ANALYSING THE IMPLICATIONS AND CONTROVERSIES SURROUNDING THE RECENT UNIFORM CIVIL CODE BILL INTRODUCED IN UTTARAKHAND

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Categories: Journal, JOURNAL
THE LAWWAY WITH LAWYERS JOURNAL
VOLUME:-7 ISSUE NO:- 7 , FEBRURY 2, 2024
ISSN (ONLINE):- 2584-1106
Website: www.the lawway with lawyers.com
Email: thelawwaywithelawyers@gmail.com

ANALYSING THE IMPLICATIONS AND CONTROVERSIES SURROUNDING THE RECENT UNIFORM CIVIL CODE BILL INTRODUCED IN UTTARAKHAND

 

AUTHORED BY:-HARSH NARAYAN SHRIVASTAVA

COURSE- LL.B IN MUMBAI UNIVERSITY

 

ABSTRACT

At its core, the Uniform Civil Code bill seeks to consolidate personal laws about marriage, divorce, inheritance, and succession, endeavouring to establish a uniform legal framework applicable to all citizens irrespective of religious affiliations or cultural backgrounds. Proponents of the bill advocate for the principles of equality, secularism, and simplification of legal procedures, envisioning a system that transcends the complexities and disparities inherent in existing personal laws.

However, the bill is not devoid of controversy. Its implications resonate deeply within the socio-cultural fabric of Indian society, triggering concerns regarding religious freedom, minority rights, and the sanctity of diverse cultural traditions. Critics argue that a uniform civil code might homogenize diverse customs and beliefs, potentially marginalizing minority communities and undermining the principles of cultural pluralism and religious autonomy enshrined in the Indian Constitution.

Moreover, the proposed legislation has sparked contentious discourse surrounding gender justice and individual autonomy within familial structures. While proponents advocate for gender-equitable provisions and the empowerment of marginalized groups, critics caution against the imposition of standardized norms that may perpetuate existing patriarchal structures and impede the recognition of women’s rights and agency.

This Article navigates through the labyrinth of implications and controversies surrounding the Union Civil Code bill, synthesizing diverse perspectives, legal analyses, and sociocultural critiques. By elucidating the stakes involved and the complexities at play, this analysis seeks to foster informed dialogue, policy deliberations, and societal introspection, paving the way for a nuanced understanding of the intersecting dynamics shaping contemporary debates on family law and governance in India.

 

INTRODUCTION

A Uniform Civil Code stands as a hallmark of modern India, designed to establish a common legal framework applicable to all citizens irrespective of their religious, communal, racial, gender, or caste affiliations. It encompasses crucial aspects such as marriage, divorce, maintenance, inheritance, adoption, and property succession. The concept reflects the aspiration for a progressive and egalitarian society, where laws transcend communal divisions and promote a sense of shared citizenship.

Advocates argue that a Uniform Civil Code would This Article delves into the multifaceted dimensions of the Union Civil Code bill recently proposed in Uttarakhand, India. Through rigorous analysis, it scrutinises the implications and controversies arising from this legislative endeavour. The Union Civil Code bill seeks to harmonise various personal laws governing marriage, divorce, inheritance, and succession, intending to establish uniformity and equality before the law. However, amidst its purported objectives lie intricate socio-cultural, religious, and legal ramifications that spars and controversies. This abstracted exploration navigates through the intricacies of the proposed bill, shedding light on its potential impacts on individual rights, familial structures, and societal dynamics. Moreover, it unravels the tensions and dissent surrounding the bill, encompassing dissenting voices, legal challenges, and ideological standpoints. By synthesizing diverse perspectives and scholarly insights, this analysis aims to offer a comprehensive understanding of the Union Civil Code bill’s implications and controversies, contributing to informed discourse and policy deliberations in the realm of family law and governance.

The recent introduction of the Union Civil Code bill in Uttarakhand has ignited a spectrum of implications and controversies, catalyzing intense debates and scrutiny across legal, social, and cultural domains. This paper endeavours to dissect the multifaceted layers underlying this legislative proposal, aiming to unravel its potential impacts and the diverse reactions it has evoked.

help eradicate discriminatory practices embedded ink debate personal laws, empower marginalized groups, and uphold principles of gender equality and individual autonomy. They believe it would simplify legal processes, enhance social unity, and reinforce the foundational values of the Indian Constitution.

Article 44 of the Indian Constitution underscores the state’s obligation to work towards implementing a Uniform Civil Code, aligning with the broader directive principles. However, despite constitutional endorsement, the actual implementation of a Uniform Civil Code remains a contentious issue, reflecting the complex interplay of religious, cultural, and political dynamics within Indian society.

