UPSC 2015 Question on same Topic
Q- Discuss the possible factors that inhibit India From enacting for its citizens a uniform civil code as Provided for in the directive Principle of State Policy? UPSC 2015, Mains GS2.
Ans:- Click here
Let’s debate Uniform Civil Code because we’ve long ignored real minorities
In fact: Equality, freedom the key issues in continuing Uniform Civil Code debate. In the case against implementation of a Uniform Civil Code in India, it is often argued that since India is a secular, democratic republic and since its Constitution guarantees minorities the right to follow their own religion, culture and customs, implementing a common code of personal laws covering property, marriage, divorce, inheritance and succession would go against India’s secular fabric.This argument which opponents of UCC repeatedly fall back on, is specious. In fact, by conveniently conflating several issues, bodies like the All India Muslim Personal Law Board (AIMPLB) seek to actually undermine democracy’s basic duty, i.e., protecting the rights of minorities, thereby going against the fundamental principle of any constitutional democracy. If that sounds self-contradictory, it isn’t.
But a word first on the context of the present argument. The Centre has reportedly asked the Law Commission, which has an advisory role on legal reform, to examine the implications of implementing a uniform civil code. Though the BJP has long argued for a national debate on this issue, despite being in power it has so far been unwilling to pick up the topic. law ministry has written to the Law Commission to examine the matter in relation to uniform civil code and submit a report. The ministry has also sent related documents to the Commission, which is currently headed by retired Supreme Court Justice Balbir Singh Chauhan. The panel will submit a report after discussions with experts and stakeholders.
The Union Parliamentary Affairs Minister, M Venkaiah Naidu, had recently favoured a debate on “common civil code” and had said the government would move forward only after a broad consensus and nothing will be thrust upon anyone.
“What is best in every religion, in every society should be taken out. I am of the firm view, marriage, divorce, inheritance and right to property these things should be common. Other things, of course, what is the way of worship, what is the way of other practices should be left to individuals. There is nothing against any religion in common civil code,” he said, adding that he favours the term “common” civil code over “uniform” since “Uniform conveys a different meaning”.
The minister’s statement goes at the heart of the debate over Uniform Civil Code. What bodies like AIMPLB have done is that they have approached the debate as a Hindu-Muslim binary and from there, launched a polemic against the move to have a common set of laws. And parties have latched on to this argument to turn UCC into a political debate with clearly drawn faultlines.
UCC, goes the dominant narrative, is a clever attempt to homogenize minorities — which is largely used to denote the entire Muslim community — and erode their identity. This patently dubious and morally repugnant argument needs to be called out.
In a recent move, resisting the Supreme Court’s suo motu decision to test the legal validity of triple talaq, the AIMPLB has said that the country’s top court has no jurisdiction to undertake the exercise as Muslim personal law is based on the Quran and not on a law enacted by Parliament.
“Muslim personal law is a cultural issue, it is inextricably interwoven with the religion of Islam. Thus, it is the issue of freedom of conscience guaranteed under Articles 25 and 26 read with Article 29 of the Constitution,” it said in an affidavit filed in court in March this year.
To argue that Article 25, which confers right to religion militates against a common civil code is a red herring. It is invalid and a spurious conflation. Right to worship or to practice religion should not be confused with individual rights relating to inheritance, marriage or divorce.
In fact, attempts to keep personal laws out of the ambit of judicial scrutiny all the while subjecting individual rights to its interpretation is doing grave injustice to real minorities within the religion-based divisions of communities.
What the debate over “secularism” often misses is that minority rights cannot be defended by separating it from human rights. The whole concept of minority itself is an artificial construct, because it is relative. In a group of 200, 25 maybe a minority but within this group, 20 is a majority. The 25 who claim minority status in a larger majority, cannot deny human rights to their own internal minorities (5) what they claim as minority rights.
The secularism debate, which reflexively seeks a ban on any debate over Uniform Civil Code, fails to take into account that in the name of protecting Muslims or other minorities’ rights, communal rights have been prioritized over human rights of individual within minority groups.
