The Bill passed by the legislative assembly in Uttarakhand has drawn criticism for its failure to acknowledge the unique religious identity and practices of personal laws. Certain clauses in the Bill are alarming as they contravene this core principle

By Priyanshi Jain and Shivam Singh

“Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion.”

—John Griffiths, What is Legal Pluralism (1986)

The recent Uniform Civil Code (UCC) Bill in Uttarakhand has drawn criticism for its failure to acknowledge the unique religious identity and practices of personal laws. By imposing uniform standards on divorce and inheritance, the Bill disregards the nuanced principles outlined in personal law jurisprudence. Furthermore, as a fundamental cornerstone of India’s secular fabric, it calls into doubt the safeguarding of constitutional rights and religious freedom. In addition to being drafted with majoritarian morality in mind, it allows for exceptions for customary laws. Family Law, for instance, operates on the assumption that marriages and intimate relationships are consensual and safeguard the fundamental rights and dignity of the individuals involved, recognizing their agency and autonomy in decision-making. Nonetheless, certain clauses in the Bill are alarming as they contravene this core principle.

Due to the complicated interplay between the constitutional protection of fundamental rights and societal pluralism, the concept of a UCC within the Indian legal system has proven to be challenging. Although the UCC’s fundamental goals are to create legal consistency and reconcile disparate personal laws, concerns have been raised about its doctrinal compatibility with religious practices, particularly those that form the basis of disparate personal laws, since it was implemented in Uttarakhand. The most important piece of law in our nation, the Constitution, is purposefully and sensibly non-uniform to preserve national unity. Different policies have been applied to different national areas. Distinct communities have been granted varying entitlements. Many allowances have been made for many religions. Article 25 of the Constitution itself guarantees protection for different religious practices in different religions. Hindus rely mostly on the codified Hindu law and Hindu personal laws, while Muslims primarily rely on the Holy Quran, Sunnah, and Fiqh (Islamic Law) as their fundamental religious sources. For Christians, most laws are codified and uniform. These texts are considered matters of Articles 25 and 26 and require adherents to follow strictly to the prescribed injunctions. 

In the Constituent Assembly, Pocker Sahib Bahadur stated: “There are countless numbers of communities that have been adhering to different customs for hundreds or thousands of years.” You want to undo all of that with a single pen stroke and make them all the same? What is the goal that is achieved? What other goal does this uniformity serve than undermining people’s consciences and giving them the impression that their religious rights and traditions are being violated? More importantly, it goes against the character and spirit of the Constitution.

Pluralism of laws is not anarchy of laws. It is an acknowledgment of the variety of Indian culture and the reality that local communities have established the laws that guide their day-to-day operations and give their constituents a purpose. It is a realisation that all areas of social life need not be regulated by a standard set of rules. By embroiling itself in substantive issues of religious doctrine and stipulating what religions ought to look like, the state has undermined normative pluralism.

As India is a vibrant democracy with a diverse population, any UCC initiative must reflect the values and preferences of its citizens. By engaging in meaningful dialogue with stakeholders and soliciting inputs from various segments of the society, policymakers can enhance the democratic legitimacy of the UCC and ensure that it resonates with the broader aspirations of the Indian populace. 

KM Munshi asserted at the meeting of the Draft Committee of the Constituent Assembly that he had raised the case that the minority may suffer or become oppressed if the UCC were to pass. Is it despotic? Brevity constraints make it impossible to analyse the lengthy code, which consists of 392 sections, in-depth. 

The present UCC has been passed by the Uttarakhand Legislative Assembly, consisting of 70 members out of which there are only 5% Muslim members, 10.5% women members, and almost all of the rest are Hindus. Democratic legitimacy requires that the decisions taken by the democratically-elected majoritarian government are in consonance with the culture and customs of not only the majority, but the minority as well. The homogeneous legislative assembly passed a law to govern the heterogeneous population through UCC. This raises concerns about the legitimacy of the legislative process and the extent to which the UCC reflects the needs and interests of all communities, particularly those with minority status. In the absence of sufficient representation and significant involvement from all parties involved, there exists a possibility that the UCC has failed to sufficiently attend to the requirements and issues of underprivileged groups, or could unintentionally sustain disparities. 

