Tuesday, 20 October 2015

Uniform Civil Code

  • 3 instances of SC seeking UCC in 2015
    • The Supreme Court asked the central government in October 2015 whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions as there was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance, the court said
      • What was this case about --> a Christian man has questioned a provision that requires a Christian couple to be judicially separated for two years before getting a divorce, whereas this period is one year for Hindus and other non-Christians
    • A case seeking the court’s recognition to the Ecclesiastical Court, which operates under the Canon Law for Catholic Christians and not under India’s civil laws. The apex court was upset — wondering angrily whether India would remain secular in the present circumstances, and calling for stamping out religions from civil laws. This case remains pending. 
      Source: Jaagore.com
    • 3rd case: Court dealt with the issue of guardianship of a Christian unwed mother without the consent of the child’s father. While ruling in the woman’s favour, it said: “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation"

What is UCC?
  • It essentially means a common set of secular civil laws governing personal matters for all citizens of the country, irrespective of religion, caste or tribe.
  • Currently, different laws regulate these aspects for adherents of different religions.
    • Hindu Marriage Act, 1955
    • The Parsi Marriage and Divorce Act, 1936, 
    • Sharia law
Why do we need UCC?
  • DPSP Says so:
    • Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” 
    • Directive Principles, as Article 37 makes clear, are not enforceable by any court. 
    • But a body of judicial precedents says that they are fundamental in the governance of the country, and the State shall strive towards fulfilling obligations laid therein.
  • Fundamental Rights say so:
    • Article 25
      • It is important for “secular” character of India, which has been identified as part of the basic structure of the Constitution, and Article 25, which guarantees the freedom to practise, profess and propagate any religion. 
      • Some argue that because of 42nd Amendment of 1976, declaring India secular read with article 25, the State and its institutions can not interfere with religious practices, including in relation to various personal laws. this argument is unacceptable because 25(2) empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice” — therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code. 
    • Article 14 also demands UCC. Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage. 
      • Shah Bano Case
        • SC ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else. 
        • Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling. 
        • The Act allowed maintenance to a divorced woman only during the period of iddat, or for 90 days after divorce, according to provisions of Islamic law, but in stark contrast to general provisions under the CrPC. 
      • Daniel Latifi vs Union of India (2001), 
        • SC upheld the Act in so far as it confined the time period of maintenance to the iddat period, but held that the quantum of maintenance must be “reasonable and fair”, and therefore, last her a lifetime. In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law. 
      • Githa Hariharan vs RBI (1999)
        • SC adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances. The court held that the interest of the child was paramount, and that the letter of law would not override this aspect. 
        • It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration. 
    • Artcle 21 also gets vviolated - individual liberty
    • Article 15 requires non-discrimination based on “sex”, whereas Muslim Personal Law favours the man in many cases, especially in the issue of divorce and in the issue of polygamy.

So why is not UCC coming into existence?

  • Will of governments is enmeshed with political considerations — and is mindful of protests by various religious institutions that it would violate their religious freedom, and may lead to 
  • The fact is that an unprejudiced deliberation on the innate merits of a UCC has usually been overshadowed by communal and political overtones, provoking the Supreme Court to keep prodding the union government to ponder over it in the interest of national integration and gender parity.
Goan model:
  • Goa is the only state in India which has enforced Uniform Civil Code for all citizens.
    • The Portuguese Civil Code that remains in force even today which was introduced in the 19th century in Goa and wasn’t replaced after liberation.
  • UCC in Goa s a progressive law that allows equal division of income and property regardless of gender between husband and wife and also between children.
  • Every birth, death and marriage has to be compulsorily registered.
  • Muslims that have their marriages registered in Goa cannot take more than one wife or divorce by triple talak.

Way forward:
  • ICE cold treatment : Info, Communication, Education of masses
  • In instalments

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