Subject: Fundamental Rights,DPSP

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

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

Reasonable restrictions on the Freedom of Religion

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

Minority Opinion in the Constituent Assembly

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

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.

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

Way forward

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

Conclusion

• The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
• This provision is provided to effect the integration of India by bringing communities on a common platform on matters which are at present governed by diverse personal laws.
• Hence UCC should be enforced taking into confidence all the sections of Indian society.

 

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The Supreme Court has delivered a split verdict in the Karnataka hijab ban case with one of the two judges on the Bench upholding the March 15 order of the Karnataka HC validating the government’s ban, and the other set aside the HC ruling.

What lies next?

• With the divided bench, the matter has now been directed to be placed before Chief Justice of India (CJI).

What is a Split Verdict?

• A split verdict is passed when the Bench cannot decide one way or the other in a case, either by a unanimous decision or by a majority verdict.
• Split verdicts can only happen when the Bench has an even number of judges.
• This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches — known as Division Benches — are not uncommon.

After the verdict

• In case of a split verdict, the case is heard by a larger Bench.
• The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
• In the case of the hijab verdict, the CJI, who is the ‘master of the roster’, will constitute a new, larger Bench to hear the matter.

Earlier cases with a split verdict

• In May, a two-judge Bench of the Delhi HC delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).
• Justice Rajiv Shakdher held that the exception under Section 375 (which deals with rape) of the IPC is unconstitutional, while Justice C Hari Shankar held that the provision is valid.

About the ‘split’ ruling

• While Justice Hemant Gupta dismissed the appeals challenging the Karnataka High Court order, Justice Sudhanshu Dhulia allowed them.
• In his judgment, Justice Dhulia referred to the Bijoe Emmanuel case, saying it “squarely covers the issue”.

What is the Bijoe Emmanuel verdict?

• The Bijoe Emmanuel case came before up a Bench comprising Justices O. Chinnappa Reddy and M M Dutt in 1986.
• The court granted protection to three children of the Jehovah’s Witness sect who did not join in singing the national anthem at their school.
• The court held that forcing the children to sing the national anthem violated their fundamental right to religion.
• V J Emmanuel, the father of the children pleaded with the court that for the Jehovah’s Witnesses, only Jehovah should be worshipped.
• Since the anthem is a prayer, the children would stand up in respect when it was playing. However, their faith did not allow them to sing it.
• The Supreme Court had said that while the Kerala HC had examined whether or not the national anthem contained any word or thought, which could offend anyone’s religious susceptibilities, it had misdirected itself as that was not the question at all.

Why the hijab case should be heard by a larger Bench?

First and foremost, the matter should be heard by a larger Bench preferably 5 judges as-

• It has to be decided whether the right to practice religion can intertwine with the right and autonomy of educational institutions to decide their uniform.
• While private institutions have the autonomy to decide on the uniform, the court needs to study and decide whether such issues should be looked at in a uniform manner.
• Considering the complexities of the matter which also involves several issues such as female dignity, freedom of expression, and the school’s right to decide on the uniform.
• A Constitution Bench would also have the right to re-examine the Emmanuel verdict which was delivered by a two-judge Bench.

 

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The Supreme Court has ordered States and their police forces to stop prosecuting free speech on social media under Section 66A of the Information Technology Act which was declared unconstitutional by the court in a judgment seven years ago.

What did Section 66A do?

• Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
• Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
• It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
• In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.

Why was the law criticized?

• The problem was with the vagueness about what is “offensive”.
• The word having a very wide connotation was open to distinctive, varied interpretations.
• It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.

So, how did 66A come under the Supreme Court’s scrutiny?

• The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
• The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
• The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
• The petition was filed by Shreya Singhal, then a 21-year-old law student.

What were the grounds for the challenge?

• The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
• The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
• Most of the terms used in the section had not been specifically defined under the Act.
• The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

What did the Supreme Court decide?

• In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
• Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
• The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
• The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
• Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.

 

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The Supreme Court has sought the most recent position of the Union government on a batch of petitions challenging the Constitution (Scheduled Castes) Order of 1950, which allows only members of Hindu, Sikh and Buddhist religions to be recognised as SCs.

The Constitution Order of 1950

• When enacted, the Constitution (Scheduled Castes) Order of 1950, initially provided for recognising only Hindus as SCs.
• It was then aimed to address the social disability arising out of the practice of untouchability.
• The Order was amended in 1956 to include Dalits who had converted to Sikhism and once more in 1990 to include Dalits who had converted to Buddhism.
• Both amendments were aided by the reports of the Kaka Kalelkar Commission in 1955 and the High Powered Panel (HPP) on Minorities, SCs and STs in 1983 respectively.

What about Christians?

• The Union government in 2019 rejected the possibility of including Dalit Christians as members of SCs.
• This decision was rooted on the exclusion on an Imperial Order of 1936 of the then colonial government, which had first classified a list of the Depressed Classes and specifically excluded “Indian Christians” from it.

Why are Dalit Christians excluded?

• SC status is meant for communities suffering from social disabilities arising out of the practice of untouchability that was prevalent in Hindu and Sikh communities.
• SC status for everyone would significantly swell the population of SCs across the country thus trivializing the purpose itself.

Why neo-Buddhists are included in SC quota?

• The amendment to include Buddhist converts as SCs was passed in 1990.
• Like Dalit Buddhists, Dalits who converted to Islam or Christianity belonged to different sets of caste groups and not just one.
• As a result of this, they cannot be categorised as a “single ethnic group”, which is required by Clause (2) of Article 341 for inclusion.

Major concerns of including other religions

• Sanction of untouchability: The practice of “untouchability” was a feature of Hindu religion and its branches. This would imply that India was trying to “impose its caste system” upon Christians and Muslims.
• Undue internationalization: Allowing the inclusion of Dalit Muslims and Dalit Christians as SCs could result in being misunderstood internationally.
• Reviving casteism: Christians and Muslims of Dalit origin had lost their caste identity by way of their conversion and that in their new religious community, the practice of untouchability is not prevalent.

Is there a case for inclusion?

• The petitions arguing for inclusion have cited several independent Commission reports that have documented the existence of caste and caste inequalities among Indian Christians and Indian Muslims.
• Even after conversion, members who were originally from SCs continued to experience the same social disabilities.
• This was substantiated in the First Backward Classes Commission’s report in 1953, the HPP report on SCs, STs, and Minorities in 1983, the Mandal Commission Report, etc.
• However, these reports do not have enough empirical evidence to support their claims.

Why is the issue debated?

• Non-deserving beneficiaries: The proposition that caste identity is lost upon conversion, noting that even in Sikhism and Buddhism, casteism is not present and yet they have been included as SCs.
• Continued discrimination: The above-mentioned reports argue that caste-based discrimination continues even after conversion, hence entitling these communities to SC status.

 

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