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Constitutional Law

Uniform Rights, Not Laws

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 07-Sep-2023

Introduction

  • The 22nd Law Commission of India has sought the views of religious organisations and the public on the issue of a Uniform Civil Code (UCC).
    • The Commission is chaired by former Karnataka High Court Chief Justice Ritu Raj Awasthi.
  • It is contended that the 21st Law Commission has considered the subject of UCC and solicited views of all stakeholders via a questionnaire in 2016.
    • Thereafter, the 21st Law Commission came out with a consultation paper on ‘Reforms of Family Law’ in 2018.

Background

  • The discussion on UCC dates back to British Government’s 1835 report that suggested for uniform codification of Indian laws such as laws relating to crimes, evidence, and contracts however the Lex Loci Report of 1840 suggested exclusion of personal laws of Hindus and Muslims from its scope.
  • Thereafter in November 1948 the Constituent Assembly discussed regarding implementation of UCC in detail.
  • Prominent members of the Assembly, namely Dr. B.R. Ambedkar, Pandit Nehru, Maulana Azad and some others believed that UCC is needed for a democratic, secular and socialist country.
    • Freedom Fighters, some of which were Sarojini Naidu, Sucheta Kriplani, Naziruddin Ahmad advocated for the Civil Code.
  • The topic whether UCC should be under Part III or Part IV of the constitution was also actively debated in the assembly, and finally, it was added to Directive Principles of State Policy (DPSP) under part of Part IV of the Constitution of India under Article 44.
  • It is observed by the 22nd Law Commission that consultation papers prepared by the 21st Law Commission headed by former Supreme Court Judge Balbir Singh Chauhan convey that the formation of UCC is neither necessary nor desirable at this stage.
    • The 21st Commission had commented, “Mere existence of difference does not imply discrimination, but is indicative of a robust democracy”.
  • Recommendations by the 21st Law Commission were:
    • Family laws of every religion must be reformed to make them gender-just.
    • It emphasized uniformity of rights and not laws.
    • It was also discussed that women must be guaranteed their freedom of faith without any compromise on their right to equality.
    • Law Commission refrained from making any recommendations on triple talaq, Muslim bigamy or the Constitutional validity of adultery under Section 497 of the Indian Penal code, 1860.
    • The system of Hindu Coparcenary was criticized in aspect of Hindu Undivided Property and abolition of Hindu Coparcenary was recommended.
    • The report expressed concern about the discrimination suffered by women in matters of inheritance in all personal laws.
    • Another aspect of the report pertained to the division of matrimonial property upon divorce.

The Constitution of India, 1950 - Article 44 - Uniform Civil Code for the Citizens —The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

Legal Aspect Regarding UCC

  • The UCC seeks to enact a single law that would be applicable to people, irrespective of their religion, in matters like marriage, divorce, inheritance, and adoption.
  • Currently, personal laws of various communities are governed by their religious scriptures or the codified/uncodified personal laws.
  • UCC is meant to replace various legislations applicable to various communities which are inconsistent some of which may be:
    • The laws include certain codified laws like Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Indian Christian Marriages Act, 1872, Indian Divorce Act, 1869, Parsi Marriage and Divorce Act,1988 and other uncodified laws like Sharia (Islamic laws) which are solely based upon their religious scriptures.
  • India adheres to distinct personal laws that vary based on individual’s religious or community affiliations. Goa is the sole state in India that has adopted a UCC as it has retained its common family law (Goa Civil Code).
    • The Goa Civil Code implemented in 1870 is largely based on the Portuguese Civil Code (Código Civil Português) of 1867.
  • More than 80 countries in the world including France, Italy, Germany, United Kingdom, United States of America have adopted the Common Civil Code.

Precedents Regarding Uniform Civil Code

  • Mohd. Ahmed Khan v. Shah Bano Begum (1985) Case: The Supreme Court (SC), while dealing with the maintenance plea of a divorced Muslim woman gave prevalence to the Criminal Procedures Code, 1973 (CrPC) over personal laws of the community and termed Article 44 as a ‘Dead Letter’.
  • Ms. Jordan Diengdeh v. S.S. Chopra (1985) Case: SC again stressed the need to have a UCC and stated that "the present case is yet another which focuses on the immediate and compulsive need for a UCC”.
  • Smt. Sarla Mudgal, President, Kalyani v. Union of India & Ors. (1995) Case: SC again condemned the government for not taking a step forward in implementing the UCC.
  • Shayara Bano v. Union of India (2017) Case: The SC ruled the practice of triple talaq as unconstitutional and that it infringes upon the dignity and equality of Muslim women. Additionally, it was suggested that Parliament should pass legislation to govern Muslim marriages and divorces.

Family Law Report Recommendations

  • Some of the major suggestions under the Report were as follows:
    • It suggested changes in alimony and maintenance, rights of differently abled individuals with respect to their marriage, bigamy after conversion, mandatory registration of marriage, thirty-day period for registering the marriage under Special Marriage Act, 1954 and inequality with respect to age of consent among boys and girls formed a major part.
    • It also discussed introducing various fresh grounds for the no fault theory of divorce.
      • No-fault divorce refers to a form of divorce in which the petitioner does not have to prove any fault on the part of the other spouse. All a petitioner has to do is give any reason that is sufficient in the eyes of law for the divorce. Irretrievable Breakdown of marriage is one such ground.
    • Another suggestion was that the Juvenile Justice (Care and Protection of Children) Act, 2015 should be expanded so that there is a secular law with respect to adoption; along with this, suggestion of amendments in various guidelines for adoption was also made.

Conclusion

The UCC does not intend to hinder the religious beliefs of people, rather it aims to make the nation free from the “web of different civil laws”. The recommendations primarily suggest that there must be uniformity of rights and not laws. It can be said that framing of UCC is a journey that India must embark upon with sensitivity and wisdom to strike the right balance between unity in law and diversity in culture. Achieving this balance will be a testament to India's commitment to the ideals of justice, equality, and secularism that form the foundation of its democratic framework.