"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, October 14, 2016

The Debate on the Law Commission's Questionnaire on the Uniform Civil Code: Some Comments

This post pertains to Questionnaire published by the Law Commission of India about reforming personal laws and the uniform civil code. The post is in two parts (both published in this post). The first part of the post attempts to answer the questionnaire. The second part of the post discusses a more serious aspect about the role of the Law Commission of India.

I: Responses to Law Commission's Questionnaire

[Disclaimer: This post represents the author's, and not the blog's view, on the questionnaire. The lead co-author, who is an expert in constitutional law (and this author is neither an expert on constitutional law nor on personal laws), we're sure, has a more nuanced perspective to the entire issue.]

The questions in the Commission's questionnaire are in italics.

1. Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”? 

Yes. This matter requires further initiatives for the following reason:

The Directive Principles of State Policy (hereinafter “Directive Principles”) have been enshrined in the Indian Constitution primarily in order to promote social and economic justice. As per Article 37, these Principles shall be “fundamental in the governance of the country” and the Constitution of India has mandated “the State to apply these principles in making laws.” In the course of the Constituent Assembly debates, several members opposed to the idea of a uniform civil code, it was observed that a uniform law applicable to all would promote national unity and, at the same time, no legislature would forcibly amend personal law if people were opposed to it. 

At this juncture in Indian polity, considering the opposition to a complete disregard to personal laws and bringing in a uniform civil code it its stead, a civil code on aspects hitherto covered by personal laws may be a drastic move and may lack legitimacy. As noted by the Constituent Assembly, ultimately, the citizens should be subjected to one civil code. Hence, introduction of a Uniform Civil Code should be a gradual process. At the same time, personal laws are being regarded as biased, especially against gender. Many a time, personal laws operate harshly against a particular gender, which is against the Constitution of India. These realities must be kept in mind in a debate on the subject. 

Broadly, the reforms towards a Uniform Civil Code should be a two-step process. The first step should be bring about comprehensive reforms to personal laws thereby eliminating all aspects which discriminate against a particular gender and bringing them in line with the fundamental rights and the Constitution of India. The first step includes codification of customary practices in each personal laws and ensuring a uniform code under each personal law. Once sufficient reforms are achieved, the second step is to introduce a Uniform Civil Code.

Q. No. 2 regarding the ambit of a Uniform Civil Code does not arise in view of Answer to Q. No. 1. However, if introduced it should cover all aspects presently covered by personal laws. 

3. Do you think the existing personal laws and customary practices need codification? 

Personal laws and customary practices should be codified to bring clarity in them and prevent uncertainty in application. Codification will be very helpful in bringing such practices in line with the Constitution.

4. Will the Uniform Civil Code or the codification of personal laws and customary practices bring about gender equality?

Yes. Both per se cannot strictly bring about gender equality. But a UCC or codification will help bring certainty to these laws and practices and will enable ease of testing them for constitutional consonance. 

5. Should the Uniform Civil Code be optional?

As stated in answer to Q. No.1, in the two-step process, neither should be optional. The first step in codifying and reforming personal laws and the second step in bringing about a Uniform Civil Code. 

6. Polygamy, polyandry and similar customary practices should be banned as they are not in tune with the current circumstances. 

Reforming personal laws should include these aspects as well.

7. Triple talaq operates harshly against women and should be abolished in toto.

8. Do you think that steps should be taken to ensure that Hindu women are better able to exercise their right to property, which is often bequeathed to sons under customary practices?

None of the three options suggested by the Commission are appropriate. Following are the measures that could be adopted:

It is true that in many families, the testator bequeaths immovable property to sons rather than daughters. This author had the opportunity to deal with a similar case. While it is acknowledged that this is predominantly a social issue, a few safeguards in law could be taken: A provision should be introduced in the Indian Succession Act, 1925 to the effect that any bequest denied to a female heir but made to a male heir on the ground that the testator spent money and resources in getting her married or such similar reason should be void.

Another measure that could be adopted is that wills which deny benefit to a female heir but which grant the benefit to a male heir should be viewed as a suspicious circumstance per se. This would be rule of evidence than a substantive legal rule. This principle should be statutorily recognized so that the burden lies on the propounder to establish that there were sufficient reasons to deny the female heir of the bequest. 

