Uniform Civil Code (UCC) is once again in limelight. While Union Home Minister Amit Shah announced this will be implemented in Himachal Pradesh If the Bharatiya Janata Party (BJP) returns to power in the assembly elections, Gujarat Home Minister Harsh Shanghvi announced that The state will constitute a committee headed by a retired High Court judge to explore the possibility of implementing it.
The issue has been heating up since May 2019 when BJP member Ashwani Kumar Upadhyay filed a petition in the Delhi High Court seeking a direction to the Union of India to form the UCC. Apparently, Mr Upadhyay was trying to force the BJP to honor the promises made in its 2014 and 2019 election manifestos that a UCC draft would be “based on the best traditions and harmonize them with modern times”. Will be prepared for.
But the BJP knows that it is almost impossible to implement such a code in India. No wonder the response of the BJP-led central government has been confusingly different from the BJP’s rhetoric.
For example, in October 2022 the Law Ministry filed an affidavit in the Supreme Court stating that it cannot direct Parliament to make any law, and therefore, all Public Interest Litigations (PILs) on UCC should be dismissed with non-maintainable costs.
The affidavit also informed the court that the issue of UCC would be placed before the 22nd Law Commission for consideration, and would be examined in consultation with various stakeholders involved in the matter after receiving its report.
This is shocking because in June 2016 the Ministry of Law and Justice had asked the previous Law Commission to “examine matters with regard to the Uniform Civil Code”, in response to which the 21st Commission issued a 185-page report titled “Consultations” in August 2018. A report was submitted. Paper on the Reform of Family Law” in which it was clarified that a UCC was “neither necessary nor desirable at this stage”.
Certainly, things could not have changed so rapidly between August 2018 and October 2022 as to require another inquiry into “matters with respect to the Uniform Civil Code”. Moreover, the 22nd commission was constituted this month, more than two and a half years after it was notified in February 2020. This means it has about three months to prepare and submit the report before its term expires in February 2023.
Does the central government think that the new commission will find reasonable ground to reverse the reasoning of the previous panel in this short period of time and declare that UCC at this stage is not only desirable but necessary?
Supreme Court’s push for UCC
Yet, no other party shares the BJP’s enthusiasm for a Uniform Civil Code. This is in view of the fact that even after intense debate on Article 35 of the Draft Constitution – which encouraged the State to secure UCC throughout the territory of India – as Article 44 in Part IV of the Indian Constitution When it was adopted in 1957, successive central governments had shown little interest in making it a law.
Surprisingly, it is the Supreme Court that has been repeatedly urging the State to enact the UCC despite Article 37 making it clear that the Directive Principles of State Policy specified in Part IV “shall not be enforced by any court”. may go” although they are “fundamental in the governance of the country”.
In shah banu Case (1985) Justice Y V Chandrachud held that Article 44 “remains a dead letter” as “there was no evidence of any official activity to frame a common civil code for the country”. He wanted a start in that direction “if the Constitution is to have any meaning”.
In Kesavanand Bharti Case (1973) Chief Justice Sikri, even after accepting that “no court can compel the Government to introduce a Uniform Civil Code”, said that a Uniform Civil Code was “in the interest of the integrity and unity of the country”. necessarily desirable”. Similar concerns were voiced as recently as 2019 jose Paulo Coutinho vs Maria Luisa Valentina Pereira Case.
Impossibility of UCC
The good intentions of those who genuinely believe that the Uniform Civil Code will establish communal harmony in India cannot be questioned. But they do not realize that in a culturally and religiously diverse country like India, such a unified code that is acceptable to all communities is not possible.
This was clearly brought out by the 21st Law Commission in its August 2018 report which warned that “cultural diversity cannot be compromised to such an extent that our insistence on uniformity threatens the territorial integrity of the nation itself”. be the cause of”. The report states that the resolution of differences may not be undesirable, but this should not lead to their elimination as the existence of differences is “a sign of a strong democracy”.
