DE-CODING THE UNIFORM CIVIL CODE

(A background paper to assist stakeholders in responding to the Questionnaire prepared by the Law Commission)

A. INTRODUCTION: The Law Commission (LC) of the Govt of India (GOI), headed by retired Supreme Court judge, Justice Dr B.S. Chauhan, has on 7/10/16 issued an Appeal and prepared a Questionnaire with 16 questions; seeking a response from all stakeholders regarding the proposed/ intended Uniform Civil Code (UCC). Replies should reach the LC within 45 days, i.e. by 20/11/2016. Considering the diversity of religions, languages, castes, State Laws, tribal customs etc, it is an impossible task to submit cogent reforms from all the stakeholders at such short notice. Bearing in mind that the proposed/ intended UCC will affect the lives of each and every citizen of India, this consultation should go down to the grassroots level, and not be restricted to elite religious leaders. My first observation/ objection to the Questionnaire therefore is the limited time afforded for responding to it.

B. THE CONTENT: The Questionnaire has 16 questions. Most of them have a Yes/No option. We therefore need to recall the classic question that was asked with the Yes/No option only. “Have you stopped beating your wife”? This is a loaded question that necessitates a response in a pre-determined format. Almost any answer given will be wrong. If one says “Yes” it implies that the respondent had been beating the wife upto now (regardless of whether the respondent has a wife, or is not even a male). If one says “No” it implies that the torture continues (again regardless of whether the respondent has a wife, or is not even a male)! This little illustration shows that the Yes/No format is inherently flawed. It is unthinkable that the LC would prepare a flawed Questionnaire. One is therefore constrained to conclude that the Questionnaire is not just flawed, but also malafide. This is potentially dangerous.

C. THE INTENT: Is it bonafide or malafide? The intent or purpose of the Questionnaire therefore comes under a cloud of suspicion. There seems more to it than meets the eye, with a possible hidden agenda, a suspicion that some sections of society have already begun to articulate. 

D. THE CONTEXT: The Questionnaire has come in the backdrop of a case challenging Triple Talaq (TT) among Muslims in the Supreme Court (SC). This again is ominous, more so the timing, when several States are readying for crucial elections. Granted that the UCC has been on the BJP’s agenda for years, but why now? Other than targeting TT the right wing Hindutvawadis have also been questioning polygamy and the proliferation of progeny among Muslims. They say, “Hum do hamare do, unke panch aur pachees”. This is an allusion to the Govt’s family planning campaign for a couple to restrict themselves to two children, something that Hindus practice; whereas Muslims can have 5 wives and 25 children! This is alarmist and baseless. The Census of India figures do indicate that the Muslim Decadal Growth Rate (DGR) is higher than the national average, but the they also show that this DGR has slowed over the previous decade.

Added to this are the beef bans and allegations of cow slaughter, and the context also becomes ominous. As an aside, the Census 2011 data has taken the heat off the allegation of mass conversions by Christians, because their percentage of the population has remained static at 2.3% since 1971.

MY RESPONSE

Keeping in mind the above, I shall now attempt to answer the Questionnaire from the perspective of a secular minded Indian Christian who loves his country. I am not a lawyer, but as the National President of the All India Catholic Union (AICU) from 1990-94 I had considerable interaction with the GOI on Christian personal laws pertaining to marriage, divorce, succession and adoption. I had also attended a consultation of the Law Ministry in circa 2000 that resulted in important amendments to the Indian Divorce Act 1869, in 2001, and since renamed as the Divorce Act (DA). The AICU also sought my opinion in 2012 when a petition was filed in the Supreme Court by Clarence Pais, a senior advocate from Mangalore. He had, inter alia, sought to have the Catholic Code of Canon Law declared as the personal law of all Christians in India. This paper therefore is intended to be a stimulus for an enlightened debate and discussion, particularly among the Christian community.

Those who would like to access the Questionnaire are requested to download the same from the website of the LC. My general observations and question wise responses are given below. The questions have been reframed to make them reader friendly without distorting their original content.

