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.
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.
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.
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.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
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.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
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.
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.
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.
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 : Read the attached story
Mains level : Debate over UCC
- Recently while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code.
- The court 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 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 “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 trifurcation of the Code into separate Acts and diluted several provisions.
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 Supreme Court said the nation has still not endeavored to secure for its citizens a Uniform Civil Code (UCC). The government has till date taken no action, said the Court.
A Case for Uniform Civil Code (UCC)
- UCC is the ongoing point of debate in Indian mandate to replace personal laws which are based on the scriptures and customs of religious community in India.
- It aims for a common set of rules governing the individuals of their religion.
- Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. Goa has a common family law, thus being the only Indian state to have a UCC.
- Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
- The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.
- The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.
Hopes of founders
- The founders had penned their hope that a uniform set of rules would replace the distinct personal laws of marriage, divorce, etc. based on customs of each religion.
- Whereas the founders of the Constitution in Article 44 in Part IV dealing with the DPSP had hoped and expected that the State shall endeavour to secure for the citizens a UCC.
- The court said that the Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country.
- Despite exhortations of this Court in the case of Shah Bano in 1985, the government has done nothing to bring the UCC.
Goa: Leading by example
- The Supreme Court hailed the State of Goa as a “shining example” where “uniform civil code applicable to all, regardless of religion except while protecting certain limited rights”.
- Under this Code practised in Goa, a Muslim man whose marriage is registered in the State cannot practice polygamy.
- A married couple share property equally, pre-nuptial agreements are the order of the day and assets are divided equally between the man and woman on divorce.
- The judgment came in a case concerning the question whether succession and inheritance of a Goan domicile is governed by the Portuguese Civil Code, 1867 or the Indian Succession Act of 1925.
- Goa was once a Portuguese colony until it was made part of India.
Law panel’s stand
- In 2018, a Law Commission of India consultation paper had however said the UCC is “neither necessary nor desirable at this stage” in the country.
- The Commission said secularism cannot contradict the plurality prevalent in the country.
Table of Contents
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