The commission counted Article 371(a) to (i) and the Sixth Schedule of the Constitution – which provides for certain exceptions to the states of Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law – among the perceived obstacles. Implementation of a UCC.
Several exceptions, the commission said, include several other exceptions relating not only to the protection of the separate family law system but also to other aspects of civil law. For example, the Code of Civil Procedure (CPC) and the Code of Criminal Procedure (CrPC) do not apply to Nagaland and tribal areas.
In any case, the CPC and CrPC are not uniform across the country as they have been amended several times by different state governments. For example, in May 2018 the Chief Minister of Maharashtra approved at least 29 amendments to the CrPC, and in November 2020 the Rajasthan Assembly amended the CPC to exempt agricultural land from attachment of property in recovery proceedings.
In the same month, the state assembly Passed three other bills – The Essential Commodities (Special Provisions and Rajasthan Amendment) Bill 2020, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services (Rajasthan Amendment) Bill 2020, and The Farmers Produce Trade and Commerce (Promotion and Facilitation) (Rajasthan Amendment) Bill 2020 – To counter the Centre’s farm sector laws.
To cite another example, Section 118 of the Indian Succession Act (1925) was struck down by the Supreme Court in 2003 for being unfair to Christians. Yet Hindu undivided families continue to enjoy tax benefits in India that are not available to other communities without the demand for a uniform fiscal code. The lack of uniformity in most other laws prevailing in the country makes the talk of UCC absurd and pretentious.
Article 44 reconsidered
The discussion on the feasibility of an otherwise unenforceable UCC has been possible only because it finds a veiled mention in the Directive Principles of State Policy. Perhaps our constitution makers made a mistake in including this provision despite their genuine intention of establishing communal harmony through it.
Nevertheless, as stated in Article 38, the Directive Principles are meant to exhort the State to promote the welfare of all citizens “as effectively as it is a social order, in which social, economic and political justice, all shall refer to “Institutions of National Life”.
If any one aspect of this constitutionally recommended policy – in this case Article 44 – is insisted upon obsessively while ignoring its overall intent, it will reduce the Directive Principles to what TT Krishnamachari has described as “a body of emotion”. The actual dustbin is said to be “… flexible enough to allow any person … to ride their hobby horse in it”.
Therefore, the only way to stop this would be to re-evaluate the notion of immutability surrounding Article 44 and examine why this provision has chosen to be pronounced since its inception in the 1950s when it proved impractical.
Meanwhile, the State cannot accept the imperative of the UCC merely on the basis of its inclusion in the Directive Principles. As historian Granville Austin explains Indian Constitution: The Foundation Stone of a NationThe constitutional structure of India is a good example of the principle of accommodation which is “the ability to reconcile, reconcile and work without changing their content, apparently incompatible concepts”.
Unlike a compromise, in which each party gives up part of its desired end that conflicts with the interests of the other party, through accommodation, claims Austin, “the concepts and attitudes, however seemingly are incompatible, intact. They are not driven away by agreement, but rather work together.
To emphasize this point he quotes Sarvepalli Radhakrishnan: “Why look at things in this context either He? why not try doing both And He?” Maybe this BR Ambedkar meant this when he described the Indian Constitution as “both unitary and federal according to the requirements of time and circumstances”.
Under the present circumstances, our constitution should be treated as federal and the idea of enforcing legal equality through UCC should be dropped as federalism is only about achieving understanding on division of powers or revenue among impersonal branches of the state. I am not. It is also a social contract between diverse communities of active citizens who make up those institutions to provide them, among other freedoms, cultural and religious autonomy to observe and practice their traditions and family laws, subject to the limits of the Constitution. Huh.
Any law that tries to ensnare this civil liberties in a uniformist trap will be impractical, and its promotion as a gateway to the Elysian realms of national integration is tantamount to chasing an unattainable utopia.
a. Faizur Rahman is the general secretary of the Islamic Forum for the Promotion of Moderate Thought. E-mail: themoderates2020@gmail.com Twitter: @FaizEngineer
Chasing Utopia – The Search for a Uniform Civil Code
Uniform Civil Code (UCC) is once again in limelight. While Union Home Minister Amit Shah announced this will be implemented in Himachal Pradesh If the Bharatiya Janata Party (BJP) returns to power in the assembly elections, Gujarat Home Minister Harsh Shanghvi announced that The state will constitute a committee headed by a retired High Court judge to explore the possibility of implementing it.
