‘Removing discrimination and delivering gender justice is the basis of UCC’

Your committee has begun consultations on a Uniform Civil Code (UCC). Can you explain the core issues involved, including the feasibility of such a law?

The 21st Law Commission released a consultation paper on the last day of its tenure. It did not give a report on UCC. It was not a recommendation to the government. The commission had re­ceived some 75,000 suggestions and comments and held consul­tations for over two years. When we inquired why there had been no action on the previous ‘report’ and the new Law Commission was considering the matter afresh, we [the standing committee] were informed that the earlier exercise was a consultation and no report was submitted. The title says it is a consultation paper on the reform of family law submitted in August 2018. There was a gap before the next commission was set up. It was felt that since the last submission was not a report and three years had gone by suggestions be sought again on the issue of UCC. The commis­sion has received more than one crore responses so far. This is the background to the issues we are currently discussing.

There are conflicting views on what the previous law commission said and what its conclusions were.

There are some things that political parties, including Con­gress, keep repeating when speaking of the 21st Law Commission and which need clarification. They say the term UCC has not been used. But the commission does say that reform of personal laws of all religions is needed. It also states that those aspects of personal laws that are discriminatory in nature should be weeded out. On UCC, the previous commission stated that it was not desirable “at this stage”. This last bit is conveniently left out. The panel said: “The commission has therefore dealt with laws that are discrimi­natory… rather than providing a UCC which is neither necessary nor desirable at this stage.” The paper itself speaks of the existing discrimination in various personal laws like Hindu law or Parsi law or any other such law. It has flagged these issues. Any UCC will require a careful consideration of certain matters. The civil law is already common to all citizens. Matters like contracts or negotiable instruments are part of civil law. The main issue is about family matters—family law. Here again there are two parts to be dealt with. One is marriage and the other succession.

What are the key issues with regard to family law?

Marriage will include issues like polygamy, maintenance, divorce, and age of consent. As regards divorce, for example, husband and wife must be on an equal footing. Both should have the same or equal grounds on which to seek divorce. Under Muslim Personal Law, women have the right to seek divorce. Muslim women have the right to seek divorce if the husband is missing or of unsound mind. But conditions such as these do not apply to men. So the grounds for divorce should be the same. Actually, if you examine it closely, the issues can be settled logically and without much dis­pute. If you agree that discrimination should be done away with and we work towards genuine gender justice. No political party can really support distortions and discrimination. It is true that the Hindu Code Bill also faced considerable opposition when it was legislated (in the mid-1950s). Though of course the issue was also why only one community’s law was to be reformed and what was the ground for excluding others. The sum of it is that when you keep postponing decisions, they become more difficult.

And in matters of succession and inheritance?

The matter of succession will include inheritance, adoption and guardianship. Adoption is allowed only under Hindu law. Under Hindu law an adopted child has the same rights as a biological child. This is not so under Muslim and Christian laws where there is guardianship. There is no natural share in the property of parents after the age of 18. The Juvenile Justice Act does have a provision by which any person from any religion can adopt. Then there is inheritance. It was only in 2005 that Hindu women were given the right to equal share in the father’s property. It was a Supreme Court order. Under Muslim law the right of daughters

did exist. But it was one-third for women and two-thirds for men. So it is that daughters will share one-third and sons two-thirds. Under Hindu law a person can will his or her property to any one child. These are the set of issues that any UCC will deal with.

Doesn’t all this make family law reform contentious?

I would say reform of family laws is the least contentious part even if it does not appear so. These reforms are urgently needed and no fair and sensible person will feel otherwise. The issues of succession and property might be more complicated though they are also not unsolvable. An important aspect is that women must not be subject to discrimination.

The current situation did not develop overnight.

