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

Any doubts?


  1. Profile photo of Vignesh Muthuchamy Vignesh Muthuchamy

    People should be educated in such a manner that India is their religion and Constitution is their law. This will help achieve equality, liberty, justice, fraternity, secular, dignity and right to life.

The question on validity of ‘triple talaq’

Note4students

It is important to understand the particulars of Article 13 for all the three stages viz Prelims, mains and interview. Try to understand the current hearing in Supreme Court from the Article 13’s point of view, its consequences and how it can effect the future of Fundamental Rights in India.

News

  1. The Supreme Court is hearing a batch of six petitions and a suo motu PIL on whether triple talaq and polygamy violate the fundamental rights of Muslim women
  2. Centre’s View: The Centre has asked the SC to reopen the debate whether personal laws can be brought under the ambit of Article 13 of the Indian Constitution
  3. What if personal laws are included in the definition of laws under Article 13?: Then, an aggrieved person will be able to challenge a particular personal law of a religion as violative of the fundamental rights

Back2basics

Article-13:

Article13(1)_ConstitutionofIndia.jpg

A judgment very much in error — Part 3 (presumption of constitutionality and judicial overreach)

Ban on triple talaq will cause a vacuum: Supreme Court

Note4students

From UPSC’s perspective, the following things are important:

Mains Level: This news in itself is not very important.However the issue itself is very important. Triple Talaq issue could be linked Women issues in salient features of Indian society in GS paper 1.

This issue raises a very serious debate between Uniform civil code i.e.(Article 42) vs.  Freedom to manage religious affairs(article 26) thus this issue is also important for GS paper 2 polity.


News

  1.  According to SC, a vacuum may arise if triple talaq is declared invalid, leaving Muslim men no forum to go to for a divorce
  2. Presently, Muslim men do not have to move courts to get a divorce
  3. Muslim men can instantly get divorce unlike a Muslim woman who has to approach a court under Section 2 of The Dissolution of Muslim Marriages Act of 1939. The 1939 statute gives specific grounds under which a woman can seek divorce.

Polygamy is not a religious practice, government tells SC

  1. Centre to Supreme Court: Polygamy is not a religious practice, but rather a social custom or usage which the State can interfere with to ensure that Muslim women’s fundamental rights are not violated
  2. Practices such as polygamy cannot be described as being sanctioned by religion, inasmuch as historically, polygamy prevailed across communities for several centuries including the ancient Greeks and Romans, Hindus, Jews and Zoroastrians
  3. It had less to do with religion and more to do with social norms at the time
  4. In the Holy Koran as well, it appears that the prevalent or perhaps even rampant practice of polygamy in pre-Islamic society was sought to be regulated and restricted so as to treat women better than they were treated in pre-Islamic times
  5. Constitutional provision: And since polygamy is a social custom and not a religious practice, it is not protected under Article 25 of the Constitution, which bars the State from interfering with someone’s religious belief
  6. This is true also of nikah halala and triple talaq
  7. For the same reason, polygamy would amount to a custom or usage, which is “law” within the meaning of Article 13 and therefore subject to fundamental rights
  8. Since a social practice cannot be held to be an integral part of a faith and belief or an “essential religious practice,” it has to satisfy the overarching constitutional goal of gender equality, gender justice and dignity
  9. No reforms: Reforms have not happened in the practices followed by the Muslim community despite clear indications for over six and a half decades
  10. And women who comprise a very sizeable proportion of the said Indian population remain extremely vulnerable, both socially as well as financially
  11. Gender equality and the dignity of women are non-negotiable

Note4students:

Note the constitutional dimensions of the issue and key terms like “essential religious practice”. An important topic on women empowerment and a step towards UCC.

