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Editorial Today – Uniform Civil Code

editorial-77Issue The Ministry of Law and Justice sent a communication to the Law Commission requesting it to examine and report on all issues pertaining to a Uniform Civil Code.

What is UCC? Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen.

History of Uniform Civil Code The debate surrounding the UCC dates back to the colonial era.

Why is it difficult to implement? The vast diversity of the personal laws, along with the devotion to which they are adhered to, makes uniformity of any sort very difficult to achieve.

Some arguments in favour of status quo? One argument in favour of a status quo and against a UCC is that the courts have in innumerable cases given secular laws precedence over personal, religious codes.

Earlier law commission report The two reports of the 18th Law Commission recommended certain amendments to the Special Marriage Act of 1954 to rid it of its discriminatory provisions.

What is the role of Law commission? The Law Commission exists for the purpose of conducting studies on controversial legal issues.

Conclusion According to some experts the enactment of a UCC at once might disrupt communal harmony.

 

Issue

  • The Ministry of Law and Justice sent a communication to the Law Commission requesting it to examine and report on all issues pertaining to a Uniform Civil Code.

 

What is UCC?

  • Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen.
  • Currently, there is a Hindu Marriage Act, a Muslim Personal Law (Shariat) Application Act, 1937, a Christian Marriage Act and a Parsee Marriage and Divorce Act. Hindu Marriage Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by religion. There is also a Special Marriages Act, 1954 under which people can perform marriage irrespective of the religion followed by either person. These laws deal with the matters involving marriage, divorce, inheritance, adoption, and maintenance of the respective religions. Having a Uniform Civil Code will mean that all these laws will be replaced by a new law which will be applicable for all irrespective of their religions.

 

History of Uniform Civil Code

  • The debate surrounding the UCC dates back to the colonial era. The British applied a common criminal code for all but allowed the religious laws to be applied in the case of personal matters.
  • The latter laws were to be applied by the local courts when dealing with personal disputes between people of the same religion. Even amongst the Hindus, different rules were used in different regions and for different castes. The Shariat law of 1937 was passed to govern the personal matters of all Indian Muslims would be governed by Islamic laws
  • At the time of drafting our constitution, there were extensive debates regarding these personal laws. For some, they were too divisive. They argued that a Uniform Civil Code would help in constructing an Indian national identity and eradicate those based on caste and religion. But the proposal was also resisted on the grounds that it would destroy the cultural identity of minorities. Subsequently, a compromise was reached. The UCC was placed under the Directive principles, which the state shall endeavor to achieve but which is non-binding.

 

Why is it difficult to implement?

  • The vast diversity of the personal laws, along with the devotion to which they are adhered to, makes uniformity of any sort very difficult to achieve. Even under the Hindu Marriage Act, 1955, marriages may be solemnised in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu. In the Muslim law too, though there are no elaborate rites or ceremonies, there exist some differences between the Sunni and Shia marriages
  • Many people still do not know what the uniform civil code really means. There are still false conceptions surrounding it, especially amongst the minorities, which make a rational debate on its implementation quite difficult. UCC is also sometimes perceived as the imposition of the Hindu code and procedures, and this adds to its opposition from the minorities.
  • The Hindu law has already been reformed, and yet the amount of land actually inherited by Hindu women is only a fraction of the land they are entitled to under the reformed Hindu law. Thus it is argued that the backwardness of Muslim women cannot be solely explained by their personal law.
  • Some people also argue that it would lead to a loss of the culture and the identity of the minorities in the Indian society.

 

Some arguments in favour of status quo?

  • One argument in favour of a status quo and against a UCC is that the courts have in innumerable cases given secular laws precedence over personal, religious codes.
  • In the past 12 months alone, a two-judge bench ruled that Muslim women are entitled to maintenance beyond the iddat(roughly three months) period. It upheld a previous Allahabad high court judgement that “polygamy was not an integral part of religion”.
  • It has questioned why Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others.
  • Earlier still, it gave Muslim women the right to legally adopt children even though this goes against their personal law.
  • But the problem with this line of argument is that it looks at justice on a case-by-case basis.
  • Moreover it also presupposes that all minority women have access to lawyers and the courts.
  • There is another alternative—change from within. For example already social organizations within the realm of religion have begun demanding an end to practices such as triple talaq. The All India Muslim Personal Law Board has not, so far, responded favourably even though an online petition by the Bharatiya Mahila Muslim Andolan demanding a ban has already attracted over 50,000 signatures. Inspite of that  there is no drowning out of voices demanding justice.
  • This Eid, the three-century old Aishbagh Eidgah in Lucknow opened its doors to women to offer prayers for the first time in its history. It was a tiny step towards what could be a new beginning.

 

Earlier law commission report

  • The two reports of the 18th Law Commission recommended certain amendments to the Special Marriage Act of 1954 to rid it of its discriminatory provisions. The other called for a central law for compulsory registration of all marriages in compliance with the Supreme Court directions in this regard. Neither of these examined, or reported on, a Uniform Civil Code.
  • According to some experts the two “hurdles” in the way of the present Commission in examining the feasibility of a Uniform Civil Code are: The Shariat Act of 1937 and a Bombay High Court judgment that gave the Muslims “freedom to opt for the 1937 Act”.
  • But the Bombay High Court ruling — pronounced in a case on the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 — had nothing to do with the Shariat Act.
  • Never in the history of the Law Commission has either the issue of Muslim law reform or a Uniform Civil Code been referred to it by any government. In the Sarla Mudgal case of 1995 dealing with the issue of bigamy by non-Muslims after a “conversion” to Islam, a Supreme Court judge had advised the government to request the Law Commission to prepare, in consultation with the National Commission for Minorities, a comprehensive report on these matters. However, the advice remained confined to the pages of law reports.

 

What is the role of Law commission?

  • The Law Commission exists for the purpose of conducting studies on controversial legal issues, and fixing its terms of reference is the government’s prerogative.
  • In the present case, the Commission has to “examine and report on” the issue of a Uniform Civil Code and not to draft it — drafting of laws in any case is not the Commission’s job.

 

Conclusion

  • According to some experts the enactment of a UCC at once might disrupt communal harmony. The better course would be to bring about small reforms, correcting some inherent irrationality in some of the personal laws, and make them suitable for modern times. The focus should also be on removing disparities between different religions. This might lay the foundation of implementing a UCC at a later date.
  • Goa has a Common Family Law, which is also called Goa Civil Code. It is a set of civil laws that governs all Goans, irrespective of religion. Although it has some exceptions for some communities and is quite different from a Uniform Civil Code, it shows that the enactment of a UCC is indeed feasible in India.
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