Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
What Ambedkar, KM Munshi said on Uniform Civil Code (UCC)?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Uniform Civil Code (UCC)
Why in the News?
Prime Minister renewed his call for a nationwide Uniform Civil Code (UCC), citing the views of Dr. B.R. Ambedkar and KM Munshi from the Constituent Assembly discussions.
What is Uniform Civil Code (UCC)?
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What KM Munshi Said on UCC
- Support for UCC: During the Constituent Assembly debate on November 23, 1948, KM Munshi advocated for the UCC. He rejected the argument that it would be tyrannical towards minorities.
- Counterarguments: Munshi pointed out that advanced Muslim countries did not regard personal law as untouchable and had implemented civil codes.
- Equality for Women: He emphasized that without a UCC, women’s rights in personal matters (like inheritance and succession) would remain unequal, particularly in Hindu law, which discriminated against women.
- National Unity: Munshi linked UCC with national unity, stating that religion should be restricted to spiritual spheres and that social and civil matters should be regulated uniformly for the progress of the nation.
What Ambedkar Said on UCC
- Support for UCC: Dr. B.R. Ambedkar, in the debate, did not delve into the merits or demerits of a UCC but strongly supported Article 35 (which was later renumbered as Article 44 of the Constitution of India), which called for securing a uniform civil code for citizens.
- Challenging Religious Personal Laws: He criticized the view that Muslim personal law was immutable and noted that regions like the North-West Frontier Province (pre-independence) followed Hindu law for issues like succession.
- State Power and Personal Law: He argued that religion should not govern personal laws and that the State had the right to legislate and reform social systems to address inequities and discriminations in personal laws.
What happened at the end of the Debate?
- Passage of Article 35: After discussions, Article 35 was passed by the Constituent Assembly. This article laid down the directive principle that the State shall endeavor to secure a UCC for the citizens of India.
- Renumbering to Article 44: Later, this article was renumbered as Article 44 in the Indian Constitution. It continues to remain a Directive Principle of State Policy (DPSP), guiding future policies on personal laws and advocating for uniformity in civil matters across religious communities.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Feminist ideology in India’s constitutional discourse
Note4Students
From UPSC perspective, the following things are important :
Mains level: Constitutional Principles and Morality;
Why in the News?
Referring to the framers of India’s Constitution solely as “founding fathers” reflects patriarchal bias, overlooking the pivotal contributions of the “founding mothers” who co-authored its progressive vision like UCC (Uniform Civil Code).
What are the implications of the UCC for women’s rights in a diverse society?
- Equality Across Personal Laws: The UCC aims to replace personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen.
- Legal Protection Against Patriarchal Religious Law: By establishing a uniform framework, the UCC could provide women with equal rights in matters traditionally dominated by patriarchal interpretations of religious laws.
- Cultural Resistance: The implementation of the UCC faces resistance due to India’s diverse cultural landscape. Many communities view it as an infringement on their religious freedoms.
How does feminist constitutionalism challenge traditional interpretations of the Indian Constitution?
- Challenging Patriarchal Narratives: Feminist constitutionalism critiques traditional interpretations that often marginalise women’s contributions and rights.
- For example, while the Indian Constitution guarantees equality, its application has frequently been undermined by personal laws that perpetuate women’s subordination.
- Reinterpreting Constitutional Provisions: Feminist legal theorists argue for a reinterpretation of constitutional provisions to ensure they align with contemporary understandings of gender equality.
- Historical background of the Constitution: The historical context of the Constitution’s framing reveals that while women like Amrit Kaur and Hansa Mehta fought for equal rights, their efforts were often compromised by the need to secure broader political consensus.
- For example, Hansa Mehta and Amrit Kaur strongly advocated for the inclusion of the UCC under the Fundamental Rights to ensure gender equality in personal laws.
What role does historical context play in shaping contemporary gender jurisprudence in India?
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In what ways can feminist legal theory contribute to redefining concepts of justice and equality in India? (Way forward)
- Redefining Justice and Equality: Feminist legal theory advocates for a broader understanding of justice that encompasses social, economic, and cultural dimensions rather than merely legalistic definitions. This perspective encourages policies that address systemic inequalities faced by women.
- Promoting Inclusive Dialogue: By emphasizing women’s voices and experiences in legal discourses, feminist theory fosters inclusive dialogue about rights and justice, challenging dominant narratives that often exclude marginalized groups.
- Encouraging Legislative Reforms: Feminist legal scholars push for legislative reforms that reflect an understanding of gender as a social construct influenced by cultural norms, thereby advocating for laws that protect women’s rights comprehensively across all spheres.
Mains PYQ:
Q Discuss the possible factors that inhibit India from enacting for its citizen a uniform civil code as provided for in the Directive Principles of State Policy. (UPSC IAS/2015)
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
President approves Uttarakhand’s UCC Bill
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Governor's Legislative Powers
Mains level: NA
In the news
- Under Article 201 of the Indian Constitution, the President gave assent to the ‘Uniform Civil Code Uttarakhand 2024’ Bill passed by the Uttarakhand Legislative Assembly, on March 11 2024.
What is the Uniform Civil Code?
- The UCC is mentioned in Article 44 of the Constitution as part of the Directive Principles of State Policy, that the state should work to establish a uniform civil code for all citizens across India.
- However, the Constitution’s framers left it to the government’s discretion to implement the UCC.
- Goa is the only state in India with a UCC, following the Portuguese Civil Code of 1867.
What are the SC Observations?
- The Supreme Court has emphasized the importance of Governors promptly acting on Bills sent to them for assent after passage by Legislative Assemblies.
- Bills should be returned “as soon as possible” to prevent undue delay, with significant constitutional intent behind this directive.
Governor’s Power over State Bills
[I] Article 200:
[II] Article 201:
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Governor’s Discretion
The Governor holds several options upon receiving a Bill:
- Granting Assent.
- Requesting the Assembly to reconsider specific provisions or the entire Bill.
- Obligatory reservation for the President’s consideration, especially in cases posing a threat to the state high court or contravening constitutional provisions, DPSP, national interest, or Article 31A regarding compulsory property acquisition.
- Although within the Governor’s authority, withholding assent is seldom practiced due to its contentious nature.
Committee Recommendations:
(1) Sarkaria Commission (1987):
(2) Punchhi Commission (2010):
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Try this PYQ from CSE Prelims 2016:
Q.Consider the following statements:
- The Chief Secretary in a State is appointed by the Governor of that State.
- The Chief Secretary in a State has a fixed tenure.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uttarakhand UCC is an attempt to control young people’s sexuality
Note4Students
From UPSC perspective, the following things are important :
Prelims level: na
Mains level: implementation of a Uniform Civil Code in Uttarakhand
Central Idea:
The enactment of the Uniform Civil Code (UCC) in Uttarakhand marks a significant milestone in India, yet it has sparked controversy due to provisions requiring the registration of live-in relationships. This move, while aiming to address concerns over crimes against live-in couples, has raised questions about privacy, personal liberty, and the sanctity of informal relationships.
Key Highlights:
- Uttarakhand becomes the first state to implement a Uniform Civil Code under Article 44 of the Constitution.
- The UCC applies uniformly across religions, excluding tribal populations.
- Controversial provisions mandate the registration of live-in relationships, blurring the line between informal unions and formal marriages.
- Critics argue that such provisions infringe upon personal freedom and privacy rights.
- The law requires partners to register their relationship with the registrar and imposes penalties for non-compliance.
- The Code extends maintenance rights to women deserted by their live-in partners, similar to married women.
- Children born in live-in relationships are recognized as legitimate under the proposed law.
- The UCC applies to Uttarakhand residents both within the state and elsewhere in India.
Key Challenges:
- Lack of sufficient discussion and debate in the state legislature and among communities.
- Potential infringement on individual privacy and personal liberty.
- Criminalization of non-registration and stringent penalties may discourage young couples from opting for live-in relationships.
- Misuse of provisions by the registrar and societal interference.
- Potential infantilization of adult women and erosion of the purpose of informal unions.
Main Terms:
- Uniform Civil Code (UCC): A set of laws aimed at standardizing personal laws across different religious communities in India.
- Live-in Relationship: Cohabitation between partners without formal marriage.
- Registration: Formal documentation of a live-in relationship with the registrar.
- Maintenance: Financial support provided by one partner to another after separation or desertion.
- Legitimate Child: A child born to parents in a legally recognized relationship.
- Summary Inquiry: An expedited investigation conducted by the registrar to validate live-in relationships.
Important Phrases:
- “Relationship in the nature of marriage”: Describes the criteria for a live-in relationship under the UCC.
- “Deserted by her live-in partner”: Refers to the condition for claiming maintenance under the proposed law.
- “Summary inquiry”: Procedure conducted by the registrar to validate live-in relationships.
Quotes:
- “Concerns over heinous crimes among live-in couples” – State official citing the rationale behind registration provisions.
- “Protection of youngsters is also important” – Official highlighting the intention to safeguard individuals, particularly women.
- “When women in relationships ‘in the nature of marriage’ complain of domestic violence, they are entitled to claim maintenance” – Highlighting existing legal provisions for protection.
Anecdotes:
- Reports of incidents influencing public opinion during expert committee consultations.
- Concerns raised by parents and elders during public consultations regarding the need for legal protection.
Useful Statements:
- The registration requirement may erode the autonomy of individuals in choosing their relationship structures.
- Existing legal frameworks, such as the Domestic Violence Act, already provide protection for individuals in live-in relationships.
- The provision for summary inquiries by registrars raises concerns about potential misuse and infringement on privacy rights.
Examples and References:
- Instances of crimes against live-in couples cited as driving factors behind registration provisions.
- Comparisons drawn between the UCC’s treatment of live-in relationships and existing marriage laws.
Facts and Data:
- Uttarakhand is the first state to enact a Uniform Civil Code.
- Penalties for non-registration and desertion in live-in relationships include fines and imprisonment.
