Tuesday, December 16, 2014

Uniform Civil Code Explained

What is the idea behind a Uniform Civil Code for India?
Currently, believers of various religions can marry, adopt, inherit property and divorce under their own customs. Under a Uniform Civil Code, it is believed, personal laws and sanctioned practices of different religions will be largely harmonised with accepted fair practices for all citizens, under guidelines laid down by Constitution.
Does the Constitution mention a Uniform Civil Code?
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India,” says Article 44 of the Directive Principles of State Policy. Directive Principles are not justiciable or mandatory, only a guideline.
What is the debate about?
Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions. It was understood that minorities could practise their religion and follow their customs and traditions. The Hindu right, first through the Jana Sangh and then the BJP, has been pushing for a ‘Common Civil Code’. Its argument is that Hindus have to abide by codified laws on marriage, adoption, inheritance and succession under a set of Acts brought in by the Jawaharlal Nehru government in the face of opposition from the Hindu orthodoxy.
Is Uniform Civil Code the same as Common Civil Code?
Law Minister Sadananda Gowda has been using the phrases interchangeably, but experts say ‘Uniform’ (as suggested in the Constitution) does not mean ‘Common’. Constitutional principles of fairness and equality must reflect in a uniform law, but minorities fear a “common” code, as propagated by the BJP, would be majoritarian.
Where do personal and civil laws conflict?
Mostly on issues of marriage, adoption and inheritance.
So where does the Special Marriage Act come in?
Enacted in 1954, the Act allows people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party, to marry or divorce under it. The only exception is Jammu & Kashmir. A marriage performed under the Special Marriage Act is a civil contract and, accordingly, does not involve rites or ceremonial requirements.
Is the debate over Uniform Civil Code just a Hindu-Muslim issue?
Far from it. Parsis, Jains, Sikhs, Buddhists, Christians, apart from of course Hindus and Muslims, have their own civil codes. While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence. The personal laws of Hindus, Jains, Sikhs and others were codified in the 1950s.
Why is the Shah Bano case mentioned in this context?
There have so far been two attempts to codify Muslim law. One, the Shah Bano case, was made in independent India. In 1986, the Supreme Court approved of extra alimony for Shah Bano, an Indore-based 62-year-old divorcee, from her former husband. The Muslim orthodoxy objected to both the alimony being imposed on the husband apart from the mehr fixed under nikaah, and to the way in which it was being done. The government of then Prime Minister Rajiv Gandhi succumbed to the pressure, and Parliament enacted a law diluting the ruling of the Supreme Court, via the Muslim Women (Protection of Rights on Divorce) Act, 1986. While this was subsequently changed by the courts, the Shah Bano case fuelled the debate over communities being allowed separate personal laws, with the BJP calling it Muslim “appeasement”.
- See more at: http://indianexpress.com/article/india/india-others/explained-code-language/99/#sthash.GskSMVK3.dpuf

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