, the undersigned representatives of organisations working with women, LGBTQI communities, Dalit, Adivasis and human rights and individual professionals, write to you with reference to the Commission’s public notice seeking inputs and engagement with the UCC. While we are all in agreement with the broader and urgent need to bring about much needed changes in the patriarchal and discriminatory nature of all laws, be it personal, customary or secular, we are aware that the proposal for a Uniform Civil Code has a contested history about whether the State should retain personal laws or replace them with a Uniform Code throughout the country. This debate has been re-ignited through the aforesaid notice even as state governments such as those of Uttarakhand and Gujarat are preparing a draft of the Uniform Civil Code.

Notably, the Law Commission of India, on 7th October, 2016, uploaded a questionnaire to solicit public opinion on family law reforms and the viability of a Uniform Civil Code for the country. Subsequently, on 31st August, 2018, the Law Commission released a Consultation Paper titled, Reforms in Personal Law, which stated in no uncertain terms that “formulating a UCC is neither necessary nor desirable at this stage”. Arguing that various aspects of prevailing personal laws deprivilege women it was of the view that it is discrimination and not difference which lies at the root of inequality. In order to address this inequality, the commission has suggested a range of amendments to existing family laws and suggested codification of certain aspects of personal laws so as to limit the ambiguity in interpretation and application of these personal laws.

Given this conclusion that the consultation paper put forward, an effort of this nature without offering any justification for the need to urgently restart or re-examine the issue again indicates that there is no continuity in the process, raising serious apprehensions about the intention guiding such an exercise.

In this context we would like to raise the following  procedural  concerns that emerge from the Law Commission’s current exercise and put forth what we consider are Principles which should underlie a proposed Gender Equality Code in lieu of a Uniform Civil Code :

Procedural Concerns

  1. Lack of adequate time: The public notice issued by you calls for views from the “general public” and from “recognised religious organisations” no later than 15th July 2023 ( 30 days). At the outset we would like to state that this time frame given for submission of suggestions/ views is grossly insufficient as the question of enactment of a UCC is a complex and multi-faceted one that involves several existing legislations as well as practice of religion and customs in India. It is disappointing that we are expected to respond to your public notice in such a limited time frame even as the notice is only issued in English. We therefore urge you extend the time for citizens of India to respond and immediately re-issue the notice in all Indian official languages.
  2. Lack of clear intent: The fundamental issue with the notice of the 22nd Law Commission of India is making no attempt to identify and define any questions or concerns that need to be remedied through the instrument of the law. The 21st Law Commission at least was centred around ‘women’s rights’ and proposed social and legal reforms. The current notice put out by your office, however, provides no such framework within which inputs are to be addressed. Moreover the consultation paper of the 21st Law Commission of India, that you reference in your notice, which was a valuable framework for reference is no longer available on your website.. Given this lack of clear intent and process, what should have been a considered public discussion and debate has been reduced to a virtual referendum on social media on whether a UCC is desirable or not in which much misinformation and disinformation is being spread vitiating an already polarised and divisive atmosphere. Apart from targeting and demonising only selective personal laws of minorities these social media campaigns erase the fact that almost all personal, customary, and even secular laws related to the family are deeply patriarchal and discriminatory in practice if not in precept.
  3. Privileging religion over gender when inviting comments: We also wish to bring to your attention that we do not know what is meant by “recognised religious organisations”. Nowhere in any statute or elsewhere are we able to find the meaning or definition of which religious organisations are “recognised”. This raises the concern that some religious organisations, that do not speak for all members of a religious community, shall drown the various and diverse viewpoints. Further and more fundamentally no such special invitation has been extended to women’s or LGBTQI rights groups who are the primary stakeholders in the issue. Essentially, this thoroughly patriarchal exercise blatantly privileges voices of religious leaders as opposed to foregrounding voices of those oppressed by antiquated religious diktats. The consultations held for an endeavour of such scale, complexity and consequences must be much wider and inclusive and cannot be framed in the language of religion.
  1. Lack of wider consultations: Given that the Uniform Civil Code stands to fundamentally alter tenets of personal law including marriage, divorce, inheritance, adoption, and guardianship, wider consultations including state governments, concerned institutions and cross section of civil society are an imperative. The Law Commission must afford an opportunity to all State Governments to deliberate on the viability and need for such a Code. The State Governments must in turn hold comprehensive discussions in their respective State Assemblies. The State Governments must also hold detailed discussions with various civic bodies and the civil society including women’s and LGBTQI organisations and representatives of religious organisations , Dalit and Adivasi groups at large. The Commission should visit all the States and meet all the departmental heads, Chairpersons of the Women’s Commission, Human Rights Commission, Minorities Commissions Children’s Commission and other statutory bodies to understand their stand on the issue. A comprehensive report must be submitted to the Union Government by all State Governments following such discussions and deliberations.
  2. Gender representation in the Parliament: Further, when the representation of women & LGBTQI community in abysmally inadequate in the Indian Parliament and State Assemblies, these legislative bodies have no locus to legislate on laws that impact these communities in decisive ways. According to data presented by former Law Minister Kiren Rijuju in the Lok Sabha in December, 2022, the share of women MPs in the Lok Sabha and Rajya Sabha stands at 14.94% and 14.05%. The Women’s Reservation Bill has faced vehement opposition in the Parliament and has been cold-storage for over two decades. We therefore, urge the Law Commission to recommend adequate reservation for women and the LGBTQI community in Parliament as a prerequisite before major legal reforms impacting the lives of both communities are initiated. This will be an important step towards ensuring equality in all spheres for all sections of society. With the current unequal representation within legislative bodies, it is against the spirit of the Constitution to implement such far-reaching and fundamental changes.