- The UCC extends maintenance rights to women in live-in relationships.
Critical Analysis:
- The UCC’s registration requirements may contradict the essence of informal unions and infringe upon personal liberties.
- Concerns over misuse of provisions by authorities and societal interference raise questions about the law’s effectiveness and fairness.
- The proposed UCC may fail to address the root causes of crimes against live-in couples and could deter individuals from opting for such relationships.
Way Forward:
- Engage in comprehensive discussions and debates to address concerns and refine provisions of the UCC.
- Ensure that laws prioritize individual freedoms while providing necessary protections.
- Consider alternative approaches to addressing crimes against live-in couples, focusing on prevention and support mechanisms rather than punitive measures.
In conclusion, while the implementation of a Uniform Civil Code in Uttarakhand signifies progress towards legal standardization, provisions regarding the registration of live-in relationships raise complex issues regarding privacy, personal liberty, and the sanctity of informal unions. It is imperative to address these concerns through informed dialogue and thoughtful policymaking to strike a balance between protection and individual autonomy.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Is Polygamy more prevalent among Muslims?
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Laws allowing Polygamy in India
Mains level: Societal implications of Polygamy
Introduction
- Uttarakhand recently passed the Uniform Civil Code (UCC) Bill, 2024, following a comprehensive two-day discussion.
- It aims to establish uniformity in personal laws governing crucial aspects like marriage, divorce, and inheritance across various communities within the state, with the exception of tribal communities.
Polygamy in India
- In India, polygamy is allowed for Muslims under the Muslim Personal Law Application Act (Shariat) of 1937, as construed by the All India Muslim Personal Law Board.
- Polygamy is recognized as a religious practice within the Muslim community, and Muslims have the legal right to enter into polygamous marriages.
Uttarakhand Law: Monogamy Extension to Muslim Community
- Extension of Monogamy Rule: The UCC extends the rule of monogamy to the Muslim community.
- Marriage Conditions: It mandates that neither party entering into marriage should have a living spouse at the time of marriage.
- Alignment with Existing Laws: This aligns with the provisions of the Hindu Marriage Act of 1955, signifying a departure from previous allowances under Muslim personal law.
Limitations in Data Assessment
- Reliance on Census and NFHS: Government data primarily relies on the decadal census and the National Family Health Survey (NFHS), each with its constraints.
- Census Inference: Census data indirectly infer polygamy from the disparity between the number of married men and women. According to the 2011 census, there are 28.65 crore married men in India, compared to 29.3 crore married women, suggesting a potential prevalence of polygamy or migration.
- NFHS Insights: NFHS directly addresses polygamy through its survey questions but represents less than 1% of the total households in India, limiting its scope. The NFHS-5 data revealed polygamy rates highest among:
- Christians (2.1%)
- Muslims (1.9%) and
- Hindus (1.3%)
- IIPS Study: According to a June 2022 study by the International Institute of Population Sciences (IIPS), polygynous marriages decreased from 1.9% in 2005-06 to 1.4% in 2019-21 among the whole population. Buddhists, who reported a 3.8% incidence of polygyny in 2005-06, saw a sharp decline to 1.3% in 2019-21.
Insights from Census and NFHS Data
- Census Inference: Census data indirectly infer polygamy from the disparity between the number of married men and women.
- NFHS Insights: NFHS directly addresses polygamy through its survey questions but represents less than 1% of the total households in India, limiting its scope.
Laws in India banning Polygamy
- Hindu Marriage Act, 1955: This act applies to Hindus, Buddhists, Jains, and Sikhs and declares polygamous marriages as void. Section 11 of the act specifically states that a marriage is void if either party has a living spouse at the time of the marriage.
- Special Marriage Act, 1954: This act allows individuals from different religions or those who do not wish to follow their respective religious laws to marry. Like the Hindu Marriage Act, it also prohibits polygamy under Section 4(1)(i).
- Indian Penal Code, 1860: Sections 494 and 495 of the IPC deal with the offence of bigamy. Section 494 states that marrying again during the lifetime of one’s spouse is illegal and punishable, while Section 495 prescribes punishment for concealing a former marriage.
Judicial Precedents against Polygamy
- Parayankandiyal v. K. Devi & Others (1996): The Supreme Court concluded that monogamous relationships were the standard and ideology of Hindu society, which condemned polygamy. The court emphasized that polygamy was not allowed to become a part of Hindu culture due to the influence of religion.
- State of Bombay v. Narasu Appa Mali (1951): The Bombay High Court ruled that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was not discriminatory. The Supreme Court later affirmed this decision, asserting that state legislatures have the authority to enact measures for public welfare and reforms, even if they conflict with Hindu religious practices.
- Javed & Others v. State of Haryana & Others (2003): The Supreme Court clarified that under Article 25 of the Indian Constitution, freedom of religion is subject to social harmony, dignity, and wellness. While Muslim law allows for polygamous marriages, it is not compulsory, and the court emphasized that religious practices must align with constitutional principles.
Why it should be banned?
- Gender Inequality: It perpetuates unequal treatment of women, often treating them as property and denying them autonomy.
- Exploitation: Polygamous marriages can involve coercion and exploitation, especially of vulnerable individuals.
- Financial Burden: Supporting multiple spouses and children can lead to economic instability and poverty.
- Emotional Impact: Polygamous relationships can cause jealousy, conflict, and emotional distress among spouses and children.
- Social Cohesion: Polygamy can disrupt social harmony, fostering competition and resentment within communities.
- Legal Challenges: Polygamous marriages pose legal complexities related to inheritance, custody, and other matters.
- Health Risks: There are increased risks of domestic violence, sexually transmitted infections, and inadequate healthcare in polygamous households.
Conclusion
- Progressive Legislative Move: Passage of the UCC Bill in Uttarakhand signifies a progressive move towards legal uniformity in personal laws.
- Data Collection Challenges: Assessment of polygamy prevalence underscores the need for comprehensive and accurate data collection methodologies.
- Policy Implications: Addressing these challenges will be pivotal in formulating effective policies and fostering social cohesion in civil law.
Try this PYQ from CSP 2019:
Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice?
(a) Article 19
(b) Article 21
(c) Article 25
(d) Article 29
Post your answers here.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uttarakhand UCC dares Right to Form ‘Intimate Associations’
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 19(c)
Mains level: Regulation of marriage under UCC
Introduction
- The recent enactment of the Uniform Civil Code (UCC) in Uttarakhand, specifically addressing live-in relationships, has sparked debates concerning individual freedom and state intervention.
What are Intimate Associations?
- It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.
- This includes family relationships and other deep, personal connections that are important to individuals.
Uttarakhand UCC on Intimate Associations
- State Oversight: Section 381 of Uttarakhand’s common civil code mandates individuals intending to enter a live-in relationship to submit a “joint statement” before a Registrar, subjecting their intimate associations to state monitoring.
- Regulatory Measures: The Registrar is empowered to conduct an “enquiry” to determine the legitimacy of the relationship, infringing on the privacy of consenting adults.
- Registration Requirement: Couples must obtain a “registration certificate” from the State authority, imposing bureaucratic hurdles on the exercise of personal choice.
- Scope of Freedom: The freedom to choose a partner and enjoy their society is integral to personal autonomy and individual liberty, safeguarded under Article 19(c) of the Constitution.
Major Judgments upholding Intimate Associations
| Key Takeaway | |
| Lata Singh vs. State of UP (2006) | Directed protection for inter-caste and inter-religious couples from harassment and violence. |
| S. Khushboo vs. Kanniammal & Anr. (2010) | Declared sexual relations between consenting adults outside marriage as legal and within the right to privacy. |
| Naz Foundation vs. Government of NCT of Delhi (2009) | Decriminalized consensual homosexual acts between adults, declaring Section 377 of the Indian Penal Code as a violation of rights. |
| Joseph Shine vs. Union of India (2018) | Decriminalized adultery and declared it a violation of the rights to equality, dignity, privacy, and autonomy. |
| Navtej Singh Johar vs. Union of India (2018) | Affirmed the rights of LGBTQ+ individuals to express their sexual orientation and identity with dignity. |
| Shafin Jahan vs. Asokan K.M. (2018) | Upheld the right to marry a person of one’s choice regardless of religion or caste, nullifying the annulment of a Hindu-Muslim marriage. |
| Shakti Vahini vs. Union of India (2018) | Condemned honour killings and violence against inter-caste and inter-religious couples, issuing guidelines for prevention and protection. |
| Supriyo versus Union of India (2023) | Refers to how State should not interfere with the freedom of consenting adults to form legitimate “intimate associations”. |
Critique of State Intervention
- Infringement on Privacy: The UCC’s intrusive provisions undermine the autonomy and privacy of individuals by subjecting their relationships to state scrutiny.
- Restriction on Freedom: Imposing regulatory requirements on live-in relationships contradicts established principles of personal liberty and restricts the exercise of fundamental rights.
- Potential Discrimination: State interference in intimate matters risks perpetuating discrimination and infringing on the rights of consenting adults to form relationships of their choice.
Arguments in Favor of such Associations
- Fundamental Rights: Denying individuals the right to choose their partners violates fundamental rights and equality.
- Union Recognition: Diverse couples lack legal recognition and access to marital rights and protections.
- Promotion of Equality: Legalizing diverse relationships reduces discrimination and fosters inclusivity.
- Positive Impact: Recognizing diverse unions positively impacts mental health and societal acceptance.
- Secularism: Recognizing diverse relationships aligns with democratic principles and equality.
Arguments Against
- Preservation of Norms: Altering traditional marriage norms challenges societal expectations.
- Cultural Preservation: Diverse relationships may conflict with cultural or religious beliefs.
- Social Impact: Concerns exist regarding family structures and societal cohesion.
- Legal Complexity: Legalizing diverse unions may introduce legal uncertainties and disputes.
- Social Stigma: Societal stigma and discrimination persist against diverse relationships.
