About the Journal
The Journal of Law and Public Policy, a peer reviewed journal first released in 2014 is published annually by the Centre for Environment Law Education, Research and Advocacy. It touches upon various socio-legal issues in the interface between law and public policy such as human rights, consumer welfare, women rights, socio-economic rights, food security law, access to legal aid, medical law and ethics to name a few. The fourth, fifth and sixth volumes of the Journal have specially dealt with legal and policy issues on the Uniform Civil Code, Sustainable Energy and Sports. In addition to scholarly articles the Journal has also featured case comments and book reviews. JLPP is a peer reviewed journal with an ISSN No. 2350-1200.
JOURNAL OF LAW AND PUBLIC POLICY VOL-4 (2017): UNIFORM CIVIL CODE
Uniform Civil Code: An Attempt to Explore its Affordability
Dr. Vijender Kumar and Naresh Kumar Vats
The authors evaluate the affordability of UCC in this article. ‘Unity in diversity’ is a well-known term specifically in geographical aspect of the state since time immemorial but the inter-personal law conflicts are unavoidable in the modern society. The society is more influenced by political, social as will as economic conditions. The repeated steps for reformations are initiated by the reformers, political thinkers and economists for the political uniformity as well as economic uniformity except the negligible initiatives of social uniformity. The society is divided in many more religions, sects and sub-sects in absence of effective implementation of methods of uniformity which are leading to the emergence of various kinds of social conflicts. Chiefly, the Law of Marriage, Divorce, maintenance, Inheritance, Adoption etc. if treated under one umbrella of a common statute, a majority of the inter-personal law disputes will be zeroed down since, there is no discrimination on the criminal trial for any particular religion, participation in political activities, running business and educations etc. Everyone is obliged to be governed by Uniform Criminal Procedure but not by Uniform Civil Code which encourages the discrimination amongst the natives and grey areas of violation of human rights and discourage the development. The authors tried to draw the inferences from their research that if the society is tailored into the single colour and common thread, it would be more beneficial for the development of human beings: socially, economically, politically and legally.
Need and Challenges to Uniform Civil Code in India: A Special Reference to Muslim Ethos
Dr. G.S. Rajpurohit & Dr. Nitesh Saraswati
The authors in their article, deliberate on the challenges which the Muslim community will face if UCC is enacted. The authors reaffirms that criminal laws in India apply to all people equally across genders, castes and religions, a similarly uniform civil law, especially, in regards to divorce and succession rights, does not exist. Instead, the personal laws of Hindu, Christian, Parsis and Muslim are allowed to govern the people of those religions. Obviously, these personal laws are not the same and so, one finds a country where different regulations govern people based on their religions. This research paper calls into question the implications on justice and equality that such a system raises. The history of personal laws in India can be divided into colonial, post-colonial times and Independence Era. The existence of personal laws is a prime example of continuity between the colonial and post-colonial Indian States in which the colonial State’s legacy still looms large. Law is a “system of rules that a particular country or community recognizes as regulating the actions of its members.” Personal refers to anything that “affects or belongs to a particular person rather than anyone else”. Therefore, the very idea of personal law is impermissible for a law by nature, cannot be personal. This conundrum begs us to consider the validity of the Indian Personal Law System. Civil law in India is a complex matter, a conglomeration of the various personal laws governing Hindus, Muslims, Parsis, Jews and Christians. A common civil law can be applied to a legal case if and only if the litigants choose to opt out of their religious community. However, because of the social taboo that usually comes with such opting, very few choose this route and hence, personal laws play almost a complete role in civil matter.