By mandating uniform norms about divorce and succession, the legislation appears to gloss over the nuanced doctrinal tenets encapsulated in personal laws jurisprudence. The Uttarakhand UCC appears to have drawn heavily from existing laws regarding marriage and succession, albeit with notable progressive changes. For example, it exclusively handles marriage dissolution without imposing a waiting period for remarriage after divorce. These progressive measures enhance individual rights. Notably, the UCC retains the allowance for customs and practices to override restrictions on marrying within prohibited degrees of relationship, with the caveat that such customs must align with public policy and morality. The registration of marriages, divorces and live-in relationships could lead to increased vulnerability, moral policing, and interference from families and communities. The UCC only recognises marriages and live-in relationships between a man and a woman, excluding LGBTQ+ individuals from its protections. This violates their constitutional rights and ignores recent judicial developments.

In the present UCC Bill passed in Uttarakhand, the identifiable and significant features of Islamic personal law have been completely changed. In such a case, Indian Muslims, who diligently adhere to the Islamic prohibitions on divorce, will undoubtedly be left in the lurch. The Bill focuses on protecting any person from their partners, but ignores the violence and control often imposed by natal families. It prompts worries about the state’s overbearing involvement in overseeing people’s lives, particularly impacting women, minorities, and LGBTQ+ individuals.

In addition to acknowledging the flexibility of religious systems, the state should defend and identify different interpretations of religion that defy prevailing cultural norms. In the present UCC, pre-nuptial agreements have been approved and must be taken into consideration by a court when determining the division of marital property. Nevertheless, the partition of the matrimonial estate is still subject to judicial discretion based on the separation of matrimonial property to the degree it is not jointly held.

If the purpose of UCC is to uniform the law and end the prevailing inequality and discrimination within personal laws then why are matters of guardianship still left out of the ambit of UCC? Which is to say that the same will be governed by personal laws. Gender equality gaps exists not only in codified personal laws, but also in “so-called uniform matrimonial laws”, which are often “portrayed as successful models of uniform matrimonial laws”, such as the family laws in Goa and the Special Marriage Act, 1954. In the present UCC, certain standards have been set through the morality of the legislature of Uttarakhand. Due to the codification and unification of these personal laws in UCC, this matrimonial personal law which predates the Constitution is subject to the constitutional rights, which used to be outside it. The legislature should consider all relevant religious scriptures when reaching decisions about this matter, rather than focusing primarily on ambiguous interpretations of “constitutional morality”. Any policy decision to make uniformity in “personal matters” shall be a misadventure in the existing social order. Now these religious nature questions related to these personal laws will be subjected to judicial interpretation. Earlier, religious questions related to personal laws were used to be out of judicial interpretation. The Uttarakhand legislature through UCC has simply expressed its morality and is imposing the same.  The imposition of morality without taking into account the diverse identity of the personal laws is a direct attack on religious sentiments.

When the civil law is not the same in the whole country, then why does the state insist on applying a personal law throughout the country? This though seems to be progressive, and even certain provisions of the current UCC are, but has completely changed the finest features of personal laws, which used to make it stand out from other codified laws. Since personal laws are closely linked to every religion, they are a matter of conscience, which is protected by Articles 25, 26 and 29 of the Constitution. 

The current social structure, when juxtaposed with the principles of transformative constitutionalism, does not seem conducive to the adoption of a UCC at this juncture. The UCC proposed in Uttarakhand, while aiming for legal uniformity, has faced criticism for its failure to accommodate the unique religious identities and practices enshrined in personal laws. It ignores the subtleties present in personal law case law and poses questions about the maintenance of constitutional rights and religious freedom, which are crucial components of India’s secular structure. Particularly in a nation with as many unique cultures as India, the nuances of religious systems and the range of interpretations of religious scriptures must be honoured. Furthermore, it seems that the present legislative initiatives value consistency over justice, ignoring the importance of equality as a consequence of achieving justice. 