Way Forward
- Advocacy: Continued advocacy for rights and societal acceptance of diverse relationships.
- Policy Reforms: Push for policy reforms to recognize and protect the rights of individuals.
- Support Services: Offer counseling and support services to address stigma and legal challenges.
- Community Building: Create safe spaces and support networks for individuals in diverse relationships.
Conclusion
- As debates continue, it is essential to strike a balance between regulatory measures and the protection of constitutional freedoms, fostering a society that values diversity and respects individual autonomy.
Try this PYQ:
Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (CSP 2019)
(a) Article 19
(b) Article 21
(c) Article 25
(d) Article 29
Post your answers here.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uttarakhand readies Final UCC draft
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Uniform Civil Code (UCC)
Mains level: Read the attached story
Introduction
- Uttarakhand is taking important steps to implement a Uniform Civil Code (UCC).
- The state has received the final report from a committee, which is a significant move towards fulfilling its commitment to equality and justice.
Tap to read everything about Uniform Civil Code:
Uttarakhand UCC
- Expert Committee: Uttarakhand appointed a committee, led by retired Justice Ranjana Prakash Desai, to draft the UCC.
- In the State Assembly: The UCC report will be presented in the State Assembly on February 5 for discussion. It will go through a detailed review before becoming law.
Key Recommendations
- Gender Equality: The final UCC draft focuses on achieving gender equality and removing unfairness in various areas, including property rights and adoption rules.
- Language Choice: Notably, the UCC draft is around 750 pages long, entirely written in Hindi, without any Urdu or other languages.
- Protection of Tribal Community: The report suggests that the tribal community should not be included in the UCC. Their specific needs and concerns will be addressed separately.
Ensuring Equal Rights
- Ban on Regressive Practices: The UCC draft recommends strong punishments for practices like triple talaq, iddat, and halala, which relate to marriage and divorce in Muslim personal law. It also proposes banning polygamy and polyandry.
- Legalizing Live-In Relationships: The draft suggests making live-in relationships legal, with mandatory registration for such couples.
- Equal Inheritance Rights: Women are granted the same rights as men when it comes to inheritance under the proposed UCC.
- Minimum Marriage Age: The UCC draft suggests setting the minimum age for women’s marriage at 21 years.
Conclusion
- Uttarakhand’s efforts to establish a Uniform Civil Code demonstrate its commitment to ensuring equal rights and justice for all.
- The careful drafting process, inclusive approach, and strong recommendations underscore the state’s determination to promote gender equality and eliminate regressive practices.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
A progressive UCC must protect the child’s best interests
Note4Students
From UPSC perspective, the following things are important :
Prelims level: UCC
Mains level: UCC- Child-centric approach
Central Idea
- In the backdrop of a potential UCC being brought to the fore during a special parliamentary session from September 18 to 22, 2023, it’s crucial to transcend the traditional discourse surrounding polygamy and divorce. The forthcoming UCC must delve deeper into issues beyond these and prioritize the well-being of children in custody.
What is the Uniform Civil Code (UCC)?
- The UCC is a framework aimed at replacing personal laws based on religious customs and traditions with a unified set of civil laws applicable to all citizens of a country, regardless of their religion or background.
- The goal of a UCC is to provide a common set of laws for matters like marriage, divorce, inheritance, and adoption, among others.
- This unified code is intended to promote equality, justice, and uniformity in personal matters while respecting individual rights and cultural diversity.
Reimagining child custody
- The Guardians and Wards Act, 1890, fundamentally prioritizes the child’s welfare when determining custody.
- Within the Hindu Minority and Guardianship Act, 1956, Section 6 asserts the father’s status as the natural guardian, followed by the mother. However, this distinction should not be interpreted as lifetime primacy but rather ‘in the absence of’ the father.
- A more holistic UCC should move beyond this binary.
Exploring Islamic Law
- Intriguingly, custody under Islamic law centers on the child’s rights rather than the parents. The father’s custody right ranks sixth, following the mother, maternal grandmother, paternal grandmother, sister, maternal aunt, and paternal aunt.
- Different schools of thought allocate custody at varying ages or events. Notably, the Hanafi school does not strip the mother of custody upon ceasing to be Muslim.
- Such varied approaches provide a lens for crafting a comprehensive UCC.
Nuanced Issues in Child Custody
- Complexities Beyond Conventional Disputes:
- Child custody disputes involve intricate challenges that go beyond the typical battles between fathers and mothers.
- The complexities arise from scenarios involving biological parents’ rights after adoption and situations related to a biological father accused of rape.
- Favoring biological parents over adoptive ones:
- Courts are increasingly leaning towards granting custody to biological parents, often at the expense of adoptive parents.
- The growing concern is that the child’s best interests might be overlooked in such cases.
- Case of Custody to the Biological Father:
- In a specific case where the Bombay High Court granted custody of an adopted child to the biological father.
- This decision was made despite the biological father facing rape charges that led to the child’s birth.
- Balancing Biological and Adoptive Rights:
- The case underscores the importance of the Uniform Civil Code (UCC) addressing the rights of both biological and adoptive parents.
- The primary focus should be on the child’s well-being and best interests.
- Biological Mother’s Situation:
- Another case involves a 17-year-old biological mother who allegedly eloped with an accused rapist, resulting in the birth of a child.
- Despite the biological mother’s subsequent marriage and decision to surrender the child for adoption, the High Court awarded custody to the biological father.
- A Holistic Approach to Custody Decisions:
- These instances highlight the need for custody decisions to consider not only legal aspects but also the child’s welfare and the well-being of all parties involved.
- Advocates for the UCC to address such nuanced scenarios and ensure that custody decisions are guided by the principle of prioritizing the best interests of the child.
Significance of a Progressive UCC
- A Holistic Approach to Custody:
- A progressive UCC goes beyond superficial changes, addressing custody beyond the father’s role.
- It ensures the “best interests of the child” principle in custody disputes, balancing parental rights.
- Balancing Biological and Adoptive Parents:
- The UCC’s recognition of both biological and adoptive parents prevents favoring one over the other.
- It prioritizes child welfare over parental status.
- Reflecting on a Changing Society:
- A progressive UCC adapts to evolving family dynamics and structures.
- It caters to diverse familial arrangements, avoiding outdated norms.
- Protection Against Discrimination:
- The UCC safeguards individual rights, preventing discrimination based on religion, gender, or background.
- It ensures equal treatment in family matters.
- Empowering Children’s Interests:
- The UCC’s child-centric approach minimizes the adverse effects of custody disputes on children.
- It promotes a healthier environment for their growth.
- Encouraging Equitable Gender Roles:
- A progressive UCC challenges traditional gender roles, empowering individuals to make choices.
- It dismantles biases, promoting gender equality.
- Legal Clarity and Unity:
- Uniform laws reduce legal complexities, providing clarity for the individuals involved.
- They foster a sense of unity by treating all citizens equally.
- Recognition of Modern Family Models:
- LGBTQ+ relationships, single parenthood, and non-traditional families gain legal recognition.
- The UCC acknowledges diverse family structures.
- Enhancing Adoption and Surrogacy Regulations:
- A progressive UCC offers comprehensive guidelines for adoption and surrogacy.
- It safeguards the rights and responsibilities of all parties involved.
Conclusion
- As the horizon of legal reform broadens, a child-centric approach should be at the heart of the UCC. The UCC should not only evolve with changing societal dynamics but also serve as a testament to the nation’s commitment to nurturing the best interests of its children.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
The case for a Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 44
Mains level: Uniform Civil Code analysis
Central Idea
- The constitutional provision for a uniform civil code (UCC) necessitates careful deliberation due to its intricate nature and prevailing misgivings. Regrettably, it is often discussed superficially and without regard for its underlying logic and rationale. Hence, a reality check is imperative to comprehend the true intentions of this constitutional mandate.
Relevance of the topic
The debate around UCC has gained momentum. Discussion over its impact on socioeconomic dynamics of the country is crucial.
Also Recently, The 22nd Law Commission of India has sought fresh suggestions from various stakeholders, including public and religious organisations, on the Uniform Civil Code (UCC).
Background
- Constitutional Provision: The constitutional provision for a uniform civil code (UCC) is outlined in Article 44 of the Indian Constitution. It falls under Part IV, which comprises the Directive Principles of State Policy. These principles serve as guiding principles for the governance of the country.
- Directive Principles of State Policy: The Directive Principles of State Policy are not enforceable by the courts but hold significant importance in shaping legislation and government policies. Article 37 of the Constitution states that although these principles are not legally binding, they are fundamental in the governance of the country.
- Gradual Implementation: Article 44 emphasizes the gradual implementation of a uniform civil code. It directs the State to endeavour to secure a uniform civil code, indicating that the goal is to be pursued over time through suitable amendments to existing laws and the enactment of new ones.
- Amendments and Enactments: Over the years, several laws of general applicability have been enacted to address specific issues and promote uniformity to some extent. Examples include the Special Marriage Act 1954, Dowry Prohibition Act 1961, Foreign Marriage Act 1969, and laws related to maintenance, domestic violence, child marriage, and the welfare of parents and senior citizens.
How the implementation of UCC will impact the society?
- Equality and Justice: One of the primary objectives of the UCC is to establish equality and justice in matters of personal laws. By ensuring a uniform set of laws applicable to all citizens, irrespective of their religious affiliations, the UCC can eliminate discrimination based on religion and promote equal rights and opportunities for all individuals.
- Gender Empowerment: Many personal laws in India exhibit gender biases and inequalities. The UCC aims to address these disparities and promote gender justice. By providing equal rights and protections to individuals of all genders, the UCC can contribute to empowering women and ensuring their social, economic, and legal equality.
- Social Cohesion: The UCC can foster social cohesion by promoting a sense of unity and commonality among diverse religious communities. By removing the perceived preferential treatment of one religious’ community over another in personal laws, the UCC can bridge religious divides and strengthen social harmony.