Uniform Civil Code: A Quest towards Ensuring Uniform Property Rights for Women
Dr. P. Sree Sudha
The author examines the property rights of Women and explores whether UCC can address this issue. The topic of inheritance in India is a “concurrent” one, i.e. one over which both the central and the state governments have legislative authority. Like most personal laws in India, inheritance laws too vary by religion. The fundamental law governing present day inheritance rights of four religious communities i.e. Hindus, Buddhists, Jains and Sikhs, was designed to lay down a law of succession whereby sons and daughters would enjoy equal inheritance rights. In reality persistent discrimination occurs against women is common in India and the main source of bias came from joint family property, to which sons enjoyed right by birth to an independent share but daughters did not. Both had equal rights of inheritance to the separate property that their father accumulated during his lifetime. But, due to the fact that a considerable amount of property, especially land in rural areas, is still jointly owned, such biased rights had a crippling effect on the property ownership of women in India. The author has analyzed the various religion based succession laws to show that they stem from a fundamental desire to secure and keep control over property in the hands of men and to assert the superiority of one gender over the other. Apart from the disadvantages faced by women devoid of property, a legislative vacuum on matrimonial property has devastating consequences on women and children in the eventuality of divorce, widowhood and desertion. Judicial pronouncements of Hon’ble Supreme Court and Hon’ble High Courts are of vital importance, as they lay down the interpretation of the enactment and the intention of the legislature. Some of the most important recent judicial pronouncements are discussed to ascertain the actual effects of the Amendment Act of 2005. Finally the author strongly argues for Uniform Civil Code for giving better property rights for Indian women.
Multi-Culturalism or Malestreamism: A Feminist Jurisprudential Critique
The author in this paper analyses the issue of multi-culturalism from a feminist jurisprudence point of view. In a democracy, everyone is purportedly equal before the law. The fact that in spite of Supreme court intervention in rights of Muslim women in marriages, but no changes have happened on ground, stands testimony to the “double jeopardy” faced by Indian Muslim women. Their plea for justice are echoing till today at the Supreme Court of India, but have only been met with half-hearted attempts at revamping the Indian Muslim Personal law. The author further analyses whether only Indian Muslim women face these legally legitimized discriminations, or Muslim women globally are victims of this systemic oppression. This is analyzed from the view of abolition of triple talaq in Islamic countries as opposed to is rampant use by Indian Muslim men, with deleterious consequences on the female victims of this egregious act. The possible reason for the anomaly of the existence of this legal incongruity in the light of the fact that arbitrary triple talaq is considered un-Islamic and declared unconstitutional by our Supreme Court is analyzed in this article
Uniform Civil Code: A Way to National Integration
The author, argues and states that UCC may forge national integration. The author has analyzed the diverse nature of India’s culture and religions and the contributions of foreign ruler who invaded India enriching the culture of the country. In the background of people of different religions and communities have their own personal customs, usages and laws in India, the author has analyzed the need for uniform civil code to bring the uniformity in laws in a secular nation. An analysis of the various attempts made for uniformity of various laws during the British rule and post independence is made. The author makes argument for the need of uniform civil code in the light of the existing problems in the diversified nature of India and various judgments of the Judiciary.
A Critical Study of Civil Code in UK, USA and India with Special Reference to Rights of Women
The author makes a comparative study of rights of women in other jurisdictions. In India there seems to be no uniformity in the laws relating to marriage, divorce, maintenance, guardianship and succession. The term uniform civil code acts as a misnomer in India as violating the age old beliefs of different religious groups. It does not mean that it will curtail one’s freedom to religion but will promote real secularism where everybody will be treated equally irrespective of one’s religion. A comparative study of civil codes as practiced in UK, USA gives a broad idea of how secular laws are applied without hurting one’s religious sentiments. The status and the rights of women depend on the personal laws to which one is affiliated by religion. The discrepancies faced by women under the personal laws in India certainly does not seem to fulfil the equality principle as inscribed in our Constitution and various other international instruments as ratified by India. The Uniform Civil Code is the need of the hour not only for the uplifting the status of women also for the promotion of national unity and integrity. The author focuses on the study of civil code in UK, USA and India with special reference to the rights of women in the area of marriage, divorce and maintenance.
Constitutional Quest to Uniform Civil Code- Mirage or Compulsion
Lt.Col. Plavelil George Eapen (Retd)
The author argues for establishing the national integration council to resolves the issues relating to UCC. Our country which gained political freedom in 1947 was fortunate to be given a Constitution by the founding fathers. With the political call for one nation there was an effort to include a Common Civil Code as a fundamental principle. However there were dissenting voices in the backdrop of communal riots and religious discord. Uniform civil code was included therefore as Article 44 of directive principle of the State Constitution without a time frame. Over the last seven decades there has been economic growth and development based upon government financial plans. However, social harmony and freedom in society has often been elusive. There have been numerous riots based upon religious animosities. This has affected a harmonious social growth of society. To achieve the enactment of a Uniform Civil Code the government should have made a road map as to the measures to be implemented to create a socially harmonious environment, conducive to legislation. However over the years there has been religious violence often instigated by political compulsions while the directive on UCC remained in limbo. Thus any sudden legal enactment to enforce social justice will be resisted by a wide spectrum of interests. A clear case is divorce by triple Talaq and polygamy in the Muslim community. On the one hand a simplistic approach would be its abolition like that of Sati among the Hindus. But as Talaq is a practice with wide connotations due to the Islamic scholarly interpretations and justification, there will be great discord. The author provides a multi-pronged solution for the enactment of UCC.