Though the right time will never be achieved with such steadiness, changing the lives of people governed by personal laws with just one stroke of a pen will affect them to a large extent. There is a need for great ponderance with a large or maximum number of people involved in the discussion and with slow and gradual implementation of certain aspects of personal laws through the UCC.

The idea of UCC should be carefully considered given its possible effects on individual rights and religious pluralism. Uniformity should only result from guaranteeing equality; thus, the quest for uniformity shouldn’t eclipse the fundamental elements of justice. It is critical to take into account the consequences of religious pluralism and constitutional rights as discussions about the UCC continue. 

Any attempt to codify personal laws through legislation must protect the rights of the marginalised groups and take into account how religious systems are evolving. Policymakers in India can negotiate the intricacies of legal pluralism while respecting the values of secularism and religious freedom by having meaningful conversations and looking for inclusive solutions. 

—The writers are second year law students at Dharmashastra National Law University, Jabalpur

Understanding civil and criminal law, and identifying the actual differences between both of them is very important for citizens, lawyers, and Civil aspirants preparing for IAS. Civil law identifies behavior that has an injury to an individual or other private party like a corporation. On another hand, criminal law deals with behavior that can be construed as an offense against the public, society, or state even if the immediate victim is an individual.

Even though both civil law and criminal laws have identical features, they can be distinguished by the legal procedures involved, the burden of proof, and the potential penalties for the defendant. 

Let’s see step by step process to distinguish civil and criminal law:

Evaluate Legal Procedures

1-Find out parties to the case

In evaluating legal procedures, it is important to identify who started the proceeding. In civil cases, most of the complainants are private businesses or a individual person. However, criminal cases start when government representatives file charges.

-If the title of the case lists the name of individuals, or organizations it is clearly a civil case.

-It does not submit your inquiry, as sometimes government can either sue or be sued. Only the involvement of the government party can’t decide that it is a criminal case.

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-In criminal cases in which the name of defendants will be the first since they appealed a conviction. Government is the leading party in this case. 

2- Check whether the defendant of the case was arrested

A person is not arrested even for a heinous offense as people sue them in civil court. Some offenses like assault, showcase the possibility of both civil liability and criminal charges. In case the defendant is arrested, it is in conjunction with the filing of criminal charges.

-Usually, persons with civil law violations can be held in contempt of court, and arrested for contempt if they deny following the order of the court. They are released when they obey the order.

-Suppose some residents complain against an industry for polluting the water and air of the area causing health and safety issues. In this condition, the owner of the industry can’t be arrested as he/she has not been sued with a criminal charge.

-If the owner of the industry is found responsible to cause damage to neighbors, and is being directed by the government to clean the water, he/she can be put in jail in violation of the order.

3- Identify the harm of law violation

The type and level of harm to the society decide by the actions of the defendant decide whether it comes under civil lawsuit or criminal matter. 

-Some crimes cause harm to individuals where the victim is not a party in a criminal case. In most cases, the victim is not required to agree to the defendant’s criminal prosecution. Regardless of the victim’s wishes, state or federal prosecutors press criminal charges.

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-Remember, in many situations the victim can say to the complainant that they do not want to press charges, and the complainant goes along with the reference.

-The complainant can press charges even when the victim realizes they do not want to do it.

-Civil cases are taken by the prosecutor who wants compensation for some misleading done to them.

4-Legal protection for the respondent

If anyone is charged with some constitutional rights, and he/she is not capable to afford an advocate,  the court appoints one. 

-Criminal defendants possess a number of other constitutional protections, if they are found guilty, there will be a potential loss of freedom. Most of the civil cases involve paying money that is a comparatively lesser threat than the loss of liberty.

-This privilege against self-incrimination can be used in a civil trial since something spoken in the civil trial may be used against the person in criminal prosecution. The privilege of self-incrimination, however, does not apply to confessions of facts that could lead to civil responsibility.

