Relevance: GS-2: Indian Constitution - significant provisions and basic structure; Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Key Phrases: Uniform Civil Code, Article 44, DPSP, Civil laws, marriage, inheritance, adoption, succession, personal laws, Hindu Code bill, Law Commission report

Why in News?

• The call for a Uniform Civil Code in country is again on rise due to the ongoing hijab controversy in Karnataka. In north, Uttarakhand Chief Minister also promised that, if re-elected, would enact a Uniform Civil Code (UCC) for the state.

Key Points:

• The Uniform Civil Code (UCC) calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption.
• While the criminal laws in India are uniform and applicable equally on all, no matter what their religious beliefs are, the civil laws are influenced by faith.
• Matters like marriage, inheritance, adoption, succession, etc. are governed in India according to the personal laws of the various religious communities.
  • 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 Quran.

Background:

• The origin of the UCC dates back to colonial India when the British government submitted its report in 1835 stressing 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.
• The colonial government formed the B N Rau Committee to codify Hindu law in 1941.
  • The task of the Hindu Law Committee was to examine the question of the necessity of common Hindu laws.
  • The committee, in accordance with scriptures, recommended a codified Hindu law, which would give equal rights to women.
  • The 1937 Act was reviewed and the committee recommended a civil code of marriage and succession for Hindus.
• The draft of the Rau Committee report was submitted to a select committee chaired by B R Ambedkar that came up for discussion in 1951 after the adoption of the Constitution.
• The bill was then adopted in 1956 as the Hindu Succession Act to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs.
  • It is not one uniform Act but three different ones: Hindu Marriage Act, 1955; Hindu Succession Act, 1956; and Hindu Adoption & Maintenance Act, 1956.
  • The Act reformed the Hindu personal law and gave women greater property rights, and ownership.
  • It gave women property rights in their father's estate.
  • The general rules of succession under the Act 1956 for a male who dies intestate is that heirs in Class I succeed in preference to heirs in other classes.
  • An amendment to the Act in the year 2005 added more descendants elevating females to Class I heirs. The daughter is allotted the same share as is allotted to a son

Need:

• Separate laws for the different communities has for long been seen as contributing to legal and administrative complexities and, as the Delhi HC noted, creates grounds for “issues arising due to conflicts in various personal laws”.
• The founding fathers of the Indian republic had anticipated these issues and hence inserted Article 44 in the chapter on Directive Principles of State Policy that makes up Part IV of the Constitution of India.
  • Article 44 says that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India".
  • However, as a DPSP means that it is not mandatory and it is up to the Parliament to make a law to bring in UCC.
  • It is because Article 37 says that the “provisions contained in this Part (Part IV) shall not be enforceable by any court… and it shall be the duty of the State to apply these principles in making laws”.
• However, the Directive Principles are to be deemed as being “fundamental in the governance of the country”.
• Dr BR Ambedkar, the first Law Minister of India, hence, held that while UCC was desirable, its application should be put off till a more suitable time.
• The UCC aims to provide protection to vulnerable sections as envisaged by Ambedkar including women and religious minorities, while also promoting nationalistic fervour through unity.
• As per Uttarakhand CM, “The UCC will boost equal rights for everyone in state. It’ll enhance social harmony, boost gender justice, strengthen women empowerment and help protect the extraordinary cultural-spiritual identity and environment of the state.”
• When enacted the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu Code Bill, Shariat law, and others.
• The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all.
• The same civil law will then be applicable to all citizens irrespective of their faith.

View of Judiciary:

Courts in India, including the Supreme Court, have time and again questioned why a UCC is yet to be introduced.

• During the Mohd Ahmed Khan v. Shah Bano Begum and Others (1985) case, the top court exhorted the central government to enact a “common civil code” in the interests of national integration.
• The Court reiterated the same, in context of a marriage between a Christian woman and a Sikh man under the Indian Christian Marriage Act, 1872 in Jordan Diengdeh v. S S Chopra (1985).
  • Court observed “Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44.”
• In John Vallamattom and Another v. Union of India (2003), it was reiterated again but this time in the context of succession.
• In the ABC vs the State (NCT of Delhi), 2015, case, the Supreme Court once again lamented the absence of a UCC in the context of the guardianship of a Christian child.
• Recently, Apex court in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira(2019) again expressed its disappointment over lack of UCC, saying: “Whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard.”
  • In the same judgment, it remarked that Goa is a “shining example" with a UCC “applicable to all, regardless of religion except while protecting certain limited rights”.

Concerns:

• Law Commission in a 2018 report observed that a UCC “is neither necessary nor desirable at this stage" for India.
  • The reason it cited was that a diverse country like India has to have separate laws to respect the needs of all its people and bringing uniformity would actually serve to complicate matters more than simplify them.
  • It said “Constitution itself has given so many exemptions to so many people like the tribals, etc. There are exemptions even in Civil Procedure Code and Criminal Procedure Code… UCC is not a solution and there cannot be a composite Act”.
• Legal experts also argues that the Constitution’s framers used the term “uniform” in Article 44 and not “common”.
  • “common” means “one and the same in all circumstances”, while “uniform” means “the same in similar conditions”.
  • Different people may have different laws, but the law within a particular group should be uniform. Such a classification is permissible even under the right to equality under Article 14.
• Even “code” does not necessarily mean one single law in every circumstance.
  • It may mean either one enactment such as Indian Penal Code, or the Hindu Code Bill that includes three different Acts.
• Similarly, experts argues that while Article 43 mentions that the “state shall endeavour by suitable legislation”, the phrase “by suitable legislation” is absent in Article 44, which indicates that the framers did not intend enactment of uniform civil code by a single legislation.
• Moreover, UCC intends to ensure equality, but reforms in Hindu law have not completely removed gender discrimination.
  • For example, the amount of land actually inherited by Hindu women is a small fraction of what they are entitled to under reformed Hindu law.
  • Even when they inherit land, it is invariably much less than an equal share.

Way Forward:

• Centre, in an affidavit, had told the Delhi High Court that it would examine a detailed report of the 21st Law Commission which undertook detailed research on the Uniform Civil Code after receiving several representations from various stakeholders.
• One way forward could be to constitute a Muslim Law Reforms Committee, Tribal and Indigenous Law Reform Committee, Christian & Parsi Law Reforms Committees, just like the Hindu Law Reforms Committee formed in 1941. Based on their recommendations, government could take the reforms process forward.

Conclusion:

• The goal of a UCC should ideally be reached in piecemeal manner, like the recent amendment on the age of marriage. Government need to balance the aims of the Constitution dealing with the aspects of valuing and preserving the rich heritage of composite culture and renouncing practices that are derogatory to the dignity of people especially women.

Source: Indian Express  Business-Standard

Mains Question:

Q. A just code is far more important than a uniform code. Comment in light of the need for a Uniform Civil Code in the country. (150 Words)