Needless to say, without clarity on any of these important aspects, it is wholly undemocratic for the Commission to invite inputs. Its manner of functioning militates against the very essence of public consultations that should be driven by a transparent, democratic, and inclusive process.

Principles which should underlie a proposed Gender Equality Code in lieu of a Uniform Civil Code

We would like to put forward the principles that we believe should underlie any Gender Equality Code drawing from the findings of the very comprehensive report of the High-Level Committee on the Status of Women in India (HLCSW) chaired by Dr Pam Rajput, which submitted its Report in June, 2015. While examining the specific issue of personal laws and the Uniform civil code it provided a guiding principle on how to approach the issue of inequality of women in personal laws stating:

“… The approach should be not one of ensuring that there is one law for all, but rather, that all women, whether they choose to be governed by secular laws or their personal laws, enjoy equality which the Indian Constitution promises them. This requires addressing several aspects in the legal domain in specific ways rather than a diktat of ‘uniformity’, which is conceived of in fundamentalist/majoritarian ways.”

The Report further notes that “There is a need to address discrimination not only de jure ‘but also de facto, which necessitates State to adopt laws, policies and practices and undertake proactive, measures and affirmative action in order to obliterate these discriminatory provisions and practices. Thus, all personal laws should be in tandem with the principle of equality. Women are working and contributing to the family and society in many ways and it is high time the State recognizes the unpaid contributions of women in their families, The State should enact laws in areas of matrimonial property in which no personal laws exist and ensure women right the property and assets in the natal and as well as in the matrimonial home.”

In a significant observation, the High-Level Committee on the Status of Women in India also highlights that Article 44 of the Constitution, which calls for the State to endeavour to secure for a Uniform Civil Code, has been given new meaning where various laws such as the Protection of Women from Domestic Violence Act, 2005, the Prohibition of Child Marriage Act, 2006 and the Medical Termination of Pregnancy Act, 1971 have been brought in as universally applicable to women from all communities. Thus, it sees that the way to safeguard women’s rights could be seen as two-pronged – one by enacting laws such as those mentioned above, which are universally applicable to women of all communities, irrespective of their religion, and second through targeted reform in all existing laws.

