Women and Family Law Reform in India: Uniform Civil Code and Gender Equality

TLDR: While the Constitution of India guarantees equality as a Fundamental Right automatically voiding all laws inconsistent with Fundamental Rights 4 decades after adoption of the Constitution religious personal laws that discriminate against women still apply.

Abstract: While the Constitution of India guarantees equality as a Fundamental Right automatically voiding all laws inconsistent with Fundamental Rights 4 decades after adoption of the Constitution religious personal laws that discriminate against women still apply. Ostensibly supported by the Constitutional right to freedom of conscience guaranteed as a Fundamental Right which is claimed to encompass the right to be governed by religious personal laws the Constitution fails to resolve whether the religious nature of these laws prevents a secular State from interfering with them or whether the personal nature of these laws as distinct from territorial laws makes them immune to State control. The ambiguity permits contradictory claims and permits the State to act inconsistently to essentially similar claims of different communities. While Hindu personal law has been extensively reformed to frequently give equal legal rights to Hindu women the personal laws of other (minority) communities have remained untouched. While other explanations dominate (the communities religious laws are inviolate or there exists no demand for change) the real reason inequities continue is politics. After the British relinquished power the enterprise of making a nation out of so many disparate groups meant the promotion of national integration and establishment of the post-colonial States authority. Whether the State decides to reform the religious personal law of any community has been dependent upon considerations of national integration which has meant denying women equality. Yet the practice of selectively reforming religious personal laws has failed to facilitate the political goal of producing a unified nation. To ensure legal equality for women the State must first define the interrelation between the Constitution and the religious personal laws then assess the options available for ensuring legal equality of women: either to reform religious personal laws or sever the religious connection making them secular like all other civil laws.