Classify the Burden of Proof

1- Determine the applicable burden of proof

You may be familiar with the phrase “beyond a reasonable doubt” when it comes to the criminal burden of proof. Plaintiffs in civil disputes are never required to establish their cases with such certainty.

• In a civil action, the normal burden of proof is “preponderance of the evidence.” This means the prosecutor must show that the defendant is more than likely to blame for the plaintiff’s injuries or losses.
• In contrast, in order for a defendant to be found guilty in a criminal trial, the prosecutor must prove beyond a reasonable doubt that he or she committed the offense. The criminal justice system is founded on the principle that no one’s life or liberty should be taken from them unless they are certain they are guilty.

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2- Compare burdens for affirmative defenses

Affirmative defenses are essentially justifications that, if established, would clear the defendant of guilt or liability. While defendants in both civil and criminal trials have the burden of demonstrating any affirmative defense, the weight of those duties differs significantly.

-Most people are aware of affirmative defenses in criminal proceedings, such as the insanity defense. Because the defendant must prove that they were unable of discerning between right and evil or understanding the outcomes of their acts, being declared not guilty by reason of insanity can be significantly more difficult than just casting doubt on the state’s case.

-When a criminal defendant establishes an affirmative defense, he or she is usually found not guilty. Similarly, a civil defendant who successfully advances an affirmative defense may be ruled not liable for the damages suffered by the plaintiff.

3- Understand how burdens shift

There are some civil cases that use a proof mechanism that shifts all concerns of proof between defendant and complainant. If a complainant is able to reveal specific facts, it makes assumptions in advance favoring the complainant and shifts the burden of proof to the defendant.

• Let’s take the example of copyright infringement law. If the complainant has registered copyright, so he/she holds the legal authority to sue him in court. In case the defendant wants to argue the validity of the copyright, he/she has to bear the burden of proof.

-Such a burden-shifting concept isn’t applicable in criminal cases as it will violate the constitutional rights of the defendant.

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Compare Consequences

1-Find if the defendant faces jail time

Generally, courts can’t penalize the civil defendant with jail for their actions, no matter how harmful. On the contrary, criminal offenses may have jail sentences based on the seriousness of the matter. 

-While a civil defendant can be jailed for contempt, the allegation of contempt usually necessitates a separate hearing when the person is formally charged with contempt. They have the option of complying with the court’s order or going to jail. 

-A civil defendant, on the other hand, will not face jail time if their civil lawsuit is lost. A judge cannot send you to jail if you are sued by a credit card company for defaulting on your credit card and you lose your case.

-The credit card company will obtain an order against you for the amount owed, which it will be able to enforce by placing liens on your property or garnishing your wages but not by putting you in jail.

-A person guilty of a crime, on the other hand, maybe sentenced to prison for a length of time until their “debt to society” has been satisfied.

2.Understand the difference between fines, restitution, and monetary damages

Although a defendant may be forced to pay money in a criminal prosecution, these sums are not the same as financial damages awarded in a civil case.

-In most cases, a criminal fine must be paid to the state, whereas civil damages must be paid to the complainant.

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-Any losses incurred by anyone as a result of the defendant’s acts have no bearing on criminal fines. They are instead intended to punish the offender for breaking the law.

3.Consider the purpose of the outcome of the purpose

In the end, a criminal trial is intended to punish someone who has committed a crime, but a civil trial is intended to compensate the victim for their losses caused by the wrongdoings of one particular individual or business.

The ideas of guilt and innocence are used in criminal law, whereas negligence and liability are used in civil law. A civil defendant can be held accountable for a plaintiff’s damages caused by an accident without the plaintiff having to show that the defendant intended to cause the injuries or losses.

