Assistant Professor of Sociology College of Humanities and Social

Home , Uniform Civil Code

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

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.

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.

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

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.

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 equality and is central to the notion of liberal democracy—the Constituent Assembly envisioned a Uniform Civil Code as a common legislation that would subject all citizens in India to the same code or set of civil laws regardless of their religious, communal, caste, racial, or ethnic identities. They also recognized that India had multiplicity of communities with distinctive religious, linguistic, and local traditions. Yet a single, unified national identity had to be shaped out of these diversities for the purposes of validating a new sovereign nation. Thus they demanded that a civil code be created such that no community suffers disadvantages on account of the law having a religious orientation. Not all the members of the Constituent Assembly accepted this position however—thus a uniform civil code to govern family laws could not be consensually introduced in the list of fundamental rights.

After independence, the judiciary was named the mouthpiece of Indian Constitution. This judiciary used the nationalist- welfarist approach to the question of gender justice. In cases pertaining to personal laws, the Supreme Court interpreted the religious personal laws in a way that is fair to women. At the same time it kept on advising the state to implement article 44 and have common family laws for all religious communities. The court reasoned that having a UCC would affect gender justice as well as national unity. However, the independent state maintained the colonial tradition to address women‘s issues through passing prohibitive laws. The Criminal Procedure Code of 1974 is a prime example of this. As for Uniform Civil Code, despite efforts, the state till date has not been able to frame it, let alone implement it.

Section 2: The Ongoing Debate on Uniform Civil Code Any political debate in independent India such as those on UCC is couched in terms of binaries, in line with the discourse of colonial modernity. The debates on Uniform Civil Code have always been polarized around the twin axes of state-community, tradition-modernity, and religion-secularism: the binaries of colonial modernity. The positions articulated by the judiciary, the Hindu fundamentalists

and the feminist movement on the civil code remain locked in the discourse of colonial modernity. We will learn a bit more on colonial modernity in section 3.

The colonial government declared the setting up of a Constituent Assembly for independent India— this committee was first summoned in 1946. Initially an advisory committee was set up which would formulate the articles of the constitution. This advisory committee was further divided into three sub committees on 1) Fundamental Rights 2) Minorities, 3) Tribal and Excluded areas. In March 1947, in spite of compelling efforts by Dr.B.R.Ambedkar, MinooMasani, RajkumariAmrit Kaur and Hansa Mehta (members of the subcommittee on Minorities) a provision of Uniform Civil Code that was conceptualized as a unifying and egalitarian force, was decided by the ‗majority‘ to be outside the scope of fundamental rights. The Uniform Civil Code was to ensure the unified legal subject or citizenship that could resolve legal conflicts on account of presence of various religions and religious laws. The provision of Uniform Civil Code was finally put, not in the justiciable provisions of fundamental rights, but in the non-justiciable Directive Principles.

The first Prime Minister of an independent India Jawaharlal Nehru and the first law minister Dr. B. R Ambedkar continued endorsing the UCC as an instrument of modernization, secularization, and national integration. Various legislations were enacted in the 1950s to reform Hindu Personal law. A comprehensive Hindu Code Bill, dealing with marriage and divorce, minority and guardianship, maintenance and adoption and the mitakshara joint family issues was introduced in the constituent assembly by Dr. B. R Ambedkar. This was met by furious objections by legislators and nationalist leaders such as Sardar Patel, J. B Kripalani and Rajendra Prasad. The latter who was the first president of independent India expressed his intention to ‗reserve presidential assent‘ to the Bill. (Jayal 1999, Sen 2000)

At this stage the supporters as well as dissenters of the Hindu Code Bill invoked the UCCoften as the only legitimate device of reform. Those in favor of Hindu personal law reforms referred to the necessity of securing comprehensive, uniform, standardized laws over orthodox, religious and traditional ones, as the deliberations on the UCC the in the constituent assembly had suggested. Many dissenters reasoned that reforming only Hindu laws and leaving Islamic and other laws untouched amounts to ―minority privilege.‖ Demand for Uniform Civil Code became a potent tactic for stalling

the Hindu Code Bill. There were many court cases that churned up the issue of the UCC but the Mohammed Ahmed Khan vs. Shah Bano Begum Case of 1985 was the most important case that really recharged the debate.