- Simplification and Certainty: The existence of multiple personal laws can lead to legal complexities and confusion. Implementing the UCC streamlines and harmonizes various family laws, providing legal certainty and simplifying legal procedures. This simplification can benefit individuals and families by reducing ambiguity and ensuring consistent application of laws across the country.
- Modernization and Adaptation: Personal laws in India are often rooted in traditional customs and practices that may no longer align with modern societal values and needs. The UCC provides an opportunity to modernize and adapt family laws to reflect contemporary realities. It allows for the incorporation of progressive principles and practices that are more in line with the aspirations of individuals and families in today’s society.
- Secularism and National Identity: The UCC aligns with the secular fabric of India, emphasizing equal treatment under the law irrespective of religious beliefs. Its implementation reinforces the secular principles of the Indian Constitution and promotes a sense of national identity that transcends religious divisions.
- Legal Uniformity: The UCC establishes legal uniformity by bringing all citizens under the same set of laws for personal matters. This can enhance the effectiveness and efficiency of the legal system, as well as facilitate ease of understanding and compliance for individuals and legal professionals.
Existing Flaws in personal laws
- Gender Inequalities: Many personal laws exhibit gender biases and inequalities. For example, in certain inheritance laws, the rights of women are limited based on their gender, resulting in unequal distribution of property. Similarly, provisions related to marriage, divorce, maintenance, and guardianship often have discriminatory aspects that disadvantage women.
- Religious Biases: Personal laws are specific to different religious communities and are influenced by religious customs and traditions. While these laws aim to protect the religious rights of individuals, they can also perpetuate biases based on religious identity. This can lead to differential treatment and unequal rights for individuals belonging to different religious communities.
- Complex and Contradictory Provisions: With multiple personal laws in existence, there is a lack of uniformity and consistency in family law matters. The presence of contradictory provisions across different laws creates confusion and legal complexities. Individuals and families often face challenges in navigating the legal system due to these inconsistencies.
- Outdated Practices: Some personal laws still incorporate outdated practices and customs that may not align with contemporary societal values and principles of equality. These practices can perpetuate inequality and hinder progress towards a more equitable and inclusive society.
- Lack of Uniformity: The absence of a uniform civil code results in different personal laws being applicable to individuals based on their religious identity. This lack of uniformity can lead to differential treatment and unequal rights, undermining the principles of equality and justice.
- Inconsistencies in Adoption Laws: Adoption laws can vary based on religious personal laws. For example, in certain personal laws, a man may require his wife’s consent for adoption, while in others, this requirement may not exist. Such inconsistencies create confusion and challenges in the adoption process.
Misconceptions surrounding UCC
- Targeting Muslim Law: One common misconception is that the UCC is solely aimed at doing away with Muslim personal law. This perception has created a misbelief that the UCC is intended to undermine or replace Islamic practices. However, the article clarifies that the objective of the UCC is to establish uniformity in family laws across all communities, not just Muslim law.
- Archaic and Anti-Women Perception: Another misconception is that Muslim personal law is seen as archaic and anti-women. This misperception overlooks the fact that Islamic law, in its authentic form, recognizes the sanctity of family life and provides grounds for divorce based on irretrievable breakdown. The article points out that distortions and misinterpretations have obscured the true essence of Islamic law.
- Exclusively Hindu Law Acts: Some proponents of the UCC view the four Hindu law Acts of 1955-56 as the ideal model. However, this perception disregards the fact that these Acts initially contained provisions conflicting with constitutional ideals of religious equality and gender justice. Recent amendments have improved the situation, but there is still room for further progress.
- Neglecting Local Laws: There are misconception that the UCC ignores certain local laws protected by parliamentary legislation or constitutional safeguards. This perception arises from a lack of consideration for the closing words of Article 44, which state that the UCC should be applicable “throughout the territory of India.” It is important to acknowledge and address the diversity of customary and local laws in the process of implementing a uniform code.
- Lack of Progress: There is a misconception that there has been no progress towards a uniform civil code. However, the article highlights the enactment of several laws of general application, amendments to personal laws, and the ongoing efforts to bring about gradual uniformity in family laws. These advancements demonstrate progress in the direction of a UCC.
Way Forward
- Inclusive and Consultative Approach: The process of formulating a UCC should involve an inclusive and consultative approach. It is important to engage with a diverse range of stakeholders, including legal experts, social reformers, religious leaders, community representatives, and the public at large. This ensures that multiple perspectives are considered and the concerns of different communities are addressed.
- Drafting a Comprehensive Code: A representative group of acclaimed social reformers and legal academics should collaborate to draft a comprehensive UCC. This draft should be free from religious discrimination and gender inequality, encompassing the principles of equality, justice, and modern societal values.
- Addressing Concerns and Misconceptions: There should be efforts to address the concerns and misconceptions surrounding the UCC. Clear communication and public discourse can help dispel misconceptions and create a better understanding of the objectives and benefits of a uniform civil code. Engaging with religious leaders and communities in a respectful manner can also help alleviate apprehensions.
- Gradual Implementation: Given the complexity of personal laws and the diversity of the Indian society, the implementation of the UCC should be gradual. It should involve phased reforms, allowing for a smooth transition and ensuring that the necessary legal infrastructure and awareness are in place. This approach acknowledges the need for careful consideration and adaptation to specific social and cultural contexts.
- Legislative Process: The draft of the UCC should be presented to the legislature for discussion, debate, and refinement. The involvement of lawmakers in the legislative process ensures democratic scrutiny and allows for amendments based on the inputs and recommendations of various stakeholders.
- Sensitization and Awareness: Public awareness campaigns and sensitization programs should be conducted to educate the public about the UCC, its objectives, and its potential benefits. This can help build a consensus and generate support among the masses, promoting a smooth implementation process.
- Judicial Review: The UCC, once enacted, may face legal challenges. The judiciary’s role is crucial in interpreting and upholding the constitutionality of the UCC. Judicial review ensures that the code is consistent with the fundamental rights enshrined in the Indian Constitution and maintains a fair balance between personal freedom and societal interests.
Conclusion
- Given the intricacies surrounding the constitutional provision for a uniform civil code, it is crucial to exercise caution and clarity while discussing its aims, objects, and means of implementation. The progress made thus far, as well as the existing flaws in family laws, indicate the need for gradual reforms.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
India needs a Uniform Civil Code: PM
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Uniform Civil Code (UCC)
Mains level: Read the attached story
Central Idea
- Immediately after returning from the US, PM Modi said that India needed a Uniform Civil Code (UCC) as the country could not run with the dual system of “separate laws for separate communities”.
- This has raised the level of speculations among the left liberal groups in India.
Key statements made by PM
- Abolishing Dual System: PM highlighted the impracticality of maintaining separate laws for different communities and emphasized the need for a unified legal framework.
- Discerning Political Manipulation: He urged the Muslim community to be vigilant about political parties that exploit their interests for personal gains.
- Constitutional Provisions: He emphasized that the Constitution already upholds the principle of equal rights for all citizens.
- Opposition’s Exploitation: He criticized political opponents for using Muslims, particularly Pasmanda Muslims, to further their own interests at the expense of the community’s well-being.
What is Uniform Civil Code (UCC)?
- The UCC aims to establish a single personal civil law for the entire country, applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption, etc.
- The idea of a UCC has a long history in India and has been a topic of debate and discussion.
- This article explores the basis for a UCC, its timeline, the conflict with the right to freedom of religion, minority opinions, challenges to implementation, and the way forward.
Basis for UCC: Article 44
- Article 44 of the Directive Principles envisions the state’s endeavor to secure a UCC for all citizens throughout the country.
- While DPSP of the Constitution are not enforceable by courts, they provide fundamental principles for governance.
Personal Laws and UCC: A Timeline
- Colonial Period: Personal laws were first framed for Hindu and Muslim citizens during the British Raj.
- 1940: The idea of a UCC was proposed by the National Planning Commission, examining women’s status and recommending reforms for gender equality.
- 1947: UCC was considered as a fundamental right during the framing of the Constitution by Minoo Masani, Hansa Mehta, Amrit Kaur, and Dr. B.R. Ambedkar.
- 1948: The Constitution Assembly debated Article 44, which emphasizes the implementation of uniform civil laws as a state duty under Part IV.
- 1950: Reformist bills were passed, granting Hindu women the right to divorce and inherit property and outlawing bigamy and child marriages.
- 1951: Ambedkar resigned when his draft of the Hindu Code Bill was stalled in Parliament.
- 1985: Shah Bano case highlighted the need for a UCC and the rights of divorced Muslim women.
- 1995: Sarla Mudgal v. Union of India reiterated the urgency of a UCC for national integration and removing contradictions.
- 2000: The Supreme Court, in Lily Thomas v. Union of India, stated it could not direct the government to introduce a UCC.
- 2015: The apex court refused to mandate a decision on implementing a UCC.
- 2016: The Triple Talaq debate gained attention, leading to the ruling of its unconstitutionality in 2017.
UCC vs. Right to Freedom of Religion
- Article 25: Guarantees an individual’s fundamental right to religion.
- Article 26(b): Upholds the right of religious denominations to manage their own affairs.
- Article 29: Protects the right to conserve distinctive culture.
- Reasonable restrictions can be imposed on freedom of religion for public order, health, morality, and other provisions related to fundamental rights.
Minority Opinion in the Constituent Assembly
- Some members sought to exempt Muslim Personal Law from state regulation, arguing against interference in personal laws based on secularism.
- Concerns were raised about uniformity in a diverse country like India and the potential for opposition from different communities.
- Gender justice was not a significant focus during these debates.
Enacting and Enforcing UCC
- Fundamental rights are enforceable in courts, while Directive Principles have varying degrees of enforceability.
- The wording of Article 44 suggests a lesser duty on the state compared to other Directive Principles.
- Fundamental rights are considered more important than Directive Principles, and a balance between both is crucial.
