Context:
This article is based on the news “Final Uniform Civil Code draft for Uttarakhand recommends ban on triple talaq and halala; suggests tribals be kept out of ambit” which was published in the Hindu. Recently, the Uttarakhand Cabinet gave its nod to the Uniform Civil Code (UCC) bill, following recommendations from a high-level government-appointed committee.
- A special session of Uttarakhand Assembly has been convened especially to pass the legislation on the bill and make it an Act.
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Uttarakhand UCC Bill 2024: Key Features
- Equal property rights for son and daughter: The Uniform Civil Code bill, drafted by the Uttarakhand government, ensures equal rights in property for both sons and daughters, regardless of their category.
- Elimination of distinction between legitimate and illegitimate children: The bill aims to abolish the distinction between legitimate and illegitimate children concerning property rights. All children are recognised as the biological offspring of the couple.
- Inclusivity of adopted and biologically born children: The Uniform Civil Code bill treats children adopted, born through surrogacy, or born through assisted reproductive technology on an equal footing with other biological children.
- Equal property rights after death: Following a person’s demise, the bill grants equal property rights to the spouse and children. Additionally, equal rights extend to the deceased person’s parents. This marks a departure from previous laws, where only the mother had rights to the deceased’s property.
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- A Uniform Civil Code essentially means a common set of laws governing personal matters such as marriage, divorce, adoption, inheritance and succession for all citizens of the country, irrespective of religion.
- Article 44 of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
- Currently, different laws regulate these aspects for adherents of different religions and a Uniform Civil Code is meant to do away with these inconsistent personal laws.
- Goa is the only state in the country that has a UCC. But the Goa Civil Code was given by the Portuguese in 1867.
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Personal Law Under Colonial Regime
- The origin of the UCC dates back to colonial India when the British government submitted its report in 1835.
- Lex Loci report of 1840- The Report stressed the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.
- In the Constituent Assembly, there was division on the issue of putting the Uniform Civil Code in the fundamental rights chapter.
- By a majority of 5:4, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion (Article 25).
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- Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
- States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
- For Example: Recently, several states refused to be governed by the Uniform Motor Vehicles Act, 2019.
- If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
- But “personal laws” are mentioned in the Concurrent List.
- Promotes Integration: The Centre believes the personal laws based on religion are an “affront to the nation’s unity” but adds that the UCC will ensure the integration of India by bringing different communities on a common platform.
- Equality and Justice: The UCC ensures that all citizens, regardless of their religious or cultural background, are treated equally and have equal rights and opportunities.
- Secularism: Implementing a UCC reinforces the secular character of the state by separating personal laws from religious practices.
- Gender Equality: Many personal laws in various religious communities have provisions that discriminate against women in areas such as marriage, divorce, inheritance, and maintenance. A UCC would help address these inequalities.
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- Violates Fundamental Rights: It violates the constitutional freedom to practise the religion of choice which allows religious communities to follow their respective personal laws.
- For example, Article 25 gives every religious group the right to manage its own affairs. Article 29 gives them the right to conserve their distinct culture.
- Challenge in Implementation: It is also argued that if codified civil laws and criminal laws like the CrPC and IPC don’t follow ‘one nation, one law’, then how can this be applied to diverse personal laws of various communities.
- For example, the Indian Evidence Act of 1872, a federal act, was amended by the governments of West Bengal and Tamil Nadu
- Cultural Diversity: India is a diverse country with multiple religions, cultures, and traditions. Opponents of the UCC contend that imposing a uniform code might undermine the rich cultural diversity.
- Potential Backlash: Introducing a UCC without proper dialogue and consensus-building among different religious communities could lead to social and political tensions.
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- Shah Bano Case: In the Shah Bano case in 1985, regarding the rights of a Muslim woman in divorce, the Supreme Court observed that “Parliament should outline the contours of a common civil code as it is an instrument that facilitates national harmony and equality before law.”
- In the ABC vs State of Delhi: In 2015, the Supreme Court noted that Christian women are “not recognised as natural guardians” of their own children under the Christian law, even though Hindu unmarried women are the “natural guardians” of their child.
- The Supreme court had observed that the Uniform Civil Code “remains an unaddressed constitutional expectation”.
- The Supreme Court also called on the government to implement the UCC in the 1995 Sarla Mudgal judgement as well as in the Paulo Coutinho vs Maria Luiza Valentina Pereira case (2019).
- The 21st Law Commission had released a consultation paper in 2018 that categorically said:
- a uniform civil code was “neither necessary nor desirable” at this stage.
- It has to be borne in mind that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.
- It would require looking into various aspects of culture, religion and practice across the country, covering religions, region specific practices and tribal specific practices.
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- B.R. Ambedkar viewed UCC as desirable, but favoured its being voluntary.
Does UCC is in Conflict With Article 25 of Constitution?
- Article 25 guarantees religious freedom and freedom of conscience.
- Since the idea of Uniform Civil Code distinguishes religion from social relations and personal law, there is no connection between religion and personal law.
- Therefore, the UCC does not conflict with Article 25’s clause because it respects everyone’s freedom to practise their faith in their way and only regulates interpersonal relationships.
- Basic reforms can be given priority — such as having 18 as the marriageable age for all across communities and genders.
- Introducing a ‘no-fault’ divorce procedure and allowing dissolution of marriage on the ground of irretrievable breakdown, and having common norms for post-divorce division of assets could be considered.
- Within each community’s laws, it will be desirable to first incorporate universal principles of equality and non-discrimination and eliminate practices based on taboos and stereotypes.
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Way Forward
- Collaborative Approach: The government and society will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives.
- Brick by Brick Approach: Rather than an omnibus approach, the government could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.
- Gender-Sensitive Approach: The government would also do well to complement the overdue move towards a uniform civil code with a comprehensive review of several other laws in the context of gender justice.
- Pan-India Approach: Bringing Jammu and Kashmir into the country’s mainstream of family laws is an exercise that needs to be undertaken also for Goa, Daman and Diu, Puducherry, Nagaland and Mizoram.
- Forming Consensus: To ensure that the Uniform Civil Code is applied in a way that honours the nation’s cultural variety while advancing female equity and social justice, the government should take action to open a conversation with all parties.
About Personal Laws
- Laws that apply to a certain group of people based on their religion, caste, faith, and belief made after due consideration of customs and religious texts.
- The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts.
- In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations.
- In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from the Quran.
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