The issue has been heating up since May 2019 when BJP member Ashwani Kumar Upadhyay filed a petition in the Delhi High Court seeking a direction to the Union of India to form the UCC. Apparently, Mr Upadhyay was trying to force the BJP to honor the promises made in its 2014 and 2019 election manifestos that a UCC draft would be “based on the best traditions and harmonize them with modern times”. Will be prepared for.
But the BJP knows that it is almost impossible to implement such a code in India. No wonder the response of the BJP-led central government has been confusingly different from the BJP’s rhetoric.
For example, in October 2022 the Law Ministry filed an affidavit in the Supreme Court stating that it cannot direct Parliament to make any law, and therefore, all Public Interest Litigations (PILs) on UCC should be dismissed with non-maintainable costs.
The affidavit also informed the court that the issue of UCC would be placed before the 22nd Law Commission for consideration, and would be examined in consultation with various stakeholders involved in the matter after receiving its report.
This is shocking because in June 2016 the Ministry of Law and Justice had asked the previous Law Commission to “examine matters with regard to the Uniform Civil Code”, in response to which the 21st Commission issued a 185-page report titled “Consultations” in August 2018. A report was submitted. Paper on the Reform of Family Law” in which it was clarified that a UCC was “neither necessary nor desirable at this stage”.
Certainly, things could not have changed so rapidly between August 2018 and October 2022 as to require another inquiry into “matters with respect to the Uniform Civil Code”. Moreover, the 22nd commission was constituted this month, more than two and a half years after it was notified in February 2020. This means it has about three months to prepare and submit the report before its term expires in February 2023.
Does the central government think that the new commission will find reasonable ground to reverse the reasoning of the previous panel in this short period of time and declare that UCC at this stage is not only desirable but necessary?
Supreme Court’s push for UCC
Yet, no other party shares the BJP’s enthusiasm for a Uniform Civil Code. This is in view of the fact that even after intense debate on Article 35 of the Draft Constitution – which encouraged the State to secure UCC throughout the territory of India – as Article 44 in Part IV of the Indian Constitution When it was adopted in 1957, successive central governments had shown little interest in making it a law.
Surprisingly, it is the Supreme Court that has been repeatedly urging the State to enact the UCC despite Article 37 making it clear that the Directive Principles of State Policy specified in Part IV “shall not be enforced by any court”. may go” although they are “fundamental in the governance of the country”.
In shah banu Case (1985) Justice Y V Chandrachud held that Article 44 “remains a dead letter” as “there was no evidence of any official activity to frame a common civil code for the country”. He wanted a start in that direction “if the Constitution is to have any meaning”.
In Kesavanand Bharti Case (1973) Chief Justice Sikri, even after accepting that “no court can compel the Government to introduce a Uniform Civil Code”, said that a Uniform Civil Code was “in the interest of the integrity and unity of the country”. necessarily desirable”. Similar concerns were voiced as recently as 2019 jose Paulo Coutinho vs Maria Luisa Valentina Pereira Case.
Impossibility of UCC
The good intentions of those who genuinely believe that the Uniform Civil Code will establish communal harmony in India cannot be questioned. But they do not realize that in a culturally and religiously diverse country like India, such a unified code that is acceptable to all communities is not possible.
This was clearly brought out by the 21st Law Commission in its August 2018 report which warned that “cultural diversity cannot be compromised to such an extent that our insistence on uniformity threatens the territorial integrity of the nation itself”. be the cause of”. The report states that the resolution of differences may not be undesirable, but this should not lead to their elimination as the existence of differences is “a sign of a strong democracy”.
