Salient Features - 2 - UPSC PDF Download

Uniform Civil Code: An Overview

Introduction
Uniform Civil Code (UCC) is a concept originating in 17th-century Europe, linked to the process of modernization and secularization in Western countries. It symbolizes the power of the state to make personal laws based on the principle of legal sovereignty. UCC does not necessarily mean a common code for all communities, but rather laws that align with constitutional principles, leading to a sense of uniformity or overlap. The debate on UCC in India revolves around three key issues: secularism, national integration, and gender justice.

1. Secular Nature of Indian State: Proponents of UCC argue that India will only become truly secular when a UCC is implemented, as it is based on the idea of universal citizenship and understanding of secularism as 'religious neutrality.'
2. National Integration: Supporters of UCC believe that as long as different communities continue to practice different personal laws and special rights, they will remain conscious of their separate identities and will never emerge as a strong nation.
3. Gender Justice: Feminists argue that UCC will lead to gender justice, helping to realize the constitutional ideals of equality before the law and human dignity, and rejecting discriminatory customs and traditions towards women. The rights of Muslim women are a particularly controversial issue in this context.

Historical Debate and Constitutional Provision

• The debate on UCC in India dates back to the Constituent Assembly, with leaders like Hansa Mehta, Rajkumari Amrit Kaur, and K M Munshi in favor of UCC, while minority members like Ismail Sahib and Pocker Sahib strongly opposed it. Pandit Nehru and Dr. B. R. Ambedkar supported UCC but acknowledged that conditions were not conducive at the time.
• As a result, UCC was placed in Part 4 of the Indian Constitution, as per Article 37, which states that directive principles are not enforceable by the court of law but are fundamental in the governance of the country. Article 44 states that the state "shall endeavor to secure a uniform civil code for all its citizens," indicating that the Constituent Assembly favored the implementation of UCC.

Crux of the debate of UCC in India

The crux of the debate surrounding the Uniform Civil Code (UCC) in India relates to the constitutional authority of the Indian state to intervene in personal laws and whether a single code should govern all communities. This debate has been further fueled by controversies arising from cases such as Shah Bano and Shayara Bano, which involved triple talaq or talaq-e-biddat, and the interpretation of the Quran by the Supreme Court.

• Constitutional Authority to Intervene in Personal Laws: The primary question in the UCC debate is whether the Indian state has the constitutional authority to intervene in personal laws, which are traditionally governed by religious customs and practices. This question also extends to whether the state can create or modify personal laws.
• Supreme Court's Role in Interpreting Personal Laws: The UCC debate also raises concerns about the role of the Indian Supreme Court in interpreting personal laws, particularly in the context of the Muslim community. Some argue that the court should not have the authority to interpret religious texts like the Quran or determine which practices are permitted.
• Controversies in Specific Cases: The debate surrounding UCC has been further complicated by controversial cases like Shah Bano and Shayara Bano, which involved the practice of triple talaq or talaq-e-biddat. These cases raised questions about the interpretation of the Quran by the judges and the authority of the Supreme Court in determining the legality of religious practices.

Why confusion emerges?

• Multiple Ideologies within the Constitution: The Indian Constitution incorporates multiple ideologies, which leads to conflicting provisions. It guarantees both individual and community-based rights, leading to confusion.
• Universal Citizenship vs. Differentiated Citizenship: On one hand, the Constitution promotes the idea of universal citizenship, while on the other hand, it recognizes differentiated citizenship based on multiculturalism.
• Equality vs. Community-Based Rights: Articles 14 and 15 guarantee equality and prohibit discrimination based on religion or sex. However, Articles 29 and 30 protect community-based rights, creating a contradiction.
• Freedom of Religion and Personal Laws: Article 25 guarantees the freedom of conscience and the freedom to practice religion, which includes personal laws. However, this right is not absolute and is subject to public order, decency, and morality, allowing for state intervention in religious practices.
• Conflicting Provisions within Article 13: Article 13(2) states that the state cannot make laws that take away fundamental rights, while Article 13(1) declares any law in contravention to the Constitution, whether pre or post-independence, void to the extent of inconsistency.
• Lack of Consistency in Judiciary: The judiciary's lack of agreement on overarching principles leads to uncertainties and confusion in the interpretation of the Constitution.
• Conflicting Judgments in Personal Law Cases: In the Narasu Appa Mali case, the Bombay High Court held that personal laws do not come within the definition of 'law' used in Article 13, providing immunity to personal laws. However, in the Shayara Bano case (Triple Talaq case), the Supreme Court overruled this limitation, leading to further confusion.
• Judicial Review of Customs and Traditions: In recent cases like the Sabarimala case, the Supreme Court has clarified that customs and traditions are not immune to judicial review, creating further uncertainty in the interpretation of the Constitution.

