Assistant Professor of Sociology College of Humanities and Social

Role Name Affiliation National Coordinator Subject Coordinator Prof. Sujata Patel Department of Sociology, University of Hyderabad Paper Coordinator Anurekha Chari Wagh Department of Sociology, Savitribai Phule Pune University Content Writer Debjani Chakravarthy Assistant Professor of Sociology College of Humanities and Social Sciences Utah Valley University Content Reviewer Anurekha Chari Wagh Department of Sociology, University of Pune Language Editor Anurekha Chari Wagh Department of Sociology, Savitribai Phule Pune University Technical Conversion Module Structure: Section 1: The Legacy of Colonialism and the Civil Code The module is structured into three sections followed by a conclusion. Section 2: The Ongoing Debate on Uniform Civil Code Section 3: Basic Concepts Items Description of Module Subject Name Sociology Paper Name Sociology of Gender Module Name/ Title Uniform Civil Code 1 Module ID Pre-requisites 1. Some background on modern Indian history and the Constitution of India. 2. Understanding of the terms “law,” “religion,” and “gender.” 3. Understanding ofdemocracy and religious fundamentalism. Objectives 1. Learning about the Uniform Civil Code in India—its history, political background, and effect on gender relations. 2. Learning about the current debates and multiple perspectives on the controversial directive principle. 3. Learning about the politics of lawmaking, communalism and secularism and their impact on women. Keywords Civil code; Colonial modernity; Feminist Jurisprudence; Religious and minority rights; Fundamental rights and directive principles in Indian Constitution. 2 Uniform Civil Code Introduction Uniform Civil Code, a directive principle in the Indian Constitution has been the theme of one of the most intense, intriguing and widespread debate that emerged in India‘s public life right from the juncture that the constitution was adopted in 1950. You may have heard about the issue of Uniform Civil Code (henceforth, UCC) in the recent statements by the Jamiat-e-Ulama Hind (JUH) and All India Muslim Personal Law Board (AIMPLB) about how religious laws are a matter of religious freedom. A country with a secular constitution such as India is expected to uphold religious freedom as well as social justice. In this chapter we will learn about the UCC; its history and the debates surrounding its (non) implementation; the issue of gender and law in India—and the controversial question of how to balance religious and personal freedom as well as secularism and social justice. Directive principles in the constitution are those provisions that are required to be taken into account by the state while making legislations, plans and policies. However these principles are non-justiciable, unlike fundamental rights, that is, if they are infringed in any way by the state, no judicial remedy is available to the citizens. In case of The Fundamental Rights embodied in Part III of the Constitution— encroachment of such rights are subject to judicial remedy. The rights of the citizen in the context of the directive principles may be exercised in an indirect way. The citizens are expected to treat the directive principles as yardsticks of a government‘s performance while expending their right to vote. The directive principle of UCC appears as Article 44 in the Indian constitution, advising the state to enact a uniform, undifferentiated set of civil laws throughout ‗the territory of India.‘ It reads: The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The issue of UCC is closely tied to the operation of democracy in India, the formation of nationalist discourses, and the disavowed continuity of both these phenomena with the ideological and administrative apparatus of colonial rule. It also— as you will see— represents the interface of gender issues with democracy, citizenship and formal equality. 3 Section 1: The Legacy of Colonialism and the Civil Code Colonialism is project and practice of domination—mostly by European/Western/White powers—of land, peoples, and cultures. Indian administrative and legal systems, as well as the idea of Indian democracy have been largely derived from the British Colonial State. This is not to suggest that this derivation or inheritance have been uncritical and uncontested. Cultures of anti-colonial resistance thrived in the British era and thrive today. The concept of colonialism has been expanded to include systems of domination that marginalize large sections of the population based on caste, gender, religion, sexuality, language, location – and other realities. Thus, the notion of intersectionality—of identities and politics—is essential to understand the evolution and issues surrounding the UCC. You can refer to the module on Intersectionality theory for a better understanding. UCC is not just a legal issue; it is a matter of intersecting identities and ideologies of gender, religion, and caste. If you think that the UCC is a good idea, you might wonder why the provision on enacting one was placed as a directive principle and not a fundamental right. Tenets of Liberal democracy suggest that every citizen of a nation state must have equal legal rights. Yet in the Constitution, which lays down the terms of democracy in India, a distinction is made between rights in the public and rights at the private sphere. This distinction has been inherited from the colonial system and its lawmaking. Colonial law first distinguished between criminal and civil law and placed laws regarding family practices, such as, marriage, divorce, adoption and inheritance within civil law. All laws other than family laws were universally applicable to all subjects. However, family laws were called personal laws and were codified according to religious tenets—a task entrusted to Hindu and Islamic religious authorities. The colonial state also drew a sharp distinction between the private and public sphere. In the former, structures of traditional religion and family life were allowed to remain without any state intervention (to stop any oppression of women and children). Interestingly, the colonial state used gender justice and women‘s issues as a reason to justify colonial rule. For the public sphere, strict universal laws about trade/commerce, criminal offences, and ownership of property were instituted, so that civic and revenue administration becomes easier. The British state had also formed alliances with religious authorities (such as Brahmans/Savarnacastes) to facilitate indirect 4 rule and social control. The notion of ―majority‖ and ―minority‖ for instance, is a framework of assessing Indian pluralism constructed during the colonial period and is a part of the dominant discourse of colonial modernity. This discourse assigns identities based on religion to various communities for the purposes of maintaining administrative order within a deeply heterogeneous empire. This approach undermines the vast diversity of society in India with its plurality of cultural practices— relegating it instead to a society of just a few contending religious groups.The British institutionalization of tribal identities follows the same logic. ―The definition of tribes as culturally distinct—from Hindu society as well as from one another—hinged on a catalog of cultural, racial and linguistic traits according to which they were labeled and classified. The anthropological gaze constructed the ‗tribes‘ as unitary, well-integrated, and timeless wholes, unpolluted by contact with the larger civilization until the advent of colonialism (Upadhya 2011, 268).‖ The question of tribes or tribal rights is rarely raised in the debate on UCC. Thus the British colonial state divided the legal domain into Criminal and Civil, further dividing the ‗civil‘ into personal and fiscal laws. It codified personal laws with the help of religious authorities. Traditional family laws of Hinduism (like Mitakshara and Dayabhaga) and Islam (Sharia laws derived from the Quran and the Hadith) were unified and organized within codes. The state envisioned gender justice through passing of criminal laws prohibiting atrocious customary practices on women. However, the state was disinterested to reform the religious family laws which are often inequitable and unjust to women. This is related to the way in which colonialism differentiates the rights of individuals in public and private domain. Colonial ideology imposed on Indian society followed the logic of divide-and-rule. So you can imagine how instead of eradicating social stratifications based on gender and caste, these divisions were carefully nurtured by the state to ensure status quo and prevent mass rebellion. This hands-free policy helped an initial commercial agency such as the East India Company to assume power over vast territories and colonize them substantively and epistemologically. Law as well as strengthening the hand of Brahmanism was a chief vehicle of this paternalistic control. There was constant effort towards standardizing law for the benefit of the newly introduced colonial juridical structure.The uniformity of colonial logichas left its indelible smear all over the Indian constitution and the debate over UCC. 5 Fast forward to the era of freedom struggle and caste/religion identity politics of the 1930s and 40s: when the constitution was being framed, self-identified secular nationalists recognized the differentiation of rights based on caste/tribe and religion. Realizing that such divisiveness would hamper the administration of formal

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