The commission counted Article 371(a) to (i) and the Sixth Schedule of the Constitution – which provides for certain exceptions to the states of Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law – among the perceived obstacles. Implementation of a UCC.
Several exceptions, the commission said, include several other exceptions relating not only to the protection of the separate family law system but also to other aspects of civil law. For example, the Code of Civil Procedure (CPC) and the Code of Criminal Procedure (CrPC) do not apply to Nagaland and tribal areas.
In any case, the CPC and CrPC are not uniform across the country as they have been amended several times by different state governments. For example, in May 2018 the Chief Minister of Maharashtra approved at least 29 amendments to the CrPC, and in November 2020 the Rajasthan Assembly amended the CPC to exempt agricultural land from attachment of property in recovery proceedings.
In the same month, the state assembly Passed three other bills – The Essential Commodities (Special Provisions and Rajasthan Amendment) Bill 2020, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services (Rajasthan Amendment) Bill 2020, and The Farmers Produce Trade and Commerce (Promotion and Facilitation) (Rajasthan Amendment) Bill 2020 – To counter the Centre’s farm sector laws.
To cite another example, Section 118 of the Indian Succession Act (1925) was struck down by the Supreme Court in 2003 for being unfair to Christians. Yet Hindu undivided families continue to enjoy tax benefits in India that are not available to other communities without the demand for a uniform fiscal code. The lack of uniformity in most other laws prevailing in the country makes the talk of UCC absurd and pretentious.
Article 44 reconsidered
The discussion on the feasibility of an otherwise unenforceable UCC has been possible only because it finds a veiled mention in the Directive Principles of State Policy. Perhaps our constitution makers made a mistake in including this provision despite their genuine intention of establishing communal harmony through it.
Nevertheless, as stated in Article 38, the Directive Principles are meant to exhort the State to promote the welfare of all citizens “as effectively as it is a social order, in which social, economic and political justice, all shall refer to “Institutions of National Life”.
If any one aspect of this constitutionally recommended policy – in this case Article 44 – is insisted upon obsessively while ignoring its overall intent, it will reduce the Directive Principles to what TT Krishnamachari has described as “a body of emotion”. The actual dustbin is said to be “… flexible enough to allow any person … to ride their hobby horse in it”.
Therefore, the only way to stop this would be to re-evaluate the notion of immutability surrounding Article 44 and examine why this provision has chosen to be pronounced since its inception in the 1950s when it proved impractical.
Meanwhile, the State cannot accept the imperative of the UCC merely on the basis of its inclusion in the Directive Principles. As historian Granville Austin explains Indian Constitution: The Foundation Stone of a NationThe constitutional structure of India is a good example of the principle of accommodation which is “the ability to reconcile, reconcile and work without changing their content, apparently incompatible concepts”.
Unlike a compromise, in which each party gives up part of its desired end that conflicts with the interests of the other party, through accommodation, claims Austin, “the concepts and attitudes, however seemingly are incompatible, intact. They are not driven away by agreement, but rather work together.
To emphasize this point he quotes Sarvepalli Radhakrishnan: “Why look at things in this context either He? why not try doing both And He?” Maybe this BR Ambedkar meant this when he described the Indian Constitution as “both unitary and federal according to the requirements of time and circumstances”.
Under the present circumstances, our constitution should be treated as federal and the idea of enforcing legal equality through UCC should be dropped as federalism is only about achieving understanding on division of powers or revenue among impersonal branches of the state. I am not. It is also a social contract between diverse communities of active citizens who make up those institutions to provide them, among other freedoms, cultural and religious autonomy to observe and practice their traditions and family laws, subject to the limits of the Constitution. Huh.
Any law that tries to ensnare this civil liberties in a uniformist trap will be impractical, and its promotion as a gateway to the Elysian realms of national integration is tantamount to chasing an unattainable utopia.
a. Faizur Rahman is the general secretary of the Islamic Forum for the Promotion of Moderate Thought. E-mail: themoderates2020@gmail.com Twitter: @FaizEngineer