As the buzz grows that the Narendra Modi government could be on the verge of making an effort to make Uniform Civil Code a reality, it is interesting to note that only five years ago, the Law Commission had cautioned against such a move.
In its report, it had cited several reasons why it was not advisable for the country to have common family laws, including practical difficulties and also the impact it could have on the territorial integrity of the nation.
The Law Commission had come out with its 'Consultation Paper on Reform of Family Law' on August 31, 2018, in which it said that providing Uniform Civil Code “...is neither necessary nor desirable at this stage”.
“While diversity of Indian culture can and should be celebrated, specific groups, or weaker sections of the society must not be disprivileged in the process. Resolution of this conflict does not mean abolition of difference,” the Commission had then said.
It pointed out that there are significantly different attitudes towards how a union between two people is imagined in different religions, and to try and project one practice as better than the other would pose problems. “While in Hindu law, marriage is a sacrament, in Christian law, divorce continues to be stigmatised; in Muslim law, marriage is a contract and Parsi law registration of marriage is central to the ritual of marriage. It is important that these different attitudes are respected and not placed in hierarchy, pitting one religious attitude against another,” it said.
The law panel said that while many argue that a uniform code may advance the cause of national integration, this may not necessarily be the case when cultural difference inform people's identity and its preservation guarantees the territorial integrity of the nation. It also said, citing the legal protection provided to tribal family law, that cultural diversity cannot be compromised to the extent “that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation”.
It had stated that most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.
“In the absence of any consensus on a uniform civil code the Commission felt that the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India,” it said.
The Commission felt that a solution lay in codification of different personal laws rather than striving for a uniform code. It said codification of various personal laws could help one arrive at certain universal principles that prioritise equity rather than imposition of a uniform code in procedure which can also discourage many from using the law altogether given that matters of marriage and divorce can also be settled extra judicially.
It said it was desirable that all personal laws relating to matters of family must first be codified to the greatest extent possible, and the inequalities that have crept into codified law should be remedied by amendment.
Regarding the Muslim personal law, which has been at the centre of the UCC debate, the Commission said that resorting to unilateral divorce should be penalised as per the provisions of the Protection of Women from Domestic Violence Act, 2005 and anticruelty provisions of IPC,1860, especially section 498. On the practice of Nikah Halala, it said bringing an end to triple talaq should automatically put a curb on it.
It also observed that although polygamy is permitted within Islam, it is a rare practice among Indian Muslims, and, on the other hand, it is frequently misused by persons of other religions who convert to Islam solely for solemnising another marriage rather than being Muslim themselves.
The Commission, then headed by Justice B.S. Chauhan, had come out with the report in response to a reference it had received from the Union government on June 17, 2016, to “examine matters in relation to uniform civil code”. The report was released on the day the term of the Chauhan-led Commission ended.
The report was prepared after a detailed research and a number of consultations held over two years.