Let’s go back to 1937. Let’s refer to an even earlier development— the advent of Islam in India. The Muslims arrived with Sharia, the Islamic law and system of governance. Sharia was used for administering criminal law. In practice, in civil matters, religious laws prevailed. From time to time, there was a dilution of the harshness of the law in criminal mat­ters too. When the East India Company arrived, there were many laws and the British wanted to bring in a law so that they could govern the land. Then, once the British crown took over after 1857, a law commission headed by Lord Macau­lay was formed. In the 1860s, the Indian Penal Code and the Criminal Procedure Code came into being. This process continued for a while. Muslims did not oppose the criminal law even though various demands are voiced today. The Muslim Personal Law (Shariat) Application Act came into being in 1937. It is all of one-and-a-half pages. Muslims were told that their matters would be settled as per Sharia. But this meant that communities like Khojas and Memons, who followed customary Hindu law, were also bound to follow Sharia. BR Ambedkar was in favour of UCC but when he could not succeed, it was placed under Article 44, the Directive Principles of State Policy. Jawaharlal Ne­hru made the Hindu Code Bill part of election issues in 1952 and then pushed it through. The grounds for the opposition of people like SP Mookerjee and others included the view that reform was being done selectively. Why only a Hindu Code Bill? The govern­ment should bring in UCC for all citizens.

“If we leave it to reform impulses emerging from within communities, we may have to wait a long time,” says Sushil Modi

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How are the provisions of Muslim Personal Law to be assessed in terms of religious sanctity, etc?

It has been pointed out by legal experts that translations of Muslim law prevailing at the time the British began administer­ing India left much to be desired. There were errors and misrepre­sentations. It is said that many chapters were simply dropped as the law books were too voluminous! So, what is said to be divine or immutable might not be so, according to some commentators. It came to be called Anglo-Muhammadan law.

The case of the Northeast and the customs and laws of its many tribes are also being discussed in the context of UCC.

Let’s turn to the northeastern states. Article 371A and 371F apply to Nagaland and Mizoram. No act of Parliament with respect to religion or social practices, customary law and procedure, own­ership and transfer of land, will apply without a resolution of the Assembly. This was due to consideration for the tribes and clans that had historically followed their own norms. Certain assurances were given to them. For example, it has not been possible, for vari­ous reasons, to implement certain quotas in panchayat elections.

Then there is the Sixth Schedule of the Constitution under Article 244 regarding tribal areas. The Sixth Schedule applies to parts of Meghalaya, Assam, Mizoram, and Tripura. There are district autonomous councils, such as the one for Bodos or for the Jaintia and Khasi areas. The councils have the power to make laws with regard to marriage and divorce, inheritance and social customs. There are some 10 dis­tricts that come under Scheduled Areas. The Fifth Schedule deals with administra­tion and control of Scheduled Areas. The historical context of the Scheduled Areas and the provisions of Article 371A and F will need to be kept in mind. Customary faith and indigenous practices must be respected. There is a view that they must be exempted. That was the view of the 21st Law Commission, too. The issue of those who became Christians but continue to practise customary norms will be consid­ered as well. If we do agree that the Northeast and its tribal traditions need to be considered on a different footing, the issues under dis­cussion become more limited and, in my view, easier to deal with.

It is being argued that reform should come from within communities and not be forced.

The pace of reform of personal law has been uneven in different reli­gious communities. Some communities have made more progress in this regard. But if we leave it to reform impulses emerging from within communities, we may have to wait a long time. Rather, in some cases we see the opposite trend. So, do we wait? Will reform happen suo motu? Or do we move towards reform because, after all, 70 years have passed? And we do have the example of other nations that are Muslim-majority undertaking reforms. So I don’t think there is any convincing logic against reform of personal law. No one is saying bring back triple talaq even though opposition parties did not support the legislation to make it illegal.

Does UCC have to be one Bill or many?

In the case of the Hindu Code Bill, there were four Acts. But we will have to see what the UCC Bill is. A single Act can have different chapters. In any case, those who are bent on opposing reform will oppose it in any form. However, there cannot be any constitutional bar for reforming personal laws although no one is prevented from approaching the courts.

About The Author

Rajeev Deshpande

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