What do Experts think about the influence of a Uniform Civil Code on modern India? by Somesh Vaidya @LexCliq


(Image: LetsPedia)

 

Last week, the call for a Uniform Civil Code (UCC) – one that harmonises personal rules across religions — was reignited. In response to a divorce case, the Delhi High Court emphasised the necessity for a UCC, remarking that “traditional barriers of religion, community, and caste are steadily dissipating” in modern India, necessitating the need for a “code – common to all.”

The debate over the UCC predates the formation of India itself. The UCC is envisioned as a common set of civil rules that govern all people, regardless of faith, in areas such as marriage, adoption, inheritance, succession, and divorce. Marriage and succession regulations for Hindus, for example, differ from those for Muslims. However, the concept of “uniform” principles has been criticised by experts, who have questioned the necessity and practicality of such legislation. Others have pointed out that the UCC may be used to further marginalise minority groups and religions.

So, we compiled views, opinions, and what experts have to say about what would be the biggest impact of a UCC on Indian culture, society, and rights — and what makes the Indian dialogue around a UCC unique.

 

Arvind Abraham is a human rights advocate specialising in constitutional law and legislative advocacy.

“[The impact] would be determined by two factors: the substantive substance of a Uniform Civil Code and the method used to implement such a code. In terms of substance, the goal of a Uniform Civil Code must be to provide consistency of rights in accordance with equality and gender justice ideals. In terms of procedure, given how personal laws are inextricably linked with religious views, the UCC must be framed in a transparent manner, following broad and comprehensive discussions with all sorts of groups throughout the country. It cannot be a tyrannical majoritarian procedure that catches Parliament off guard, as was the case with the Article 370 measures. If the UCC adheres to the aforesaid guiding principles, it has the potential to be a step forward. However, if it is used as a political weapon to exclude any community, it would only exacerbate the sense of marginalisation felt by vulnerable groups, notably religious minorities who have been victims of Hindutva politics, which undermines social relations and national integrity.”

 

Flavia Agnes is a women’s rights attorney specialising in domestic abuse, minority law reform, secularism, and human rights.

“We have struggled with this issue for a very long time but have failed to adequately address it. Even the Law Commission in its report on personal laws has come out with the finding that a UCC is not needed, and what is needed is reform within each religion to weed out discrimination against women and bring in gender justice. India is a pluralistic country with diverse cultural practices — and uniform law of marriage, divorce, and succession may not be feasible. Even though the [Hindu Marriage Act] was enacted in 1955, there are many rural communities that do not follow it and decide disputes on the basis of their own community traditions and practices. Even women from these communities prefer to go to the local panchayats rather than formal courts as they are alien, distant, and expensive and decisions take a very long time and are not always decided in favor of women. Since issues of marriage, divorce succession, etc. Even women from these communities prefer to go to local panchayats rather than official courts since formal courts are strange, remote, and expensive, and judgments take a long time and are not always determined in favor of women. Because marriage, divorce, succession, and other civic concerns are civil in nature, even if a UCC is passed, many rural and tribal groups may choose to continue with their own tribe and customary traditions. As a result, I’m not sure whether a UCC, even if passed, will improve the situation. As a result, individuals will continue to follow their own customary procedures in order to resolve disputes quickly through a system with which they are comfortable.

“Although there are numerous discriminatory practices under the various personal laws, they must be handled within the boundaries of their own personal laws. This problem will not be solved by a UCC. What we need is rights consistency, not a Uniform Civil Code. The issue of arbitrary triple talaq has previously been addressed through the use of penal law. As a result, a UCC is not required to handle it. Despite a prohibition, bigamy/polygamy persists among Hindus, and today’s live-in partnerships have compounded the problem even inside Hindu marriages. So, will a UCC fix the problem?”

 

Saumya Saxena worked as a consultant for the Indian Law Commission and studied personal law, gender, religion, and comparative constitutionalism.

“The problem with the UCC, in my opinion, is its potentially condescending template rather than the concept of uniformity itself. Many of these legislative initiatives target minorities rather than facilitating women’s rights, as we witnessed with the Muslim Women’s Protection of Rights on Marriage Act, the Citizenship Amendment Act, and later the legislation criminalising inter-religious weddings in UP and MP as “love jihad.” Since the late 1990s, several women’s rights organisations have started emphasising this. The 21st Law Commission made several proposals on personal law modifications that might be more effective and context-specific than a uniform law.”

