An expert explains: the problems of the uniform civil code

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On the last day of campaigning for the Assembly elections, Uttarakhand Chief Minister Pushkar Singh Dhami pledged that the BJP, if re-elected, would adopt a uniform civil code (UCC) for the state.

Many seem to believe that a CCU would eliminate all inequalities in one fell swoop and create a gender-equitable society. But it is important to understand that “formal equality” cannot bring about radical change; what society needs is “substantial equality”.

Dhami promised to set up a committee to prepare a UCC project. But the promise of a UCC is not part of the BJP’s 60-page manifesto for Uttarakhand. The BJP’s manifesto for the 2019 Lok Sabha elections had stressed that there could be no gender equality without UCC, and promised that a UCC would be drafted drawing on the best traditions and harmonizing them with modern times. This implies that the UCC would include the best provisions of all personal laws.

Hindu Code Bill

The Hindu Code Bill Committee was constituted in 1941, but it took 14 years to pass the legislation – and not as one uniform law but as three different laws: Hindu Marriage Act, 1955; Hindu Succession Act, 1956; and Hindu Adoption and Maintenance Act 1956.

Moreover, not all the reforms could be incorporated due to opposition from the Hindu right. Even Congress leaders such as Sardar Vallabhbhai Patel, Pattabhi Sitaramayya, MA Ayyangar, Madan Mohan Malaviya and Kailash Nath Katju opposed such reforms. During the debate on the Hindu Code Bill in 1949, 23 out of 28 speakers opposed it.

In 1949, the Hindu right formed an All-India Anti Hindu Code Bill Committee under the leadership of Swami Karpatriji Maharaj, which justified unregulated polygamy. Geeta Press’ Kalyan magazine published a number of articles that promoted polygamy, opposed the daughter’s right to inheritance, and questioned the right of the Constituent Assembly to legislate on religious matters.

Syama Prasad Mookerjee, later founder of the Bharatiya Jana Sangh, told parliament that instead of the Hindu Code Bill, the government should bring in a UCC. Even if this argument were correct, it is easier to reform the laws of the majority community than to reform those of the minorities. Several Muslim countries, including Pakistan, have been able to reform Muslim laws, but not the laws of their minority communities.

Dr BR Ambedkar had to resign as Minister of Justice. On September 15, 1951, President Dr. Rajendra Prasad threatened to sack the bill or veto it. Prime Minister Jawaharlal Nehru relented; the bill was not passed. When he was finally adopted after several years, he did not give the girls a share in the ownership of a joint Hindu family. This modification took place in 2005, under the UPA regime.

The expert

Faizan Mustafa, currently Vice Chancellor of NALSAR University of Law, is one of India’s foremost experts in constitutional law, criminal law, human rights and personal law.

Reading of article 44

Article 44 of the Constitution stipulates that the State shall endeavor to assure the citizens of a uniform civil code throughout the territory of India. The definition of “State”, as given in Article 12, includes the Government and Parliament of India together with the Government and Legislature of each of the States and all local or other authorities in the Territory of India or under the control of the Government of India. India. If state means state government or local authorities or others, does that mean that states or local authorities can make a uniform civil code for the whole of India? It would be ridiculous to say that the Uttarakhand Assembly or the Dehra Dun Municipal Corporation could create a UCC for the whole country.

The framers of the Constitution used the term “uniform” in Article 44 and not “common”, because “common” means “one and the same under all circumstances”, while “uniform” means “the same under conditions similar”. Different people may have different laws, but the law within a particular group should be uniform. Such classification is permitted even under the right to equality under section 14.

“Civil” means matters where personal rights (not public rights) are involved, such as a contract, or the sale and purchase of goods/services or property.

Same “code” does not necessarily mean one law in all circumstances. This can mean either an enactment such as the Indian Penal Code or the Hindu Code Bill which comprises three different laws.

While Article 44 uses the phrase “the State shall endeavour”, other articles in the “Guiding Principles” chapter use expressions such as “in particular shall endeavour”; “must take action”; “shall promote with particular care”; “in particular guides its policy”; “must consider his primary duty”; “will be an obligation of the State”, etc. All this means that the duty of the court is much more important in other guidelines than in article 44. While article 43 mentions that “the State shall endeavor by appropriate legislation”, the phrase “by appropriate legislation” is absent from Article 44, indicating that the drafters did not intend to enact a uniform civil code through a single legislation.

Diversity in personal law

It is wrong to assume that India has different personal laws due to religious diversity. In fact, the law differs from state to state. Under the Constitution, the power to legislate in matters of personal law rests with both Parliament and the state assemblies. The preservation of legal diversity seems to be the reason for including the right of persons in the concurrent list (entry no. 5). If the uniformity of laws had been the main concern, personal laws would have been included in the list of the Union, Parliament having exclusive competence to enact laws on these subjects. Making changes to central personal laws with enactments such as the Hindu Marriage Act is possible under Entry No. 5, but this power cannot be extended to include the enactment of a Uniform Civil Code for the whole of India. Once a legislative field is occupied by parliamentary legislation, states do not have much freedom to enact laws. Such laws would require presidential assent under Section 254.

It is also a myth that Hindus are governed by a uniform law. Marriage between close relatives is forbidden in the north but considered auspicious in the south. The lack of uniformity in personal laws is equally true for Muslims and Christians. The Constitution itself protects the local customs of Nagaland, Meghalaya and Mizoram.

As an example, take Goa, often cited as a state that already has a UCC. But Hindus in Goa are still governed by Portuguese family and inheritance laws. The reformed Hindu law of 1955-56 does not apply to them, and the unreformed Hindu Shastric law on marriage, divorce, adoption and joint family remains valid. The Shariat Act of 1937 has yet to be extended to Goa, and Muslims in the state are governed by Portuguese law as well as Hindu Shastric law, but not Muslim personal law. Even the special law on marriage, a sort of progressive civil code, has not yet been extended there.

While the Uttarakhand CM favors a UCC to ensure equality, Hindu law reforms have not completely removed gender discrimination. The amount of land that Hindu women actually inherit is only a small fraction of what they are entitled to under reformed Hindu law. Even when they inherit the land, it is invariably much less than an equal share. Will power is used to give full ownership to the sons.

The path to follow

If the government of Uttarakhand returns to power, one way forward could be to form a Muslim law reform committee, a tribal and indigenous law reform committee, Christian and Parsi law reform committees, just like the Hindu law reform committee formed in 1941. Based on their recommendations, this could advance the process of reforms.

The state would also need a Hindu law committee, as some of the existing provisions of codified Hindu law – such as solemnization of marriage, satpati, kanyadaan, joint family and tax benefits, absolute testamentary powers , etc – might not find a place in the UCC. , and provisions such as dowry or nikahnama (prenuptial agreement) are to be incorporated into the UCC as per the 2019 BJP manifesto. Are the Hindus of Uttarakhand, who represent 83% of the population, ready for these reforms?

The goal of a UCC should ideally be achieved in a piecemeal way, like the recent age of marriage amendment. A fair code is far more important than a uniform code.

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