Mohammed Ahmed Khan, the appellant to Supreme Court had divorced the respondent, his wife, Shah Bano by an irrevocable triple talaq. In April 1978 Shah Bano filed a petition under section 125 demanding maintenance. The appellant‘s defence to the respondent‘s petition was that she had ceased to be his wife. Also, he had paid maintenance to her at the rate of Rs. 200/-for two years and had deposited a sum of Rs. 3000/- in the court as Mehr (dower) during the period of iddat as per 127 (3) (b) of Islamic Personal Law. In August 1979 the Magistrate directed Ahmed Khan to pay Rs. 25/- to respondent by way of maintenance. In July 1980, in a revisional application filed by Shah Bano High Court of Madhya Pradesh enhanced the amount of Maintenance to Rs. 179.20 per month. Ahmed Khan filed an appeal before the Supreme Court by special leave claiming that Section 125 of the Criminal Procedure Code would not apply to him as a Muslim. The Court found that two previous decisions (in the Bai Tahira vs. Ali Hussain FidalliChothia case of 1979, and Fazlunbui vs. K Khader Vali case of 1980) upheld that a Muslim wife can apply for maintenance under section 125. Yet a bench consisting of Justice MurtazaFazal Ali and Justice A. Varadarajan considered that those cases were not correctly decided. As a result they referred the appeal to a larger bench by an order dated February 3, 1981.

Now a reconstituted Supreme Court Bench headed by Chief Justice Y. V Chandrchud on 23rd April 1985 dismissed the appeal, confirming the judgment of the Madhya Pradesh High Court, leaving it open for the respondent to apply for an enhancement of maintenance allowance. The Supreme Court in effect ruled that Section 125 overrides the Muslim Personal Law if there arose any conflict between the two. There need be no conflict, the judgment asserted, citing and interpreting various ayats and suras of the Koran that Muslim husbands had to provide for their divorced wives in case of their indigent situations.

Apart from that the Court pronounced:

―It is also a matter of regret that Article 44 of our constitution has remained a dead letter. …there is no evidence of any official activity for framing a common civil code for the country. …. A common civil Code will help the cause of national integration by

removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by, making gratuitous concessions on this issue. It is the state which is charged with a duty of securing a uniform civil code for its citizens of the country and unquestionably has the legislative competence to do so.‖

The judgment in favor of Shah Bano was perceived as a judgment against Muslim Personal Law. The issue of a divorced woman‘s protection from destitution and the meager sum of alimony involved was buried under the waves of resentment against the judgment— perceived as an attack on Muslim religious identity. This case became pivotal in redefining religious identities and majoritarian politics. In the face of the overwhelming controversy totally altering the nature of the debate, Shah Bano publicly retracted from the Supreme Court Judgment for the cause of being a devout Muslim first.

Countrywide agitations led by the Indian Union Muslim League, the Muslim Personal Law Board, Jamat-I-Islami, and Jamat-al-Ulema worried the Congress Government led by Rajiv Gandhi. Troubled by the prospect of loss of Muslim support, The Muslim Women‘s (Protection of Right in Divorce) Act 1986 was passed in a hurry, despite protests from women‘s groups and social-justice-consciouspeoples from all religious affiliations. The issue was also espoused by rapidly rising communal groups as a means to impose Hindutva hegemony. With the passing of the Shah Bano judgment and the Muslim Women‘s (Protection of Right in Divorce) Act the issue of personal law and the Uniform Civil Code became deeply entrenched in combative communal politics.

