April 18, 2024
Home » GENDER JUSTICE AND UNIFORM CIVIL CODE
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This article has been written by SHAHEEN MOGHAL completed BA, LL.B in 2023 from JAGARLAMUDI CHANDRAMOULI COLLEGE OF LAW, GUNTUR

Introduction

    AT THE NORMATIVE HEART OF FEMINISM lies the belief that nobody should be disadvantaged because of their sex. Here I propose and defend a principle of gender justice meant to capture the nature of a very wide range of injustices based on gender. The first model, centered on equality between women and men, consists in empowering women to enjoy all the “good things of life” that men have traditionally enjoyed. The second model, centered on difference, consists in discovering, explaining and enhancing the value of what has long been deemed “women’s lifestyles”.

“Gender equality is more than a goal in itself it is precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance”.                                                    

Kofi Annan

                                                                                                              

“I believe that the rights of women and girls are the unfinished business of the 21st Centaury”.                                                        

Hillary Clinton 

                                                                                                            

“A political struggle that does not have women at the heart of it, above it, and within it is no struggle at all”.                                                                                 

Arundhati Roy

What is gender justice?

  • In a complete sense, gender justice refers to equal treatment of both men and women and that justice to the faire sex no society can progress without gender justice as it particularly concerns work places and families providing a frame work of human rights as a stepping stone of liberalization, equality, empowerment to all gender and identities leading to societal transformation.
  • Gender equality is when people of all genders have equal rights, responsibilities and opportunities. Everyone is affected by gender inequality- women, men, transgender diverse people, children and families it impacts people of all ages and backgrounds.
  • We need gender equality urgently. Gender equality prevents violence against women and girls. It’s essential for economic prosperity. Societies that value women and men as equal are safer and healthier.
  • Gender equality seems like a faraway dream these days. While progress has been made, the numbers from groups like UN women tell discouraging story. Over 2 billion women don’t have the same employment options as men. At the current rate, it will take about a century to close the global pay gap. While human trafficking affects men and women, women and girls make up over 70% of the world’s human trafficking victims. In the face of this data, gender equality needs to be a priority.

The scope of gender injustice-

    It is hard to dispute that women and men are equally entitled to just treatment and that, when someone suffers injustice because of their sex, they are victim of gender injustice. But the exact definition of gender injustice and therefore the scope of gender injustice are easy to identify. In many countries some kinds of violence against women are particularly high, often women receive lower pay than men for the same work and in some countries women still do not have legal rights equal to those that men hold.

Landmark judgments

Over the years, the Indian judiciary has delivered numerous landmark judgments that have advanced gender justice-

  • Vishakha v. State of Rajasthan (1997): In this case the Supreme Court of India laid down guidelines to prevent sexual harassment of women in the workplace. These guide lines are also called as vishakha guide lines.
  • Navtej Singh Johar v. Union of India (2018): This historic judgment decriminalized homosexuality in India by striking down Section 377 of the Indian Penal Code, which criminalized consensual same-sex relations. The judgment was a significant step toward recognizing the rights and dignity of LGBTQ+ individuals, including women.                                            

PREFACE OF UNIFORM CIVIL CODE-

  The Uniform Civil Code (UCC) is a vision to contribute to a uniformly structured legislature that will reserve all the aspects revolving around the personal, religious and civil laws of every religion in India. The UCC will grant personal laws to every religion to attain secularism and will over ride personal laws of different religions, races, caste etc.

What is a uniform civil code?

   Uniform civil code reverberates with one country one rule to be applied to all religious communities. The term Uniform Civil Code specifically mentioned in Part 4, Article 44 of Indian Constitution. Article 44-requires the state to secure for the citizens uniform civil code throughout the territory of India.Uniform civil code means that all sections of the society irrespective of their religion shall be treated equally and applicable to all uniformly. It covers marriage, divorce, maintenance, inheritance adoption and succession of the property and it shall be treated equally according to a national civil code, which shall be applicable to all uniformly, based on the premise that there is no connection between religion and law in modern civilization and traditions.