 

VIEWS OF CONSTITUTIONAL ASSEMBLY MEMBERS ON UCC

On November 23rd, 1948, a discussion regarding the Uniform Civil Code took place under Article 35. Following independence, both Dr. B.R. Ambedkar and Pandit Nehru expressed their desire for the implementation of the Uniform Civil Code. Article 44 of the Directive Principles of State Policy (DPSP) highlights the importance of such a code in our country. However, in the aftermath of independence, the timing for implementing the Uniform Civil Code was deemed inappropriate due to ongoing post-partition violence and the challenges posed by princely states considering secession. Introducing such a uniform law during such tumultuous times would have been impractical and potentially detrimental to the country, hence its postponement. According to Dr B.R. Ambedkar,“ It is perfectly possible that the future parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the code may be purely voluntary.” Pandit Nehru believed that initiating the implementation of the Uniform Civil Code required the passage of the Hindu Code Bill. He recognized that leveraging his influence could catalyze reform within the Hindu community. Despite facing limitations in achieving comprehensive reform, Nehru successfully enacted four distinct laws: the Hindu Marriage Act in 1955, the Hindu Succession Act in 1956, the Hindu Minority and Guardianship Act in 1956, and the Hindu Adoption and Maintenance Act in 1956. Through these legislative measures, Nehru aimed to set a precedent for broader legal reforms across all communities.

The community should view this reform as a modernizing initiative and engage in discussions to ensure that the objectives outlined in Article 44 are achieved voluntarily rather than through coercion. However, the lack of such proactive measures has led to the current political momentum for change. During the Constitutional Assembly debates, various members, such as Mr. Mohammed Ismail, expressed differing opinions on the matter “Provided that any group, section or community of people shall not be obliged to give up its law, in case it has such law” he also added “ The Serb, crot and Solvene states agree to grant to the musulmans in the matter of family law and personal status provisions suitable for regulating these matters by the Mussulman usage” but this motion of him was not accepted by the assembly to grant permanent personal status to Muslims but Dr Ambedkar contradicted it by saying that “ there are many states in the country which was ruled by Muslim ruler where the sharia was implemented on Hindu and there are many states in the country which is ruled by Hindu Kings where the implement Hindu laws on Muslim so we can not say one Have been deprived and one not so we also can not provide on this bases a special privilege to one community.” 

 

IS UNIFORM CIVIL CODE POSSIBLE IN INDIA

The question of whether it is possible to bring and apply the Uniform Civil Code (UCC) in India as envisioned by our Constitutional Assembly has become significant following its implementation in Uttarakhand. Former Supreme Court Justice Deepak Gupta asserts that achieving true implementation of the UCC in India is feasible “ I am in favour of UCC but it should be well thought out because the impression given today is that Anything With Muslim Law is not good and everything with Hindu Law is good that’s not true.” Sanjay Gosh, a Senior Advocate in the Supreme Court Of India, Says “If by UCC we mean making laws more just and facilitating gender justice, I was all for it, however, if by it we mean artificially constructing a ‘Majority’ community and obliterating the diversity and nuances of India, history compels metro dissent.”It’s crucial to recognize that the Uniform Civil Code represents a complex issue in itself. Even within the Hindu community, there isn’t uniformity in laws. An intriguing example is the prohibition of “Zagora Marriage” under Section 5 of the Hindu Marriage Act, which contrasts with its common practice, particularly in southern India, where marriages between uncle and niece occur openly with elaborate celebrations. This discrepancy arises from a provision in the Hindu Marriage Law that grants legal recognition to marriages conducted according to specific rituals. The existence of different laws for various communities in India poses challenges, especially concerning the Hindu Undivided Family (HUF). According to the 21st Law Commission, abolishing the HUF could result in substantial tax losses, yet its removal is hindered by religious customs. Therefore, implementing a Uniform Civil Code at the national level demands meticulous preparation and planning. It requires more consideration and foresight than what proponents of the UCC may initially assume.

 

HOW ‘UNIFORM’ IS UTTARAKHAND UNIFORM CIVIL CODE

The roots of this initiative can be traced back to May 2022 when Puskar Dhami formed his government in Uttarakhand. He introduced legislation establishing a five-member committee, chaired by former Supreme Court Judge Justice Ranjana Prakash Desai, tasked with preparing detailed reports on the implementation of the Uniform Civil Code (UCC). Individual states possess the authority to enact legislation related to family law, as empowered by the 7th schedule of our constitution.

