Uniform Rights, Not Laws

Why in News?

• The 22nd Law Commission of India has decided to invite public views and views of recognised religious organisations about the Uniform Civil Code (UCC).
• Earlier, the central government told the Supreme Court of India that the Constitution of India obligated the State (under Article 44) to have a UCC for its citizens.

 

What is Uniform Civil Code (UCC)?

• The UCC would provide for one law for the entire country, applicable to all religious communities, in their personal matters such as marriage, divorce, inheritance, adoption etc.
• In other words, UCC is a set of rules/regulations, which 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.

 

Constitutional Provision for UCC

• Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for citizens throughout the territory of India.
  • Article 44 is among the Directive Principles of State Policy (DPSP).
  • Directive Principles are not enforceable by court, but are supposed to act as a guide for the governance of the country.

 

Current Situation

• Currently, Indian personal law is complex, with each religion adhering to its own specific laws.
• Separate laws/ customs govern Hindus, Sikhs, Jains and Buddhist, Muslims, Christians, and followers of other religions.
• Moreover, there is diversity even within communities. All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• For instance, in the Northeast, there are more than 200 tribes with their own varied customary laws.
• The exception to this rule is the state of Goa, where all religions have a common law regarding marriages, divorces, and adoption.

 

22nd Law Commission and its Report

• The Commission headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi stated:
  • Initially the 21st Law Commission of India (headed by former SC judge Balbir Singh Chauhan) had examined the subject of UCC and solicited the views of all the stakeholders.
  • Pursuant to the above, overwhelming responses have been received by the Commission.
  • The 21st Law Commission of India has issued a consultation paper on the Reform of Family Law in 2018.
  • Considering the relevance and importance of the subject and also various court orders on the subject, the Law Commission of India considered it reasonable to deliberate afresh over the subject.

 

Overview of the Report “Reform of Family Law”

• It held that the “formulation of a UCC is neither necessary nor desirable at this stage”.
• It talked about the uniformity of rights, not laws.
• Mere existence of difference does not imply discrimination, but is indicative of a robust democracy.
• The report mentioned that most countries are moving towards the recognition of difference in place of legal provisions that are founded on uniformity between culturally diverse people.
• This is because the principle of uniformity could be unfair to the weaker and vulnerable sections.
• Rather than enacting a UCC, family laws of every religion must be reformed from the perspective of gender justice.
• The celebration of diversity must not disadvantage specific groups and “women must be guaranteed their freedom of faith without any compromise on their right to equality.”

 

 Recommendations of 21st Law Commission Regarding Individual Personal Laws

• Abolition of Hindu Coparcenary System
  • The Commission criticised the Hindu coparcenary system — the Hindu Undivided Family (HUF) property.
  • Its report commented that this system was being used only for tax evasion.
  • It recommended the abolition of the Hindu coparcenary system.
• Codification of the law of inheritance and succession
  • The report expressed concern about the discrimination suffered by women in matters of inheritance in all personal laws.
  • It suggested the codification of the Muslim law of inheritance and succession and bringing in uniform provisions of succession for Shias and Sunnis.
  • It held that succession and inheritance should be based on “proximity to the deceased rather than a preference to male agnates.”
  • Further, a Muslim widow, even if childless, should inherit the property of the deceased as a Class I heir.
• Introduction of No-Fault Divorce: Suggesting that “no-fault divorce” must be introduced in all personal laws, the Law Commission recommended that all property acquired after marriage must be divided between the two parties after the dissolution of a marriage.
• On Muslim Polygamy
  • Although polygamy is permitted within Islam, it is a rare practice among Indian Muslims.
  • On the other hand, it is frequently misused by persons of other religions who convert as Muslims solely to solemnise another marriage.
  • This comment resonates with the SC’s observation in the Sarla Mudgal case (1995). Referring to the issue of conversion and bigamy, the Court had recommended enacting a UCC.

 

Some Other Recommendations Made by 21st Law Commission

• Another important recommendation of the 21st Law Commission was about the rights a person with disabilities has in a marriage.
• On the issue of custody and guardianship, the Law Commission stressed that courts must follow the principle of the “best interest of the child.”
• The report also had several recommendations regarding the rights of Parsi and Christian women and those married under the Special Marriage Act.

 

Subsequent Government Action

• In the five years since the 21st Law Commission submitted its report, the government has not followed up on any of its recommendations.
• The 22nd Law Commission was notified in February 2020 but it was formally constituted in November last year.
• In February this year, the Centre extended its term to August 31, 2024.

 

Arguments in Favour of the UCC

• Historically, one of the factors that have kept India back from advancing to nationhood has been the existence of personal laws based on religion.
• These laws keep the nation divided into watertight compartments in many aspects of life.
• A UCC is needed for gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim.
• Matters such as inheritance, marriage, divorce, etc., do not have anything to do with religious activities. Hence, any regulation on these aspects would not amount to the infringement on religious freedom extended by Article 25.
• The Constitution makers had a vision to enact UCC in future to have the same set of civil laws governing all irrespective of religion. Enactment of UCC is needed in order to fulfil this dream.

 

Arguments Against UCC

• Imposition of UCC would amount to overlooking the diversity of Indian cultures, customs, ethnicity, languages, religious ideologies, etc.
• Principles of marriage, talaq and polygamy are interwoven with religious and cultural rights of Muslims.
• In NE States, the constitution through VI Schedule recognises the customary laws and procedures prevailing in their society.
• Hence, there will be practical difficulties in the formulation as well as implementation of UCC.
• Perception of UCC as encroachment on religious freedom is gaining momentum. In this context, many believe that UCC will be detrimental to the communal harmony of India.

 

Conclusion

• Legal scholars doubt whether the 22nd Law Commission will find justifiable grounds to overturn the reasoning of its predecessor and declare that a UCC is not only desirable but also necessary.

 

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Q1) What is Law Commission? 

Law Commission of India is a non-statutory body and is constituted by a notification of the Government of India, Ministry of Law & Justice, Department of Legal Affairs with a definite terms of reference to carry out research in the field of law and the Commission makes recommendations to the Government (in the form of Reports) as per its terms of reference. The Law Commission of India provides excellent thought provoking and vital review of the laws in India.

 

Q2) Who is a coparcener?

According to the Hindu Succession Act, 1956, an individual who is born in a Hindu Undivided Family (HUF) has a legal right over his ancestral property. Therefore, he is a coparcener (joint heir) by birth. A coparcenary has a lineal descending succession of up to four generations.

 

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Source: The India Express