The defining feature of a functioning democracy is its adherence to the theory and practice of the fundamental principles of equity, justice and inclusion for all. That “all” includes women, men, young, old, able-bodied and disabled alike, and regardless of race, class, religion or sexual orientation.
The most handy example of how vulnerable these groups, for example women, are, within the larger minority groups became clear during the recent raging debate over triple talaq.
Thousands of Muslim women have recently sought support to abolish the “heinous” practice of ‘triple talaq’, which they have termed an “un-Quranic” practice.
A Times of India report says “over 50,000 Muslim women and men have signed a petition seeking a ban on triple talaq. The petition, spearheaded by the Bharatiya Muslim Mahila Andolan (BMMA), has sought the National Commission for Women’s intervention to end this “un-Quranic practice”.
BMMA co-founder Zakia Soman said a national signature campaign was under way in different states, including Gujarat, Maharashtra, Rajasthan, MP, Karnataka, Tamil Nadu, Telangana, Odisha, West Bengal, Bihar, Jharkhand, Kerala and UP.
The report quotes a recent BMMA study which found that 92 per cent Muslim women supported an end to this practice where unilateral talaq is being frequently given over phone, text message and even email with women mostly at the receiving end.
Farah Faiz, Rashtrawadi Muslim Mahila Sangh (RMMS) president, recently gave a speech before a Supreme Court bench of Chief Justice TS Thakur and Justice A M Khanwilkar on how the AIMPLB and Muslim bodies had started operating sharia’h courts to impose rigid practices on unsuspecting Muslims.
“Women’s rights are equally protected by the Constitution. But these sharia’h courts and qazis do not allow women to enforce their rights. Defiance invites ostracisation. AIMPLB is attempting to give a religious tone to the debate on the validity of ‘triple talaq’ by terming it a practice ordained by Quran,” she said.
The line taken by the AIMPLB isn’t surprising. According to a report carried by Indian Express, the board feels the matter of triple talaq was “not an issue” among Muslims and that it had been brought up to implement a uniform civil code in the country.
“The so-called movement against this law has been started to introduce a uniform civil code in the country. It is more of a media hype… the issue is of no importance among Muslim women and there is no need to bring about any change in the laws.”
When positions are this hard and conflated, the natural reaction is shy away from even moving towards a common set of laws that upholds human rights, as has been the case. But then it is also India’s failure as a democratic republic. The government is right to move towards initiating at least a debate.
In fact: Equality, freedom the key issues in continuing Uniform Civil Code debate :- Indian Express
The Supreme Court asked the central government last week whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions. There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance, the court said, and asked the Solicitor General of India to come back in three weeks with instructions on the government’s view. This was the third time this year that the apex court had spoken on the Uniform Civil Code: on the previous two occasions, it had suggested there should be uniformity in personal law; this time it wanted a categorical answer from the government.
A Uniform Civil Code essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion. Currently, different laws regulate these aspects for adherents of different religions. An example is the very case in which Justices Vikramjit Sen and Shiva Kirti Singh made their intervention last week: a Christian man has questioned a provision that requires a Christian couple to be judicially separated for two years before getting a divorce, whereas this period is one year for Hindus and other non-Christians.
Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Directive Principles, as Article 37 makes clear, are not enforceable by any court. But a body of judicial precedents says that they are fundamental in the governance of the country, and the State shall strive towards fulfilling obligations laid therein.
What would fall squarely for consideration whenever a debate on the Uniform Civil Code picks up pace are the “secular” character of India, which has been identified as part of the basic structure of the Constitution, and Article 25, which guarantees the freedom to practise, profess and propagate any religion.
By the 42nd Amendment of 1976, India was declared a secular nation. As a result of this, and the understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws. There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations — and not tacitly support them by following a practice of non-interference, no matter what. Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice” — therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.
The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality. Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.
