Towards an Inclusive Gender Just Code in India: Women’s Rights are Non-Negotiable  

This article on the UCC is divided in two parts. This is part 1. For the original detailed work by this author, please see here.

The Common Civil Code (the UCC) in India was initially introduced during the making of the Constitution to create a common legal framework for marriage, divorce, inheritance, and adoption with a focus on gender equality. While it aimed to eliminate harmful practices and promote justice, its inclusion as a fundamental right was blocked due to potential conflicts with religious freedoms, resulting in its placement as a Directive Principle of State Policy. In post-colonial India, family laws remain governed by diverse religious norms. However, over the years, despite difficulties, women from diverse backgrounds have increasingly sought reforms through courts. These women-led reforms followed the framework of intersectionality, are progressive, democratic, just, and based on their everyday realities.

Simultaneously, the dominant narrative initiated by political parties and religious leaders has politicized this debate for their vested agendas while suppressing women’s voices. This top-down approach, driven by vested interests, seeks to restrict women’s rights. Moreover, the current push for a UCC is coercive, unconstitutional, anti-secular, and anti-women. It forcefully imposes a discriminatory law and is lacking in a democratic process, therefore refused by many, including women from minority communities.

While rejecting this arbitrary law, this work argues that to navigate the complex terrain of religious freedom and gender justice, the family laws reforms should be comprehensive, inclusive, consensus-based, progressive, rights-based, uphold a person’s dignity, women-led, and should involve the consent of women from various communities it affects. This work suggests that the state should revoke the Uttarakhand UCC law. Instead, the state should facilitate conditions that allow women to exercise their rights through transformative constitutionalism across all communities. The family law reforms should adhere to democratic norms, constitutional morality, and gender justice. Grounded on the concept of women’s autonomy, this work proposes to rewrite a feminist code based on feminist principles of substantive equality, solidarity, acceptability, and respect for community rights while forging unity across diversity—a feminist code written by women, of women, and for women from diverse communities. It calls for #ReplaceManusmritiWithMahilaHaqSmriti

Historical process behind the making of the UCC

The debate surrounding the Uniform Civil Code (UCC) or Article 44[1] of the Indian Constitution has persisted for nearly a century[2]. It was envisaged considering the feminist, socialist[3], and rationalistic concerns. During colonial times, while drafting the Constitution for free India, this provision was introduced to establish a unified legal framework for marriage, divorce, inheritance, succession, and adoption across different communities to advance progressive and rational values. The purpose was to eliminate harmful practices undermining women’s rights and promote gender justice in line with constitutional morality and human rights.

While exploring the history of colonialism, the Partition of India, and the Constituent Assembly Debates, it observed that on the one hand, when the colonial and conservative nationalist forces both were downgrading women, simultaneously, the progressive Indian women’s organizations were working hard to advance the women’s rights as equal citizens.

The women’s organizations during colonial times such as the Women’s India Association founded in 1917 by Annie Besant, the All-India Women’s Conference (AIWC) established in 1927 by Margaret Cousin, and the National Council of Women in India (NCWI) founded in 1925 by Lady Aberdeen, played a crucial role in eliminating social, economic, and legal inequalities[4]. Together these organizations mobilized, agitated, and protested for women’s rights. They fought for legal reforms, bringing gender-related concerns to legislative debates. 

During the 1930s, the AIWC passed a series of resolutions demanding that a commission be appointed to enquire about gender justice that aims to eliminate disabilities. They demanded the right to divorce besides equal rights to property and inheritance, condemned polygamy, and opposed marriages between older men and minor girls. Continuous countrywide agitations for removing legal disabilities culminated in the demand for comprehensively reforming personal law[5].

However, the orthodox Hindu upper-caste nationalists obstructed their struggle to legalize equality. The reason was that women were treated not as citizens with equal rights but as members of their families and communities[6]. For instance, attempts to reinforce prevailing hierarchies emerged while framing the Child Marriage Restraint Act of 1929. The conventionalists opposed raising the age of consent by citing Shastras (Hindu treatises). The women representatives of the AIWC countered this argument by demanding new Shastras[7].