THE APPEAL LETTER: The covering Appeal Letter from Justice Chauhan seeks to contextualise the Questionnaire. It says that it seeks to address discrimination against vulnerable groups, harmonise various cultural practices, address social justice, women’s’ rights etc; so that no one class, group or community dominates the tone and tenor of family law reforms (emphasis mine). This seems innocuous in itself, especially if the LC is committed to ensuring that there is no domination by powerful, vested interest groups in the intended UCC. I am deliberately using the word “intended” because as of now the GOI has not come out with any concrete proposal. It has not given even a preliminary indication of which specific personal laws, secular or religion specific, it seeks to subsume in the UCC. It is like putting the cart before the horse, or like Don Quixote, tilting at windmills!

Hindus have separate laws for marriage and succession. The Parsis got a new Succession Act in December 1991. There is a fat tome called Mohammedan Law written by Mullah, who despite the Muslim sounding name, was a Parsi. The Sikhs have their Shiromani Gurudwara Prabandhak Committee, the Hindus in the south have Devasom Boards for managing their temples. Christians have the DA and the Indian Christian Marriage Act 1872 (ICMA). There are also secular laws like the Special Marriage Act 1955 and the Indian Succession Act 1925. The Juvenile Justice Act was amended about 10 years ago to give all persons in India the right to adopt a child; even though adoption is prohibited in Islam. Unfortunately the notification issued by the Ministry of Child Development dt 17/7/15 regarding adoption is so badly skewed that the Missionaries of Charity, who spear headed adoption work in India, actually surrendered their licences to run adoption centres.

The LC has therefore embarked on a stupendous task, and 45 days are grossly inadequate to get feedback from the grassroots level upwards. The response period should be extended to six months. In the interim the LC should individually invite the disparate stakeholders like the Hindus, Muslims, Christians, Sikhs, Buddhists, Jains and Parsis, as also the dalits and tribals. After these group consultations there should be a general consultation of at least 3 days duration, where all issues could be discussed. If, after this exercise is completed, and there is a consensus, then, and only then, should the GOI move forward for a proposed UCC. That would in turn need to be circulated and debated. Only then would one be able to come up with an UCC that addresses gender, social and religious justice. Now let us address the 16 questions.

Q1: Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavour to secure for the citizens a UCC throughout the territory of India”?

R1: This is part of the Directive Principles of State Policy that are not enforceable by any court (Art 37). Hence, if it is out of the purview of the judiciary, one must proceed with abundant caution. In Pannalal Bansilal Patel vs State of AP (AIR 1996 SC 1023) the Supreme Court has held that the intended UCC should not be counterproductive to the unity of the nation. This warning should be heeded. The LC says that the UCC seeks to harmonise society. However, early indications are that the Questionnaire has had the opposite effect, generating more social disharmony than unity, and a very acrimonious debate.

The Directive Principles include such noble goals like equal pay for equal work, and equitable distribution of wealth and land (Art 39). The GOI has not shown the same enthusiasm for Art 39 as it is now showing for Art 44!

Q2: Should the UCC include/ exclude all or any of the following: Marriage, Divorce, Adoption, Guardianship and Child Custody, Maintenance, Succession, and Inheritance?

R2: As already stated, there exist a plethora of laws, both religious and secular, covering this vast gamut of issues that affect the lives of citizens. Attempting to subsume them in one comprehensive UCC would entail a mammoth exercise like the Constituent Assembly that deliberated on the Constitution of India. Prima facie the LC seems to be biting off more than it can chew. The medicine seems worse than the disease.

Recall how the Lok Pal Bill was hotly debated and hastily enacted (because of pressure from certain quarters), as a panacea for ending corruption. It has since been consigned to the dustbin of history.

Indian courts are already overburdened with millions of cases pending. The UCC would open up a Pandora’s Box of more litigation, because no matter how well a law is framed it is always subject to interpretation. Those adversely affected by the UCC would be swift to seek legal redress. In the circumstances it would be advisable to leave well enough alone.

Q3: Should existing personal laws and customary practices be codified and replaced by a UCC to bring them in line with fundamental rights?

