A parliamentary panel has reviewed Goa’s uniform civil code, and some of its members feel that there are some peculiar and outdated provisions related to matrimony in it.

What is Goa Civil Code?

• The Goa Civil Code is a set of civil laws that governs all residents of the coastal State irrespective of their religion and ethnicity.
• Citing various positives of the Goa Civil Code, Goa CM had urged that it could be a model for implementing the UCC across the country.

Why in news?

• GCC has come under focus amid a call for the implementation of a Uniform Civil Code (UCC) across the country.
• The UCC features prominently on the present regime’s ideological agenda, and the party had made promises on it in the run-up to the Lok Sabha elections in 2014 and 2019.
• This had an intimidating impact on certain sections of the population whose archaic provisions of personal laws were untouched for the sake of appeasement.

Why Goa model is in news?

• It was observed that a majority of the State’s people are “quite happy and content with it”.
• It is a living example of peaceful implementation of UCC.
• There were, however, some peculiar clauses in the law related to matrimony and division of property, which were outdated and not based on the principle of equality.

What is a Uniform Civil Code?

• A Uniform Civil Code (UCC) is one that would provide for one personal civil law for the entire country.
• This would be applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.

Basis for UCC

• Article 44, one of the Directive Principles of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

UCC vs. Right to Freedom of Religion

1. Article 25 lays down an individual’s fundamental right to religion
2. Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”
3. Article 29 defines the right to conserve distinctive culture

Reasonable restrictions on the Freedom of Religion

• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

Minority Opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organizations, including Hindu organizations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

What about Personal Laws?

• Citizens belonging to different religions and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
• If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• “Personal Laws” are mentioned in the Concurrent List.

Various customary laws

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on registration of marriage among Muslims, laws differ from place to place.
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

 Why need UCC?

• UCC would provide equal status to all citizens
• It would promote gender parity in Indian society.
• UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
• Its implementation would thus support the national integration.

Hurdles to UCC implementation

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment of religious freedom.
• It is often regarded as interference of the state in personal matters of the minorities.
• Experts often argue that the time is not ripe for Indian society to embrace such UCC.

These questions need to be addressed which are being completely ignored in the present din around UCC.

1. Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
2. Secondly, what makes us believe that practices of one community are backward and unjust?
3. Thirdly, has other uniformities been able to eradicate inequalities which diminish the status of our society as a whole?

Way forward

• It should be the duty of the religious intelligentia to educate the community about its rights and obligations based on modern liberal interpretations.
• A good environment for the UCC must be prepared by the government by explaining the contents and significance of Article 44 taking all into confidence.
• Social reforms are not overnight but gradual phenomenon. They are often vulnerable to media evils such as fake news and disinformation.
• Social harmony and cultural fabric of our nation must be the priority.

Also read this comprehensive article:

[Sansad TV] Perspective: Uniform Civil Code

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Favouring the introduction of the Uniform Civil Code (UCC), the Delhi High Court has said the Indian youth need not be forced to struggle with issues arising due to conflicts in various personal laws in relation to marriage and divorce.

Why did the HC promote this idea?

• The modern Indian society was gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating said the Delhi HC.
• The youth of India is often forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.

Shah Bano reference

• In the Shah Bano case, the apex court had said that a common civil code would help the cause of national integration by removing disparate loyalties to laws having conflicting ideologies.
• It had also observed that the State was charged with the duty of securing UCC for the citizens of the country.

What is a Uniform Civil Code?

• A UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Why need UCC?

• UCC would provide equal status to all citizens
• It would promote gender parity in Indian society.
• UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
• Its implementation would thus support the national integration.

Issues with UCC

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment on religious freedom.
• It is often regarded as interference of the state in personal matters of the minorities.
• Experts often argue that the time is not ripe for Indian society to embrace such UCC.

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The Chief Justice of India (CJI) has lauded Goa’s Uniform Civil Code and encouraged “intellectuals” indulging in “academic talk” to visit the state to learn more about it.

Again a controversial, conventional yet contested topic has come at our dispense! Save such articles for general idea esp. for essays.

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Greater role for State

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be the obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on the registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
• Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

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