Opinion Law Commission’s report on Uniform Civil Code — undesirable and unnecessary

Flavia Agnes writes: In the five years since the 21st Law Commission submitted its report, the government has not followed up on any of its recommendations.

Law Commission, Law Commission of India, Uniform Civil Code, former Karnataka High Court Chief Justice Ritu Raj Awasthi, Indian express, Opinion, Editorial, Current Affairs

There is much that is pragmatic about the 21st Law Commission’s recommendations. It underlined that rather than enacting a UCC, family laws of every religion must be reformed to make them gender-just. It talked about the uniformity of rights, not laws.

Flavia Agnes

June 23, 2023 04:03 PM IST First published on: Jun 23, 2023 at 07:05 AM IST

The 22nd Law Commission of India has decided to solicit the views of the public and recognised religious organisations about the Uniform Civil Code (UCC). In a public notice, the Commission headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi stated: “Initially the 21st Law Commission of India had examined the subject of Uniform Civil Code and solicited the views of all the stakeholders through its appeal along with a questionnaire dated October 7, 2016 and further … (periodic) public appeals. Pursuant to the above overwhelming responses have been received by the Commission. The 21st Law Commission of India has issued a consultation paper on the Reform of Family Law on August 31, 2018. Since more than three years have lapsed from the date of issuance of the said consultation paper, bearing in mind the relevance and importance of the subject and also various court orders on the subject, the Law Commission of India considered it expedient to deliberate afresh over the subject.”

The Commission was referring to a consultation paper on “Reform of Family Law” by its predecessor. In the paper, the 21st Law Commission, headed by former Supreme Court judge Balbir Singh Chauhan, held that the “formulation of a Uniform Civil Code is neither necessary nor desirable at this stage”. Its recommendations were far-reaching. The Commission had commented, “Mere existence of difference does not imply discrimination, but is indicative of a robust democracy”. It had noted that most countries are moving towards the recognition of difference in place of legal provisions that are founded on uniformity between culturally diverse people — these are unfair to the weaker and vulnerable sections.

There was much that was pragmatic in the 2Ist Law Commission’s recommendations. It underlined that rather than enacting a UCC, family laws of every religion must be reformed to make them gender-just. It talked about the uniformity of rights, not laws. The Commission’s consultation paper emphasised that celebration of diversity must not disadvantage specific groups and “women must be guaranteed their freedom of faith without any compromise on their right to equality”. The paper then proceeded to recommend a series of reforms in the personal laws of all religions as well as the secular laws that place women and children at a disadvantage.

Those who were under the misconception that a UCC must be enforced to “teach Muslims a lesson” were in for a rude shock as the Law Commission refrained from making any recommendations on triple talaq, Muslim bigamy or the constitutional validity of adultery under Section 497 of the IPC since these issues were before either the Supreme Court or Parliament. Hence, the most significant of the 21st Law Commission’s recommendations were about the economic rights of women.

While discussing individual personal law regimes, the Commission criticised the Hindu coparcenary system — the Hindu Undivided Family (HUF) property. Its report commented that this system was being used only for tax evasion. It recommended the abolition of the Hindu coparcenary system. “It is high time it is understood that justifying this institution on the ground of deep-rooted sentiments at the cost of the country’s revenues may not be judicious,” the 21st Law Commission held.

The report expressed concern about the discrimination suffered by women in matters of inheritance in all personal laws. It suggested the codification of the Muslim law of inheritance and succession and bringing in uniform provisions of succession for Shias and Sunnis. It held that succession and inheritance should be based on “proximity to the deceased rather than a preference to male agnates”. Further, a Muslim widow, even if childless, should inherit the property of the deceased as a Class I heir.

Another property-related matter addressed by the report pertained to the division of matrimonial property upon divorce. While suggesting that “no-fault divorce” must be introduced in all personal laws, the Law Commission recommended that all property acquired after marriage must be divided between the two parties after the dissolution of a marriage. The property-related provision addressed an important concern that was raised after the UPA government had introduced a Bill in Parliament in 2010 that had a provision on the “irretrievable breakdown of marriage” — the Bill lapsed in 2014. Another important recommendation of the 21st Law Commission was about the rights a person with disabilities has in a marriage.

The Commission made an interesting comment about Muslim polygamy: “Although polygamy is permitted within Islam, it is a rare practice among Indian Muslims. On the other hand, it is frequently misused by persons of other religions who convert as Muslims solely to solemnise another marriage.” This comment resonates with the Supreme Court’s observation in Sarla Mudgal etc. vs the Union of India (1995). Referring to the issue of conversion and bigamy, the Court had recommended enacting a UCC.

On the issue of custody and guardianship, the Law Commission stressed that courts must follow the principle of the “best interest of the child”. The report also had several recommendations regarding the rights of Parsi and Christian women and those married under the Special Marriage Act.

In the five years since the 21st Law Commission submitted its report, the government has not followed up on any of its recommendations.

The 22nd Law Commission was notified in February 2020 but it was formally constituted in November last year. In February this year, the Centre extended its term to August 31, 2024. Legal scholars doubt whether the Commission will find justifiable grounds in this short period to overturn the sound reasoning of its predecessor and declare that a UCC is not only desirable but also necessary at this stage.

The writer is a legal scholar and women’s rights lawyer