Date : 24/06/2023
Relevance – GS Paper 2 – Directive Principles of State Policy, Civil Laws in the Country
Keywords – Uniform Civil Code (UCC), Law Commission of India, Personal laws, Autonomy versus Authority, Shah Bano case, Sarla Mudgal Case, Multiculturalism
Context:
The Law Commission of India Invites Public Views on the Uniform Civil Code.
What’s the move?
After a previous conclusion that deemed the Uniform Civil Code (UCC) unnecessary and undesirable, the Law Commission of India has reopened the discussion by seeking public input on the matter. This move has reignited one of India's most divisive and politically charged issues. While acknowledging the potential benefits of implementing the UCC in a gradual manner, it is important to consider a crucial aspect as the Commission embarks on this fresh undertaking.
What is Uniform Civil Code (UCC) –
The Uniform Civil Code (UCC) refers to the creation of a single law for India that would apply to all religious communities in various areas including marriage, divorce, inheritance, and adoption. This code is based on Article 44 of the Indian Constitution, which states that the government should strive to establish a Uniform Civil Code that is applicable to all citizens across the country.
Autonomy versus Authority:
The debate surrounding personal laws revolves around the clash between personal and religious autonomy versus the state's authority to reform familial relations. Proponents argue that each religious group should initiate reforms within their own community, promoting internal law reform or a voluntary adoption of the UCC. However, certain recent legislations, such as the love jihad laws, contradict the spirit of the Special Marriage Act, which is an example of voluntary UCC adoption. Additionally, regional variations exist, such as Kerala's abolition of the Hindu Joint Family in 1975 and specific laws governing Muslim marriages and divorces in different states.
Do You Know –
- The origin of the Uniform Civil Code (UCC) can be traced back to colonial India when the British government presented a report in 1835 emphasizing the necessity of uniformity in the codification of Indian law, excluding personal laws of Hindus and Muslims from such codification.
- The increase in legislation concerning personal matters towards the end of British rule prompted the formation of the B N Rau Committee in 1941, tasked with codifying Hindu law.
- Based on the committee's recommendations, the Hindu Succession Act was adopted in 1956 to amend and codify laws pertaining to intestate succession among Hindus, Buddhists, Jains, and Sikhs.
- However, separate personal laws existed for Muslims, Christians, and Parsis, leading to a lack of uniformity in personal laws.
- In various judgments, courts have stressed the need for a UCC, urging the government to work towards its implementation.
- Notable cases highlighting the issue include the Shah Bano case in 1985, which gained significant attention, and the Sarla Mudgal Case in 1995, which addressed the conflict between personal laws related to marriage and the issue of bigamy.
- The government has argued that practices like triple talaq and polygamy infringe upon a woman's right to a life of dignity, raising the question of whether constitutional protection should extend to religious practices that contradict fundamental rights.
Religious Identity and Personal Laws:
Presently, personal laws govern not only Muslims but also Hindus, Jains, Buddhists, Sikhs, Parsis, and Jews. The religious identity of an individual determines which personal law applies to them. Even the reformed Hindu Personal Law under the Hindu Marriage Act, 1955, mandates specific marriage rituals and incorporates principles from ancient texts like Manusmriti. Interestingly, when two Hindus marry under the Special Marriage Act, they remain governed by Hindu Personal Law, while two Muslims marrying under the same legislation are no longer governed by Muslim Personal Law. Even a person who renounces Hinduism continues to be subject to Hindu Personal Law.
The Constitutional Framework:
The Indian Constitution, as a culmination of India's integrative traditions, upholds cultural accommodation through provisions that prohibit discrimination and guarantee the preservation of distinctive cultures in Article 29(1). However, it is essential to ask whether Indian Muslims can argue that practices like polygamy and arbitrary unilateral divorce, even in anger or while intoxicated, are genuinely part of their culture. Furthermore, it is crucial to strike a balance between preserving multicultural diversity and pursuing unity in a diverse and multicultural nation like India. The British colonial rule promoted homogeneity among Hindus and Muslims, neglecting the heterogeneity within these communities.
Multiculturalism and Accommodation of Difference:
The Indian Constitution offers two approaches to accommodating difference—integrationist and restricted multiculturalism. While affirmative action policies align with the integrationist approach, state assistance to minority cultures is often seen as illegitimate concession or "appeasement." This leaves cultural differences without robust constitutional norms. Therefore, the focus should be on ensuring equality between men and women within communities, rather than seeking equality between communities. A just legal code that upholds equality and justice is more significant than a mere uniform law.
What is Multiculturalism –
- Multiculturalism is the way in which a society deals with cultural diversity, both at the national and at the community level.
- Sociologically, multiculturalism assumes that society as a whole benefits from increased diversity through the harmonious coexistence of different cultures.
- Multiculturalism typically develops according to one of two theories: the “melting pot” theory or the “salad bowl” theory.
Multiculturalism can take place on a nationwide scale or within a nation’s communities. It may occur either naturally through immigration, or artificially when jurisdictions of different cultures are combined through legislative decree.
Conclusion:
- In preserving India's multicultural diversity, it is essential to consider the limitations of personal laws and practices.
- Cultural relativism cannot justify the continuation of unjust and discriminatory provisions. The Law Commission must navigate the path ahead with caution, ensuring that its recommendations do not fuel reactive culturalism among different communities, including Muslims.
- The Muslim community should distinguish between Muslim Personal Law and Islam itself, acknowledging the historical and juristic influences on the MPL. Progress can be made by reforming discriminatory aspects of the MPL and adopting the views of progressive jurists.
- Striking a fine balance between preserving cultural practices and meeting constitutional standards will be crucial in the process of overhauling socio-religious-cultural practices and embracing secularization.
- As political philosopher Iris Young suggests, the value of social difference is relational and shaped by social processes, making it imperative for the Commission to eliminate only those practices that contravene constitutional benchmarks.
Probable Question for Mains Examination –
- Discuss the historical background and significance of the Uniform Civil Code (UCC) in India. How has the clash between personal autonomy and state authority shaped the discourse around the UCC? Examine the major legal cases and developments related to the UCC in India. (10 Marks, 150 words)
- Critically analyze the challenges and dilemmas associated with the implementation of a Uniform Civil Code (UCC) in a diverse and multicultural country like India. Discuss the constitutional framework and the need to balance cultural accommodation with the principles of equality and justice. How can the reform of personal laws contribute to preserving cultural practices while meeting constitutional standards? (15 Marks, 250 words)
Source – The Hindu
