By Matters India Reporter
New Delhi: A uniform civil code “is neither necessary nor desirable at this stage” in the country, the Law Commission of India said on August 31.
The commission released its consultation paper on enacting common civil law for all religious communities in India just hours before its three-year term ended.
The federal government had asked the commission more than two years ago to examine if it was time to bring in a uniform code on personal laws of various communities.
The commission emphatically responded in the negative, underlining that “it is (more) important to deal with laws that discriminate between men and women.”
“The issue of uniform civil code is vast, and its potential repercussions, untested in India,” the panel headed by retired Supreme Court judge B S Chauhan said.
Justice Chauhan’s panel said mere existence of difference in a country does not imply discrimination, but is indicative of a robust democracy. Most countries, the panel said, are moving toward recognition of differences.
The uniform civil code has been a long-standing poll promise and ideological position of the ruling Bharatiya Janata Party (BJP) but many minority groups have opposed it because they see it as an effort to erase their cultural and religious identities.
In June 2016, the law ministry sent a reference to the commission asking it for an in-depth examination of “matters in relation to the Uniform Civil Code” and whether the time was ripe for bringing it in.
In October that year, the commission had sought responses from political parties, religious groups and the public at large for comments and suggestions on the issue.
The commission issued an appeal on March 19 asking stakeholders and the public at large to send in their suggestions and comments on the issue of the common civil code. The appeal also said that suggestions related to triple talaq should be excluded because a bill to criminalize the practice of Talaq-e-biddat or instant triple talaq is pending in Parliament.
The commission’s 185-page consultation paper asserts that secularism cannot contradict the plurality prevalent in the country.
“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,” the panel said.
A unified nation did not necessarily need to have “uniformity.” ”Efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights,” the commission said. Difference did not always imply discrimination in a robust democracy, the government’s topmost law advisory body said.
In fact, term “secularism” has meaning only if it assured the expression of any form of difference. This diversity, both religious and regional, should not get subsumed under the louder voice of the majority, the Commission said.
At the same time, the Commission said, discriminatory practices within a religion should not hide behind the cloak of that faith to gain legitimacy.
It said the way forward may not be a uniform civil code, but the codification of all personal laws so that prejudices and stereotypes in every one of them would come to light and could be tested on the anvil of fundamental rights of the Constitution.
“By codification of different personal laws, one can arrive at certain universal principles that prioritise equity rather than imposition of a uniform code, which would discourage many from using the law altogether, given that matters of marriage and divorce can also be settled extra-judicially,” the Commission reasoned.
The Commission suggested certain measures in marriage and divorce that should be uniformly accepted in the personal laws of all religions.
These amendments in personal laws include fixing the marriageable age for boys and girls at 18 years so that they marry as equals, making adultery a ground for divorce for men and women and to simplify divorce procedure. The Commission said the filing of Section 498A IPC (dowry harassment) cases was actually done by women wanting a quick exit from a difficult marriage.
‘Nikahnamas should make it clear that polygamy is a criminal offence’
Significantly, the Commission suggested that nikahnamas should make it clear that polygamy is a criminal offence and this should apply to “all communities”.
“This is not recommended owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives, which is unfair,” the Commission explained.