What is the status of Indian state modifying personal laws?

• Britishers codified personal laws for Christians and Parsis in India.
• They attempted to codify Hindu personal laws, but there was strong opposition from Hindus, particularly from upper-caste Hindus.
• Ambedkar's attempt to modify Hindu personal laws in the form of the 'Hindu Code Bill' was also opposed by upper-caste Hindus.
• Hindu personal laws have been gradually modified and codified over time.
• A separate law known as the 'Anand Marriage Act' has been codified for the Sikh community.
• Muslim personal laws have not yet been codified in India.
• The Muslim Personal Law Shariat Application Act of 1937 states that the state shall not intervene in Muslim personal laws.
• A Special Marriage Act exists, which allows individuals of any religion to opt for a civil marriage.

Status of codification of Muslim Personal Laws

1. The 1937 Act and state intervention: The 1937 Act prohibits the state from intervening in Muslim personal laws. As per Islamic beliefs, Muslims should not live under man-made laws. However, many Islamic countries have codified laws, primarily because they are Islamic states.
2. Different sects and interpretations: There are various sects within Islam, and each sect has different schools of interpretation. To achieve codification, the Muslim community must first reach a consensus within themselves.
3. State intervention in India: Contrary to popular belief, the Indian state has intervened and codified Muslim personal laws on several occasions. The judiciary, parliament, and executive have all been involved in these interventions.
4. Shah Bano case (1985): The Supreme Court declared that Muslim women are eligible for maintenance in case of divorce, at par with Hindu women. This ruling meant that Muslim women could receive maintenance even after the iddat period.
5. Muslim Women Protection of Rights on Divorce Act (1986): The Indian Parliament passed this act, which restored the earlier position where Muslim women would only receive maintenance for the iddat period.
6. Shayara Bano case (2016): The Supreme Court declared that Talaq-e-Biddat (triple talaq) is not an essential practice of the Quran or Islam.
7. Triple Talaq Bill: The Indian government passed a Triple Talaq Bill in Parliament, further codifying Muslim personal laws in the country.

Opinions on UCC

Supreme Court's Position on Uniform Civil Code (UCC)
Initially, the Supreme Court took a revolutionary approach and directed the government to implement UCC in the Shah Bano case. However, in subsequent cases such as Sarla Mudgal and Shayara Bano, the Supreme Court only suggested the government implement UCC and did not give any directive.

• Government's Approach:  The present government interprets the Supreme Court's judgment on triple talaq as a directive to introduce UCC. The government referred the matter to the Law Commission in June 2016.
• Law Commission's Opinion: The Law Commission opines that UCC is not possible or desirable in the current situation due to the lack of consensus. It recommends codification of laws while preserving diversity and plurality. The Commission suggests following a piecemeal approach, focusing on achieving gender equality within communities, and removing discriminatory practices.
• Feminist Scholars' Views: Flavia Agnes, a jurist, argues that UCC is not a guarantee for justice and that the constitution permits diversity in personal laws. Nivedita Menan, a political scientist, believes that any reform of Muslim Personal Laws should not be based on Hindu customs and traditions.

In Conclusion, The UCC debate should focus on gender justice rather than nationalism or secularism. Women organizations should lead the discussion, while Hindu rightist groups should avoid politicizing the issue. The judiciary-led silent revolution, as suggested by the Law Commission, is a better option for implementing UCC by following a piecemeal approach, removing discrimination, and preserving diversity. Human rights should be the touchstone for any reforms.