R3: This again is a loaded question that also proposes an answer. Yes, personal laws and customary practices should be codified in consultation with the affected parties/ stakeholders. A “dominating tone” should not be imposed on unwilling sections of society. It is better to identify specific issues that need urgent redress, rather than trying to solve all problems in one fell stroke. Casting one’s net too wide could end up with the fisherman falling in the water rather than the fish falling into the net!

It is ironic that though some questions are directed at the Hindu, Muslim and Christian communities, no issues have been raised regarding Sikhs, Buddhists, Jains, Parsis, dalits and tribals; all of whom have their own “customary practices”, as distinct from personal laws. The LC should be comprehensive, not selective if it has to be credible.

Q4: Will the UCC or codification ensure gender equality?

R4: Yes, gender equality is the need of the hour, but the UCC is not the answer. Codification, with the assent of the respective stakeholders, would be the more practical option.

Q5: Should the UCC be optional?

R5: When there is no proposed UCC this question is infructuous. However, if the UCC is not mandatory it would defeat its very purpose.

Q6: Should practices like polygamy, polyandry and friendship deeds be banned or regulated?

R6: This again seems aimed at the Muslim community. When we have such a poor male/ female sex ratio, even among Muslims, polygamy would be a rarity. This was permitted in many ancient cultures because several men died in battle or when hunting for food. Females therefore outnumbered males, hence polygamy was considered socially equitable. Instead of making insinuations, let the GOI release data from Census 2011 on what percentage of various groups are practicing polygamy or polyandry.

Today many persons in live-in relationships may be making a civil contract to avoid future complications. Why should the Govt interfere in a private matter between consenting adults? 

Q7: Should TT be abolished in toto, retained or amended?

R7: This is specific to the Muslim community. Hence their views, including of their women, should be carefully considered. Nevertheless, in its current form TT seems to be an aberration of what is provided for in Islam. It considers marriage as a contract only, with terms and conditions set out at the time of marriage (nikahnama).

Some enlightened Muslims say that adequate safeguards could be incorporated into the nikahnama, to protect the interests of women and children. Perhaps Muslims could also get their marriages registered under the Special Marriage Act. This would on the one hand protect religious sentiments, while on the other one’s civil rights would also be adequately safeguarded. Muslim leaders should be brought on board to propagate this.

Q8: What steps should be taken to ensure that Hindu women get equal rights in property?

R8: Though Hindus constitute 85% of the population, and have many more “customary practices” than any other community, many of which are based on a patriarchal mindset, the LC has found only one issue to address this vast population. This smacks of selective amnesia!

From what I understand, and I could be wrong, Hindu women’s rights to equality in succession are adversely affected by the provisions of the Hindu Undivided Family (HUF). This has legal sanction and even tax benefits. This is highly discriminatory. The HUF provisions should be legally abolished. They have no place in modern society. No special tax benefits should accrue to it.

There are many other “customary practices” in Hinduism that warrant attention in order to promote gender justice. Be it women fasting for the longevity of their husbands on Karva Chauth, or being made to plough the fields naked to placate the rain God Indra, there is a vast area of customs that require reform. However, other than amendments to the HUF, I don’t see the GOI as a moral science teacher. Social reform is the task of society, especially of enlightened religious leaders, and not that of the Govt. The GOI should not play GOD!

Q9: Does the two-year waiting period for finalising divorce violate the Christian woman’s right to equality?

R9: This is the biggest joke in the Questionnaire, and probably added as an afterthought to not make it look too Islam specific. This is again a loaded question. The two-year hiatus is not gender oriented. It is equally applicable to both men and women. Secondly, why is this “proposal” coming from the LC when there is no such demand within the Christian community?

For the benefit of those who don’t know, this is a reference to Section 10A of the DA that governs Christians. This pertains to divorce by “mutual consent”, hence there is no gender bias whatsoever. The Catholic Church considers marriage as an eternal bond. Even other Christian churches do consider marriage sacred, not something that one could flit in and out of like a butterfly. It is for this reason that earlier Sec 20 of the DA actually required that a decree of divorce granted by a lower court needed to be ratified by the High Court. This was an expensive and arduous process. Hence this section was repealed by Act 51 0f 2001, by the then NDA Govt, giving much needed relief to Christians caught in a failed marriage. It was for this reason that Sec 10A aforesaid was included. It seems a reasonable one, bearing in mind the Christian approach to marriage.