Uniform Civil Code, Constitution of India and Constitutionalism
The author looks at whether the Constitution of India has worked towards the goals of the UCC. While we all continue to witness to heated debates on the question of desirability or otherwise of Uniform Civil Code from various perspectives, the author in this paper analyses Uniform Civil Code from the standpoint of Indian Constitution and Constitutionalism. Essentially the UCC has entangled itself with Indian Constitution and in the whirlpool of Indian politics. The author in this paper begins with an analysis of the background in which Uniform Civil Code found a place in the Indian Constitution. It has been duly pointed out that the Constitution did not define the nature and scope of the UCC; neither did it state the extent of State interference into personal laws. It does add to some confusion whether or not UCC must be attempted by the State. The author examines the intermingling of freedom of religion and Uniform Civil Code, in the backdrop of constitutional promises, including, but not limited to Right to Freedom of Religion. In the light of the Constitution, Constitutionalism and a catena of judicial decisions, the author argues that, while getting rid of practices, like triple talaq which run contrary to the principles of equality and fair treatment, are a constitutional compulsion, Uniform Civil Code in the rigid sense that, destroys the diverse fabric of this country can be catastrophic.
Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities
Eklavya Anand & Shailesh Kumar
The authors state the reasoning and objectives necessary for the codification of the UCC especially for the protection of rights. The authors venture through the domain of personal laws and unpack how the Masculine DNA has shaped and reshaped personal laws to keep the unjust gender equilibrium in the society intact. It further evokes history to unearth the historical deficit in the arguments of majoritarian community when it comes to there form of personal laws. The majoritarian community, which claims to be progressive in the current debate pushing for a Uniform Civil Code, forgets the past when it showed extreme rigidity with regard to reforms in the domain of personal laws as colonial interventions. The authors highlight the constitutional debates and state-sponsored selectivity, which perpetuates a spiral cycle of status quo. In this process, it is safe to say that the judiciary seems more progressive than the legislature in performing its constitutional duties, though the judiciary also seemed to be in an escapist mode in the past. This legal vacuum as well as an egalitarian desire for equal integration in the unequal social structure of the society has given birth to many movements of socio-political nature. It further emphasizes the political economy of some of the prominent socio-cultural movements to fill this legal vacuum as complex and driven by extra-legal considerations. The aspiration of bringing uniformity in the personal laws is rooted in the nationalistic perspective and is deeply problematic. It contends that the shift towards uniformity to attain national integration should be embedded in the sustenance of the religious diversity rather than forcing religious homogeneity. Putting forth the feminist perspective, it attempts to assure that the abolishment of evil practices from all personal laws would be more successful if the debate on personal laws is shifted from ‘religion’ and transplanted in ‘gender’. The authors conclude by saying that any improvement in the personal laws should be initiated from the points of view of the troika of gender, individual rights and progressive democracy.
