Does the UCC account for Intersectionality within the folds of gender justice?

Can 'Gender

Justice' exist in vacuum without intersectional factors?

I. INTRODUCTION

The debate around the Uniform Civil Code (Henceforth referred to as the UCC) has been

a long one; one that was debated from the time of the conception and formulation of India’s

Constitution. It has been argued and discarded for a variety of reasons: that it is optional in its

implementation, that it threatens the freedom of religion, and in particular, that ‘it would cause

disharmony within the Muslim community’. Article 44 of the Indian Constitution called for the

States to ‘endeavour’ to provide a Uniform Civil Code for its citizens across the country1; it’s a

Directive Principle of State Policy. However, if the purpose of the UCC is to provide all citizens

an equal platform to seek justice from, and to create harmony and unity within India, then it must

also be analysed from the lens of perhaps one of the stake-holders in this debate: gender.

India’s categorisation of itself as a ‘democracy’ comes with certain liabilities: of

democratic principles of liberty and freedom, which are enshrined in Part III of the Indian

Consitution under guaranteed Fundamental Rights. For a nation that is religiously, socially,

politically, and economically homogenous, the UCC would be an ideal piece of all-

encompassing legislation that caters to the needs of every individual. However, in a country like

India, where there is diversity on almost every forum, can there ever be any legislation that can

do justice to differing facets of the Indian demographic and their specific needs. Hierarchies

within the fold and structures in the country make it impossible to conceptualise a single rule of

1
The Constitution of India, 1950
law that is sufficient, that is enough to cover the varying degrees of caste-class-and-gender

hierarchies and the problems they face.

Hence, in this paper, I argue the Uniform Civil Code as proposed by the founding fathers

of the Indian Constitution cannot deliver gender justice whilst still being sensitive to the cultural

differences in the Indian demographic. To incorporate the UCC as the sole source of laws would

ultimately negate the different levels of problems that women in India are subject to: social

oppression, caste-oppression, class-oppression, and lastly patriarchy.

II. CONSTITUTIONAL ASSEMBY DEBATES:

What was the intention of the drafters of the Constitution?

The first of the many reasons proposed for the implementation of the Uniform Civil Code

was that there was an essential requirement for a ‘secular republic’ like India to have a common

set of laws that governed all people equally. This statement was met with heavy approval and

opposition. However, the Constitution settled on relegating it to the status of a Directive

Principle of State Policy where it ‘encouraged’ but didn’t demand States to undertake that

initiative. From the proposition, Rajkumari Amrit Kaur argued: “One of the factors that have

kept India back from advancing to nationhood has been the existence of personal laws based on

religion which keep the nation divided into watertight compartments in many aspects of life.”2

Ambedkar then, in late 1948 presented the draft of the Constitution of India in the

Constituent Assembly for assessment. The UCC found it’s place within the Directive Principles

2
"Why India Needs A Uniform Civil Code". 2016. Https://Www.Livemint.Com.
https://www.livemint.com/Opinion/YJFZYlzt2IN3lkOlljLjfO/Why-India-needs-a-uniform-civil-code.html.
of State Policy as Article 35. Muhammad Ismail of Madras recommended that it be amended to

include that this provision would exempt personal laws in question. He argued that to be able to

practice personal laws were the very essence of that religion and culture, and to suggest

otherwise was a breach of the Fundamental Right to religion. H.C. Majumdar in disagreement

stated that to exempt personal laws would negate the very purpose of Art. 35, to which the Vice-

President agreed. Keeping with the need for the UCC, Nazir Ahmed proposed that the personal

laws of any community that had been granted statutory recognition could not be done away with,

without the prior consent of the community in a manner that the Union Legislature could

somehow determine by law.