The issue of gender justice was swept aside. The BJP emerged as a strident critic of Rajiv Gandhi‘s actions during the Shah Bano controversy that overturned a ‗secular‘ Supreme Court ruling. It is important to note here that the BJP as well as the RSS have always self-consciously based their contentions in terms of democracy, modernity and secularism. This is related to the problematic of secularism in the Indian Constitution which can be a tool of minority oppression. If you have followed politics over the last two decades you know that both the Congress and the BJP have twisted around the notion of secularism to practice divisive communal politics.

Today, many women‘s organizations view the possibility of a UCC as a dubious instrument of Hindutva/Brahmanicalfundamentalist domination. The movement‘s focus has shifted from demanding legislation from the state to promoting women‘s participation in the processes of the state and the

political economy; being part of legislative and other decision making. It is recognized that though autonomous women‘s movement has been greatly able to render women‘s issues visible and moot, and such a movement is important in its own right –formal political participation remains important. Feminists have begun to examine closely the relationship between women, state and legislation. They have identified the problem in the context of the state‘s ambivalent treatment of women as rights- endowed citizens and gendered subjects enmeshed in patriarchal social relations. The root of the problem seems to reside in the nation‘s constitution that is unable to decide between the import of women‘s rights and (religious) community rights. Therefore, as Anupama Roy opines, ―women‘s lived experiences have had therefore, to contend with various superscriptions and circumscriptions. The idealized super scribed woman---pure chaste with superhuman qualities purging the body politic---- ensnares women within normative forms of behaviour. A unified category of women----a collective body of women, as agents and subjects of liberatory change---proves elusive as it attempts to homogenize disparate entities, ironically within an abstracted category of woman.‖ (Roy 2005: 229)

There is also a realization that passing more and more laws is not a solution to women‘s problems. This skepticism is captured in Flavia Agnes‘ words, ―If Oppression could be tackled by passing laws, then this decade would have to be adjudged a golden period for Indian Women (Agnes 1992, 26).‖ Law and awareness raising goes hand-in-hand; laws do not change minds and often cannot cause a dent in centuries of heteropatriarchal colonial Brahminical social structure. Gender justice is also a matter of intersectionality—we cannot think of a uniform category of ―male,‖ or ―female‖ unless we understand that these categories represent lived experiences of people negotiating not just structures of gender but also caste, class, religion, language, ability, and geo-political location. The experience of a Muslim (or Hindu, or Christian, or Sikh) woman living in various parts of the country (think about the variations in urban and semi-urban areas, the experience of living in deeply contested territories in Kashmir and the North-East, what it means to be a migrant worker, a Dalit student, a ―North Indian‖ in South India and vice-versa—what these categories and labels mean) will be very different. Laws are not innocent or neutral; they often represent the political will at the heart of a ruling regime, they often represent a political agenda more than ―justice.‖

With that, let us discuss some basic concepts that will help you understand the debate on UCC better.

Section 3: Basic Concepts Civil Code:Civil code is understood as law that deals with ―private‖ matters. The notion of a civil code arose from the way the colonial state intervened in Lawmaking in India. They started by making a sharp distinction between criminal and civil laws. Within civil laws, a distinction was made between family laws and fiscal laws. Criminal and fiscal laws replicated English laws while codification of family laws was left to religious experts— to be based on traditional/religious laws.―Civil Code‖ is thus the code name for personal laws: described in entry 5 of list III of the 7th Schedule of the Indian constitution as laws that govern—―...Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition.‖ Women are disproportionally affected by family/personal laws in any hetero-patriarchal society—India is no exception. UCC, as you know is a directive principle in the Indian Constitution that directs the state to ensure that civil code in India in the same for all citizens. This is a highly contested position where issues of gender, citizenship and human rights are sometimes swept under the rug and the dynamics of electoral politics and vote banks, the rise of Hindu fundamentalism and prospects of coercive majoritarianism loom large. There is a deep discontent in countries such as the United States about male and misogynist lawmakers creating laws about women‘s bodies and lives—without any consultation, feedback process, or empathy. UCC and its fraught history in India show a similar trend. Commentators have variously referred to the Uniform Civil Code as ‗Common Civil Code‘ or ‗Equal Personal Laws‘. In legal terminology, a code means a collection or compendium of various laws relating to a particular subject field. The Criminal (procedure) Code, The Indian Penal Code, and the Civil (Procedure) Code, are all examples of codes.