Examining the Fundamental Dichotomies of Personal Laws and Human Rights with Reference to a Growing Consensus for a Uniform Civil Code
The author in his article examines the dichotomies between personal law and human rights. The guarantee of human rights is perhaps the most essential component in the manifest constitutional machinery of modern democratic establishments. In India, this proposition is evidenced by the ostensible primacy of fundamental rights, which are constitutionally recognised, and judicially enforceable. The quiddity of human rights is conceivably, its universality, and as such, the universal implementation of human rights is the primary prerogative of a human rights system. In India, that prerogative is threatened by personal laws that are deeply patriarchal, and are principally abrogative of a woman’s right to equality. Whilst a perfunctory analysis would render a conclusion favouring the exclusion of personal laws from India, a deeper inspection demonstrates the intrinsic dichotomy that manifests in a paradigm of human rights and personal laws; “culturally relativistic personal laws as opposed to universally multicultural human rights”. Personal laws are, at a theoretical abstraction, symptomatic of a call for cultural relativism in legal systems. Contrastingly, the Uniform Civil Code, which is postulated as a necessary solution to the problem of discrimination of women, is at its crux, a call for a multicultural society that can operate based on a single set of laws. The manifest coalescence of religious freedoms in this dichotomy provides illusory justifications to personal laws, as the constitutional mandate for the right to freedom of religion stipulates the “right to manage its own affairs in matters of religion”. To that effect, the primacy of individual rights(which constitutes a significant interest of human rights) is challenged by the religious freedoms of organised religion. Thus, a subliminal dichotomy of the right to religious freedom and individual rights (the right to equality; a human right of significant import) manifests, subsumed into the overarching dichotomy of cultural relativism and multiculturalism. The author in this paper seeks to provide a legitimate justification for the posited dichotomies by advancing a conclusion favouring the implementation of a Uniform Civil Code.
Uniform Civil Code and the Conflict of Personal Laws
The author looks into the UCC versus personal law issues and conflicts. It is an accepted interpretation that whence the phrase, ‘conflict of personal laws’ is considered, (in predominantly an Indian context) one is under compulsion to consider the underlying causes that explain the origination of the statement, the undeniable religious tension that has been extant in the country since medieval times. The anthropologically interesting march to the independence of India in 1947 and the events of the partition that preceded and post – dated the same, seek to validate the surprising amount of autonomy granted under Article 25 of the Constitution of India, 1950 at the individual level and at the organizational by means of personal laws. It is the belief that is held by a great many citizens of the country that the positing of a Uniform Civil Code, could potentially hold the key to resolving the problems resultant from the presence of conflicting personal laws and judicial hesitation in intervening into the matter, further exacerbated by a contrast that the conventionally active nature assumed by the higher judiciary in India has allowed. While the Law commission has definitely expressed that information aplenty must be rigorously collected and analysed before undertaking the task of framing such a code, it is dismaying to observe the general assumption in the populace including the framers of policy that the possible solution to the situation at hand, is through the route of the passing of a Uniform Civil Code. When a problem that requires the use of human reasoning is approached with a confirmation bias, then the results are tainted by the same. To postulate, the UCC does not resolve the conflict, as it does not remove the underlying religious tension and possibly will allow for the fomentation of social circumstances that favour greater religious conflict in the absence of secondary institutional autonomy.
One Code, One Nation: Reality or a Speculation
Kriti Rathi & Aman Tolwani
The authors in their article analyze the reality of achieving one code one Nation. An analysis on the diversity of India along with various legislations is made. The authors contemplates the question whether it is possible to govern each of them equally for there exists different cultures, traditions, thereby forming different classes of persons considering that India is a country with vast heritage known to cohabitate multi-lingual and diverse citizenry, multi-religions co-existing,. Different people are governed by their separate personal laws as different treatment needs to be meted out to different classes based on their respective needs and traditions. As these sects of society are ruled by their customs and traditions hence arose a need for separate personal laws governing these religious sects of the society. Accruing to this need for personal laws, different special laws were enacted such as the Christian Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act and various branches of law developed under Family Law – Muslim Law, Hindu Law, Christian Law and Parsi Law. The authors provides a background on the development of UCC in India and makes analysis supporting their argument that India practically has a Civil Code, uniform in its content and applicable to the whole of India.
Cruelty: Interpretation of Indian Personal Laws
Samhitha Sharath Reddy
The author analyse the issues on ‘Cruelty’ in personal law. ‘Cruelty’ is a term with an ever evolving meaning. It is a matrimonial relief in India which can by claimed for divorce and judicial separation by both men and women. India being a religiously and culturally diverse country has numerous interpretations of the term ‘Cruelty’ which vary from religion to religion. What maybe cruelty today may not have been cruelty in the past and what is cruelty in one religion, may not be interpreted as cruelty in its other Indian counterparts. The author attempts to analyze the interpretation of the term ‘Cruelty’ in the different personal laws of the country as well as trace the evolution of the same in each personal law. The similarities and differences of the term in the different laws are analysed extensively.