The partition of law into violations, contracts, affiliations, debatable instruments, misdeeds, trusts, and so forth squeezes a bigger and more logical division. Commercial law is a division of private law. Its limits can’t be fixed by a specification of subjects, for, while containing subjects unconventional to it and not treated as of in the civil law, it covers basically the entire field of agreement law thus attacks the area of the civil law. An agreement made between two individuals under set conditions will be commercial and fall under the ward of the commercial law, yet in any case, an agreement made by a similar individual under various conditions will be civil law and will come quite close to the civil law. Or on the other hand, if a similar agreement is made by two individuals possibly commercial and when two others enter then it might be civil.

The law overseeing the exchanges made between people who are occupied with the production and conveyance of items, for a benefit is essentially commercial law. The civil law is the law overseeing people in their relations with one another who are not all that locked in. The civil law controls the overall standards of agreements, the commercial law supplies uncommon guidelines. For contracts, especially sales might be conceived either inside or without the universe of business. Commercial law is private law.

Regardless, it may have a between open stage, when the business laws of two sovereign states come in the battle. In specific nations, business limiting frameworks exist, obliged by the State. In France, stock middle people are government specialists. The law directing their exhibitions is promptly open and business. The assembling of the aftereffects of tobacco and the prompt or indirect duty regarding by the State, give rise in a couple of European nations to public commercial law. Any spot remarkable courts have been made to endeavour business cases, the laws involving those courts are public and commercial.

The United Nations Convention on Contracts for the International Sale of merchandise which is now and then otherwise called the Vienna Convention is a multilateral deal that builds up a uniform framework for international trade. It is intended to encourage international exchange, the CISG eliminates legitimate hindrances among state parties, giving basic principles that control the obligations and commitments of gatherings to commercial exchange, for example, the conveyance of merchandise, contract development and solutions for the break of agreement. The CISG has acquired certain noteworthiness in different respects.

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Undoubtedly, the Convention has become the most critical real reason of the present globalized trade. The CISG has been recognized by various states, and what remembers more for this respect, by various financially huge states. The rule goal of the CISG is to give concordance in the utilization of the law in the worldwide proposal of product setting and to hinder noteworthy costs rising up out of pre-lawfully official, execution and post-definitive periods of an overall business trade. The Convention should restrict the weakness of authentic rights and fixes and leveling them paying little notice to the social events’ managing power. The CISG discovers its sources and impacts in both the standard law and customary law universes, which have their own specific features. During the drafting pattern of the Convention, broad undertakings went into beating any issues between these two authentic frameworks 20 and notwithstanding any casual language or, as demonstrated by a couple, ‘ local stuff ‘, 21, for instance, ‘thought’ or the insistence notice.

Most states today have a place either with the customary law framework or to the civil law framework. The exclusively based law lawful framework showed up in England during the Middle Ages and was intelligently actualised all through the British states far and wide. The precedent-based law genuine framework, on the other hand, from old-fashioned Rome, was subsequently extraordinary in territory Europe and a brief timeframe later grasped by different nations outside the area, for instance, Russia, Brazil and Japan. The customary law genuine framework relies upon the principle of legal point of reference. The contradicting parties present their lawful disputes, and the delegated authority accepts a working part by showing up at a decision and giving its inclination and interpretation of confined standards, which choices as such become official on lower courts.

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The civil law general set of laws interestingly is free. It contains codes and goals planned to cover all results. Since the laws are exhaustive and express, the adjudicator ‘ s work is typically to choose the real factors and properly apply the appropriate code. His/her judgment doesn’t offer climb to any legitimate perspective. Area III of the CISG begins with an impression of the custom-based law effects on the Convention, trailed by a comparative refection in regard of civil law impacts. Segment III proceeds to manage each one of those cases in which the CISG really responded explicit public legitimate thoughts. It at that point additionally discusses the cases that shed light on each one of those arrangements of the CISG which don’t begin in either custom-based law or civil law frameworks yet rather show some extraordinary new highlights already obscure to the two frameworks. Where a contracting party is obliged to perform anyway chooses not to do all things considered, explicit execution encourages that social affair to play out its responsibilities.