As progressive, feminist human rights, LGBTQI rights and sex workers’ rights groups, we too believe that given that the primary concern of personal laws is to do with matters related to family like marriage, divorce, custody, maintenance and inheritance, all reforms within need to be engaged not through the lens of uniformity but from the overarching lens of equality in general and gender equality specifically. For uniformity by itself is no guarantee of the protection of constitutionally guaranteed rights. Therefore, Article 44 of the Constitution which is a Directive Principle of State Policy which mandates that the state shall ‘endeavour to secure a uniform civil code throughout the territory of India’ should be seen in the light of the Preamble as well as the Fundamental Rights Chapter of the Constitution. As such the so called ‘uniform civil code’ must be subject to the Constitutional guarantees of equality, liberty, fraternity, dignity and privacy as encoded in any combined reading of Articles 14, 15, 19 and 21 as interpreted by the Supreme Court.

It is not only women who bear the brunt of patriarchal laws and customary practices. Persons of the LGBTQI community, who have recently raised a significant question on why there is no legal recognition of the partnerships / intimate relationships that they are in, are also not full citizens of this country. There lies here a serious challenge to the nature of what is traditionally considered to be family. Here also lies a fundamental question of equality.

We propose instead that the reform of personal laws be re-titled an GENDER EQUALITY CODE instead of a uniform civil code, thereby putting up front, the main objective of the reform exercise and allaying concerns around the imposition of uniformity in a vast and diverse nation. Such a code would be based on ensuring gender justice as well as inclusion of LGBTQI communities without any compromise upon the constitutionally guaranteed rights of Adivasi and Dalit communities apart from religious minorities. The following principles should guide the formulation of such a code

  • Equality

In India today, we are facing acute forms of inequality and even after seventy-five years of Independence, caste, religious, gender and class inequalities are only growing. The need of the hour is legislative and legal interventions that are consistent with the Preambular promises of Social, Economic and Political Justice and ensure equality for all.

All provisions in all personal and customary laws which unfairly discriminate between man and woman should be eliminated. This means that when it comes to the right to divorce, adoption, guardianship and succession, both men and women should have equal rights. This would mean a major change in all personal laws as till today all personal laws are weighted in favour of the man. The understanding of equality underlying the code should be substantive equality and not formal equality as understood in the Constitution. Therefore, any measures which are weighted in favour of women, be it the right to reside in the matrimonial home, protection from domestic violence, or the right to maintenance will be an essential dimension of the right to substantive equality. If equality is the principle then the relationships of same sex as well as transgender couples should also have legislative recognition as either marriage or civil partnership or both.

Currently, the only relief a women can seek in the context of dissolution of marriage is maintenance / alimony. This scheme denies the recognition that women, who may not be formally employed outside the home, perform labour in the form of caring for children/ husbands and aged persons, maintaining and running a home, which is the back bone on which other family members enjoy a certain life. A right to matrimonial property, which has been recognised in a limited manner by the recent judgment of the Madras High Court, is central to valuing the labour of women in the matrimonial home. Any code or law based on equality must recognise and address this aspect that women spend a majority of their day performing household and related labour/ activities, relentlessly.

  • Liberty

Liberty in its essence relates to the freedom of individuals to choose. In the context of personal laws it relates fundamentally to the freedom of intimate choice, especially with respect to the right to choose one’s spouse. This principle has come under sustained attack under the current administration through the so called ‘love jihad’ laws enacted by BJP governments in Uttar Pradesh, Gujarat, and Karnataka. This freedom to choose has always been precarious for those who choose to marry across lines of caste and religion.  The numerous so called ‘honour killings’ are a testament to the moral code which governs all personal laws and stipulates that marriage outside caste and religion is a sin. The state has offered little or no protection to persons inter-caste and inter- religious relationships. The proposed code should guarantee this autonomy of choice to all adults in this connection. A serious commitment to autonomy and privacy must be central to any proposed amendment/s.

  • Fraternity

As Babasaheb Ambedkar reminded us, by his advocacy of the concept of fraternity, inter caste and inter religious relationships are not only about the freedom of choice but also about making fraternity a lived everyday practice. If we are serious about ensuring fraternity, the barriers to inter-caste and inter-religious relationships should be removed and the Code must in fact make an active effort to encourage the same as a way of building fraternity in our society.