‘Church courts’ cannot veto divorce law, says Supreme Court

  1. Supreme Court: Canon law and decrees of divorce given by ecclesiastical tribunals or ‘Church Courts’ cannot veto the statutory law of divorce
  2. Thus the court disposed of a writ petition filed in 2013 seeking a judicial declaration that divorce decrees passed by ecclesiastical tribunals are valid and binding
  3. 1996 verdict: The Supreme Court referred to its 1996 judgment in the case of Molly Joseph versus George Sebastian upholding the binding nature of the Indian Divorce Act of 1869, which governs divorce among Christians
  4. In Molly’s case, the court said the implication of the Canon law is confined to either theological or ecclesiastical, but has no legal impact on the divorce or annulment of marriage between two persons professing the Christian religion
  5. After the Divorce Act came into force, a dissolution or annulment under such personal law cannot have any legal impact as statute has provided a different procedure and a different code for divorce or annulment
  6. Triple talaq argument: The petitioner argued that when courts can recognise dissolution by triple talaq under the Mohammedan personal law, they should also recognise the Canon law as the personal law of Indian Catholics
  7. However, the court is presently hearing a row of petitions, including a suo motu one, on the question whether practices of Islamic personal law like triple talaq and polygamy discriminate against Muslim women

Note4students:

This is a development in direction of a Uniform Civil Code and women issues

‘Triple talaq’ a cruel and most demeaning form of divorce practised by Muslim community: HC

  1. What: The Allahabad HC has come down heavily on the practice of “triple talaq”
  2. It said this form of “instant divorce” is “cruel” and “most demeaning”, which “impedes and drags India from becoming a nation”
  3. It said personal laws of any community cannot claim supremacy over the rights granted to individuals by the Constitution
  4. It said the practice is unconstitutional and violates the rights of Muslim women

Note4students:

At present the issue is in the SC, and it remains to be seen what its final decision will be. Triple talaq has been a very controversial issue. The fundamental factors here are which constitutional value is supreme – rights of individuals or religious freedom.

[op-ed snap] Code of control

  1. Context: Social practice needs to be gender-just, but reform must respect religious freedom.
  2. Challenge: The challenge often lay in examining the implications of a misogynistic belief system within the Muslim community.
  3. But now, another challenge that needs to be addressed is examining the implications of actors entering the stage to speak on Islam, and often on behalf of Islam.
  4. While one is aware of the patriarchal and cultural set-up within the community, it is also a fact that “Islamic feminism” is emerging as an ideology amongst Muslim women across the globe, including in India.
  5. If the fights within the community were not enough, the Modi government has taken things one step further and introduced the idea having a Uniform Civil Code (UCC).
  6. What’s the question? Is this constitutional secularism pitted against freedom of religion?
  7. There seems to be a trend of selectively targeting a minority community and justifying it as an attack on a feudal-religious order. It is important not just to address these issues, but also challenge the intention behind going after a minority community.
  8. As of now, citizens are only being told of a uniformity of law based on certain vague ideas of “secularism”.
  9. It is important to know what those ideas will be, how they could affect individual lives in the country and whether they will be at the cost of national integration.

Note: Debates like these drag for years and years. While they may provide you with some fodder points, do not spend more time on such op-eds. Just get a feel of new angles and questions which are being raised.

[op-ed snap] Uniform Civil Code: Gender justice for both Hindus and Muslims

  1. Context: Concern towards gender justice is directed towards Muslim community and projects Hindu law as egalitarian, uniform and gender-just
  2. Discrimination within Hindu law: continuation of Hindu undivided family property- main lacuna
  3. Discriminatory aspects of Hindu cultural practices that govern the laws of marriage, divorce and matrimonial life
  4. Ritual of kanyadaan (sacrificial offering of the bride to the groom), an essential condition of a Hindu marriage, the notion of girls as paraya dhan (belonging to the other) dominate Hindu discourse
  5. SC judgment held that wife’s refusal to live within a joint family, and her demand for a separate residence, amounts to cruelty to the husband
  6. Hindu marriage was transformed into a contract in 1955, but sacramental aspects still dominate the social psyche
  7. Muslim marriage, since its inception, is a civil contract — a view later adopted by English and continental European laws
  8. If statistics show higher rate of divorce among Muslims, desertion among Hindus is far higher, popularly such women are called paritatya mahila or discarded women in Marathi
  9. While Hindu law provided for marriages across all Hindu denominations, rigid caste boundaries prevail, leading to brutal honour killings
  10. Official reports reveal that despite the statutory restraint, incidents of bigamy are more frequent among Hindus than Muslims

