Uniforms, Uniformity and the Uniform Civil Code

Sadat Hussain & Shayma S

One of the catch-phrases that we grew up with, even if it stands clichéd now, was ‘unity in diversity’. The fledgling nation-state as it attained independence in 1947 sought to balance the need for a strong nation and centre in the face of domestic uncertainty, the bloodbath of the Partition and an unstable geopolitical reality with the fact that India as it stood was not in practice, ‘one’ nation, but a diverse set of groups and states that had now come together. The Constituent Assembly Debates are testament to many contradictions and disagreements over the Centre-State relationship as well as the need to accommodate religious minorities, indigenous groups as well as historically marginalized communities. This meant constructing a truly unique concept of substantive equality that while in the eyes of the law treated all as equal, but in practice, ensured that those denied opportunities and socio-political capital would be given some accommodation and affirmative action to reach towards an aspirational level playing field.

However, of late, the desire for ‘uniformity’ has been in the air. From rhetoric around one nation, one election to modifying multiple state level exams to introduce centralization of examinations such as NEET or CUET, there appears to a strengthening of the Centre over the differing needs and voices of the States. When MK Stalin, Chief Minister of Tamil Nadu and his government chose to repeatedly use the term ‘Union’ rather than ‘Centre’, it ruffled more than a few feathers in the ruling BJP government. However, as is well-known, the term ‘Union’ comes from the Constitution itself, the supreme legal document. Now, with the Uttarakhand Government keeping its poll promise of implementing a Uniform Civil Code in the State, another chapter is ahead of us.

The Uniform Civil Code, which Werner Menski terms as “postcolonial India’s modernist ambition” is part of Article 44 of the Indian Constitution under the Directive Principles of the State Policy or DPSP, which are non-justiciable in nature. Nivedita Menon, feminist scholar and professor argues that the UCC itself is a product of the tension between the individual rights (Articles 14 to 24) and community rights (Articles 25 to 30) guaranteed in Part III of the Constitution. Menon also points towards the discursive shift behind the UCC, which was once seen as a need of national integrity, but since the 1990s, has also been posited in a gender lens, arguing that personal and customary laws of various shades violate the rights of women in a modern world. One can argue that gender justice has been used instrumentally to fulfil the original vision of the Uniform Civil Code.

A vision of uniformity, whether as envisioned in the UCC or in the recent debates around uniforms and hijabs, purportedly claims to a) supersede personal and customary laws with secular laws based on Constitutional values and b) take the ‘best’ (most gender-inclusive or progressive) aspects of personal and secular laws to put together one comprehensive framework which would apply to all citizens. Both these claims are dubious because they fundamentally misunderstand how diverse citizens are to be accommodated. Different people cannot be governed homogenously, but rather by allowing for their differences intact. A vision for uniformity whether at a micro level or at the level of a national law, mistakenly assumes that heterogeneity is inherently gender-unjust while a monolithic law would be egalitarian in nature. As we have seen in the Karnataka hijab row, a monolithic concept of uniform/ity has been patently gender unjust because it forces the hand of young Muslim women learners to choose between their religious freedom and their right to education. By treating uniformity as the pre-condition or as the essence for education, the Karnataka HC fundamentally misread how equality was understood by Dr. BR Ambedkar, who saw it as a promise, but one grounded in the reality of the present – one where many marginalized communities had explicitly been denied rights.

Equality is a dream for any society, but particularly for Indian society, riddled as it is by patent inequality, segregation and hierarchy. Equality cannot be achieved merely by announcing that all are equal in the eyes of the law, which is why Article 15 talks about a positive idea of equality rather than a mere pronouncement: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” It continues, in the vein of social justice, to argue that nothing in this fundamental definition of equality prohibits the State from making special provision for women, children, or social and educationally backward classes of citizens, or Scheduled Castes a