Background
Ahead of the upcoming Assembly elections, Gujarat on October 29 joined the list of BJP-ruled States that have called for implementing the Uniform Civil Code (UCC).
What did the Constituent Assembly say about the UCC?
Article 44 contained in part IV of the Constitution says that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
While there is no draft or model document yet for the UCC, the framers of the Constitution envisioned that it would be a uniform set of laws that would replace the distinct personal laws of each religion with regard to matters like marriage, divorce, adoption, and inheritance.
Part IV of the Constitution outlines the Directive Principles of State Policy, which, while not enforceable or justiciable in a court of law, are fundamental to the country’s governance.
The matter had to be settled by vote; with a majority of 5:4, wherein the sub-committee on fundamental rights headed by Sardar Vallabhbhai Patel decided that securing a UCC was not within the scope of fundamental rights.
Varying views of the Members of Constituent Assembly
View of Naziruddin Ahmad
- Members of the Assembly took starkly contrasting stances on the UCC. Some also felt that India was too diverse a country for the UCC. Member Naziruddin Ahmad from Bengal argued that certain civil laws in all communities were “inseparably connected with religious beliefs and practices”.
- He felt the UCC would come in the way of Article 19 of the draft Constitution (now Article 25) which guarantees the right to freedom of religion subject to public order, morality, and health.
- While he was not against the idea of a uniform civil law, he argued that the time for that had not yet come, adding that the process had to be gradual and not without the consent of the concerned communities.
View of K.M. Munshi
- Member K.M. Munshi however, rejected the notion that a UCC would be against the freedom of religion as the Constitution allowed the government to make laws covering secular activities related to religious practices if they were intended for social reform.
- He advocated for the UCC, stating benefits such as promoting the unity of the nation and equality for women. He said that if personal laws of inheritance, succession and so on were seen as a part of religion, then many discriminatory practices of the Hindu personal law against women could not be eliminated.
View of Dr. B.R. Ambedkar
- Dr. B.R. Ambedkar had more of an ambivalent stance toward the UCC. He felt that while desirable, the UCC should remain “purely voluntary” in the initial stages.
- He stated that the Article “merely” proposed that the state shall endeavour to secure a UCC, which means it would not impose it on all citizens. The amendments to protect personal laws from the UCC were eventually rejected.
What are the various arguments around the UCC?
It has been argued that while India does have uniformity in most criminal and civil matters like the Criminal Procedure Code, Civil Procedure Code, and the Contract Act, States have made over 100 amendments to the CrPC and IPC, as well as several amendments to civil laws.
Experts thus argue that if there is plurality in already codified civil and criminal laws, how the concept of ‘one nation, one law’ can be applied to diverse personal laws of various communities.
Besides, constitutional law experts argue that perhaps the framers did not intend total uniformity, which is why personal laws were placed in entry 5 of the Concurrent List, with the power to legislate being given to Parliament and State Assemblies.
Looking at the codified personal laws of various communities in India — all Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill, neither are Muslims and Christians under their personal laws.
Constitutional law scholar Faizan Mustafa notes that while marriages amongst close relatives are prohibited by the Hindu Marriage Act of 1955, they are considered auspicious in the south of India.
Even the Hindu Succession Act of 1956 made several compromises and could not make the daughter a coparcener till 2005. Wives are still not coparceners nor do they have an equal share in inheritance.
Similarly, there is still no uniform applicability when it comes to the Muslim personal law or the Shariat Act that was passed in 1937. For instance, the Shariat Act is not applicable in Jammu and Kashmir and Muslims continue to be governed by customary law which is at variance with the Muslim personal law in the rest of the country. The applicability also varies for certain sects of Muslims. Besides, many tribal groups in the country, regardless of their religion, follow their own customary laws
While the Supreme Court in 2019 hailed Goa as a “shining example” of an Indian State which has a functioning UCC, experts point out that the ground reality in Goa is more complex and that the Code has legal pluralities.
The Goa Civil Code was given by the Portuguese in 1867; it permits a certain form of polygamy for Hindus while the Shariat Act for Muslims has not been extended to Goa with Muslims of the State being governed by Portuguese law as well as Shastric Hindu law. The Code gives certain concessions to Catholics as well. Catholics need not register their marriages and Catholic priests can dissolve marriages performed in church.
What has the Supreme Court said about the UCC?
The Supreme Court in various judgements has called for the implementation of the UCC. In its Mohd. Ahmed Khan vs Shah Bano Begum judgement of 1985, where a divorced Muslim woman demanded maintenance from her former husband, the apex court while deciding whether to give prevalence to the CrPc or the Muslim personal law, called for the implementation of the UCC.
The 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).
What has the Law Commission said?
The government in 2016 requested the Law Commission of India to determine how to form a code in the presence of “thousands of personal laws” in the country. In 2018, the Law Commission submitted a 185-page consultation paper on the reform of family law.
The paper stated that a unified nation did not necessarily need “uniformity”, adding that secularism could not contradict the plurality prevalent in the country. In fact, the term “secularism” had meaning only if it assured the expression of any form of difference, the Commission noted.
While saying that a UCC “is neither necessary nor desirable at this stage”, the report recommended that discriminatory practices, prejudices and stereotypes within a particular religion and its personal laws should be studied and amended.
The Commission suggested certain measures in marriage and divorce that should be uniformly accepted in the personal laws of all religions. Some of these amendments include fixing the marriageable age for boys and girls at 18 years so that they are married as equals, making adultery a ground for divorce for men and women and simplifying the divorce procedure. It also called for the abolition of the Hindu Undivided Family (HUF) as a tax-exempted entity.
What is the government’s stance?
While the UCC is a long-time poll promise of the BJP, Union Law Minister Kiren Rijiju said in Parliament this year that the government currently had no plans to set up a panel to implement the UCC and requested the 22nd Law Commission of India to undertake an examination of various issues relating to the same.
The chairperson and members of said Law Commission, which was set up in 2021, have not yet been appointed.
Recent Posts
Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.