Centre’s stand on triple talaq based on gender justice: Ravi Shankar Prasad

  1. Source: Interview of law minister Ravi Shankar Prasad
  2. Issue: The Centre’s affidavit on the triple talaq issue, which is being heard in the Supreme Court
  3. According to the Minister, affidavit is based on the principles of assuring gender justice, gender equality and dignity
  4. Article 44 is part of our Constitution enjoining uniform civil code
  5. Hindu personal laws development: Sati was abolished, the age of consent for marriage was amended by the Sharda Act, Dowry prohibition laws

Law Commission seeks public opinion on Uniform Civil Code

  1. What? The Law Commission has sought public opinion on the exercise of revising and reforming family laws of all religions in the context of Article 44 of the Constitution
  2. Why? To address discrimination against vulnerable groups and harmonise the various cultural practices
  3. A 44: Uniform civil code for the citizens- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India
  4. Issues: Marriage, divorce, adoption, guardianship and child custody, maintenance, successions and inheritance; whether the existing personal laws and customary practices need codification; whether codification can ensure gender equality; and whether the UCC should be optional.

Concern for women

  1. Context: The issue around rights of Muslim women; Govt’s reply to AIMPLB affidavit in SC
  2. Govt: Any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution
  3. Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths
  4. It asked SC whether in a secular democracy, religion can be a reason to deny the equal status and dignity available to women under the Constitution of India
  5. Behind the preservation of personal was the preservation of plurality and diversity among the people of India
  6. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens?

Discuss: Discuss the possible factors that inhibit India From enacting for its citizens a uniform civil code as Provided for in the directive Principles of State Policy? [Mains 2015, GS II]

Undesirable cannot be essential

  1. Context: The issue around rights of Muslim women; Govt’s reply to AIMPLB affidavit in SC
  2. Theocratic States including Pakistan, Bangladesh, Afghanistan and Iran have regulated their divorce law and polygamy
  3. It shows that these are not essential religious practices that are beyond reform
  4. No undesirable practice can be elevated to the status of an essential religious practice
  5. Background: Govt was responding to an affidavit filed by the All India Muslim Personal Law Board (AIMPLB) in the Supreme Court
  6. AIMPLB: Had strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq
  7. As men, they were better at controlling their emotions, unlike women & also that polygamy prevents illicit sex and protects women

Polygamy no longer progressive, SC told

  1. Context: The issue around rights of Muslim women; Govt’s reply to AIMPLB affidavit in SC
  2. Centre to SC: Polygamy may have been progressive and path-breaking centuries ago, but not now when women and notions of gender justice have evolved
  3. If Muslim countries, where Islam is the State religion, have disregarded polygamy and triple talaq, why should India, a secular country, continue to deny Muslim women their rights under the Constitution?
  4. There is no legal bar against abolishing polygamy and triple talaq, given the march of time and the need for social reform
  5. It may be true that only some women are directly affected by a polygamous marriage
  6. However, every woman to whom the law applies lives under the fear, threat or prospect of being subject to these practices, which impacts her confidence and dignity

Centre opposes triple talaq, polygamy among Muslims

  1. For the first time in India’s constitutional history, the Centre opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims
  2. It favoured a relook on grounds of constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries
  3. Secularism & dignity of women: The fundamental question is whether, in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution of India
  4. Any practice by which women are left ‘socially, financially or emotionally vulnerable’ or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Article 14 and 15 (Right to Equality) of the Constitution

Hindu son can divorce wife if she tries to separate him from aged parents

  1. SC: A Hindu son can divorce his wife for the cruelty of trying to pry him away from his ‘pious obligation’ to live with his aged parents and provide shelter to them
  2. A woman becomes a part of the husband’s family and cannot seek to separate him from his parents for the sole reason that she wants to entirely enjoy his income
  3. Insisting her husband to live separately from his parents is a western thought alien to our culture and ethos

Ban triple talaq, says Women Law Board

  1. AIMWPLB: (All India Muslim Women Personal Law Board) Ban triple talaq, punish men who give divorce arbitrarily and allow women to seek divorce
  2. Instantaneous talaq is in contravention of tenets of Koran
  3. Koran says there must be time for reconciliation between partners
  4. It says when a man gives talaq he must pause and consult his wife
  5. Otherwise, triple talaq is like a hanging dagger for Muslim women
  6. It has also sought a ban on ‘nikah halala
  7. What is it? A woman who has been divorced through triple talaq has to marry another man and consummate her marriage with him before being eligible to remarry her ex-husband

