Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Do We Want Uniform Civil Code in India?

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.

By Root

Caretaker @civilsdaily

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.

By Root

Caretaker @civilsdaily

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.

By Root

Caretaker @civilsdaily

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.

By Root

Caretaker @civilsdaily


 

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

By Root

Caretaker @civilsdaily

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