 

Alok Prasanna Kumar is the director of Karnataka’s Vidhi Center for Legal Policy. His areas of interest include constitutional law and judicial reform.

“The constitutional aim was never to establish a mandatory UCC in which there is just one method to marry, divorce, adopt, and inherit the land. In truth, no such thing has ever existed under any ruler in India’s history (with one noteworthy exception – the Portuguese Civil Code, which was not uniform throughout). More and more nations throughout the world are following the Indian model of having numerous parallel legal regimes coexisting in the realm of family law (also called legal pluralism). As cultures become increasingly diverse, it is regarded as a sign of inclusiveness and tolerance rather than separation. These can also be faith-based, with necessary modifications to fulfill constitutional requirements. There is already a voluntary, if rather inadequate, Uniform Civil Code in place. The Special Marriage Act, the Indian Succession Act, and the Guardians and Wards Act are all involved. Its provisions must be made more gender-neutral, less homophobic, and more progressive. Unfortunately, no one in authority appears to be interested in this because the present focus is to prevent inter-faith and inter-caste marriages and partnerships.

“No UCC supporter has been allowed to publish a draft bill for public discussion since only two options exist when it comes to UCC – either oblige individuals of various religions to follow Hindu law or eliminate Hindu personal law as we know it. Both are plainly undesirable, but for different reasons. The first violates people’s freedom of faith and belief by coercing them to follow Hindu religious customs regardless of their convictions. ‘No supporter of the UCC was permitted to submit a draught bill for public debate since there are only two possibilities under UCC: whether members of different religions are required to respect Hindu law or remove Hindu personal law, as we know it. Both are unwanted, but for various reasons. The former undermines the freedom of faith and belief of people by forcing them to follow Hindu religious customs, independently of their belief.

 

Radhika Roy is a gender and human rights lawyer.

“UCC would surely be the route to progress in the utopian, homogeneous society, in which each individual harbour is very respectful of its residents and their subjective preferences. In the Indian context, UCC is sadly too likely to be misused. India is proud of its diversity. The freedom to practise, profess and spread your faith is provided in Article 25. You are infringing this freedom by implementing an unique law applicable to all citizens. Not only is UCC unaware of the comprehensible differences set out in Article 14, which might result in the enacting of legislation that necessarily favour the majority religion with the primary government in power. By misunderstanding USCC as an all-socio-evil cure without correcting the underlying problems, people tend to fail to comprehend that the only impact would be the initialization and enslavement of minority religions.”

 

Vikram Hegde is a Supreme Court advocate.

“The one aspect of the Uniform Civil Code that is most concerning is the emphasis on uniformity, which appears startling in a country as diverse as ours. At the same time, we cannot ignore the issues raised by the current system of personal laws. Despite their stated diversity, personal laws fail to appropriately handle diversity in practise within their own communities. The recent Delhi High Court judgement advocating for a Uniform Civil Code, for example, came in a case between two people, both of whom were indisputably Hindus, with the only question being whether Hindu law would be relevant to them or if it would be their customary law. Personal laws have also led in contradictory circumstances, such as Mr. Fali Nariman’s argument on behalf of Mohammed Ali Jinnah’s daughter that, as khoja Shias, the law relevant to Mr. Jinnah’s property would be Hindu law rather than Muslim personal law.

“I believe that any call for a Uniform Civil Code is useless unless it is accompanied by a suggestion for what this uniform Civil Code may look like. Obviously, this does not imply that everyone requesting a Uniform Civil Code must also produce a draft legislation. However, even among supporters of the Uniform Civil Code, there does not appear to be agreement or clarity on what the Uniform Civil Code’s guiding principles will be. While the impact of a Uniform Civil Code on marriage issues has received considerable attention, I believe that the impact on property and inheritance will be highly complex and far-reaching. Instead of a Uniform Civil Code, I propose a common Civil Code with appropriate freedom for parties to choose the legal systems and words that apply to them.”

Article by Somesh Vaidya

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