Uniform Civil Code: Unified Laws and Divergent Ways
Siddharth Anand Panda & Samyak Mohanty
The authors have contributed on the Constitutional challenges to unify religion based personal laws. The Uniform Civil Code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen under Article 44 of the DPSPs which makes the implementation of the same as the state duty. The relationship between religion and constitution has become a most contested issue, especially in the context of Fundamental religious rights and Secularism. There is a raging debate between proponents of a UCC and the defenders of distinct legal traditions over the precise meaning of this principle. In this paper, the authors try to contemplate the need of a UCC by doing a status quo analysis on the issue of religion and constitutionalism. The authors ask two important questions: Should plural societies adopt uniform civil laws in deference to the equality of all citizens before law or should the integration of the diverse religious groups be addressed through a pluralist model of law in deference to the concept that a democracy must respect religious freedom? The authors try to bring conceptual precision to the discourse, first by identifying empirically the contexts in which constitutionalism is employed and secondly, through a normative inquiry regarding the role constitutionalism could perform in the making of a ‘UCC’. In addition to that attempts have been made to re-define secularism and articulate that secularism is polysemous. The major question here is whether a unified personal law system answer to the problems of religious fundamentalism such as Hindutva, Triple Talaq, Nikah halal etc. Can State mediate between the acceptance of religious laws and universal human rights and explore possible solutions with regards to drafting and implementation of a unified civil code satisfying the challenges of unifying individual and religious rights and retaining the essence of the Constitution.
The Future of Muslim Personal Law in India: Codification or a Uniform Civil Code?
Zaid Deva & Swagat Baurah
The authors have in their article, raised the challenges that may arise from the codification of Muslim personal law. The Supreme Court has consistently taken up the task of defining secularism and has tried giving it a wide ambit of reasoning and interpretation, but this has also, in a fortuitous misfortune, created the great confusion that exists today. Article 44 of the Constitution mandated the state to ‘endeavour’ so as ‘to secure for the citizens a uniform civil code.’ While most of the Civil law has been made uniform, it is the personal law of various communities, particularly Muslims which has been the major obstacle for the governments in initiating reform. Further, the very personal law of Muslims has become vague and indeterminate, owing to the growing number of sects in Islam. The existence of the controversial practices in Shariah like Triple Talaaq, Polygamy, Halala beg the question, “Should social reform be stalled, because of the supposed divine characteristics of the personal laws which the secular state shies away from infringing?” Another question that arises here is whether or not, the State as much as endeavoured towards implementing a uniform code since 1950. With the advent of a majority right wing government in India, the debate of ‘majoritarianism under the garb of social reform’ has been fuelled, because a Codified Muslim Personal law would serve the purpose equally well. The benefits of a codified Muslim personal law, and how that could be an antecedent in enacting a Uniform Civil Code, which is supposed to bring all the communities on a similar platform on matters which do not form the essence of any religion, leading to a national consolidation, which has been so long desired has been described. The authors also discuss whether secularism, in general and Indian Secularism in particular, is compatible with the Islamic principles, which encompass almost the entire private and public aspect of an individual’s life. The authors briefly look into the history of the Shariah vis-a-vis polygamy, triple talaaq and halala, and argue that these practices have lost their purpose, and the manner these are practiced today are in direct contravention of the basic tenets of the Constitution, hence should be discontinued with, because the essential principle behind a Uniform Civil Code or a Codified Personal law is that constitutional law shall supersede religious laws in a secular & democratic republic, where the rule of law prevails.