However, in the case of the Uttarakhand UCC bill, several specific aspects diverge from the concept outlined in Article 44 of the Indian Constitution. Notably, the bill includes exemptions, particularly for the tribal community, which constitutes 3% of the state population. Section 2 of the bill explicitly states these exemptions, indicating that it may not fully align with the principles envisioned in Article 44 “Nothing contained in this code shall apply to the member of any schedule tribes within the meaning of clause 25 of Article 366, read with article 142 of the constitution of India and the persons and groups of people whose customary rights are protected under Part 21 of the Constitution Of India.” This legislation presents several exemptions that raise concerns. Firstly, the exemption regarding tribal communities prompts questions about the continuation of practices such as child marriage. Secondly, the exemption allowing for the preservation of customary religious, caste, or sect practices may perpetuate outdated customs. The exemption concerning the Hindu Undivided Family, a central law leading tignificant financial losses, remains unaddressed due to its central jurisdiction. Additionally, the billo s excludes the LGBTQ+ community, missing an opportunity for inclusivity and progressiveness. Despite these flaws, the bill exhibits both positive and negative aspects, making it somewhat progressive but falling short of a comprehensive Uniform Civil Code.

PROS AND CONS OF BILL

There are several positive aspects to highlight in this bill. Firstly, it abolishes the concept of “illegitimate children,” granting legal recognition to children born out of wedlock, especially regarding inheritance rights. Secondly, the bill prohibits bigamy or polygamy, ensuring that neither party entering a marriage has a living spouse at the time. Thirdly, it mandates the registration of marriages within 60 days, regardless of custom, and grants equal divorce rights to both men and women. Lastly, in cases where no will is left behind, the bill guarantees equal property rights to the spouse, children, and parents of the deceased.

While these points demonstrate the bill’s progressiveness, it also presents challenges. The provision concerning living relationships is controversial, as the definition and recognition of such relationships in Uttarakhand raise issues. Overall, while the bill shows strides towards modernization, its authoritative approach may also pose challenges akin to an overbearing figure trying to intrude into private matters “relationship between a man and a woman who cohabit in a shared household through a relationship like marriage” this bill also makes it mandatory for a partner in a live-in-relationship, whether you are domicile or not, you have to state live-in-relationship to the registrar. This bill mandates that individuals must inform the registrar to terminate a living relationship. If the individual is below 21 years old, their details will be shared with their parents, treating the situation akin to a criminal offence. Additionally, the registrar holds the authority to determine the status of the living relationship within 30 days. Upon termination, the female partner can request maintenance similar to divorce cases. This approach is regressive, considering that last year, a petition proposing rules for living relationships was dismissed by Chief Justice DY Chandrachud as impractical. Now, ironically, similar provisions are being incorporated into law, essentially stigmatizing living relationships as semi-criminal acts.

 

CONCLUSION 

After evaluating the pros and cons of the bill, it becomes evident that while it offers some benefits, it lacks substantial progressiveness and falls short of fully embodying the spirit of Article 44. On one hand, the bill introduces significant reforms such as the elimination of the concept of “illegitimate children,” ensuring equal property rights for spouses, children, and parents in cases of intestacy, and mandating the registration of marriages within a specified timeframe. These provisions represent positive steps toward modernization and equality in family law.

Furthermore, the bill prohibits bigamy or polygamy, setting a clear standard for marital relationships and upholding monogamous principles. It also provides mechanisms for divorce that offer both men and women equal rights, addressing disparities in divorce proceedings. These aspects reflect attempts to align legal practices with contemporary societal values and promote fairness in family matters.

However, the bill also contains significant drawbacks that undermine its overall progressiveness. The exemption clauses, particularly regarding tribal communities and the Hindu Undivided Family, detract from the universality and inclusivity that a true Uniform Civil Code should embody. Excluding the LGBTQ+ community from the purview of the bill further highlights its limitations in recognizing diverse forms of relationships and identities.

Moreover, the provisions related to living relationships exhibit a regressive approach by subjecting individuals to unnecessary scrutiny and potential infringement of privacy rights. By treating living relationships as semi-criminal acts and imposing obligations on individuals to report their status to authorities, the bill perpetuates outdated norms and prejudices.

In conclusion, while the bill introduces some positive reforms, its shortcomings prevent it from being truly progressive and in line with the principles of Article 44. A more comprehensive and inclusive approach is necessary to achieve genuine reform in family law and uphold the ideals of equality and justice for all citizens, regardless of their backgrounds or identities.

 

BIBLIOGRAPHY

  1. Volume 2 of Constitutional Assembly Debates
  2. Uniform Civil Code book by M.S Ratnaparkhi
  3. Various Newspaper Articles
  4. D.D Basu book on constitutional commentary
  5. Uttarkhand UCC Bill,2024

 

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