Colonial Modernity:The notion of colonial modernity is important in understanding how the UCC debate has unfolded. Colonial modernity is usually imposed by the colonizer/imperialist entity on spaces colonized for purposes of social and governmental control. In British India this manifested itself in introduction of English and professional education, law, comprehensive methods of revenue collection, new methods of agriculture aimed solely at farming cash crops, and growth of the secondary and tertiary sector in the economy was imposed over the colonized space in the name of modernization of economy and polity. What justified this process of modernization and seepage of modernity was an unimpeachable claim to rationality.

Patel (2006) states, that colonial modernity approached the society in India with two assumptions: The first relating to the distinction and disjunction of those groups living in India from the spatial cultural structures of the West and simultaneously creating within India spatial cultural zones. The second was the assertion of the boundedness of these groups (now called castes and tribes constructed in an internally structured hierarchy) by a cultural attribute of spirituality‘ emanating from Hindu civilization. A territory was given a religious attribute: India and Hinduism now collapsed into each other.(Patel 2006: 384)

The colonial state sought to divide the society into existing religious communities encouraging the imposition of traditional laws in ‗personal‘ and family matters. It encouraged Brahmanism and its oppressive structures that affect lives of women, Dalits, and minorities. With the separation of the penal and personal, the family was officially affirmed as a sacred, private site— left to hetero-patriarchal discretion and customs. This sacred secrecy of the family without any state intervention or regulation conveniently left out the question of gender rights and redressal.

Today, colonial modernity continues in jurisprudence, democracy, and discourses of modernity and nationalism within the independent nation state that often takes on the role of the colonizer. Today, whether the debate is for or against UCC— carried out by feminist scholar-activists, or religious fundamentalists, or the judiciary— remain locked in the binary of ―us‖ and ―them.‖ There is little space for imagining new concepts and alternatives.

Feminist Jurisprudence: Feminist legal studies or feminist jurisprudence is emerging as a relatively new area of study in India. It is legal philosophy from a feminist perspective— interrogating the creation and development of laws and legal structure. Feminist jurisprudence places the principles of legal theory and practice on a common canvas to assess its relationship to gender equity and women‘s day-to-day lives. ―Law has developed over time in the context of theories and institutions that are controlled by patriarchal values and reflects its concerns. Gender-sensitive feminism seeks to correct the imbalance and unfairness in the systems of knowledge, which have excluded attention to the circumstances of women‘s gendered lives even on issues that intimately affect their lives (Agnes 2005, 1859).‖ Feminist jurisprudence and feminist legal studies seek to undermine the liberal-universalist claim that law is an objective,

neutral truth, and exposes its role in systemic oppression of women. However many scholars also agree that law can offer spaces of resistance within which women can challenge oppressive social relations. The autonomous women‘s movement(s) in India often approach the issue of UCC from the standpoint of feminist jurisprudence.

Conclusion (Summary): Gender Justice or Religious Freedom? It might seem to you from the previous sections that UCC is a matter of gender justice vs. religious freedom. That the implementation of UCC may tamper with many people‘s religious freedom—provided we think of laws originating in religious text that are in use in a constitutional democracy as a matter of accommodation and preservation of religious freedom/diversity. What do you think?