Alladi Krishnaswamy, K.M. Munshi and Dr. B.R. Ambedkar rose to the defense of the

UCC. Munshi stated that the UCC was an integral part of the concept of nationhood and unity. It

wasn’t as though the only objections would arise from the Muslims but that the Hindus were

equally insecure about this provision since it would challenge and reform a lot of Hindu customs

and rituals, especially those involving the rights of women. Alladi Krishnaswamy Aiyyer

concurred with Munshi and went a step further to question the Muslim community’s inaction

when the British proposed Uniform Civil Code and interfered in Muslim religious practices. It

was at this point that Dr. Ambedkar’s interjections were insightful: he reiterated that the UCC

was optional at the decision of the States, and they weren’t obligated to enforce it immediately.

They could eventually create legislation that would slowly inch towards a UCC post sanction

from the communities concerned. The Constituent Assemble debates seem to demonstrate that

the current status of the UCC as part of the Directive Principles of State Policy and not
Fundamental Rights was not intended, but rather a consequence of a ‘compromise’ reached

between parties of conflicting views. 3

III. GENDER AND INTERSECTIONALITY

This paper will critically asses the possible consequences of a UCC in India through the

lens of ‘gender justice’. To understand the different power-structures that operate in India and

how they manifest in women (The disadvantaged gender), one must first familiarise themselves

with the term ‘intersectionality’ and how it affects the way we view justice. The term was first

coined by Kimberle Crenshaw, in 1989 when she began to realise that in the United States, the

kinds of discrimination that black women faced were different from the discrimination that

women and black men faced as individual categories. She developed the theory that accounted

for all forms of social stratification that determined and defined the degrees of disadvantage an

individual could potentially face in a society.4 What began as a facet of critical race theory

quickly found itself in the mainstream of social and legal discourse and found a place within the

fold of critical legal theory that questioned institutional biases within formal systems of justice.

In a concept developed by Patricia Hill Collins5, she talks about something called the

‘matrix of domination’ which is what maps the intersections of various forms of oppressions

class, gender, sexuality, age, disability, etc. It wasn’t just the ‘different layers of oppression’ that

cumulated into something, but that these various differential factors created a new kind of

3
2019. Clpr.Org.In. Accessed April 20. https://clpr.org.in/wp-content/uploads/2017/11/UCC-Part-1-Constitutional-
History.pdf.
4
Kimberle Crenshaw, 'Mapping The Margins: Intersectionality, Identity Politics, And Violence Against Women Of
Color' (1991) 43 Stanford Law Review <https://www.jstor.org/stable/1229039> accessed 20 April 2019.
5
Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, And The Politics Of Empowerment
(Unwin Hyman 1990)
oppression. The best illustration is the one Kimberle Crenshaw mentions in her TED talk6 where

a black woman wasn’t hired due to her race and gender. Except the courts argued that the

company hired white women in the secretarial positions and black men manual labour; hence,

there was no discrimination based on the grounds of race and gender separately. However, this

was clearly a case of intersectionality wherein her experience as a black woman was drastically

different from that of a white woman or a black man. It wasn’t two layers of oppression but a

different kind of oppression altogether.

IV. GENDER AND INTERSECTIONALITY: THE INDIAN EXPERIENCE

Nivedita Menon’s critical essay, ‘Is Feminism about ‘Women’?’7 captures perfectly the

Indian experience of intersectionality which deals with the extra element of caste that is unique

to India. The social position of a woman in India must be understood in the context of her

position within the structures of patriarchy, class, caste, disability, and sexuality. Thus, ‘feminist

politics must be sensitive to the significance of different locations, different in terms of both time

period and geographical location. She brings out the challenge of arriving at a single solution to

an issue that is plagued with problems from different corners.