Uniform Civil Code: An Ornamental Legislation
Debajyoti Saha & Sunayna Bhat
The authors argue that UCC though inevitable, has many hurdles to crossover. Every religion has its own laws and regulations. In the preamble of our constitution we, the people of India, are stating that India is a secular country. We cannot differentiate between the religions on the grounds of their personal laws. The Constituent Assembly of India was already aware of the situation during the drafting of our constitution. That’s why they put a duty on the State to make “Uniform Civil Code”. Uniform Civil Code is one of the directive principles of state policy contained in the Constitution of India. It directs the state “to endeavour to secure for the citizens a uniform civil code throughout the territory of India”. It has created controversy since its inception. The multiplicity of diverse religions caused alarming situations. Religious freedom under Article 25 is not confined to freedom of conscience but its ambit covers right to practice, profess and propagate the religion by its own citizens. The religion is a wide and pervasive concept. It is confined to ‘faith’ only because ‘practice’ and ‘propagate’ are the part and parcel of the religion. The apex court from time to time has reacted sharply, favouring its enforcement even at the cost of its ‘judicial discipline.’ The latest pronouncements in the cases of John Vallamottom v. Union of India and Sarla Mudgal v. Union of India & others have set example for the ‘judicial activism’. The making of “Uniform Civil Code” will not happen in one day. It has to be done in step by step process. We can take example of the state of Goa which is the only Indian state having “Uniform Civil Code”. Appropriate time will never come if we sit idle. We have to take the risk and face the consequences as it is high time for us to realize the importance of “Uniform Civil Code”.
Uniform Civil Code and Its Constitutional Apparatus
Nithya C & Sera Rose George
The authors contribute on the Constitutional challenges under Art 25 with that of achieving the objectives under Art 44. A functioning democracy adheres to the theory and practice of the fundamental principles of equity, justice and inclusion for all. And the aforementioned “all” consists of women, men, young, old, able-bodied and disabled alike, irrespective of race, class, religion and sexual orientation. This is the defining feature of a democracy. And in such a democracy, why not create a common civil code that brings out the best in every religion and society? Why not introduce a common procedure for marriage, divorce, inheritance and right to property; something that does not interfere with an individual’s way of worship, yet have a unification of personal laws? Under Article 44, the State shall endeavour to enact a Uniform Civil Code for citizens throughout the country. Further, Article 25 of our Constitution says “nothing in this article shall prevent the state from making any law” associated with religious practice, so the argument that UCC is a violation of Article 25 will not hold. By empowering the State to regulate or restrict any laws, as per Article 25, a clear distinction is made between sacred and secular. Thus practices such as witchcraft, sati, and prohibitions against widow remarriage, caste discrimination, Maitri Karar, Natha Pratha, talaq-e-bidat, and polygamy may be and have been banned or regulated. However, whether and where a boundary is to be drawn is debatable. The feasibility and desirability of a UCC has always been mooted for decades by women’s rights activists, and the question that keeps recurring is – what is the value of uniformity? Who exactly is the beneficiary? Which sections of people will benefit from this? Is there any suffering due to the absence of a Uniform Civil Code? There is no personal law that is complete in itself. We have succeeded in bringing transitions through secular laws instead of forced legislations in certain instances. Gradual changes made through legislations or judicial pronouncements that assure gender equality and a broader outlook towards marriage, maintenance, adoption and succession by acknowledging the benefit that one community secures from the other will be a good way forward.
MAINTENANCE UNDER MUSLIM PERSONAL LAW IN LIGHT OF DANIAL LATIFI VERSUS UNION OF INDIA– THE NEED FOR A UNIFORM CIVIL CODE
The author has contributed a case comment on Danial Latifi case. The Supreme Court in the case of Danial Latifi v. Union of India upheld the constitutionality of the Muslim Women [Protection of Rights on Divorce] Act,1986 and interpreted it in a way that ensured general welfare and provided social justice. This became a landmark judgement of the Court, as this democratic interpretation was used in all further Muslim divorce cases. It protected the rights of the divorced Muslim woman, and ensured her Right to Life with personal dignity. The author analyses this landmark decision of the Supreme Court in light of the constitutional principles of equality and secularism. Further, the different interpretations of the Act before this judgement have been discussed. The impact of this decision on the social status and maintenance policy of divorced Muslim women in subsequent cases has also been evaluated and described.
UNIFORM CIVIL CODE AND ADOPTION LAWS: A CASE COMMENT ON SHABNAM HASHMI VERSUS UNION OF INDIA
The author discusses the Shabnam Hashmi v. UOI case. This comment begins with the legal background and factual matrix of the case, and goes onto analyse the judgment and then conclude. In the process, the various models of a uniform civil code are also explored. The right way forward is to harmonise conflict between personal and statutory law, the Court was wrong in viewing the opt-in-opt-out approach as an interim measure towards the end of achieving a Uniform Civil Code. It also seeks to show that the court was incorrect and self-contradictory in citing personal law to deny the right to adoption the status of a fundamental right.