Need for UCC
- Multiple personal laws: Different religions and denominations follow distinct property and matrimonial laws, hindering national unity.
- Absence of exclusive jurisdiction: Such thing in the Union List implies that the framers did not intend to have a UCC.
- Customary laws are discriminatory: These laws also vary among different communities and regions.
Why is UCC Necessary?
- Harmonizing equality: UCC would provide equal status to all citizens, promote gender parity, and align with the aspirations of a liberal and young population.
- Promote fraternity: Implementation of UCC would support national integration.
Hurdles to UCC Implementation
- Opposition from religious factions: The diverse religious and cultural landscape of India poses practical difficulties.
- Minority resistance: UCC is often perceived by minorities as an encroachment on religious freedom and interference in personal matters.
- Societal preparedness: Experts argue that Indian society may not be ready to embrace a UCC at present.
Unaddressed Questions
- Ignoring diversities: Maintaining the essence of diverse components of society while achieving uniformity in personal laws.
- One size fits all: The assumption that practices of one community are backward or unjust.
- Uniqueness of diversity: The effectiveness of uniformity in eradicating societal inequalities.
Way Forward
- Theological education: Religious intelligentsia should educate their communities about rights and obligations based on modern interpretations.
- Open discussion: The government should create an environment conducive to UCC by explaining Article 44’s contents and significance while considering different perspectives.
- Gradual introduction: Social reforms should be gradual, addressing concerns such as fake news and disinformation.
- Prioritizing social harmony: Preserving the cultural fabric of the nation is essential.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uniform Civil Code(UCC): Law Commission’s Intention to Gather Public Opinions
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Uniform Civil Code, Law commission
Mains level: 22nd Law Commission of India, Development over the Uniform Civil Code and recommendations by 21st Law Commission,
Central Idea
- The 22nd Law Commission of India has recently announced its intention to gather public opinions and engage with recognized religious organizations regarding the Uniform Civil Code (UCC). This move comes as a result of the previous 21st Law Commission’s consultation paper on the Reform of Family Law, which stated that the formulation of a UCC is not necessary or desirable at the present stage.
All you need to know about Law Commission of India
- Non-statutory body: The Law Commission of India is a non-statutory body and is constituted by a notification of the Government of India. It plays a crucial role in legal reforms and the development of the Indian legal system.
- Establishment: The first Law Commission was established in 1955, and since then, there have been several subsequent commissions. The Law Commission operates under the Law Commission Act, 1956.
- Composition: The Commission consists of a chairman, who is typically a retired judge of the Supreme Court of India or a retired Chief Justice of a High Court, and other members, including legal experts and scholars.
- Role and Functions: The primary function of the Law Commission is to examine and review the existing laws of the country, suggest reforms, and make recommendations for new legislation. It also conducts research, studies, and consultations on various legal issues referred to it by the government.
- Research and Reports: The Commission conducts in-depth research on legal matters, examines specific subjects, and prepares detailed reports with recommendations for legal reforms. These reports cover a wide range of topics, including civil and criminal laws, family laws, constitutional law, administrative law, and other legal areas.
- Consultation with Stakeholders: The Law Commission seeks public opinion and engages with stakeholders, including government departments, judiciary, legal professionals, academic institutions, and civil society organizations, to gather diverse perspectives on legal issues and proposed reforms.
- Implementation of Recommendations: The government reviews the reports and recommendations of the Law Commission and decides on their implementation. While the Commission’s recommendations are not binding, they often influence legislative changes and legal reforms.
- Timeframe and Term: Each Law Commission has a specific term, usually three years, during which it functions. At the end of the term, a new Commission may be constituted.
- Impact and Significance: The Law Commission’s recommendations and reports have played a crucial role in shaping Indian laws and legal reforms. Many landmark legislations and amendments have been based on the Commission’s suggestions.
- Relationship with Judiciary and Parliament: The Law Commission often collaborates with the judiciary, seeking inputs from judges and addressing legal issues raised in court cases. It also interacts with Parliament, which may refer specific matters to the Commission for its expert opinion.
- Recent Developments: The Law Commission continues to address contemporary legal challenges, such as reforms in family laws, criminal justice system, electoral laws, and other areas. It adapts to changing societal needs and legal developments to provide relevant recommendations
What is Uniform Civil Code (UCC)?
- The UCC aims to establish a single personal civil law for the entire country, applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption, etc.
- The idea of a UCC has a long history in India and has been a topic of debate and discussion.
- This article explores the basis for a UCC, its timeline, the conflict with the right to freedom of religion, minority opinions, challenges to implementation, and the way forward.
What is the latest development regarding 22nd Law Commission and UCC?
- The 22nd Law Commission of India has expressed its intention to gather public opinions and engage with recognized religious organizations regarding the Uniform Civil Code (UCC).
- The Commission aims to solicit views from the public as well as religious organizations on the topic of the UCC.
- By actively seeking public opinions and engaging with religious organizations, the 22nd Law Commission aims to gather diverse perspectives on the UCC. This approach recognizes the significance of public input and the need to consider the viewpoints of various religious groups that may be affected by the implementation of a Uniform Civil Code.
What are the concerns associated with the process?
- Opposition from Religious Organizations: Religious organizations may have differing views on the UCC, and some may oppose the idea altogether. Engaging with these organizations may lead to resistance and challenges in reaching a consensus on the implementation of a Uniform Civil Code.
- Potential Polarization: The UCC is a sensitive and contentious issue in India due to its potential impact on religious personal laws. Engaging with religious organizations and seeking public opinions may further polarize society along religious lines, leading to heightened tensions and divisions.
- Influence of Traditional Practices: Religious organizations may advocate for the preservation of traditional practices and oppose any reforms or changes proposed by the UCC. This can hinder the progress of gender equality and other social reforms that the UCC aims to achieve.
- Difficulty in Reaching a Consensus: Gathering public opinions from a diverse population with varying viewpoints can make it challenging to reach a consensus on the implementation of the UCC. Conflicting opinions and interests may hinder the formulation of comprehensive and effective recommendations.
- Delay in Decision-Making: Engaging with multiple stakeholders, including the public and religious organizations, can prolong the decision-making process. This delay may impede the timely implementation of reforms and the realization of the goals set by the UCC.
- Dilution of Gender Justice: In some cases, religious organizations may advocate for the preservation of discriminatory practices against women in the name of religious freedom or cultural practices. This can hinder efforts to establish gender justice and equality, which are crucial objectives of the UCC.
Pragmatic recommendations put forth by the 21st Law Commission
- Gender Justice and Uniformity of Rights: The Commission emphasized that family laws of every religion should be reformed to ensure gender justice. It advocated for the uniformity of rights rather than imposing uniform laws, recognizing the diversity of cultural practices while safeguarding equality.
- Economic Rights of Women: The Commission highlighted the need to address the economic rights of women. It recommended the abolition of the Hindu coparcenary system, which was seen as being used for tax evasion. The Commission also proposed reforms in inheritance laws across religions to ensure fair and equal distribution of property.
- No-Fault Divorce and Division of Matrimonial Property: The Commission suggested the introduction of “no-fault divorce” in all personal laws, simplifying the process of divorce and reducing the adversarial nature of divorce proceedings. It also recommended that all property acquired after marriage should be divided between the spouses upon dissolution of the marriage, ensuring equitable distribution.
- Muslim Law of Inheritance and Succession: The Commission recommended the codification of the Muslim law of inheritance and succession, aiming to establish uniform provisions for Shias and Sunnis. It advocated for inheritance based on proximity to the deceased rather than preference to male agnates, promoting gender equality in inheritance rights.
- Polygamy and Conversion: The Commission commented on the issue of polygamy and conversion, noting that while polygamy is permitted within Islam, it is rare among Indian Muslims. It highlighted instances of individuals from other religions misusing conversion to Islam for the sole purpose of solemnizing another marriage. This observation supported the need for a Uniform Civil Code.
- Best Interest of the Child: The Commission stressed that courts should prioritize the principle of the “best interest of the child” in matters of custody and guardianship. This approach ensures that decisions related to child custody are made based on what is most beneficial for the child’s well-being and development.
- Parsi and Christian Women’s Rights: The Commission addressed the rights of Parsi and Christian women, recommending reforms in their personal laws to ensure gender equality and protection of women’s rights.
Conclusion
- The debate surrounding the Uniform Civil Code continues to evolve, with the 22nd Law Commission seeking public views and engaging religious organizations. However, it is crucial to consider the pragmatic recommendations made by the 21st Law Commission. Balancing diversity and equality remain a significant challenge, and any future actions regarding the UCC should strive to protect the rights of all individuals while recognizing the importance of cultural differences in a diverse society.
Also read:
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Freedom of Religion
Mains level: Read the attached story
Central Idea: The 22nd Law Commission of India has sought fresh suggestions from various stakeholders, including public and religious organisations, on the Uniform Civil Code (UCC).
What is Uniform Civil Code (UCC)?
- The UCC aims to establish a single personal civil law for the entire country, applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption, etc.
- The idea of a UCC has a long history in India and has been a topic of debate and discussion.
- This article explores the basis for a UCC, its timeline, the conflict with the right to freedom of religion, minority opinions, challenges to implementation, and the way forward.
Basis for UCC: Article 44
- Article 44 of the Directive Principles envisions the state’s endeavor to secure a UCC for all citizens throughout the country.
- While DPSP of the Constitution are not enforceable by courts, they provide fundamental principles for governance.
Personal Laws and UCC: A Timeline
- Colonial Period: Personal laws were first framed for Hindu and Muslim citizens during the British Raj.
- 1940: The idea of a UCC was proposed by the National Planning Commission, examining women’s status and recommending reforms for gender equality.
- 1947: UCC was considered as a fundamental right during the framing of the Constitution by Minoo Masani, Hansa Mehta, Amrit Kaur, and Dr. B.R. Ambedkar.
