On Uttarakhand’s uniform civil code (GS Paper 2, Governance)
Why in news?
- The Uttarakhand Assembly is likely to pass the State’s Uniform Civil Code (UCC) Bill.
- A State-appointed panel constituted to draft the UCC submitted its final report to Chief Minister Pushkar Singh Dhami. The report has also been passed by the State Cabinet.
What does a UCC aim to do?
- A UCC seeks to create a uniform set of laws to replace the distinct personal laws of every religion pertaining to subjects such as marriage, divorce, adoption, and inheritance. This stems from Article 44 of the Constitution which mandates that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
- The provision is a part of the Directive Principles of State Policy, which although not enforceable, play a pivotal role in governance.
Debate in India’s Constituent Assembly:
- Whether the provision should be included as a fundamental right or a directive principle was the subject of intense debate in India’s Constituent Assembly.
- Opponents feared that it would dilute the rights of religious minorities in India and destroy its diversity. Member Naziruddin Ahmad from Bengal argued that it would come in the way of Article 19 of the draft Constitution (now Article 25) which guarantees the fundamental right to freedom of religion subject to reasonable restrictions such as public order, morality, and health.
- He also emphasised that such a uniform set of laws could not be implemented without securing the consent of the concerned communities.
- On the other hand, member K.M. Munshi contended that a UCC would not defeat the principle of freedom of religion since the state is empowered to make laws related to religious practices if they were intended for social reform.
- He highlighted various benefits such as promoting equality for women, since personal laws often prevent the elimination of discriminatory practices against women.
- Taking a more ambivalent stance, Dr. B.R. Ambedkar said that although a UCC was desirable, it should remain “purely voluntary” during the initial stages. He stated that since the provision was merely recommendatory, it should not be imposed upon all citizens.
- The matter was settled by a 5:4 majority vote, with the sub-committee on fundamental rights headed by Sardar Vallabhbhai Patel deciding that establishing a UCC should not fall within fundamental rights.
What about the Uttarakhand UCC?
- In June 2022, the Uttarakhand government constituted an expert committee headed by former Supreme Court judge Justice Ranjana Prakash Desai to examine ways for the implementation of a UCC.
- The move followed Mr. Dhami’s promise that he would implement a UCC in the State if re-elected. The committee was supposed to submit its report in November 2022 but the deadline was extended multiple times despite the Chief Minister announcing in June 2023 that a draft UCC was ready.
What changes can be expected?
- The draft UCC is set to focus on gender equality by introducing provisions that treat men and women equally, especially in matters pertaining to inheritance. It will also revoke practices governing marriage and divorce such as polygamy, iddat (mandatory period of waiting to be observed by women following the dissolution of a Muslim marriage) and triple talaq.
- The Code is also likely to extend an equal property share to Muslim women against the existing 25% share accorded under Muslim personal law.
- However, the minimum age for marriage for men and women is set to remain the same; 18 years for women and 21 years for men. Other issues such as divorce, marriage registrations, adoption, and social security for ageing parents will also be covered under the law.
- The committee has reportedlly also prescribed the mandatory registration of live-in relationships.
What has the Supreme Court said?
- Over the years, the Supreme Court has deliberated upon the UCC in several judgments, but refused to issue any directive to the government since law-making falls within the exclusive domain of Parliament.
- In its 1985 judgment in the Shah Bano Begum case, the Court observed that “it is a matter of regret that Article 44 has remained a dead letter” and called for its implementation. Such a demand was reiterated in subsequent cases such as Sarla Mudgal versus Union of India (1995), and John Vallamattom versus Union of India (2003) among others.
- Reviving the push for a UCC, six petitions were filed in the Supreme Court between 2021-2022 seeking uniformity in divorce, maintenance, and alimony laws on the ground that they discriminated against women, thereby violating Article 14 (right to equality) and Article 15 (right against discrimination based on religion and gender) of the Constitution.
- However, in March 2023, a Bench headed by CJI D.Y. Chandrachud dismissed these petitions by observing that such issues fall within the exclusive domain of Parliament.
Article 162:
- In January 2023, the Court dismissed a petition challenging the Uttarakhand government’s move to set up an expert committee on the UCC by highlighting that Article 162 permits the exercise of such powers.
- Article 162 of the Constitution indicates that the executive power of a State extends to matters with respect to which the Legislature of the State has power to make laws.
Entry 5 of the Concurrent List:
- In view of the provisions of Entry 5 of the Concurrent List of the Seventh Schedule, the constitution of a Committee per se cannot be challenged as ultra vires,” the order read.
- Entry 5 of the Concurrent List deals with “marriage and divorce; infants and minors; adoption; wills, intestacy, and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”
What has the Law Commission said?
- In 2016, the BJP government requested the Law Commission of India to determine how to formulate a uniform code given the existence of “thousands of personal laws” in the country.
- In August 2018, the 21st Law Commission headed by former Supreme Court judge Justice Balbir Singh Chauhan submitted a 185-page consultation paper on “Reforms of family law” wherein it observed that the “formulation of a Uniform Civil Code is neither necessary nor desirable at this stage”.
- The report stated that a unified nation did not necessarily need “uniformity,” adding that secularism could not contradict the plurality prevalent in the country. It, however, recommended that discriminatory practices and stereotypes within existing personal laws should be amended.
- However, the 22nd Law Commission headed by Justice (Retd) Rituraj Awasthi issued a notification to elicit views from various stakeholders on the UCC.
- As Chief Justice of the Karnataka High Court, Justice Awasthi had ruled in favour of the Karnataka government’s order prohibiting hijab in educational institutions.
What’s next?
- Following Uttarakhand’s footsteps, two other BJP-ruled States; Madhya Pradesh and Gujarat have appointed committees to initiate the formulation of a UCC.
- Whether the Centre is likely to propose a UCC at a pan-India level is debatable. It will perhaps tread cautiously and await the outcome of the exercise undertaken by individual States first.
- The anticipated report of the 22nd Law Commission is also likely to be of persuasive value. However, in the recent past, there has been strong advocacy for the UCC by both Prime Minister and Home Minister.
- This renewed vigour towards a UCC is also likely to be affected by a pending query before the Supreme Court related to the “scope and ambit of the right to freedom of religion under Article 25 of the Constitution”.
- The question was framed by a Constitution Bench of the Supreme Court in the Sabarimala case for reference to a larger bench. Despite the passage of three years, no progress has been made on it.