Fundamental Rights, Duties & DPSP

I. Introduction
The relationship between Fundamental Rights and Directive Principles has been a subject of debate and discussion in India. Initially, there was a lack of clarity due to the contradictions between these two parts of the Constitution. Over time, it has been established that they are complementary and need to be harmoniously constructed.

II. Contradictions between Fundamental Rights and Directive Principles

• Enforceability: Fundamental rights are enforceable, while directive principles are non-enforceable.
• Ideological basis: Fundamental rights are based on liberalism, while directive principles are based on socialism.

III. Evolution of the relationship between Fundamental Rights and Directive Principles

• Legal battles and conflicts between the legislature and judiciary.
• Emergence of the understanding that both parts are complementary and need to be harmoniously constructed.

IV. Reasons for non-immediate enforceability of Directive Principles

• Lack of resources in the country.
• Avoiding constitutional crisis if the government is unable to enforce them.

V. Criticism of Directive Principles

• Non-enforceability leading to disappointment.
• Undermining federalism by including subjects in the state list.
• Limiting the choice of future governments in policy formulation.
• Problematic for the judiciary due to non-enforceability.

VI. Criticism of Fundamental Duties

• A feature of socialist countries, not liberal ones.
• Non-enforceability making them problematic.
• No significant change in the quality of citizens in India.
• Vague wording of duties.
• Not part of the original constitution.

Conclusion

In conclusion, the relationship between Fundamental Rights, Directive Principles, and Fundamental Duties in the Indian Constitution has evolved over time, moving towards a more harmonious and complementary understanding. Although there are contradictions and criticisms regarding the enforceability and ideological basis of these provisions, it is essential to recognize their role in shaping India's governance and policy formulation. The debate on the Uniform Civil Code demonstrates the complexities surrounding the interpretation of the Constitution and the need to prioritize gender justice and human rights while preserving diversity and plurality.

Frequently Asked Questions (FAQs) of Salient Features

What is the Uniform Civil Code (UCC), and why is it debated in India?

The Uniform Civil Code (UCC) is a concept that aims to create a single set of personal laws for all citizens, regardless of their religion or community, aligning with constitutional principles. The debate in India revolves around three key issues: secularism, national integration, and gender justice. The crux of the debate is whether the Indian state has the constitutional authority to intervene in personal laws and whether a single code should govern all communities.

How do the Indian Constitution and judiciary address the Uniform Civil Code?

The Indian Constitution places the UCC in Part 4 under Directive Principles, which are not enforceable by the court of law but are fundamental in governance. Article 44 states that the state "shall endeavor to secure a uniform civil code for all its citizens." The Supreme Court's role in interpreting personal laws has been a subject of debate in the context of the UCC, with some arguing that the court should not have the authority to interpret religious texts.

What is the current status of personal law codification in India?

Personal laws have been codified for Christians, Parsis, Hindus, and Sikhs in India, while Muslim personal laws have not been codified. The Muslim Personal Law Shariat Application Act of 1937 states that the state shall not intervene in Muslim personal laws. However, the Indian state has intervened and codified Muslim personal laws on several occasions, including the Shah Bano case and the Triple Talaq Bill.

What is the Law Commission's opinion on the Uniform Civil Code?

The Law Commission opines that the UCC is not possible or desirable in the current situation due to the lack of consensus. Instead, it recommends codification of laws while preserving diversity and plurality, focusing on achieving gender equality within communities and removing discriminatory practices, following a piecemeal approach.

What is the relationship between Fundamental Rights and Directive Principles in the Indian Constitution?

The relationship between Fundamental Rights and Directive Principles has been a subject of debate in India. Initially, there were contradictions between enforceability and ideology, with Fundamental Rights being enforceable and based on liberalism, while Directive Principles being non-enforceable and based on socialism. Over time, it has been established that they are complementary and need to be harmoniously constructed.