@article{2016:herklotz:dead_lette,
title = {Dead Letters? The Uniform Civil Code through the Eyes of the Indian Women's Movement and the Indian Supreme Court},
year = {2016},
note = {The proposal for a Uniform Civil Code for India to replace the
existing religious personal law system appears to be the source of a
never-ending debate. It has acted as a catalyst for discourses on
national integration, modernity, secularism and more recently, gender
equality. A panacea for inequality and a key to modernity for its
proponents, the UCC is deemed a threat for those who have accepted
legal pluralism as a reality and strive for other ways to reform
personal laws. Assuming that on a global scale, academics,
international organisations, NGOs and human rights activists move away
from the state-centric legal uniformity approach towards the
acceptance of "normative orderings beyond the state's reach", this
paper poses the question as to whether article 44 of the Indian
Constitution (a Directive Principle of State Policy which urges the
state to introduce a Uniform Civil Code) has lost its meaning. This
question will be assessed by analysing the discourses around the UCC
within the Indian women's movement and the Indian Supreme Court, two
actors that are believed to be avant-garde and striving to achieve an
expansion of rights for vulnerable groups. When comparing the two
protagonists against the background of their engagement with the UCC,
their rhetoric and argumentation is astonishingly different.
Nevertheless, this paper argues that despite their different rhetoric,
both entities have in actual fact accepted legal pluralism. While the
women's movement has turned away from its initial call for a UCC and
now openly questions the feasibility of such a project, the Supreme
Court pays lip service to the constitution in its rhetorical call for
the Code while demonstrating no real action to push the project
further. The court has been reluctant to declare personal laws
unconstitutional and has not exhibited any of the activism it
showcased in cases involving other Directive Principles. Nevertheless,
this does not mean that article 44 is a "dead letter". Its essence -
uniformity and equality - is gradually being carried out through other
means: not through an all-encompassing legislative top-down reform,
but through a gradual step-by-step approach.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {148--174},
author = {Herklotz, Tanja},
volume = {49},
number = {2}
}