Despite antagonism, in 1939, women’s collectives in their report titled Report of the Sub-Committee on Woman’s Role in Planned Economy, reimagined the Indian woman as a complete, self-sufficient individual and proactive citizen. Led by women leaders such as Hansa Mehta, this report was inspired by the Declaration of Fundamental Rights, adopted by the Indian National Congress in Karachi in 1931.

Building on this Report, the Indian Woman’s Charter on Rights and Duties[8] was prepared in 1945. Through this Charter, they reformulated the “woman question” to emphasize their identity as right-bearing emancipatory citizens. This Charter challenged the public-private binary and also outlined the duties of women, which included the responsibility to get educated, fight against social evils such as child marriage, purdah, and polygamy, and work toward world peace. It became a foundational document in the campaign for women’s rights in India and abroad[9].

However, the communal violence and the Partition had devastating consequences, specifically on women from Hindu, Muslim and Sikh communities, who were abducted, raped, tortured, abandoned by their families, and humiliated in the multiple ways. Some committed mass suicide, others were forced to convert, forced into marriage, enforced back into what state considered as their `proper homes’, and torn apart multiple times[10]. Nevertheless, gender politics during such turbulent times took dreadful shape when the state intervened to decide the fate of women and recover, restore, and rehabilitate them to their original families[11].

 Consequently, on 6 December 1947, the two newly formed but hostile countries prepared an Inter Domination Treaty or an agreement to recover the abducted women and rehabilitate them in their homeland. An Abducted Person (Recovery and Restoration) Bill was introduced by Gopalaswami Ayyangar in 1949 with the object of recovering and restoring abducted persons to their families[12]. It defines an abducted person as a male below 16 years of age and a female of `whatever age’. The affected women in this arrangement had no say in deciding their fate, but the state and their families were considered as their legitimate guardians. The state refused to treat them as citizens vested with rights but infantilized them by empowering their guardians to represent them. Abducted women were considered objects, chattels, and property to be recovered from the enemy. Das[13] illustrated how women’s voices were silenced by applying the best interest theory, where the state colluded with the social workers to uphold the nation’s honour rather than safeguarding women’s rights.

The Constituent Assembly was created in 1946. It consisted of 15 women[14]. The Constituent Assembly took up the issue of the UCC on 23 November 1948 as Article 35 of the Indian Constitution. The Fundamental Rights Subcommittee[15] was chaired by JB Kriplani. Other members include Dr BR Ambedkar, Hansa Mehta, Minoo Masani, KT Shah, Alladi Krishnaswamy Ayyar, Maulana Abul Kalam Azad, and Raj Kumari Amrita Kaur. They argued to reform the personal laws established by the British and supported by the Indian elites[16].

These members advocated a fair and progressive Code as a fundamental right to eliminate gender and caste biases. The aim was to ensure that laws governing all citizens are based on principles of justice and equality. The idea was to imagine a secular nation that guarantees equality to all irrespective of sex, religion, class, or caste biases. However, several members of the Subcommittee including KM Munshi and Acharya Kriplani, saw this step as exceeding its authority[17].

Against the backdrop of communal violence and the legacy of Partition, some members of the Constituent Assembly were not opposed to feminist reforms per se but approached them with caution. Their hesitation stemmed from concerns about including the Code as a fundamental right. They argued that such a move could interfere with religious laws and traditional practices[18]. Emphasizing the importance of religious freedom and cultural diversity, they believed that imposing a Code might infringe upon the rights of religious communities to uphold their family laws. From this viewpoint, enforcing the UCC risked undermining individuals’ freedom to practice their religion.