- 1948: The Constitution Assembly debated Article 44, which emphasizes the implementation of uniform civil laws as a state duty under Part IV.
- 1950: Reformist bills were passed, granting Hindu women the right to divorce and inherit property and outlawing bigamy and child marriages.
- 1951: Ambedkar resigned when his draft of the Hindu Code Bill was stalled in Parliament.
- 1985: Shah Bano case highlighted the need for a UCC and the rights of divorced Muslim women.
- 1995: Sarla Mudgal v. Union of India reiterated the urgency of a UCC for national integration and removing contradictions.
- 2000: The Supreme Court, in Lily Thomas v. Union of India, stated it could not direct the government to introduce a UCC.
- 2015: The apex court refused to mandate a decision on implementing a UCC.
- 2016: The Triple Talaq debate gained attention, leading to the ruling of its unconstitutionality in 2017.
UCC vs. Right to Freedom of Religion
- Article 25: Guarantees an individual’s fundamental right to religion.
- Article 26(b): Upholds the right of religious denominations to manage their own affairs.
- Article 29: Protects the right to conserve distinctive culture.
- Reasonable restrictions can be imposed on freedom of religion for public order, health, morality, and other provisions related to fundamental rights.
Minority Opinion in the Constituent Assembly
- Some members sought to exempt Muslim Personal Law from state regulation, arguing against interference in personal laws based on secularism.
- Concerns were raised about uniformity in a diverse country like India and the potential for opposition from different communities.
- Gender justice was not a significant focus during these debates.
Enacting and Enforcing UCC
- Fundamental rights are enforceable in courts, while Directive Principles have varying degrees of enforceability.
- The wording of Article 44 suggests a lesser duty on the state compared to other Directive Principles.
- Fundamental rights are considered more important than Directive Principles, and a balance between both is crucial.
Need for UCC
- Multiple personal laws: Different religions and denominations follow distinct property and matrimonial laws, hindering national unity.
- Absence of exclusive jurisdiction: Such thing in the Union List implies that the framers did not intend to have a UCC.
- Customary laws are discriminatory: These laws also vary among different communities and regions.
Why is UCC Necessary?
- Harmonizing equality: UCC would provide equal status to all citizens, promote gender parity, and align with the aspirations of a liberal and young population.
- Promote fraternity: Implementation of UCC would support national integration.
Hurdles to UCC Implementation
- Opposition from religious factions: The diverse religious and cultural landscape of India poses practical difficulties.
- Minority resistance: UCC is often perceived by minorities as an encroachment on religious freedom and interference in personal matters.
- Societal preparedness: Experts argue that Indian society may not be ready to embrace a UCC at present.
Unaddressed Questions
- Ignoring diversities: Maintaining the essence of diverse components of society while achieving uniformity in personal laws.
- One size fits all: The assumption that practices of one community are backward or unjust.
- Uniqueness of diversity: The effectiveness of uniformity in eradicating societal inequalities.
Way Forward
- Theological education: Religious intelligentsia should educate their communities about rights and obligations based on modern interpretations.
- Open discussion: The government should create an environment conducive to UCC by explaining Article 44’s contents and significance while considering different perspectives.
- Gradual introduction: Social reforms should be gradual, addressing concerns such as fake news and disinformation.
- Prioritizing social harmony: Preserving the cultural fabric of the nation is essential.
Conclusion
- UCC is a complex issue that requires careful consideration of religious, cultural, and societal perspectives.
- Balancing the unity and diversity of India is crucial, as the implementation of a UCC should aim to provide equal rights and opportunities while respecting the distinct identities of different communities.
- Education, dialogue, and a gradual approach are necessary to achieve consensus and promote social harmony in the country.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uniform Civil Code, Identity politics and the gender equality
Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Uniform Civil Code analysis
Context
- Once again there is a clamour to replace diverse personal laws with a Uniform Civil Code (UCC), applicable to all Indians, irrespective of religion, gender or caste. Some states (for example, Uttarakhand) are already drafting one.
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 endeavor 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.
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Inheritance laws at present
- Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA);
- Muslims by the Muslim Personal Law (Shariat) Application Act, 1937;
- Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently), and
- Tribal groups are still subject to custom.
What makes unification difficult?
- Distinction in Hindu inheritance laws: Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction.
- Within Hindu law itself, states diverge: Kerala abolished joint family property altogether in 1976, but other states retained it, and matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus. Even among the latter, Hindus historically governed by Dayabhagha (West Bengal and Assam) differ from those in the rest of India who were governed historically by Mitakshara.
- unrestricted right to will: The right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property; and Sunni and Shia Muslims differ on who can get such property and with whose consent.
- Complex gender equal laws specifically in Muslims: for while the inheritance laws of Hindus, Christians and Parsis are largely gender equal today, under Muslim personal law, based on the Shariat, women’s shares are less than men’s, generically. Being embedded in the Koran, this complex structure of rules leaves little scope for reform towards gender equality.
- Land is treated differently from other property: The HSAA 2005, for instance, deleted the clause which discriminated against women in agricultural land, but the 1937 Shariat Act governing Muslims continues to exclude agricultural land from its purview, leaving a major source of gender inequality intact. Although Tamil Nadu, Andhra Pradesh and Kerala later amended the Shariat Act to include agricultural land, in many other states, landed property is still subject to tenurial laws which exclude Muslim women from inheriting it, contrary to their rights under the Shariat.
- Social justifications on who deserves to inherit differ: Hindus emphasise sapinda (“shared body particles” in Mitakshara and religious efficacy in Dayabhaga); other communities privilege blood or marital ties; and yet others favour proximity of children’s post-marital residence to provide parents care in old age.
Main concern: Deflection from the original aim of Gender equality
- Today, the UCC debate has become enmeshed with identity politics, deflecting it from the original aim of gender equality. And the mingling of legal reform with religious identity has sharpened political divisiveness.
Answer probably lies in: The discussions among women’s groups in the 1990s
- Encourage each religious community to pursue its own reform for gender equality.
- Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood.
- Constitute a gender-equal civil code applicable to all citizens without option, based on the constitutional promise of gender equality, rather than on religious decree or custom.
Conclusion
- For a start, rather than one code covering inheritance, marriage, etc., we should discuss each separately. On inheritance, which is the most complex, a secular law based on constitutional rights will clearly go the farthest towards gender equality. Whether this is possible in today’s divisive political environment remains an open question. But at least we should restart the conversation.
Mains question
Q. What is Uniform civil code? Highlight some of the major points which makes the unification difficult.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
States can enact laws on Uniform Civil Code (UCC): Union Law Minister
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Read the attached story
Mains level: Uniform Civil Code
States are empowered to enact personal laws that decide issues such as succession, marriage and divorce, in their endeavor to secure a uniform civil code (UCC), Law Minister informed the Rajya Sabha.
What did Law Minister say?
- Personal laws such as intestacy and succession; wills; joint family and partition; marriage and divorce, relate to Entry 5 of List-III-Concurrent List of the Seventh Schedule to the Constitution.
- Hence, the States are also empowered to legislate upon them.
- And many states are announcing the implementation of UCC in the election manifestos.
What is a Uniform Civil Code (UCC)?
- A 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
- 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
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.
Enacting and Enforcing UCC
- Fundamental rights are enforceable in a court of law.
- While Article 44 uses the words “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 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 bed-rock 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.
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.
- Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
- Secondly, what makes us believe that practices of one community are backward and unjust?
- 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.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Gujarat announces panel to study Uniform Civil Code (UCC)
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Uniform Civil Code
Mains level: Read the attached story
The Gujarat government has moved a proposal to constitute a committee to evaluate all aspects of implementing the Uniform Civil Code (UCC).
What is a Uniform Civil Code (UCC)?
- A 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.
Personal Laws And Uniform Civil Code: Timeline
# British period
During the British Raj, Personal laws were first framed mainly for Hindu and Muslims citizens.
# Start of 20th Century
In the beginning of the twentieth century, the demand for a uniform civil code was first put forward by the women activists. The objective behind this demand was the women’s rights, equality and secularism.
# 1940 – The Idea of Uniform Civil Code is born
The idea of Uniform Civil Code was tabled by the National Planning Commission (NPC) appointed by the Congress. There was a subcommittee who was to examine women’s status and recommends reforms of personal law for gender equality.
# 1947 – Question of UCC as a Fundamental Right
UCC was sought to be enshrined in the Constitution of India as a fundamental right by Minoo Masani, Hansa Mehta, Amrit Kaur and Dr. B.R Ambedkar.
# 1948 – Constitution Assembly debated UCC
Article 44 of the Indian Constitution i.e. Directive Principles of State Policy sets implementation of uniform civil laws which is the duty of the state under Part IV.
# 1950 – Reformist Bill passed
Reformist bills were passed which gave the Hindu women the right to divorce and inherit property. Bigamy and child marriages are outlawed. Such reforms were resisted by Dr. Rajendra Prasad.
# 1951 – Dr. Ambedkar Resigns
Dr. Ambedkar resigned from the cabinet in 1951 when his draft of the Hindu Code Bill was stalled by the Parliament.
# 1985 – Shah Bano Case
In this case, a divorced Muslim woman was brought within the ambit of Section 125 of Code of Criminal Procedure, 1973 by the Supreme Court in which it was declared by the Apex court that she was entitled for maintenance even after the completion ofiddatperiod.
# 1995- Sarla Mudgal v. Union of India
In this case, Justice Kuldip Singh reiterated the need for the Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing contradictions based on ideologies. Therefore, the responsibility entrusted on the State under Article 44 of the Constitution whereby a Uniform Civil Code must be secured has been urged by the Supreme Court repeatedly as a matter of urgency.
# 2000 – Supreme Court advocates UCC
The case of Lily Thomas v. Union of India (2000),where the Supreme Court said it could not direct the centre to introduce a UCC.
# 2015 – The Debate lives through
The apex court refused to direct the government to take a decision on having a UCC.