AIMPLB views on issues outlined in petitions- II

  1. Polygamy: Though Islam permits it, it does not encourage the same
  2. World Development Report 1991: Polygamy percentage among tribals, Buddhists and Hindus were 15.25, 7.97 and 5.80% respectively as compared to 5.73% in Muslims

AIMPLB views on issues outlined in petitions- I

  1. Context: A batch of petitions filed in the Supreme Court on the triple talaq issue
  2. AIMPLB: The contentious issue relating to Muslim practices of polygamy, triple talaq and nikah halala are matters of legislative policy and cannot be interfered with
  3. Practices provided by Muslim Personal Law on the issues of marriage, divorce and maintenance were based on holy scripture Al-Quran
  4. And thus, courts cannot supplant its own interpretations over the text of scriptures

SC gives Centre four weeks to respond on triple talaq issue

  1. Context: A batch of petitions filed in the Supreme Court on the triple talaq issue
  2. Recently: All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that personal laws of a community cannot be re-written in the name of social reforms
  3. It also opposed pleas on issues, including gender discrimination faced by Muslim women in divorce cases

Ministry seeks law panel’s opinion on uniform civil code

  1. News: The Union Law Ministry has asked the Law Commission to examine in detail all issues pertaining to the Uniform Civil Code and submit a report
  2. A decision on the future course of action would be taken on the basis of the Law Commission report, which may take 6 months – 1 year
  3. Context: Implementation of uniform civil code is part of the BJP’s election manifesto
  4. Uniform civil code: The proposal to replace personal laws based on religion with a common set of codes governing every citizen

Progress on triple talaq issue

  1. All-India Muslim Women Personal Law Board president has demanded the abolition of the triple talaq system
  2. The Centre has set up a high-level committee to review the status of women in India
  3. According to reports, it has recommended a ban on triple talaq, and polygamy

Muslim woman moves SC against triple talaq system

  1. Context: A Muslim woman moved the Supreme Court against the ‘triple talaq’ system to nullify the prevailing divorce practice
  2. Through Post: She filed a petition after receiving a divorce letter through speed post
  3. Talaq-e-bidat: A Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations) or in a tuhr
  4. Or also pronouncing an irrevocable instantaneous divorce at one go (unilateral triple talaq)

Amending Christian divorce law- a background

  1. Supreme Court had urged the Centre to take a decision and amend the law last year
  2. SC’s intervention began in March 2015 when a petition was filed by Albert Anthony
  3. Hostile discrimination: It contended that the 2-year mandatory waiting period for Christians amounted to hostile discrimination
  4. Also, This is plain oppression to the members of the Christian community intending to seek divorce by mutual consent

Other laws on marriage and divorce

  1. Context: The Law and Justice Ministry is proposing to amend the Divorce Act, 1869
  2. Parity: The amendment would end disparity between the Christian divorce law and other personal laws
  3. Other laws: Hindu Marriage Act, the Parsi Marriage and Divorce Act and the Special Marriage Act- all mandate only a year’s judicial separation

Cooling-off time for Christian divorces may be cut

  1. Context: The Law and Justice Ministry is proposing to amend the Divorce Act, 1869
  2. Judicial Separation: Law mandates Christian couples to live separately for two years before they can apply for dissolution of marriage
  3. Govt intends to reduce the period to half- 1yr
  4. Why amend? Supreme Court had commented that this judicial separation makes no sense today
  5. Archaic: It is a 147-year-old divorce law

Uniform civil code need of the hour: Minister

  1. A uniform civil code (UCC) is the need of the hour and in national interest and a step should be taken in that direction.
  2. Recently, SC have asked the govt. to make its position clear on ushering in the UCC.
  3. The Preamble of our Constitution and Article 44 do say that there should be UCC.
  4. The UCC will certainly have some positive impact on national integrity, but it is a very sensitive issue, which needs wider consultation, across communities and party lines.

Whatsup with the Uniform Civil Code?

  1. UCC was proposed in Article 44 of Part IV of the constitution under DPSP – “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
  2. The debate occurs when ‘uniform’ is used interchangeably with ‘common’ – because Article 29, 30 is understood in a light that minorities can practice their customs and tradition.


:( We are working on most probable questions. Do check back this section.







Highest Rated App. Over 3 lakh users. Click to Download!!!