Therefore, the recognition as a fundamental right in the Constitution faced obstacles due to its potential conflicts with the right to practice religion. The framers of the Code were careful not to offend the religious sentiments of minority communities, particularly during a period marked by communal violence and the aftermath of Partition. As a result, it was founded as a Directive Principle of State Policy—intended as a guideline for the state, hoping that in times of greater harmony and peace, an informed decision could be made.

The Codification of the Hindu Law

In January 1941, the B.N. Rau Committee was set up officially to recommend reforming the Hindu laws. The Committee submitted its report on 19 June 1941. It suggested enacting a Hindu law Code, which would give equal rights to women considering the modern trends of society. The Rau Committee report dealt comprehensively with the laws regarding marriage and maintenance, succession, guardianship, and adoption. The Committee proposed amendments to dilute the sacramental nature of the Hindu marriage by introducing the provision relating to its dissolution, abolishing polygamy, and maintenance for the wife. It also raised the issue of an equal share of a daughter in the family’s property.

The women members envisioned the Hindu Code as a transformative tool—one that could fundamentally reshape society, dismantle social evils, and liberate women from entrenched forms of oppression. However, the orthodox conservative leaders were not willing to accept these reforms. Those opposing the bill termed it as a conspiracy hatched against Hindu sentiments. The Hindu Mahasabha, the Bhartiya Jan Sangh, and other organizations used the rhetoric of ‘defamation of Hindu religion’, ‘religion in danger’, and conspired to resist the bill[19]. In March 1949, an All-India Anti-Hindu Code Bill Committee was constituted.

Amidst heated discussions, Ambedkar resigned from the position of the law minister in October 1951. One of the reasons he gave is that ‘Despite the coming of political independence, and a constitution protecting rights, they faced the same old tyranny, the same old oppression, and the same old discrimination’. In his resignation speech on 27 September 1951, he stated,

“To leave inequality between class and class, between sex and sex, which is the soul of Hindu Society untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap.  This is the significance I attached to the Hindu Code…”[20]

Later, Pandit Nehru fragmented the bill into four parts, citing the reason for the smooth passage. Consequently, the Hindu Marriage Act was passed in 1955, the Hindu Succession Act in June 1956, the Hindu Minority and Guardianship Act in August 1956, and the Hindu Adoption and Maintenance Act in December 1956.

However, this codification of the Hindu Law was not perfect. The operation shows that over the decades since independence, many Hindu women have approached the courts with their complaints. Hence, many reforms are required to ensure equality within families. For instance, the evils such as dowry violence and murders continued despite the existence of law for more than seven decades[21]. Specifically, domestic violence is harming women from all backgrounds. Those men who pose liberal outside forget all such values inside the confines of their homes[22]. The problems such as the child marriage, female foeticide, female infanticide, honour killing, still exist. Single women are still facing multiple problems in the Hindu families. Marital rape is not yet recognized as a crime.

The Working of the Family Laws on Post-colonial India

Today, family laws are still governed by diverse religious norms. While solemnizing inter-group marriages, the Special Marriage Act of 1954 can be invoked. Nevertheless, the debate continued over the decades because codifying family laws involves navigating the complexities of diversity, religion, and gender justice. In 2018, the Law Commission held that Indian cultural diversity should be respected and stated that UCC is `neither desirable nor necessary at this stage’[23]. It noted,

“Various aspects of prevailing personal laws deprivilege women. This Commission is of the view that it is discrimination and not difference which lies at the root of inequality. In order to address this inequality, the Commission has suggested a range of amendments to existing family laws…This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.”

However, the discourse around UCC has been appropriated by the reactionary forces since the Shahbano case in 1985 was debated and Babri Masjid was demolished in 1992. Political parties and religious leaders have suppressed women’s voices and ignored the rights of diverse groups to advance their vested interests. This unjust top-down approach to reform family law is driven by majoritarian and masculine ideology while ignoring the ground realities.