It is easy to see why many people and groups have thought so. Often under the guise of secularism, women‘s bodies and lives have been controlled and their religious freedoms taken away. In 2011, France, for instance –banned public use of veils for Muslim women. Belgium and some cities in Spain have a similar law. In the 80s, Turkey‘s secular state enacted a ban on headscarves and full robes. Women in these countries have had to fight for their right to wear hijab and practice religion—a veil does not automatically signify oppression or compliance. Taking away of the veil can signify taking away of rights. The BJP seized the issue of Muslim Women‘s (Protection of Right in Divorce) Act to demonstrate the Congress regime‘s letdown to provide true legal equality to male and female citizens. This led to the women‘s movement‘s realization that the question of gender justice has really dissipated in a vortex of communal-patriarchal appropriations of the UCC debate. Groups that are concerned about the repressive/oppressive nature of Muslim family laws are often silent about the extremely oppressive nature of the Caste system that has had long term effect on innumerable people‘s safety, rights, and well-being. The so called secular campaign for UCC has provoked religious communities in India which in turn has put gender justice in jeopardy. Flavia Agnesexplains:

It was not surprising that the demand for uniform civil code raised by the women‘s movement aroused contradictory response from the fundamentalists depending upon whether they hail from the majority of the minority communities. It was opposed strongly by the Muslim and Christian religious leaders who perceived it as a threat to their cultural identity and a violation of the fundamental right guaranteed by the Constitution. But it became an important plank upon which hate for Muslims could be ignited. Through it, Hindu communal organizations were not only able

to gain popularity among Hindu males who envied their Muslim counterparts the freedom to practice polygamy; they could also pose as the champions of the cause for women (Agnes (2008, 503).

Thus the notion of religious rights guaranteed by the Constitution has become an issue for the Religious Right to spread a culture of majoritarianism and minority oppression. Gender justice and women‘s rights are not exactly priorities for them. Gender justice is not just a matter of personal laws. That there is no similar hue and cry about other directive principles like equality of educational and employment opportunities point to the fact that the question of both law and uniformity has enormous political potentials and hence the debate onUCC remains— followed by that on reservation— the single most enduring debate in Indian public life. Today the judiciary as the mouthpiece of the constitution and the Hindu Right as the self-proclaimed mouthpiece of all Indians have kept the debate alive.

Anveshi Research Center for Women‘s Studies, an organization committed to gender justice and a longtime critical feminist voice in the debate states its position on the UCC: The UCC model of legislation, we argued, seemed oblivious to the politics of law reform, implementation issues, women‘s needs and the Hindu majoritarian agenda. The questions that the Anveshi law intitiative is engaged with are: the conceptual rigidities that attend to translating women‘s needs/concerns into governmental categories; the relation between gender/minority/caste and law; and the problems related to the preeminence of the rights framework in thinking and activism around violence.

In a society as diverse and plural as India Uniform Civil Code must not be used as a tool for convenient and effective governance by dominant groups who prefer docile subjects to rights-conscious, active citizens. To carry out governance in a sensitive manner begins with the recognition that difference and pluralism is no deterrent for justice and integration. Conversely, uniformity and homogenization does not necessarily root out injustice and dissentions.

If the Uniform Civil Code is implemented, there should be an open legal space for reasonable individual choices. As Conrad (1995) points out, that the implementation of a common civil code must imply that the religious family laws are not ―reformed out of existence.‖ An individual may find some elements in these laws that define her rights more suitably than the uniform code. Under such circumstances there must be provision to choose between family laws and a civil code. This choice takes into account individual rights, and also implies that there need be no religious-national unifying principle.

It is necessary for the state to intervene as an arbiter to ensure that no matter what cultural practices are being followed; there is no violation of rights of a citizen, for the woman, or man or people that do not identify with the gender binary. Beyond that, state, and law must not dictate in what ways citizens should maintain sexual relationships (including relationships outside the hetero-patriarchal norm), marry (or cohabit without marriage), divorce/separate, adopt, bequeath and inherit. It should be outside a democratic state‘s scope to define what is normal and what is not in matters of personal/sexual choices. Its function rather than to dictate terms of personal life, must be to ensure that there is no unfair exploitation rising out of power asymmetry within personal spaces of citizens. The state protects citizens‘ rights through making and enforcing law— instead of using law as an instrument to dominate historically marginalized groups.

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