# 2016 – Triple Talaq Debate
When PM asked the Law Commission to examine the issue.
# 2017 – Ruling of the Triple Talaq case
Triple Talaq (Talaq -e- biddat) was declared unconstitutional on August 22, 2017.
UCC vs. Right to Freedom of 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
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.
Enacting and Enforcing UCC
- Fundamental rights are enforceable in a court of law.
- While Article 44 uses the words “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 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 bed-rock 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.
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.
- Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
- Secondly, what makes us believe that practices of one community are backward and unjust?
- 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.
Conclusion
- The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
- This provision is provided to effect the integration of India by bringing communities on a common platform on matters which are at present governed by diverse personal laws.
- Hence UCC should be enforced taking into confidence all the sections of Indian society.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: UCC
Mains level: Need for UCC
The expert committee formed by the Uttarakhand government to examine ways for the implementation of a Uniform Civil Code (UCC) has launched a website, seeking public opinion on the plan.
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 Uniform Civil Code
- 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.
Personal Laws And Uniform Civil Code: Timeline
# British period
During the British Raj, Personal laws were first framed mainly for Hindu and Muslims citizens.# Start of 20th Century
In the beginning of the twentieth century, the demand for a uniform civil code was first put forward by the women activists. The objective behind this demand was the women’s rights, equality and secularism.# 1940 – The Idea of Uniform Civil Code is born
The idea of Uniform Civil Code was tabled by the National Planning Commission (NPC) appointed by the Congress. There was a subcommittee who was to examine women’s status and recommends reforms of personal law for gender equality.# 1947 – Question of UCC as a Fundamental Right
UCC was sought to be enshrined in the Constitution of India as a fundamental right by Minoo Masani, Hansa Mehta, Amrit Kaur and Dr. B.R Ambedkar.# 1948 – Constitution Assembly debated UCC
Article 44 of the Indian Constitution i.e. Directive Principles of State Policy sets implementation of uniform civil laws which is the duty of the state under Part IV.# 1950 – Reformist Bill passed
Reformist bills were passed which gave the Hindu women the right to divorce and inherit property. Bigamy and child marriages are outlawed. Such reforms were resisted by Dr. Rajendra Prasad.# 1951 – Dr. Ambedkar Resigns
Dr. Ambedkar resigned from the cabinet in 1951 when his draft of the Hindu Code Bill was stalled by the Parliament.# 1985 – Shah Bano Case
In this case, a divorced Muslim woman was brought within the ambit of Section 125 of Code of Criminal Procedure, 1973 by the Supreme Court in which it was declared by the Apex court that she was entitled for maintenance even after the completion ofiddatperiod.# 1995- Sarla Mudgal v. Union of India
In this case, Justice Kuldip Singh reiterated the need for the Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing contradictions based on ideologies. Therefore, the responsibility entrusted on the State under Article 44 of the Constitution whereby a Uniform Civil Code must be secured has been urged by the Supreme Court repeatedly as a matter of urgency.# 2000 – Supreme Court advocates UCC
The case of Lily Thomas v. Union of India (2000),where the Supreme Court said it could not direct the centre to introduce a UCC.# 2015 – The Debate lives through
The apex court refused to direct the government to take a decision on having a UCC.# 2016 – Triple Talaq Debate
When PM asked the Law Commission to examine the issue.# 2017 – Ruling of the Triple Talaq case
Triple Talaq (Talaq -e- biddat) was declared unconstitutional on August 22, 2017.
UCC vs. Right to Freedom of 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
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 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.
Enacting and Enforcing UCC
- Fundamental rights are enforceable in a court of law.
- While Article 44 uses the words “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 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 bed-rock 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.
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 the 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 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.
- Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
- Secondly, what makes us believe that practices of one community are backward and unjust?
- Thirdly, has other uniformities been able to eradicate inequalities that 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 phenomena. They are often vulnerable to media evils such as fake news and disinformation.
- Social harmony and the cultural fabric of our nation must be the priority.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Practice of talaq-e-hasan not so improper: Supreme Court
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Talaq-e-hasan
Mains level: Triple talaq and related issue
The Supreme Court has prima facie observed that the Muslim personal law practice of talaq-e-hasan is “not so improper”.
What is Talaq-e-hasan?
- Talaq-e-hasan is a form of divorce by which a Muslim man can divorce his wife by pronouncing talaq once every month over a three-month period.
Why did the apex court say this?
- The SC Bench said a Muslim woman has the option to divorce by the process of khula by returning the dower (mahr) or something else that she received from her husband or without returning anything.
- This can be as per agreed by the spouses or Qadi’s (court) decree depending on the circumstances.
Petitioner’s contention
- The petitioner argued that talaq-e-hasan and other forms of unilateral extra-judicial divorce is an evil plague similar to sati.
- Talaq-e-hasan is arbitrary, irrational and contrary to Articles 14, 15, 21 and 25 and international conventions on civil rights and human rights, the petition submitted.
- There should be a gender neutral, religion neutral, uniform grounds of divorce and uniform procedure of divorce for all citizens, it read.
- The petitioner argued that the practice in question was “neither harmonious with the modern principles of human rights and gender equality nor an integral part of Islamic faith”.
- The practice discriminates against Muslim women as they cannot resort to it against their husbands.
Why in news?
- The apex court, while striking down triple talaq in the Shayara Bano case, did not address the issue of talaq-e-hasan.
- The unilateral practice of divorce was is definitely defies morality.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
The Portuguese Civil Code of 1867 is a colonial burden on Goa
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 44
Mains level: Paper 2- Uniform civil code issue
Context
The Portuguese Civil Code of 1867, the so-called “common civil code” of Goa, is in the news again. A 28-member parliamentary standing committee recently visited the state to study it in the context of the demand for a uniform civil code.
Background
- Long before the arrival of the British imperialists in India, the Portuguese had occupied certain territories in the coastal regions with its capital in Cochin, later shifted to Goa.
- They did not interfere with the local customs relating to family relations and framed, in the mid-19th century, three separate codes of religion-based customary laws of Goa, Daman and Diu.
- The three codes were formally enforced as the law by royal decrees issued by the King of Portugal.
- The Portuguese Civil Code of 1867 was extended to Goa, Daman and Diu by a royal decree of November 18, 1869, declaring that the code would apply to the natives subject to the local usages and customs “so far as they are not inconsistent with morality or public order”.
- In 1910, the Portuguese parliament enacted two civil marriage and divorce decrees and, in 1946, a canonical marriage decree for Catholics.
- All of these too were extended to Goa, Daman and Diu.
- The family law applied by the Portuguese, both at home and in the occupied Indian territories, was thus not a uniform code but a loose conglomeration of civil and religious laws.
After Indian independence
- Fourteen years after the advent of Independence, Goa and its affiliated territories were liberated and turned into a Union Territory (UT) under central rule.
- The Goa, Daman and Diu Administration Act of 1962 declared that all laws in force in these territories before their liberation would continue to be in force “until amended or repealed by a competent legislature or other competent authority” (Section 5).
- None of the pre-liberation family laws was, however, amended or repealed.
- Nor was any central law on family rights, including the four Hindu law Acts of 1955-56, extended to any of the three territories.
- In 1987, the Goa, Daman and Diu Reorganisation Act made Goa a full-fledged state with its own legislative assembly and left Daman and Diu as a UT.
- Twenty-five years later, the Goa state legislature enacted the Succession, Special Notaries and Inventory Proceedings Act, amending certain provisions, mainly procedural, of the 155-year old civil code.
- In 2019, the UT of Daman and Diu was merged with another such territory – Dadra and Nagar Haveli (also ruled in the past by Portugal) — to form a single UT under central rule.
- As laid down in Section 17 of the unifying Act, this development did not in any way change the family law system prevailing in either of these places since their liberation from foreign rule.
Need for uniform civil code
- The law ministry has told the concerned standing committee of Parliament that the Portuguese civil code and its later amendments as in force in Goa may — if required — be duly reviewed.
- Uniform civil code: What has been said now by the law ministry about Goa is in the context of implementing the constitutional directive of Article 44 for a uniform civil code for the citizens throughout the territory of India.
- However, while the 21st Law Commission had already given its opinion against the feasibility and need of such a code at this juncture
- In recent months, the ministry has told Parliament about its reference on this issue to the Law Commission.
- There is no justification for retaining over a century-old archaic law, 75 years after the independence of India.
- Hindu law Acts of 1955-56 governing four religious communities in the rest of the country needs to be extended to the same communities in Goa, Daman and Diu.
Conclusion
The ministry has now reportedly told the parliamentary committee that enacting a uniform civil code would be possible only when a “sizeable majority” of the people seeks such a change.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Five years after SC verdict, talaq petitioners living as ‘half-divorcees’
Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Read the attached story
Five years after the Supreme Court’s five-judge Bench under then CJI J.S. Khehar invalidated instant triple talaq in August 2017, the women petitioners continue to live a life of half-divorcees.
What is triple talaq?
- ‘Triple Talaq’ is a procedure of divorce under the Sharia Law which is a body of the Islamic law.
- Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice.
- The Supreme Court invalidated instant triple talaq in the Shayara Bano versus the Union of India case while refraining from commenting on the state of their marriages directly.
What was the issue all about?
- The case dates back to 2016 when the Supreme Court had sought assistance from the then Attorney General Mukul Rohatgi on pleas challenging the constitutional validity of “triple talaq”.
- The hearing also included cases of “nikah halala” and “polygamy”, to assess whether Muslim women face gender discrimination in cases of divorce.
- The issue gained political momentum on March 2017 when the Personal Law Board (AIMPLB) told the Supreme Court that the issue of triple talaq falls outside the judiciary’s realm.
- However, on August 22, the Supreme Court set aside the decade-old practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.
Why was triple talaq abolished?
- In spite of protests by Muslim women and activists world-wide the procedure was most prevalent throughout the country.