  • Dignity

The Gender Equality Code must take dignity as its lodestar. The protection of dignity requires that provisions in the personal law which affront the dignity of the individual must go. Autonomy of the individual is central to the notion of dignity. Any dehumanising discriminatory practice that violates the choice or dignity of the individual within the marriage or family be it the right to marry a person of their choice or to reject marriage as the case may be should be removed from the regime of family law. In fact, Art 51A(e ) of the Indian Constitution too lays down that it is a fundamental duty of every citizen to renounce practices derogatory to the dignity of women.

  • Privacy

The Supreme Court decision in Puttaswamy v Union of India, lays down that  privacy is a core constitutional right protected both under Article 21 as well as other fundamental rights. The right to privacy means that one has the freedom to make decisions about one’s intimate life without the public gaze. For instance the provisions of  the Special Marriage Act which mandate that any two persons who decide to get married must give a notice to the registrar and such notice will be available for public viewing is an egregious violation of the right to privacy and must be repealed in the Gender Equality Code.

  • Inclusivity and Diversity

The Gender Equality Code must be based on the principle of inclusivity , which means that nobody should be left behind. This should mean the recognition of diverse kinds of relationships right from marriage to a civil partnership law applicable to all those who desire it and the rights and responsibility accruing from such relationships as long as they are informed by the core principles of gender equality and justice. There also exists diversity in the manner in which marriages are solemnised in India. Imposition of one particular manner in which marriage is legally solemnised strikes at the heart of practice of religion, which is also a guaranteed fundamental right. Similarly, at present various statutes and uncodified law governs the practice of divorce. There are progressive elements that exist in Muslim personal law, that allows for women to seek ‘khula’ from their husbands to dissolve their marriage, without having to resort to legal proceedings in a court of law. These varying practices must be taken into account. Further under the premise of uniformity the code cannot impose the majoritarian practice of saptapadi which is intrinsic to certain forms of Hindu marriages on all caste and religious communities including Christians, Muslims and Parsis. Similarly, the uniformity of the code cannot  end up excluding the rights of Muslim parents to inherit a share of property on the death of their son. Neither can the uniform civil code mean that everyone who intends to marry will have the notice of their proposed marriage put up as a notice in the Sub-Registrar’s office.

  • Constitutional morality 

Some parts of the personal laws are still governed by a morality code which is militates against the Constitution. Any reform will mean that such provisions which base themselves upon a moral code must be tested on the anvil of constitutional morality as mandated by the Supreme Court in Navtej Singh Johar v Union of India. As for instance several existing grounds for divorce like restitution of conjugal rights and adultery reaffirm archaic notions of social morality giving overarching power to the State to intervene in the personal and intimate lives of individuals who should be allowed to live together or separate on mutually agreed upon terms. The concern of the law and State can only be with the right to personal and economic security and property at the time of the dissolution of the marriage or relationship that under the regime of patriarchy, women are usually deprived of.

We would like to conclude by bringing to your attention that that the state has not, historically, addressed questions of equality in personal laws. The little reform that has come, has been through judicial pronouncement in cases that women have painstakingly litigated from the lowest court to the highest. The cases of Shah Bano, Mary Roy, Geeta Hariharan, Shayara Bano, Pragati Verghese etc are some noted examples. This shows that the state has never been interested in the patriarchal laws that are the basis of inequality. This being the case, any change in the lives of women must be based on the constitutional guarantee of equality.

Furthermore, no attempt to bring in gender equality in law reform would be of any use unless affordability, accessibility and timely access to relief and justice within the constitutional framework is also ensured.  This should be kept in mind while affecting any changes/ amendments in personal and secular civil laws.

In the context of all that is stated above it we would urge the Law Commission:

  • drop the short-sighted idea of passing a UCC and put forth the idea of a comprehensive Gender Equality Code taking into consideration the diverse religious and cultural context of this country, and
  • initiate wide ranging and detailed consultations to formulate this code taking on board inputs from multiple stake holders from within diverse caste, religious, ethnic and Adivasi communities and civil society particularly women, gender and sexual minorities.

Featured Image Credit: Sunday Guardian