Progressive’ intervention in Uniform Civil Code debate

Context

• A diverse group of eight Indian citizens submitted a draft Progressive Uniform Civil Code to the Chairman of the Law Commission.

What is uniform civil code?

• The Uniform Civil Code (UCC) in India proposes to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen.
• The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women’s rights, equality and secularism.
• Article 44 of the Directive Principles sets its implementation as duty of the State.

Is there a provision in Indian constitution for Uniform Civil Code (UCC)?

• The constitution has a provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy
• It states that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”

Why India needs a Uniform Civil Code?

• A secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
• Another reason why a uniform civil code is needed is gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example.
• Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution.
• Courts have also often said in their judgements that the government should move towards a uniform civil code including the judgement in the Shah Bano case.

What are the various provisions in the constitution related to religion?

Various article in constitution related to religion

• Art 15– No discrimination on grounds of religions, race,caste, sex, place of birth only.
• Art 25– Freedom of conscience and free profession, practice and propagation of religionsubject to reasonable restrictions on the grounds of public order, health and mortality.
• Art 25 (2) provides for regulating secular activities associated with religious practices and social welfare and reform.
• Art 26– right to establish and administer religious institutions.
• Art 27–  Prohibit state from levying tax proceeds of which are used for the benefit of a particular religion.
• Art 28– deals with issue of religious instruction in educational institutions.
• Art 44- A DPSP provides for uniform civil code
• CAA 42nd inserted secularism in preamble.
• The provisions relating to “Right of Freedom of Religion” of the Articles 25 & 28 of the Constitution of India make India a secular state.
• To make assurance doubly sure, the 42nd amendment of the constitution inserts the term “secular” in the preamble of the constitution.
• Article 25 of Indian Constitution grants freedom to every citizen of India to profess, practice and propagate his own religion. The constitution, in the preamble professes to secure to all its citizen’s liberty of belief, faith and worship.
• Article 25 (1) allows every citizen to freely follow his own religion, subject to public order, morality and health. Thus in the name of religion, committing sati or infanticide cannot be permitted.
• Discrimination in public employment on grounds of religion is prohibited by Article 16.
• Article 29 of the Indian constitution assures that the state shall not impose on a minority community any culture other than its own.
• 30 grants the minority community, the right to establish and administer their own educational institution

Why is UCC necessary for India?

To provide equal status to all citizens

• In the modern era, a secular democratic republic should have a common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.
• To promote gender parity
• It is commonly observed that personal laws of almost all religions are discriminatory towards women.
• Men are usually granted upper preferential status in matters of succession and inheritance. Uniform civil code will bring both men and women at par.

To accommodate the aspirations of the young population

• A contemporary India is a totally new society with 55% of its population is below 25 years of age.
• Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity.
• Their view of shedding identity on the basis of any religion has to be given a serious consideration so as to utilize their full potential towards nation building.

To support the national integration

• All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are same for all.
• With the implementation of Uniform Civil Code, all citizen will share the same set of personal laws.
• There will be no scope of politicization of issues of the discrimination or concessions or special privileges enjoyed by a particular community on the basis of their particular religious personal laws.

To bypass the contentious issue of reform of existing personal laws

• Existing personal laws are mainly based on the upper-class patriarchal notions of the society in all religions.
• The demand of UCC is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will destroy their sanctity and oppose it profusely.

What are the hindrances in its implementation?

Practical difficulties due to diversity in India

• It is practically tough to come up with a common and uniform set of rules for personal issues like marriage due to tremendous cultural diversity India across the religions, sects, castes, states etc.

Perception of UCC as encroachment on religious freedom

• Many communities, particularly minority communities perceive Uniform Civil Code as an encroachment on their rights to religious freedom.
• They fear that a common code will neglect their traditions and impose rules which will be mainly dictated and influenced by the majority religious communities.

Interference of state in personal matters

• The constitution provides for the right to freedom of religion of one’s choice. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.

Sensitive and tough task

• Such a code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive interpretations on marriage, maintenance, adoption, and succession by acknowledging the benefits that one community secures from the others.
• This task will be very demanding time and human resource wise. The government should be sensitive and unbiased at each step while dealing with the majority and minority communities. Otherwise, it might turn out to be more disastrous in a form of communal violence.

Time is not yet suitable for this reform

• Considering a major opposition from Muslim community in India over this issue overlapping with controversies over beef, saffronization of school and college curriculum, love jihad, and the silence emanating from the top leadership on these controversies, there needs to be given sufficient time for instilling confidence in the community.
• Otherwise, these efforts towards common will be counterproductive leaving minority class particularly Muslims more insecure and vulnerable to get attracted towards fundamentalist and extremist ideologies.

What are the laws (personal) relating to religion in conflict with the constitution?

• Personal Laws of various religions coming being challenged in courts

Christian inheritance law:

• In the landmark Mary Roy vs State of Kerala case, Mary Roy challenged Christian law and petitioned the Supreme Court for equal inheritance.
• Eventually, the court ruled that Christians in the former State of Travancore were governed by provisions of the Indian Succession Act, 1925.

Santhara fast:

• In 2006, Nikhil Soni filed a PIL in Rajasthan High Court and sought directions under Article 226 to the central and state governments to treat Santhara, the fast unto death practiced by Swetambara Jains (Digambars call it Sallekhana), as illegal and punishable under the laws of the land.
• He termed it suicide and, therefore, a criminal act.
• Following a high court ruling that outlawed it, members of the Jain community organised massive protests and challenged the ruling in the Supreme Court, where a bench headed by then Chief Justice H L Dattu restored the practice.

Sabarimala entry:

• In 1991, Kerala High Court had restricted the entry of women aged between 10 and 50 from entering the Sabarimala temple. After hearing petitions in 2016, the Supreme Court reserved its judgment.
• Last April, Justice Deepak Misra hinted at the possibility of a constitution bench being set up to take up the matter.

Parsi women:

• Parsi Personal Law decrees that a Parsi woman who marries a non-Parsi cannot offer prayers as a Parsi, or be treated as a Parsi., AParsi woman who married a Hindu, challenged the law in Gujarat High Court.
• In March 2012, the court ruled in favour of the ValsadParsiAnjuman Trust, which had not allowed Goolrokh to offer prayers at the Tower of Silence following the death of of her father. The Supreme Court is currently hearing a challenge against that ruling.

SikhiSwarup:

• The constitutional validity of the definition of a Sikh under the Sikh Gurudwara Act,1925, was challenged by GurleenKaur.
• She and others had been denied admission to an MBBS course at an institution run by the ShiromaniGurdwaraPrabandhak Committee (SGPC) on the ground that some of them were not eligible to be treated as Sikhs as they had plucked their eyebrows or trimmed their beards.
• In a landmark order in 2009, a three-judge bench of Punjab and Haryana High Court headed by J S Khehar (then chief justice) ruled that it was essential to the Sikh faith and that “SikhiSwarup” will be decided by those who practice the faith, and not by adherence to any other values/ideals.

What is this new draft Progressive Uniform Civil Code?

• Eight citizens — writers, artists, activists, an Armyman, a lawyer and two Magsaysay Award winners — have submitted a draft “Progressive Uniform Civil Code” to the Law Commission Chairman.
• heir move, based on the idea that a UCC must be progressive rather than majoritarian
• The draft addresses the diversity of Indians and opens new debates, while significantly also speaking for individual rights.
• Article 44 has over the decades come to be seen as an issue of the Hindu Right alone — the draft Progressive UCC imagines an alternative that is neither Hindu nor majoritarian.