Strike a fine balance, have a just civil code (GS Paper 2, Governance)
Context:
- Recently, the Law Commission of India decided to solicit views and proposals from the public about the Uniform Civil Code (UCC).
- It had concluded that the ‘UCC is neither necessary nor desirable’.
Autonomy versus authority:
- The question of personal laws is basically the question of personal and religious autonomy versus the state’s authority to reform familial relations. Since each religious group has cultural autonomy, it is thus being argued that the community should itself come forward to seek reforms. This is the justification for the adoption of internal law reform or voluntary UCC.
- In fact, the Special Marriage Act, 1954 and the Indian Succession Act, 1925 are nothing but examples of voluntary adoption of the UCC though the recently enacted love jihad laws by prohibiting inter-faith marriages basically violate the spirit of Special Marriage Act.
- There are also regional differences, i.e. Kerala had abolished the Hindu Joint Family in 1975; Muslim marriage and divorces are to be registered in Bengal, Bihar, Odisha, Jharkhand under the 1876 law, and in Assam under 1935 law, and adoption was permissible to Kashmiri Muslims.
Violating religious identity:
- Muslim bodies say the Law Commission’s move inviting suggestions for Uniform Civil Code is ‘against the spirit of the Constitution’
- At present, not just Muslims but even Hindus, Jains, Buddhists, Sikhs, Parsis, and Jews are governed by their own personal laws. Accordingly, believe it or not, it is the religious identity that determines which personal law would apply to a group of individuals.
- Even reformed Hindu Personal Law under the Hindu Marriage Act, 1955 does insist on solemnisation of marriage, through saptapadi (seven steps around fire) and datta (invocation before fire).
- Section 7(2) of the Act, just like Manusmriti (8.227), provides that marriage is completed on the seventh step. Sapinda relationship, adoption and Hindu Joint Family rules too are based on the Hindu Personal Law.
- Surprisingly when two Hindus marry under the Special Marriage Act, 1954 (Section 21A inserted in 1976), they continue to be governed by Hindu Personal Law, but if two Muslims marry under this legislation, the Muslim Personal Law (MPL) would no longer govern them. Interestingly, a person who renounces Hinduism too continues to be governed by the Hindu Personal Law.
Multiculturalism:
- Indian Constitution’s commitment to cultural accommodation is visible through a near-absolute fundamental right in Article 29(1) dedicated exclusively to conserving the distinctive culture of all citizens.
- That said, the Commission must bear in its recommendation that for a diverse and multicultural polity such as India, the proposed UCC must be emblematic of India’s ‘mosaic model’ of multiculturalism.
- Under the Indian Constitution, the right to cultural autonomy defends the Indian model of multiculturalism. The Indian Constitution offers two major approaches with respect to accommodation of difference, integrationist and restricted multicultural.
Just code:
- Accordingly, the 21st Law Commission (2015-18) had boldly favoured equality between men and women in communities rather than aiming for equality between communities.
- A just code should be the primary goal as just laws are more important than a mere one uniform law.
French model:
- India’s tryst with preserving its multicultural diversity is often found at the crossroads with values such as secularism.
- Despite secularism being a fundamental tenet governing the Indian polity, India decided not to adopt the French model of laïcité, which strictly prohibits bearing any religious outfit or marker in public; that considers religion in public as a threat (and not a prominent promoter) to the nation’s secular fabric, thus pushing it within only the four walls of the domestic household.
- Indian society, therefore, ‘accommodates’ and not just ‘tolerates’ the wide array of group and ethnic differences.
Centre’s stand:
- Centre files affidavit on Uniform Civil Code in SC, says different religions following different laws affronting national unity.
- However, a claim of such broad nature invites limitations inherent in the name of personal laws and practices, what deserves legal protection and promotion and what does not.
- Right to cultural-relativism cannot justify continuation of unjust and discriminatory personal laws. Such provisions of the personal laws must be made consistent with substantive equality and gender justice goals espoused in the Constitution.
MPL Reform:
- One hopes that the Law Commission of India would not contribute to the rise of reactive culturalism amongst different communities in India, including Muslims.
- The Muslim community too must understand that the MPL and Islam are not one and the same. The MPL is a jurist given law and is not entirely divine. It was derived in certain matters from the erroneously translated secondary sources rather than the Koran and Sunna of the Prophet.
- British courts treated juristic opinions in the MPL on a par with statutory laws enacted by the legislature and by insisting on the British doctrine of precedent, they further brought in a lot of rigidity in the MPL.
- Let the Muslim clergy come forward and lead the MPL reform process by identifying the discriminatory and oppressive issues and adopt the views of progressive jurists.
Way Forward:
- As the Commission proposes an overhauling secularisation of various socio-religious-cultural practices that have been the mainstay of thousands of religious and ethnic communities since times immemorial, the path ahead is not going to be free from hurdles.