The first prominent case founded on Article 14 was Shah Bano (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else. Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling. The Act allowed maintenance to a divorced woman only during the period of iddat, or for 90 days after divorce, according to provisions of Islamic law, but in stark contrast to general provisions under the CrPC. In Daniel Latifi vs Union of India (2001), the Supreme Court upheld the Act in so far as it confined the time period of maintenance to the iddat period, but held that the quantum of maintenance must be “reasonable and fair”, and therefore, last her a lifetime. In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.
In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances. The court held that the interest of the child was paramount, and that the letter of law would not override this aspect. It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.
The Supreme Court examined the aspect uniformity again in two cases in 2015. The first pertained to seeking the court’s recognition to the Ecclesiastical Court, which operates under the Canon Law for Catholic Christians and not under India’s civil laws. The apex court was upset — wondering angrily whether India would remain secular in the present circumstances, and calling for stamping out religions from civil laws. This case remains pending.
In the second case, the court dealt with the issue of guardianship of a Christian unwed mother without the consent of the child’s father. While ruling in the woman’s favour, it said: “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.”
And yet, framing a Uniform Civil Code, or any law for that matter, remains the exclusive preserve of Parliament. And the will of governments is enmeshed with political considerations — and is mindful of protests by various religious institutions that it would violate their religious freedom, and may lead to domination by the majority.
The UPA government had maintained in Parliament that it would not touch the subject. The BJP, on the other hand, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.
Since coming to power, however, the BJP-led government has not made any move towards enacting a Uniform Civil Code. After the Supreme Court’s latest statement, Law Minister D V Sadananda Gowda said the Code is in the national interest, but made no specific promises on its enactment.
The fact is that an unprejudiced deliberation on the innate merits of a Uniform Civil Code has usually been overshadowed by communal and political overtones, provoking the Supreme Court to keep prodding the union government to ponder over it in the interest of national integration and gender parity. What the government tells the court next month will be a test of its political will — and mark the next chapter in the evolution of this debate.
Ministry seeks law panel’s opinion on uniform civil code
The Hindu:- Todays headline
The Union Law Ministry has asked the Law Commission to examine in detail all issues pertaining to the Uniform Civil Code and submit a report to the government.
Through an office memorandum dated June 17, the Legislative Department has made a reference to the Law Commission for an in-depth examination of “matters in relation to Uniform Civil Code”.
Speaking to the India News TV channel, Law Minister D.V. Sadananda Gowda confirmed the Law Ministry initiative.
“The issue has been discussed in and outside Parliament. It has also been on the BJP’s agenda. Therefore, the Law Commission has been asked to conduct a detailed study and file a report. It may take six months to a year,” he said.
The Minister said a decision on the future course of action would be taken on the basis of the Law Commission report. “If it is required in the larger interest of the country, we will hold consultations [with stakeholders]..,” he said.
“Even the Preamble of our Constitution and Article 44 of the Constitution do say that there should be a Uniform Civil Code…it needs to have a wider consultation,” he had said, adding that it would take some time.
Implementation of a common code is part of the BJP’s election manifesto.
Party’s national secretary Shrikant Sharma told the media that there should be an open debate on the issue and that the uniform civil code is required. “It has been opposed due to vote bank politics,” he said.
Mr. Gowda had earlier also said the issue could be referred to the Law Commission, stating that a wider consultation will be held with various personal law boards and other stakeholders to evolve a consensus.
Divisive ploy: Congress
Responding to the development, Congress spokesperson Abhishek Singhvi said: “Each time there is an election around the corner, the BJP will raise issues like Ayodhya, a Common Civil Code or (abrogation of ) Article 370 to create a divisive atmosphere.”
He said if the government was serious about enacting a Uniform Civil Code, it must be supported by a “near universal consensus”.
“If genuine efforts are made by the government, maybe something can be achieved, but this isstuntbaazi. But the real question is: What steps has the government taken before chucking the issue unto the political domain?” Mr. Singhvi asked.
Importance:- GS2 Indian Polity.