Monday, October 2, 2023

A Himalayan Task

Some states have asked the public for suggestions for a draft UCC. Regulation of live-in relationships and giving equal rights to women in property are some of the issues that need looking into.

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By Dr Abhishek Atrey

The Uniform Civil Code (UCC) is a one of the most debated issues nowadays. There has been a long-standing demand from various religious, social and political organisations in India to bring a uniform law on various aspects dealing with the personal life of citizens, irrespective of caste, creed, religion or sex.

Article 44 of the Constitution mandates that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”. Needless to say, the intention behind this Article seems to be to enact a Uniform Civil Code for the entire country. Therefore, the word “State” used in this Article denotes the Union of India and not different states. However, Article 44 is part of the Directive Principles of State Policy and cannot be enforced in a court of law, but it casts a duty on the Union of India to enact a UCC for the entire country.

However, Constitution-makers placed Entry 5 in the Concurrent List which is related to marriage and divorce, infants and minors, adoption, wills, succession, etc., which means that both the Union of India as well as states are competent to bring a law on these subjects. But in case of a conflict, the law made by the Union shall prevail. By using the words “state” and “territory of India” in Article 44 read with Entry 5 of the Concurrent List, it is very clear that it is the duty of the Union to enact the law for UCC. 

It would be difficult for states to implement such a law. The first problem would be on whom such a law would be applicable. There may be many persons residing in the state who are not original residents and there may be many persons who are original residents, but residing outside the state. Also, any such law if made only for a particular state can be challenged in High Courts and the Supreme Court on the ground of equality before law as under Articles 14, 15 and 16 because the Constitution prohibits states from discrimination on the grounds of cast, creed, religion, sex or place of birth.

Therefore, the current exercise by a few states to make a draft UCC will be futile unless the Union of India comes forward and undertakes this job. This was expected from it by the Supreme Court also in various cases such as Kesavananda Bharati vs State of Kerala, National Textile Workers Union vs PR Ramakrishnan, Mohammad Ahmad Khan vs Shah Bano Begum, Jorden Diengdoh vs SS Chopra, Sarla Mudgal vs Union of India, Lily Thomas vs Union of India, Shayara Bano vs Union of India, Jose Paulo Coutinho vs Maria Luiza Valentina Pereria, etc.

Recently, Uttarakhand created a committee under the chairpersonship of a retired Supreme Court judge to draft a UCC for the state. The work of this committee is not simple and it has to work hard to bring out a format which can be enacted by the Uttarakhand legislature and which can stand any challenge before the High Court and Supreme Court. The committee will have to study in depth all the personal laws, customs and traditions of Hindus, Muslims, Christians, Parsis and other communities and tribes. Therefore, this committee is time and again seeking suggestions from the people at large and as per an estimate, it has received more than 2,00,000 suggestions.

In order to bring out a workable UCC, the committee has to consider and find out a solution for the following issues:

  • On whom will it be applicable: Will it be applicable to permanent and original residents of the state or on everyone residing there or on those whose marriages are registered there and who will be covered in the definition of permanent and original residents? Suppose a person’s last three generations have resided there, but due to economic conditions he could not purchase any property there, should not he get any benefit of the schemes of the state?
  • What will be the age of marriage: Presently, the marriageable age of boys and girls is 21 and 18 years, respectively. Should it be increased or decreased in view of the advancement of minds of children? This is apparent from judicial debates that the age of consent for sex should be decreased to 16 years.
  • Compulsory registration of marriages and divorce: The process should be simplified and online.
  • Banning polygamy and polyandry: There is no doubt that the practices of polygamy and polyandry must be stopped irrespective of a person’s caste, creed, religion or tribe, but consensus from all communities is necessary to take this step in view of their respective customs and traditions.
  • Live-in relationships: There should be compulsory declaration and registration of live-in relationships like marriages in view of several judicial pronouncements that these relationships are as good as marriages.
  • Rights of LGBTQ in property, succession/inheritance, adoption, guardianship, etc.: This issue is sub judice before the Constitution bench of the Supreme Court, so the committee will have to wait for the judgment. But the legislature of any state is going to face difficulty in granting equal status to the LGBTQ community in view of the bias against them in a large part of the population.
  • Rights of married daughters in ancestral/parental properties: The Hindu Succession Act, 1956, as amended in 2005 gives equal rights to daughters and sons in ancestral/parental properties irrespective of their marital status. Similar rights should be given to women of all communities. Daughters should not be at the mercy of parents and brothers and must get their well deserved rights.
  • Uniformity in the number of children per family: In view of the increasing population of India, there is a dire need to discourage people from having more than two children. Such people and their children should not only be barred from contesting elections, but also from casting votes apart from disentitling them from receiving benefits under government schemes. Simultaneously, those with one child or no children should be given real time incentives.
  • Inter-state relationships: It is a well settled principle that the rights of inheritance in ancestral/parental property depend on taking birth in the family (or being adopted), but it can never be dependent on the place where the property is situated or where the person is residing after marriage. A daughter or son who is a resident of Uttarakhand, even if residing outside the state, will have rights in the ancestral property in the state. However, the question is what would be the status of properties of a deceased situated outside the state.
  • Marriages in prohibited relationships: On this aspect, a detailed study is required about local customs and these should be given due place in the UCC for different sections of society.
  • Adoption: Should the UCC prohibit interfaith adoptions as these could be for conversion? Should adoption rights be given to those from the LGBTQ community and should they be allowed to foreign nationals?
  • Grounds of divorce: It is the need of the times that both men and women of all religions must have equal rights to seek divorce on the same grounds. There should not be any discrimination on the basis of sex or religion. Another ground for divorce may also be added in the UCC—“irrevocable breakdown of marriage” or “no fault divorce” where there is no need to level allegations by either party. However, in such cases, the moveable and immoveable properties of both husband and wife at the date of filing for divorce should be added and distributed equally among them and their children at the time of the decree of divorce.
  • Format of the proposed code: It should be in the form of a new Act after repealing all existing Acts on the subjects covered by the UCC.

Considering the issues that need to be sorted out before a UCC can be implemented by any state, it will be a Himalayan task to undertake. 

—The writer is Advocate-On-Record, Supreme Court

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