This dominant discourse on the `woman’s question’ construes women as members of their families and communities. It ignores how individually or collectively, for a century, women from different backgrounds have been asserting their citizenship rights without undermining collective community rights. In post-colonial India, deploying the constitutional provisions, women have been asserting their autonomy to challenge the discriminatory family norms that have held them captive within their oppressive families and communities. Moreover, several movements have been initiated to challenge the regressive Brahminical social order.

However, for decades, the cases in post-colonial India demonstrate that women from diverse communities have approached the courts compelling them to evoke the framework of constitutional morality while adjudicating their claims, thus influencing the family law reforms without undermining collective community rights. These engagements are based on women’s realities and reflect how the operation of family law directly impacts them. Courts, in several cases, have interpreted women’s rights broadly within the inclusive framework of gender justice while reforming the family law of each community.

These women-led reforms, rooted in the framework of intersectionality, have challenged the male-dominated order and upheld the principles of gender justice. Based on women’s agency and autonomy, this bubble-up approach to law reform is democratic, progressive, and address the concerns of women and children.

UCC Today

Nevertheless, the current regime, particularly, is trying to impose a UCC that is coercive, patriarchal, anti-secular, anti-culture, anti-women, and anti-minority, against the vision of the Constitution makers. In the process, it is enforcing harsh majoritarian patriarchy to `save Muslim women’ while ignoring the massive misogyny entrenched in the Hindu Rashtra, which is oppressing both Hindus and non-Hindus women. The UCC imposed by the BJP neither guarantees women’s rights nor safeguards religious freedoms. Therefore, it is rejected by many, including the opposition parties, religious organizations, and importantly, women from all communities. Its anti-people approach works in three significant ways.

Firstly, this move to introduce an arbitrary law is hasty and undemocratic. It disproportionately upholds masculine and majoritarian interests while ignoring women’s voices and minority concerns. It excludes tribals, transgenders, LGBTQIA+ communities and their rights. This exclusion raises suspicion about the state’s intent.

Secondly, the state is forcefully imposing a discriminatory law based on its communal and regressive Hindutva Manuvadi ideology while ignoring the diverse practices and the rights of minorities, Dalits, and Adivasis women.

And lastly, this top-down arbitrary approach, driven by vested interests, seeks to empower the state while restricting citizen’s rights. It criminalizes social relationships and diminishes women’s rights by infantilizing and belittling them.

The tactics deployed through such draconian provisions are to dehumanize and control women from all communities while restricting their freedoms and choices. This work contends that in any democratic society, the purpose of legal, political, or social reforms must be to expand women’s autonomy and strengthen their citizenship rights. However, these institutions have historically been shaped and operated by patriarchal forces to define that women belong to their families and communities and not as independent rights-bearing individuals.

Moreover, contrary to the narrative propagated by the current regime, these cases depict that Hindu law is far from perfect. It needs to change with the changing times. Hindu women have long approached the courts to challenge discriminatory provisions—demanding equality in marriage, custody, guardianship, inheritance, and property rights. These struggles reveal that the solution does not lie in replicating Hindu law under the guise of a UCC but in designing a feminist Code that upholds India’s pluralistic ethos without reinforcing existing hierarchies.

Moving Forward

This work rejects the unconstitutional and arbitrary imposition of personal law by the current regime to assert that law reform profoundly impacts women’s daily lives, hence it must be grounded in their consent and active participation. It suggests several amendments to the existing personal laws and calls on the state to repeal the Uttarakhand UCC law.

To navigate the complex terrain of religious freedom and gender justice, this work suggests that any codification of family laws should be inclusive and women-led involving voices of women from diverse communities. Moreover, the process should be democratic, consensus-based, progressive, gender-just, and rooted in a rights-based approach. It argues that women’s rights, irrespective of their background, are non-negotiable.

Anchored in the vision of transformative constitutionalism[24], any effort to reform family law must be guided by constitutional morality[25]. It should aim to establish equal citizenship, advance gender justice, and gain the trust and acceptance of the wider population. Only then can a truly just, equitable, and inclusive legal framework emerge—one that respects diversity while upholding the dignity and rights of all.

