Law, Pluralism and
Women’s Rights  The construction of
communities within a contentious and binary mode, which took place during the
colonial period, has had a tremendous impact upon South Asian Law and gender
concerns. The polarization between communities has had a political
repercussion, both during colonial and post colonial period and has continued
to mould the family law regime.  The
status of  women within  these ‘personal laws’ and the need for
uniformity and gender justice as the concern of a  modern state has been raised repeatedly while
drafting the modern constitution of South Asian nation states and  later, as an important demand of the women’s
movement in this region.

 

While all South
Asian states face this challenge, the issue has had grave and specific
implications in India.  The debates surrounding the enactment of a
uniform family code (popularly referred to as the Uniform Civil Code or “UCC”)
depict the tension between two Constitutional guarantees??"that of equality and
non-discrimination (under Articles 14 and 15 of the Indian Constitution) on the
one hand, and of religious freedom and cultural plurality (under Articles
25-28) on the other. While the mandate for enacting a UCC (Article 44) is only
a directive principle of state policy (and, therefore, non-justifiable),
equality and multiculturalism are justiciable fundamental rights. It is within
this scheme of seemingly conflicting constitutional claims that one needs to
examine the periodic pronouncements by the Supreme Court urging the State to
enact a Uniform Civil Code (UCC).

 

The gender
concerns project the demand for an all encompassing and uniform code as a magic
wand which will ameliorate the woes and sufferings of Indian women in general
and Muslim women in particular. This concern places gender as a neutral
terrain, distanced from contemporary political processes.  From this point of view, the agency for
change within communities becomes highly suspect.  Minority women are projected as lacking a
voice and an agency either in their own communities or through   the process of   litigation to claim their rights within
existing structures.  It projects the
state intervention in the form of an enactment of a uniform code as the only
option to bestow gender justice upon minority women.

 

The key issues the
course will address are: transfer of 
regulatory power from local communities to the colonial state; the
Constitutional Assembly Debates in the post independent period; the  communal tensions  around the issue of Uniform Civil Code; the women’s
movement and its demand for a uniform law and the influence of international
human rights law; the option of ‘reform from within’ to overcome the communally
politicized demand for the enactment of the Uniform Civil Code; evolving
effective legal strategies to protect the rights of women, from both majority
and minority communities; notions of Uniformity versus Legal Pluralism; the
family law regime in other South Asian countries -  Pakistan, Bangladesh, Sri Lanka and Nepal.