So we could say to the LC, “Thank you, but no thanks”, because there is no need to create a controversy where none exists. 

It is also worth placing on record that the Christian community in India, and more particularly the Catholics, have always had a healthy respect for the law of the land, even though it has often been at the receiving end of the law.

As already mentioned there was urgent need of amending our personal laws pertaining to marriage, divorce, succession and adoption. They have been addressed in part. Few would know that u/s 213 of the Indian Succession Act 1925 Christians had to pay huge amounts by way of stamp duty to get their Wills probated. This anomaly was removed through the concerted efforts of Adv Clarence Pais, who prevailed upon Sri George Fernandes, then a Union Minister, to get a suitable amendment passed in parliament. I have already touched on adoption so will not repeat it.

However, there are still many anomalies in the DA 1869 and the ICMA 1872 that need redress. For example, Sec 58 of the DA still refers to English clergymen. Sec 3 of the ICMA refers to the Churches of England, Scotland and Rome. The first two have long ceased to exist in India. The ICMA also does not apply to the erstwhile states of Travancore-Cochin, J&K and Manipur (Sec 1).

These acts, while recognising a Church marriage, do not recognise a Church annulment. There are very clear procedures for this in the Canon Law of the Catholics, but civil law does not recognise it. In effect this means that what is ecclesiastically acceptable is legally not maintainable. Hence a Catholic with an annulment, who does not also get a civil divorce or annulment, and enters into a second marriage, would be guilty of bigamy u/s 494 of the Indian Penal Code. This infact is the subject matter of a writ petition filed by the same Adv Pais in the SC, because one of his clients was booked for bigamy in Criminal Complaint case No 7/11 in a court in Mangalore.

Pais made the Catholic Bishop’s Conference of India (CBCI) and the AICU respondents in the case. He had also prayed that the Code of Canon Law be made the personal law of all Christians in India. When the matter was referred to me I gave my considered opinion that Pais’ petition was fundamentally flawed. Firstly, the Code of Canon Law 1983 is applicable only to the Latin Rite Catholics (Can 1). There is another “Code of Canons of the Eastern Churches” promulgated in 1990. Besides, Canon Law is not applicable to non-Catholic Christians.

We also need to understand that Jesus himself laid the foundation of modern day secularism when he said, “Give to Caesar what is Caesar’s and to God what is God’s” (Mat 22:21). St Paul also reminds us that “all authorities that exist are appointed by God” (cf Rom 13:1). Canon Law goes one step further. It unequivocally states that it “respects the competence of civil authority in respect of the merely civil effects of the marriage” (Can 1059). It further states that one should not celebrate a “marriage which cannot be recognised by the civil law, or celebrated in accordance with it” (Can 1071:2).

It is worth noting that the canonical age for marriage of Catholics is 16 for a boy and 14 for a girl (Can 1083:1). Can you believe that? As per the ICMA the legal age is 21/ 18; but Sec 65 says that this does not apply to Catholics, and Sec 88 says that it respects personal law. Despite these provisions the CBCI, in its wisdom, has directed that we observe the provisions of civil law and the legal age for marriage in a church therefore is 21/18.

In the light of the above, instead of advising the Christian community, and more particularly the Catholic Church, the LC and other communities in India should take a leaf out of our book, when it comes to the interface between personal law and civil rights.  

Q10: Should there be a uniform age of consent for marriage?

R10: Yes

Q11: Should all religions have common grounds for divorce?

R11: Only some general principles based on gender equality and natural jurisprudence should be included. Muslims see marriage as a contract; Catholics see it as an eternal sacrament. Where the twain shall meet?

Q12: Would the UCC help divorced women to get proper maintenance?

R12: In the Shah Bano case of 1985 the SC actually decreed that the 69 year old, who had been married for 43 years, should get a monthly maintenance of Rs 500/-. All hell broke loose; and political greenhorn Rajiv Gandhi succumbed to pressure, negating the SC order through enactment of what is euphemistically called the “Muslim Women (Protection of Rights on Divorce) Act 1986”. This closed the doors on maintenance u/s 125 of the CrPC.

