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With Kerala changing into the second state to cross a decision towards the Uniform Civil Code (UCC) after Mizoram, and the Legislation Fee of India sifting by way of roughly 5 million responses on the potential of a typical code, it may be straightforward to overlook that regardless of a swirling political debate on the contentious subject, there is no such thing as a draft legislation or proposal in circulation. The talk on UCC is previous, and has remained alive since Independence due to Article 44 of the Structure, part of the non-justiciable directive ideas of State coverage, which states that “the State shall endeavour to safe the citizen a Uniform Civil Code all through the territory of India.” Aside from political utterances, the one concrete proposal has come from the parliamentary panel on personnel, public grievances and legislation and justice, whose chief, Bharatiya Janata Social gathering MP Sushil Kumar Modi, has made two recommendations — enact a uniform code, however hold tribal communities and the northeastern states out of the ambit of any proposed legislation.
Is that this workable? Sadly, such a course could be fraught with authorized ramifications. Any tweaks for tribal communities, and never for others, will violate the literal which means of Article 44, which requires a “uniform” code “all through the nation”. The which means of “territory of India” is ready out in Article 1 of the Structure. Exempting tribespeople from the ambit of a typical legislation shall quantity to defining the “territory of India” in a fashion opposite to Article 44.
The opposite authorized problem may come from excluding the scope of varied spiritual customs which have the pressure of legislation as outlined within the chapter on basic rights. The rights with respect to non secular practices assured in Article 25 or 26 may also step in. However the inclusion of customs is a dangerous train that must be executed fastidiously. When the State was drafting India’s secular marriage legislation, the Particular Marriage Act, within the Fifties, it borrowed vital provisions such because the diploma of prohibited relationships and the applicability of the Hindu Undivided Household (HUF) idea from the Hindu Marriage Act, which itself was formulated out of Hindu rituals and practices. And nonetheless, it was known as a secular legislation. Thus, the spiritual practices of the dominant religion discovered echoes in an avowedly secular legislation. Any proposed widespread code will must be cognisant of this.
The framing of the UCC debate is at all times in stark phrases — gender justice versus the apprehensions of minorities, particularly Muslims, who really feel that whereas legislating on essential points touching their rights, the chief and establishments haven’t been honest to them. Two points encapsulate this dilemma — succession of property rights and marriage. Whereas it stays to be seen how the federal government decides on these points, three key verdicts are more likely to grow to be the premise of any draft.
The primary is Sarla Mudgal vs Union of India in 1995, the place a Hindu married man dedicated bigamy and solemnised a second marriage with out dissolving the primary, by changing from Hinduism to Islam.
The decision spoke of the battle between private legal guidelines of varied selections and the courtroom stated that with out the primary marriage dissolved underneath the Hindu Marriage Act, the second marriage must be voided. This verdict is commonly cited as highlighting the necessity for a typical code in India as a result of the decide appeared to ask the federal government to look in the direction of creating UCC.
However the core subject right here was that regardless of a legislation prohibiting Hindus from indulging in polygamy, it had little impact. Census knowledge additionally exhibits that practices of polygamy exist outdoors Islam.
The second is John Vallamattom vs Union of India in 2003, when the apex courtroom dominated in favour of a Christian priest who argued {that a} provision of the Indian Succession Act was unconstitutional as a result of it imposed arbitrary restrictions on Christians donating their property to charity. The third is the 1996 Madhu Kishwar vs Union of India the place the courtroom weighed in on a tribal girl’s proper to inherit property.
The political push for UCC needs to create a homogeneous class of residents in a culturally and religiously various society. However such homogeneity is difficult authorized terrain.
In a landmark 2002 judgment on minority rights, the highest courtroom noticed, “Every particular person, no matter his/her language, caste, faith has his/her particular person identification, which needs to be preserved in order that when pieced collectively it goes to kind an outline with the completely different geographical options of India.” Those that really feel creating homogeneity in India is an crucial, must be reminded of this.
MR Shamshad is an advocate, Supreme Courtroom. The views expressed are private
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