The reading illustrates the sticky situation through the incident wherein the bar dancers in

Mumbai and Dalit Women’s groups locked horns over the issue over the legality of bar dancing

as a profession. Whilst in the ‘liberal’ sense within the capitalist structure, these women had

every right to continue in the profession and no job is ‘too small’. However, the argument Dalit

6
Kimberlé Crenshaw, 'The Urgency Of Intersectionality' (Ted.com, 2019)
<https://www.ted.com/talks/kimberle_crenshaw_the_urgency_of_intersectionality?language=en> accessed 20 April
2019.
7
Nivedita Menon, 'Is Feminism About 'Women'?' (2019) 40 Economic and Political Weekly.
women made was that the profession itself was not only patriarchal but also casteist: it was

comparable to sex work (Dalit women dancing for men of the upper castes). The crossroads

presented here were thus: the rights of women were on both sides. One dealt with a woman’s

right to own her body and engage in the profession of her choice, it wasn’t bereft of diginity

since the dignity of a woman doesn’t lie in her sexuality. However, contrarily, bar dancing was a

predominantly Dalit occupation where Dalit women were by virtue of their caste forced into

dancing for upper-caste men. This is where the dual repercussions of the law play an integral

role: could a single piece legislation resolve the contradictory and yet equally valid arguments

put forth by both interest parties?

V. IMPLICATIONS OF THE UCC IN INDIA

If one were to test the Uniform Civil Code against some of the prevailing legally plural

legislations, it would yield some truly peculiar outcomes. If the intention of the UCC is to accord

uniformity to law and eradicate personal laws (that work on the assumption that all of them) that

are discriminatory against women, then polygamy and triple talaq should be made illegal

throughout as it is detrimental to women’s status in society. On the contrary, the concept of the

Hindu Undivided Family must be dissolved as well, that gets tax concessions only to Hindus.

But, who are the true sufferers of not having a Uniform Civil Code? There are several

legislations in place that already deal with issues pertaining to different elements of the Indian sub-

altern. The Muslim Women (Protection of Rights on Divorce) Act and the Protection of Women

against Domestic Violence Act are examples of legislation that address the Triple Talaq issue; the

former applies regardless of gender or religion. In Flavia Agnes’ piece on ‘Hindu Men,
Monogamy, and the Uniform Civil Code’8 spoke of how it wasn’t as though Hindu men didn’t

engage in polygamy. By homogenising the laws that govern Hindus into a more Upper-caste,

North-Indian one, the consequence was that all wives other than the first were delegitimised, their

children considered ‘illegitimate’9 and disowned from property rights for no fault of her own.

However, under Muslim Personal Law (Sharia Law), wives other than the first have equal rights

as the first wife and the husband is bound by obligations.

If the intention of the UCC was not to protect the institution of marriage or monogomy, but

rather the ‘wife’, then it plays directly into the hands of an infantalising patriarchal understanding

of who a wife is. If her value is determined by her sexual and physical labour, then the failure of a

man to provide protection for his wife in ‘return’ for her labours leaves her with nothing but manual

labour to offer. If gender justice is truly to be delivered, then the law must recognise and accept

the reality of multiple wives and that a blanket ban (as within Hindu Law) would not stop men

from marrying again.

VI. CONCLUSION

Through the above illustrations and arguments, it is evident that the Uniform Civil Code

for a country as diverse as India, is not only unfeasible, but also impossible. Even the Constituent

Assembly Debates resulted in a ‘compromise’ that was optional to the State that chose to

implement it in the future. A UCC would go against the very democratic principles of India that

chose to respect the autonomy and integrity of various religions and communities within the

8
Flavia Agnes, 'Hindu Men, Monogamy, And The Uniform Civil Code' (1995) 30 Economic and Political Weekly .
9
Even though the UNICEF specified that there are no such thing as ‘illegitimate’ children, all children are legitimate
regardless of whether they are born out of wedlock
country. The argument stands thus: The UCC would have to draw onto laws that it considered

gender just. But should they be so far from social realities, as Flavia Agnes pointed out, the purpose

of the UCC would be defeated.

NAYONIKA SEN

BA. LL.B (Hons.) 2017

SECTION ‘E’

20171175