In the light of the above, any step, no matter how well intentioned, needs to be thoroughly worked out, besides being socially acceptable. We cannot ram laws down peoples’ throats.

Q13: How can compulsory registration of marriages be better implemented?

R13: This is one of the few practicalquestions raised by the LC. At present Goa, which still follows some colonial Portuguese laws, and not those of British origin, like the rest of India, has a provision for compulsory registration of all marriages, regardless of religion. This provision can be extended to the rest of the country.

Incidentally, Sec 30 of the ICMA stipulates that marriages solemnised in a Catholic Church should be conveyed to the bishop, who in turn, shall file a quarterly return of all such marriages to the Registrar General of Births, Deaths and Marriages. So a marriage solemnised in a Catholic Church is a de facto and de jure registered one.

Q14: What measures should be taken to protect couples who enter into inter-religious/ inter-caste marriages?

R14: They should be advised to register their marriages under the Special Marriage Act.

Q15: Would the UCC infringe on an individual’s right to freedom of religion?

R15: In the absence of what the UCC actually is/ will be, this question is infructuous.

Q16: What measures should be taken to sensitise society towards a common code, or codification of personal law?

R16: Here again two questions have been couched in one. This is most unprofessional and unbecoming of the LC. I have already spoken at length about the UCC, so there is no need to repeat it. But I do believe that reform of religious laws and practices is the better option. At present ONLY the Catholic Church has a Code of Canon Law, which though largely internal in nature, also has some external provisions, as shown aforesaid. It is easy to say that religious laws should be codified, but who will bell the cat? The UCC on the other hand could actually set the cat among the pigeons. Let us remember the old adage that fools will enter where angels fear to tread. So dear Justice Chauhan, do tread with abundant caution and ensure that so single group “dominates the tone and tenor” of what you are contemplating. 

CONCLUDING REMARKS

1. The LC should have at least 3 legal luminaries to monitor the intended UCC, including one each from the Muslim and Christian communities.
2. Remember that the Constitution makes several exceptions, respecting unity in diversity.

• The controversial Art 370 limits the powers of parliament to enact legislation for J&K State
•  Art 371 A(a)i-iv provides for respecting the religious and social practices of Nagas, the administration of civil and criminal justice involving Naga customary law, and ownership and transfer of land and its resources.
• Art 371 G(a)i-iv has similar provisions for the Mizos.

3. Portuguese laws still hold sway in Goa
4. There are also special provisions for the Santhal tribals. I am not sure if protective laws made by anthropologist Edwin Verrier stiil hold for the primitive tribes of the Bastar region in Chhatisgarh, Andaman & Nicobar Islands and erstwhile NEFA region (now Arunachal Pradesh).
5. The Khasis of Meghalaya are matrilineal, where the youngest daughter inherits the family property.
6. We often accuse the erstwhile British rulers of divide and rule, but after their bruising in 1857 they learnt to respect the diversity of India. This is best exemplified in the army, where each regiment had its own customs. Sikhs were allowed to wear their turbans, and Muslims to grow their beards. With the West now being inundated by Muslim and Sikh migrants they too have permitted such diversity in their uniformed forces. We can even see hijab wearing women anchors on European TV channels. When the world is respecting multi-cultural practices, can India afford to regress into putting everyone into a uniform – physically, culturally or legally.
7. Art 372 clearly states that existing laws would continue, even after the Constitution came into force.
8. I have earlier written that school children wear uniforms, because they are vulnerable and impressionable; hence need a distinct identity and protection. However, when they grow into critically aware young adults entering college, they abandon their school uniforms. College campuses are a riot of colour, after the staid straight jackets of school kids. Is our country a mosaic of many colours, and a bouquet of several fragrances? Or is it a “one size fits all” like the RSS uniform that has been altered slightly from half pants to full length ones? The answer is more than obvious.

(Readers, especially community leaders, and heads of organisations could use this paper for discussions, and framing their responses to the LC. The responses must be sent so as to reach the LC before 20/11/2016, at: Law Commission of India, 14^th Floor, HT House, Kasturba Gandhi Marg, New Delhi – 110001; or by email to lci-dla@nic.in).

October 2016