- There are several instances where ‘triple talaq’ has enabled husbands to divorce arbitrarily, devoid of any substantiation.
- Oral talaq or ‘triple talaq’ delivered through social media platforms like Skype, text messages, email and WhatsApp have become an increasing cause of worry for the community.
- The ‘triple talaq’ has been abolished in 21 countries including Pakistan, but is still prevalent in India.
- The Centre reasons that these practices are against constitutional principles such as gender equality, secularism, international laws etc.
- When these practices are banned in Islamic theocratic countries, the practices could have absolutely no base in religion and are only prevalent to permit the dominance of men over women.
Why in news now?
- Half-divorce: Technically still married, practically divorced, they enjoy no conjugal rights nor receive any regular maintenance from the estranged husbands.
- Cannot remarry: Practically abandoned, the women cannot remarry in the absence of a legally valid divorce.
- No legal action: After the verdict, none of the men were visited by law enforcement bodies and told to take back their wives.
- No legal implementation: Further, no arrests could be made for giving instant triple as the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force long after the pronouncement of instant talaq.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Need of uniform civil code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: UCC
Mains level: Read the attached story
Context
- The Portuguese Civil Code of 1867, the so-called “common civil code” of Goa, is in the news again. A 28-member parliamentary standing committee headed by senior BJP leader and Rajya Sabha member, Sushil Kumar Modi, recently visited the state to study it in the context of the demand for a uniform civil code.
- India Needs Uniform Civil Code; One Nation, One Law Will Restore Equality and Gender Parity
Definition
- The Uniform Civil Code (UCC) calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption. The code comes under Article 44 of the Constitution, which lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
Importance of article 44
- The objective of Article 44 of the Directive Principles in the Indian Constitution was to address the discrimination against vulnerable groups and harmonise diverse cultural groups across the country.
Brief history of UCC
- The origin of the UCC dates back to colonial India when the British government submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.
Objectives of UCC:
- Bringing simplicity in personal laws: When enacted the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu code bill, Shariat law, and others.
- Uniformity across country: The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all. The same civil law will then be applicable to all citizens irrespective of their faith.
- National integration: The UCC aims to provide protection to vulnerable sections as envisaged by Babasaheb Ambedkar including women and religious minorities, while also promoting nationalistic fervour through unity.
Why it is needed now
- To counter the gender disparity produced by specific personal laws: India has a history of severely patriarchal and misogynistic traditions perpetuated by society and ancient religious norms that continue to dominate family life.
- Plugging the loopholes in legal system: By legalising personal laws, we’ve established a parallel court system based on thousands of ancient values. By eliminating all loopholes, the universal civil code would tip the balance in favour of society.
- Reaffirming equality to everyone: While Muslims are permitted to marry many times in India, a Hindu or a Christian will face prosecution for doing the same. Similarly, there are significant disparities between many religious-related regulations.
- Addressing problem of vote bank politics: If all religions are subject to the same laws, there will be no room for politicising issues of discrimination, concessions, or special privileges enjoyed by a particular community on the basis of their religious personal laws.
- Infusing secularism: At the moment, we practise selective secularism, which means that we are secular in some areas but not in others. A Uniform Civil Code requires all citizens of India to adhere to the same set of laws, regardless of whether they follow Hinduism, Islam, Christianity or Sikhism.
SC verdict on UCC: Daniel Latifi Case
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Challenges ahead in its application
- Less education to understand this: India is a country of a diverse culture where the beliefs of the people are too vehement but with the right communication and education to all the religious groups, the implementation can take place efficiently and effectively.
- Apprehension of some people: Fear of the certain section of society who are subjected to the special rights, shall be addressed since such rights will have no impact or interference by enactment of the Uniform Civil Code, which shall be ensured to the society as this is one of their Fundamental Rights as under Article 15 of the Indian Constitution.
Case study of Goa:It is pertinent to note that the State of Goa is the first State to implement a uniform civil code since its liberation from the Portuguese in 1961. The Supreme Court has even hailed Goa as a shining example where the uniform civil code is applicable to all, regardless of religion except while protecting certain limited rights. |
Conclusion
- With so much diversity, India needs something like a UCC which can work as an agent to promote uniformity and to some extent mute the sound pollution created by the religious radical forces.
- On individual level, it is important to understand UCC is with the objective of One Nation, One Lawsided by oneness among the people rather than a mere tool to overcome oppression and discrimination against women or a target on a particular religion.
Try this question:
What is uniform civil code? Do you think that right time has arrived to implement it? Discuss challenges in its implementation with your suggestions to overcome the same.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Parliamentary panel reviews Goa Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Uniform Civil Code
Mains level: UCC debate
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
- 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
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.
- Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each and every component of the society.
- Secondly, what makes us believe that practices of one community are backward and unjust?
- 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:
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Back in debate: Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Various articles mentioned in news
Mains level: Need for UCC
Poll-bound Uttarakhand CM’s announcement to prepare a draft of the Uniform Civil Code (UCC) in the State, raises questions over whether an individual State can bring its own family law code.
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 endeavor 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.
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 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.
UCC vs. Right to Freedom of 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 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.
Enacting and Enforcing UCC: A reality check
- Fundamental rights are enforceable in a court of law.
- While Article 44 uses the words “the state shall endeavor”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be an obligation of the state” etc.
- Article 43 mentions “state shall endeavor 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.
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.
- But “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.
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 favor 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.
Conclusion
- Article 44 of the Constitution creates an obligation upon the State to endeavour to secure for citizens a Uniform Civil Code throughout the country.
- The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
- This provision is provided to effect the integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws.
- Hence UCC should be enforced taking into confidence all the sections of Indian society.
- Goa’s Portuguese Civil Code of 1867 is an example of a common family law existing in harmony.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Article 44
Mains level: Need for UCC
The Centre has informed the Delhi HC that it was awaiting the report of the Law Commission of India, which is examining various issues relating to the Uniform Civil Code.
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.
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 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.
UCC vs. Right to Freedom of 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 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.
Enacting and Enforcing UCC
- Fundamental rights are enforceable in a court of law.
- While Article 44 uses the words “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 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 bed-rock 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.
What about Personal Laws?
- Citizens belonging to different religious 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.
- But “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.
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.
Conclusion
- Article 44 of the Constitution creates an obligation upon the State to endeavour to secure for citizens a Uniform Civil Code throughout the country.
- The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
- This provision is provided to effect integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws.
- Hence it UCC should be enforced taking into confidence all the sections of Indian society.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
HC presses Centre on Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Articles mentioned in the newscard
Mains level: Uniform Civil Code
Stating that the Uniform Civil Code “is a necessity and mandatorily required today,” the Allahabad High Court has called upon the Central Government to forthwith initiate the process for its implementation.
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.
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.
Greater role for State
- Fundamental rights are enforceable in a court of law.
- While Article 44 uses the words “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 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 bed-rock 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 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 the trifurcation of the Code into separate Acts and diluted several provisions.
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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Explained: Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Shah Bano Case, Article 44
Mains level: Need for UCC
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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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
CJI’s remarks on Uniform Civil Code
Note4Students
From UPSC perspective, the following things are important :
Prelims level: UCC
Mains level: Secularism debate
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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Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.
Explained: Uniform Civil Code — the debate, the status
Note4Students
From UPSC perspective, the following things are important :
Prelims level: Various articles mentioned in the newsward
Mains level: Uniform Civil Code
Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a UCC for India but there has been no attempt at framing one.
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 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
- Article 44 is one of the directive principles. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
- Fundamental rights are enforceable in a court of law. While Article 44 uses the words “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 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 bed-rock 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 fundamental rights 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.
- 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.
- Muslims of Kashmir were thus 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. 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 UCC 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 fundamental rights, 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 Uniform Civil Code 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 fundamental rights and therefore the UCC was made less important than freedom of religion.
What was the view of Muslim members in the Constituent Assembly?
- Some members sought to immunise 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 Uniform Civil Code, conceded that it would be unwise to enact Uniform Civil Code ignoring strong opposition from any community.
- Gender justice was not mentioned 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 Jawaharlal 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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What is the idea behind a Uniform Civil Code for India?
Currently, believers of various religions can marry, adopt, inherit property and divorce under their own customs.
Under a Uniform Civil Code, it is believed, personal laws and sanctioned practices of different religions will be largely harmonised with accepted fair practices for all citizens, under guidelines laid down by Constitution.
Does the Constitution mention a Uniform Civil Code?
Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Directive Principles are not justiciable or mandatory, only a guideline.
Then, what is the debate about?
Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions.
It was understood that minorities could practise their religion and follow their customs and traditions.
The Supreme Court asked the central government, whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions.
There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance.
Currently, different laws regulate these aspects for adherents of different religions.
Is the debate over Uniform Civil Code just a Hindu-Muslim issue?
Far from it. Parsis, Jains, Sikhs, Christians, apart from of course Hindus and Muslims, have their own civil codes.
While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence.
The personal laws of Hindus, Jains, Sikhs and others were codified in the 1950s.
So, What does our secular Constitution say?
Article 25, which guarantees the freedom to practise, profess and propagate any religion. By the 42nd Amendment of 1976, India was declared a secular nation.
The understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws.
There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations, and not tacitly support them by following a practice of non-interference, no matter what.
Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice”, therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.
The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality.
Historical Judgements
Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.
The first prominent case founded on Article 14 was Shah Bano case (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.
Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling.
In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.
In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances.
It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.
That’s some history! what is today’s scenario ?
The BJP, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.
What the government tells the court next month will be a test of its political will , and mark the next chapter in the evolution of this debate.
So, do we really want a Uniform Civil Code? Is there a way forward ?
Yes, you say? Well, there seems only one way to see through this crazy fog.
Every aspect of the personal laws must be examined in the light of constitutional guarantees to every Indian, equality, justice, right to life.
Laws that fail to uphold these basics must be thrown away, Isn’t it ?
Published with inputs from Arun