9. Do you think that a two-year wait period for Christians violates Christian women’s right to equality?

Yes, it does. The wait period should be made uniform across all religions. The present two-year wait period operates as a source of corruption. Judges at their option apply decisions of certain High Courts (Kerala, the Karnataka and Bombay [Nagpur Bench] High courts) reading the two year waiting period as one year. 

10. Do you think that there should be a uniform consent age for marriage across all personal laws?

Yes. Consent is a matter of body and mind and has very little to do with which religion a person belongs to.

11. Do you agree that all religious denominations should have common grounds for divorce?

c. Not necessarily, However, the grounds should be the same for men and women. 

12. Would a uniform civil code address the problems of insufficient maintenance?

Yes it would. Even if the (suggested) first step to codify and reform personal laws is implemented as a first step, the law on maintenance should be able to adequately address the problem of insufficient maintenance. This is because maintenance is more a matter of economic security to ensure that the woman leads a dignified life and is not at all a matter of religion. 

13. How can compulsory registration of marriages be implemented better?

a. Temples, churches, mosques and other religious places which conduct marriages should be obligated to counsel the parties to the marriage to get their marriage registered.

b. Before issuing identity cards such as Aadhar Card, licence, ration card or documents such as passports, etc., the husband or the wife or the parent, as the case may be, applying for the said document, should furnish proof of marriage registration irrespective of the religion. 

14. What measures should be taken to protect couples who enter into inter-religious and inter-case marriages?

a. Special Marriage Act should be made simpler. Registration offices should not insist on producing marriage cards or receipts of proof of marriage, which they do in case of such marriages, even though the Act does not strictly mandate it. The Registration offices should, instead be offices where marriage is conducted in the presence of sufficient witnesses.

b. Where such marriages take place or registrations take place, the same should be adequately videographed and documented.

c. Special Protection Homes should be introduced in such cases where the bride and the groom fear their safety. Suitable counselors should be appointed. Special training should be given in trades and crafts to them and suitable economic opportunities such as jobs in self-help groups, etc. should be facilitated. 

15. Would a uniform civil code infringe an individual’s right to freedom of religion?

No, it would not. If a uniform criminal law does not infringe an individual right’s to freedom, a uniform code will not infringe on an individual right to freedom of religion. Further, Constitution of India is supreme and anything that conflicts with the Constitution cannot remain above the Constitution. However, as stated in response to question no. 1, this is not the appopriate time for bringing about a uniform civil code. 

16. What measures should be taken to sensitise the society towards a common code or a codification of personal law?

Firstly, the codification and reforms to be brought out should be from the specific communities themselves. Such codes should come from the communities themselves. Secondly, Law Commission should assess each such code for their constitutional compatibility with jurists and experts well-versed with each personal law and thrash out all outstanding issues and thereby reform and codify personal laws. 

Once these reformed and codified personal laws are implemented and their success gauged, introduction of a Uniform Civil Code will become a legitimate exercise.

Part II: Shouldn't Law Commission be Made an Independent Statutory Body?

The recent attack by certain sections of certain religions vehemently attacked the Law Commission's questionnaire. Among other allegations, the prominent one was that the questionnaire was an attempt by the Government-in-power to target certain religious communities. Irrespective of the validity of such a criticism, such comments reflect poorly on the Law Commission. The Commission is supposed to be a prestigitous body instrumental in initiating, discussing and suggesting reforms in law. Such allegations lower the image of the Commission. Another aspect is that the task of the Commission inherently involves the possibility of criticising the Government-in-power's laws and testing their effectiveness. Often the views of the Commission can (and at times, should) be in contradiction with the Government's views. For these reasons, the Law Commission must be an independent statutory body. It is time for a suitable legislation for making the Law Commission a statutory body and ensuring its independence and competence by a suitable process constituting it and laying down its framework. 

(P.S. Forgive us readers for not posting Part II of Sasan Power. We are in the process of completing the second part (Part II will deal with the MP High Court decision) and we will also post the concluding part hopefully by next week. Lots to post on, especially the recent decision of the Supreme Court on arbitrability of disputes involving allegations of fraud. )

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