In line with India’s commitment to international human rights frameworks, including the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), formulating a Code should adopt an intersectional approach. The individual and collective rights that women have earned through tireless struggle must not be dismantled by any state or non-state entity.

Rejecting the male-dominated, top-down interpretations of law, this work advocates for a multi-pronged, comprehensive, inclusive, and emancipatory approach to reforming family laws. It calls for a gender-just framework that challenges all forms of hierarchy and domination. Rooted in feminist principles of compassion and solidarity, the object is to achieve substantive equality—upholding the rights of diverse communities while respecting women’s autonomy. At the same time, this approach aims to dismantle disparities, abolish hierarchies, eradicate patriarchal oppression, end marginalization, counter domination, diminish authoritarianism, and preserve the unity in diversity that defines India. The purpose is to pave the way for a just, equitable, and inclusive society where everyone can exercise their full freedoms.

This work advocates for women-centered reforms and calls for substantive changes to existing personal laws grounded in principles of gender justice and equality. It submits that

Firstly, the state must recognize that family law is a critical issue of gender justice that affects women across all communities. Consequently, any reform must involve meaningful consultation with women from diverse social, religious, and regional backgrounds, ensuring their autonomy and self-determination are central to the process.

Secondly, the state must foster an environment where women from all communities can fully exercise their rights, including enhancing women’s access to justice, adopting a women-centric approach, strengthening the infrastructure and institutional mechanism, and ensuring the availability of high-quality and affordable services.

Thirdly, in keeping with the democratic principle of consent over coercion, the state should work to encourage various stakeholders, including women’s groups, religious leaders, political opposition, and community actors to initiate gender-just reforms within their communities. Rather than imposing reforms unilaterally, building consensus through dialogue is essential for long-lasting change.

Lastly, the state must adopt comprehensive measures to dismantle patriarchy, diminish entrenched power dynamics, and eliminate structural discrimination that marginalizes women. It involves legal reforms combined with broader socio-cultural transformation through institutional accountability and sustained political will.

Together, these recommendations envision a democratic, inclusive, and gender-just framework for family law reform to truly reflect the spirit of the Constitution and the lived realities of diverse women.

Family law reform is a critical issue that profoundly impacts women. No single political party or religious organization should have the authority to impose its ideology on over half a billion women. Their diverse voices, concerns, and experiences must be acknowledged and respected. On April 5, 2025, millions of protesters across the United States rallied under the banner `Hands Off’ united against authoritarian policies threatening their rights[26]. In a similar spirit, Indian women have been raising their voices, demanding that political parties and interest groups refrain from interfering in their freedoms (#HandsOffMyRights).

Also, while taking a further step to expand a feminist reimagination, this work suggests that women from different backgrounds should collaborate in solidarity to formulate a feminist code with a feminist vision and rights-based principles to achieve the goals of emancipation and demolish multiple patriarchies that operate simultaneously to subjugate them. This feminist Code is a tool to achieve gender justice, ensuring that women of all religious backgrounds have equal rights, protections, and opportunities. It addresses patriarchal oppression, respects cultural diversity, and includes women’s voices in shaping the reforms.

The women of previous generations have struggled hard for the rights to equality and justice that this generation enjoys today. To honour this commitment, preserve the rich legacy, and reclaim women’s rights from the patriarchal claws that have appropriated the discourse, women from diverse communities today are duty-bound to come together in solidarity and take forward this struggle for themselves and future generations by rewriting a feminist code for women, of women, and by women[27].

#ReplaceManusmritiWithMahilaHaqSmriti

Adv. Dr. Shalu Nigam is a feminist lawyer and researcher working on gender, governance, and human rights issues. Her most recent book which is published in on Dowry is a Serious Economic Violence: Rethinking Dowry Violence Law in India.  