HISTORY- COLONIAL PERIOD IN INDIA

British India (1858-1947):

  The debate for Uniform Civil Code starts from the colonial period in India. Before British rule under the East India Company from the year 1757 to 1858 they tried for religious customs imposing western ideologies. Throughout the country variation is there for scriptural or customary laws they were some conflicts between the Hindus and Muslims the Hindu laws got preference because of their relative ease in implementation, the difficulty in researching each specific practice of any community made customary laws harder to implement. Towards the end of the nineteenth century, favoring local opinion, the recognition of individual customs and traditions increased.

  •  2nd Law Commission Report 1835- only criminal laws should be uniform.
  • The Lex Loci Report of October 1840- it stressed the importance and necessity of uniformity in the codification of Indian Law, relating to crimes, evidence and contract.
  • The Queen’s 1859 Proclamation- it promised absolute non-interference in religious matters.

Due to pressure from the Muslim elite, the sharia law of 1937 was passed which stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce, maintenance, adoption, succession and inheritance.

   Therefore, while Hindus have to follow the Hindu code bill, Muslims and other religions were given the liberty to follow their own respective laws. For Muslims, The all India Muslim Personal Law Board makes the laws, which is a private entity.

Post colonial Era (1947-85)

  • During the drafting of the Constitution, prominent leaders like Jawaharlal Nehru and Dr B.R Ambedkar pushed for a Uniform Civil Code as per Article 14 of the constitution of India. However, they included the UCC in Directive Principles of State Policy (DPSP, Article 44).
  • The Hindu Code Bill– it was drafted by Dr. B R Ambedkar to reform Hindu laws, it legalized the divorce, opposed the practice of polygamy and gave rights of inheritance to the daughters. Amongst extreme opposition of the code, a diluted version passed four different Laws.

Judicial Interventions-

In [1]Sarla Mugdal v. Union of India (1995 3 SCC 635 Para 32), the Supreme Court has directed the prime minister to take fresh look at Art. 44 of the Constitution which enjoins the state to secure a uniform civil code which, accordingly to the court is imperative for both protection of the oppressed and promotion of national unity and integrity. The court directed the union government through the secretary to Ministry of Law and Justice, to file an affidavit by August 1995 indicating the steps taken and efforts made, by the Government, towards securing a uniform civil code for the citizens of India.

  “At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by the principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a Uniform Civil Code is achieved”. As regards the question of “Uniform Civil Code” the Division Bench (Kuldip Singh and R. M. Sahai, JJ.) in their separate but concurrent judgments held that since 1950 a number of Governments had come and gone but they had failed to make any efforts towards implementing the constitutional mandate under Art. 44 of the Constitution. Consequently the problem today is that many Hindus have changed their religion and have converted to Islam only for the purpose of escaping the consequence of bigamy. This is so because Muslim law permits more than one wife and to the extent of 4 Kuldeep Singh, J., said that Art.44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society.

 In[2] Mohd Ahmed khan v. Shah Bano Begum (1985) held that – A 73 aged woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favor. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.

The Supreme Court ruled in her favor in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion.  Further, it recommended that a uniform civil code be set up. “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”.

  In[3] shabnam Hasmi v. Union Of India (2014 )held that – Uniform Civil Code can only be achievable by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.

The judges of the Supreme Court raised the above quotes in the particular cases mentioned above regarding the Uniform Civil Code. Personal laws are civil in nature and are diverse in each community as per their customs and traditions.

COCLUSION-

   Therefore, UCC aims at bringing equal laws which would govern all these matters and equality between everyone before the law, either a male or female both will be treated equally and will have to abide same set of laws and this supports gender equality too.


[1] Sarla Mugdal v. Union of India (1995 3 SCC 635 Para 32)

[2] Mohd Ahmed Khan v. Shah Bano Begum (1985)

[3] shabnam Hasmi v. Union Of India (2014)


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