- Prelims: Uniform civil Code, Directive Principles of State Policy etc
- Mains GS Paper II: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc
ARTICLE HIGHLIGHTS
- The Law Commission of India decided to solicit views and proposals from the public about the Uniform Civil Code (UCC).
- Previously the Commission had concluded that the ‘UCC is neither necessary nor desirable.
INSIGHTS ON THE ISSUE
Context
Uniform Civil Code:
- It provides 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: It lays down that the state shall endeavor to secure a UCC for the citizens throughout the territory of India.
Autonomy versus authority:
- Religious autonomy versus the state’s authority: The question of personal laws is the question of personal and familial relations.
- Each religious group has cultural autonomy, it is thus being argued that the community should itself come forward to seek reforms.
- The Special Marriage Act, 1954 and the Indian Succession Act, 1925 are examples of voluntary adoption of the UCC.
- Love jihad laws: By prohibiting inter-faith marriages violate the spirit of the Special Marriage Act.
Regional differences:
- Kerala had abolished the Hindu Joint Family in 1975
- Muslim marriage and divorces are to be registered in Bengal, Bihar, Odisha, Jharkhand under the 1876 law, and in Assam under 1935 law
- Adoption was permissible to Kashmiri Muslims.
How Personal laws govern different communities?
- Muslims, Hindus, Jains, Buddhists, Sikhs, Parsis, and Jews are governed by their own personal laws.
- It is the religious identity that determines which personal law would apply to a group of individuals.
- Reformed Hindu Personal Law under the Hindu Marriage Act, 1955 insist on solemnization of marriage, through saptapadi (seven steps around fire) and datta (invocation before fire).
- Section 7(2) of the Act(like Manusmriti (8.227)): provides that marriage is completed on the seventh step.
- Sapinda relationship, adoption and Hindu Joint Family rules are based on the Hindu Personal Law.
- When two Hindus marry under the Special Marriage Act, 1954 (Section 21A inserted in 1976), they continue to be governed by Hindu Personal Law
- If two Muslims marry under this legislation, the Muslim Personal Law (MPL) would no longer govern them.
- A person who renounces Hinduism too continues to be governed by the Hindu Personal Law.
What should the Commission do?
- The Commission must bear in its recommendation that for a diverse and multicultural polity such as India
- The proposed UCC must be emblematic of India’s ‘mosaic model’ of multiculturalism.
- A homogenizing lithification of identities must not become a mirage for flourishing diversity (something that has consistently remained peculiar to the American model of multiculturalism).
- Prominent scholars on multiculturalism such as Rochana Bajpai suggest: Indian Constitution offers two major approaches with respect to accommodation of difference — integrationist and restricted multiculturalism.
- The Affirmative action policies largely land in the first approach’s camp.
- Bajpai: state assistance to minority cultures has been seen as an illegitimate concession and is often termed as ‘appeasement of minorities’.
- Through These approaches the Constitution makes way for cultural accommodation and a celebration of group differences.
- 21st Law Commission (2015-18) had boldly favored equality between men and women in communities rather than aiming for equality between communities.
- A just code should be the primary goal as just laws are more important than a mere one uniform law.
- Right to cultural-relativism cannot justify continuation of unjust and discriminatory personal laws.
- Such provisions of the personal laws must be made consistent with substantive equality and gender justice goals espoused in the Constitution.
Arguments in favour of UCC:
- Uniformity in cases: India does have uniformity in most criminal and civil matters like the Criminal Procedure Code, Civil Procedure Code etc
- Gender Justice: If a UCC is enacted, all personal laws will cease to exist. It will do away with gender biases in existing laws.
- Secularism: A secular nation needs a common law for all citizens rather than differentiated rules based on religious practices.
- Various communities in India: Example: All Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill.
- Shariat Act: There is no uniform applicability when it comes to the Muslim personal law or the Shariat Act 1937.
- Hindu Marriage Act of 1955: It prohibits marriages amongst close relatives but they are considered auspicious in the south of India.
- Hindu Succession Act of 1956: Wives are not coparceners(a person who shares equally with others in the inheritance of an undivided estate) nor do they have an equal share in inheritance.
Arguments against UCC:
- Plurality in already codified civil and criminal laws: So concept of ‘one nation, one law’ cannot be applied to diverse personal laws of various communities.
- Constitutional law experts: Framers did not intend total uniformity.
- Example: Personal laws were placed in Concurrent List(power to legislate being given to Parliament and State Assemblies).
- Customary laws: Many tribal groups in the country, regardless of their religion, follow their own customary laws.
- Communal Politics: The demand for a uniform civil code is considered to be framed in the context of communal politics.
- Article 25: It seeks to preserve the freedom to practice and propagate any religion.
Supreme Court judgements about implementation of UCC:
Way Forward
- Despite secularism being a fundamental tenet governing the Indian polity.
- India decided not to adopt the French model of laïcité, which strictly prohibits bearing any religious outfit or marker in public
- Indian society ‘accommodates’ and not just ‘tolerates’ the wide array of group and ethnic differences.
- The Law Commission of India would not contribute to the rise of reactive culturalism amongst different communities in India, including Muslims.
- The Muslim community too must understand that the MPL and Islam are not one and the same.
- The MPL is a jurist given law and is not entirely divine.
- It was derived from the erroneously translated secondary sources rather than the Koran and Sunna of the Prophet.
- Let the Muslim clergy come forward and lead the MPL reform process by identifying the discriminatory and oppressive issues and adopt the views of progressive jurists.
- The Commission proposal for overhauling secularization of various socio-religious-cultural practices that have been the mainstay of thousands of religious and ethnic communities since times immemorial.
- The path ahead is not going to be free from hurdles.
- Political philosopher Iris Young: as the value of social difference is more relational and is itself a product of social processes.
- It will be incumbent upon the Commission to strike a fine balance as it should aim to eliminate only those practices that do not meet the benchmarks set by the Constitution.
QUESTION FOR PRACTICE
Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)