The CISG front sees the alternative to require explicit execution both for the buyer and the dealer (under Article 46 CISG and Article 62 CISG). Under customary law, explicitly French and German law, the regular technique is that the violated party’s fundamental fix would be for the consent to be performed. The CISG qualifies the buyer for address a decreased expense if the product passed on don’t acclimate to the understanding and the seller had not made any declaration of such non-congruity before passing on the items (under Article 50 CISG).

The goal was that ‘ it would be abominable for the vendor to get the greatest for flawed items ‘, regardless of whether or not the trader is to be faulted. Further, such a fix is fitting as it might be more difficult for the buyer to excuse the items. In like way, the buyer is expected to just make an introduction for the answer for getting pertinent.

The CISG is an achievement in lawful practice and perhaps more as an administrative reference model. The CISG is a tradeoff between the unmistakable authentic frameworks, nations and interests, and it’s inferred that a tradeoff is to a great extent the second-best plan.

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The CISG is a unique lawful combination or overall mixed real framework, solidifying exceptionally based law parts with precedent-based law considerations. It isn’t overpowered by one lawful framework and it has its own uncommon ‘ lawful character ‘.

Notwithstanding the way that the Convention isn’t incredible, and not even the best plan, or perhaps the best mix of standard law and customary law, more than 3000 dispersed cases have demonstrated that it is, in any case, a working compromise which comes to extensively recognized or commendable courses of action. The achievement of the CISG as an authoritative reference model will continue on a general scale.

​Law is mainly a set of rules which might be created and enforced by a particular country or community by social or governmental institutions to regulate the actions of its members. Within the structure of India, each citizen has been given a number of rights and for the reason that rights are supplied, there’ll infringement of these rights as effectively. Our legislature has launched varied legal guidelines to implement and shield such rights, with a view to civilize society and keep peace and concord among the many people.

Law is a set of rules that are established and imposed by an individual country or society with social or governmental institutions to govern the activities of its members.
India has a federal judicial system which is based on combined legislation i.e. based mostly on the parliamentary legislature, court laws, customary & non-secular laws as well. The Indian Judicial System is developed by judges by their decisions, orders, and judgments.

There are 5 types of legal system i.e. Civil law, common law, customary law, religious law and mixed law.

Types of law

4 Types of Law in Indian Judicial System

1. Criminal law

Criminal law is enforced by the police. Instances like homicide, rape, assault, theft are dealt with under Criminal Law. Offences that are dedicated towards any particular person, however, are seen as being towards all people, though it doesn’t come under the Criminal law.

For example, if the house is burgled then the theft is towards the person, however, it threatens all house owners as a result of they may have burgled their homes. As a result of the view is taken that everyone is threatened by the crime this law is handled the public services and not by private investigators.

2. Civil law

The Civil law is a law that looks at actions that aren’t the crime. It’s a part of the law dealing with disputes between organizations and people. It covers totally different areas similar to defamation, custody of youngsters, proper to training, divorce, commerce union membership, property disputes, possession points, Copy Proper, insurance coverage claims and many others.

For instance, an individual by pressure took over another person property with out his/her permission and never vacating it or one firm sue another over a trade dispute or car crash victims claims from the driver for loss or injury sustained in an accident.

3. Common law

The Common Law also referred to as case law or Judicial precedent or judge-made law is a section of the law which is derived from the judicial determination of courts and comparable tribunals. Because the identity suggests it’s common to all. The instance set by increased courts is binding on instances tried to decrease courts. Lower courts may choose to overturn the precedent, however, this not often happens.

An instance of a typical legislation marriage is when two individuals have lived collectively for 10 or extra years. They’ve thereby and authorized rights to share their property due to it.

4. Statutory law

Statute or Statutory Law is a law established by an act of the legislature that’s signed by the executive or legislative body. For state law, the acts are handled by the state legislature and signed by the state governor. In rare circumstances, the chief (President or governor) could refuse to signal the invoice or reject it, which is named a “veto.”

A billed is proposed within the parliament and voted upon. For instance, you’re given a quotation for violating the velocity restrict you could have damaged an automobile and visitors legislation.

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