[1] Constituent Assembly Debates https://www.constitutionofindia.net/articles/article-44-uniform-civil-code-for-the-citizens/

[2] Constituent Assembly Debates https://www.constitutionofindia.net/debates/23-nov-1948/

[3] Guha Ramchandra (2016) Liberals must Support a common civil code, writes Ramachandra Guha, The Hindustan Times, November 21, https://www.hindustantimes.com/columns/when-progressives-turn-reactionary/story-h9Zwi5ZnbQ5Jjn0ak0A9VK.html

[4] Forbes Geraldine (1988) ‘The Politics of Respectability: Indian Women and the Indian National Congress’, in The Indian National Congress: Centenary Hindsights, Edited by DA Low, Oxford University Press, New Delhi.

[5] Khullar Mala (2005) Writing the Women’s Movement: A Reader, New Delhi

[6] Paula Banerjee (2005) Women’s Autonomy: Beyond Rights and Representation, In The Politics of Autonomy: Indian Experiences, Edited by Ranabir Samaddar, Sage, Delhi p 49-70

[7] Nair Janaki (1991) Reconstructing and Reinterpreting the History of Women in India, Journal of Women’s History 3(1) 131-136

[8] Draft of Indian Woman’s Charter of Rights and Duties Prepared by India by all India Women’s Conference and Submitted by Mrs. Hansa-Mehta for Information of Sub-Commission

[9] Draft of Indian Woman’s Charter of Rights and Duties Prepared by India by all India Women’s Conference and Submitted by Mrs. Hansa-Mehta for Information of Sub-Commission

[10] Menon Ritu and Kamla Bhasin (1998) Borders and Boundaries: Women in India’s Partition, Zubaan, Delhi.

[11] Butalia Urvashi (1998) The Other Side of Silence: Voices from the Partition of India, Delhi.

[12] Abducted Persons (Recover and Restoration) Act, 1949 Act No. 65 of 1949 https://indiankanoon.org/doc/69929518/

[13] Das Veena (1995) Critical Events: An Anthropological Perspective on Contemporary India. OUP, Delhi.

[14] Scaria Mary and Shalu Nigam (2016) The Founding Mothers: 15 Women Architects of the Constitution of India, Media House, Delhi

[15] Sub Committee on Fundamental Rights, https://www.constitutionofindia.net/committees/sub-committee-on-fundamental-rights/

[16] Rao B Shiva (1967) Framing of the Indian Constitution: Select Documents Vol II p 134

[17] Granville Austin (1966) The Indian Constitution: Corner Stone of the Nation, p 80

[18] Constituent Assembly Debates

[19] Sinha C (2012) Debating Patriarchy: The Hindu Code Bill Controversy in India (1941–56) Oxford University Press, New Delhi

[20] Ambedkar’s Writings, Vol. 14, Part Two, pages.1317-1327

[21] Nigam Shalu (2024) Dowry is a serious Economic Violence: Rethinking Dowry Law in India, Cambridge Scholars Publishing, UK

[22] Nigam Shalu (2019) Women and Domestic Violence Law in India: A Quest for Justice, Routledge, Delhi

[23] Law Commission of India (2018) Consultation Paper on Reform of Family Law, August 31, https://archive.pib.gov.in/documents/rlink/2018/aug/p201883101.pdf

[24] Justice Pius Langa (2006) Transformative Constitutionalism, Stellenbosch Law Review, 3: 351-360

[25] Mehta Pratap Bhanu (2010) What is Constitutional Morality? Seminar, 615 https://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm

[26] Elassar A, S Shelton, and M Allen (2025) `Hands Off!” protestors across US rally against President Donald Trump and Elon Musk, CNN.com, April 6, https://edition.cnn.com/2025/04/05/us/hands-off-protests-trump-musk

[27] Nigam Shalu (2025) Towards an Inclusive Gender Just Code in India: Women’s Rights are Non-Negotiable, We the People Network, Delhi NCR, https://amzn.in/d/e8RI8wy