27 February 2024 – The Hindu

Examining the Uttarakhand UCC Bill

About:

• Article 44 of the Constitution mentions the UCC as one of the Directive Principles of State Policy, which states that the government shall endeavour to create a consistent civil code for all Indian people.
• The UCC’s implementation, however, is left up to the government’s discretion by the writers of the Constitution.
• The Portuguese Civil Code of 1867 is the only state in India that has a UCC, and that state is Goa.

India’s Supreme Court’s Position on UCC:

• In the 1985 case of Ahmed Khan v. Shah Bano Begum, the court expressed sadness that “Article 44 has remained a dead letter” and urged its implementation.
• In other cases like Sarla Mudgal v. Union of India, 1995, and John Vallamattom v. Union of India, 2003, this need was reaffirmed.
• In the 2019 case of Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, the court requested that the unified civil code be applied throughout India, hailing Goa as a “shining example” where “the uniform civil code is applicable to all, regardless of religion except while protecting certain limited rights.”

Legal Commission’s Position:

• In a 2018 consultation paper on “Reforms of family law,” the 21st Law Commission, led by former Supreme Court judge Justice Balbir Singh Chauhan, noted that the “formulation of a Uniform Civil Code is neither necessary nor desirable at this stage.”

The Bill was sent to the President for approval, but why?

• According to Article 162 of the Indian Constitution, a state’s executive power covers subjects over which the legislature of the state has the authority to enact legislation.
• It is not possible to argue that the creation of a Committee to introduce and execute the Uniform Civil Code (UCC) is extra vires given the provisions of Entry 5 of the Concurrent List of the Seventh Schedule.
• Entry 5 of the Concurrent List addresses “all matters in respect of which parties in judicial proceedings were immediately prior to the commencement of this Constitution subject to their personal law, including marriage and divorce, infants and minors, adoption, wills, intestacy, and succession, joint family and partition.”

Governors’ Authority to Hold the Bill:

• Governors may set the law aside for the president to review. In cases where the state legislature’s approved bill jeopardises the state high court’s authority, the reservation is required.

But the governor may also put the bill on reserve if it contains any of the following provisions:

• In opposition to the Constitution’s clauses
• opposed to the DPSP
• Against the nation’s greater interest
• extremely significant for the country
• focuses on property acquisition that is required by law under Article 31A of the Constitution.
• Since the bill in question supersedes a number of national legislation, including the 1937 Shariat Act, the 1954 Hindu Marriage Act, and the 1954 Special Marriages Act, it was sent to the president for approval prior to becoming operative.

What aspects of the Uttarakhand UCC Bill, 2024 are the most noteworthy?

About:

• Under the direction of Article 44 of the Constitution, the UCC seeks to supersede the unique personal rules of every faith, concentrating on marriage, divorce, adoption, and inheritance. All citizens would be subject to the same personal laws under this code, regardless of their religion.
• The committee’s main recommendations include outlawing polygamy, nikah halala, triple talaq, iddat (a waiting period that women must observe after a Muslim marriage dissolves), child marriage, a uniform age for girls to marry in all religions, and the requirement that live-in relationships be registered.

Importance:

• The goal of the UCC Bill, 2024 is to promote gender equality by giving men and women the same rights in areas like inheritance and marriage.
• In addition, the Code is probably going to give Muslim women an equal property stake as opposed to the current 25% portion that is granted under Muslim personal rules.

Exceptions:

• The legislation does not apply to Scheduled Tribes (STs). The 3% tribal community in the state has been expressing disapproval of UCC since they were granted special status.

Issues:

• For men and women alike, the minimum age to marry is still established at 21 years old.
• The Bill’s necessity to register a live-in relationship and its subsequent criminalization if certain requirements are not met are contentious features.
• With this mandate, the proposed law will give the state undue authority to violate human autonomy and punish consensual relationships.

What Issues Does the Bill Address Regarding Consensual Relationship Regulation?

Absolute Authority for the Registrars:

• According to the Bill, live-in couples must provide the relevant Registrar with a “statement.” The Registrar is able to look over the statement and look into the relationship.
• In addition, the Registrar may decline to register the connection and partners may be obliged to attend in person. Notification must also be given when ending a relationship.

Applying Criminal Penalties:

• The criminal punishment — either a fine or imprisonment, or both — for failing to file the statement is another unwelcome aspect of the bill.
• The couple’s submission of incorrect information will result in penalties. The police station that oversees the couple will be informed about the live-in relationship’s specifics by the Registrar.

Encroaching onto Personal Independence:

• The fundamental benefit of a live-in relationship—that is, the absence of the formal obligations and structure of a marriage—is disregarded by the Bill. Thus, those who live together benefit from autonomy in their voluntary relationships, something that a regulated marriage does not. It is not justiciable to erase this crucial gap between these institutions.

Overzealous Moral Monitoring:

• It is hardly unexpected that the Bill chills live-in relationships and subtly discourages them in a society that feeds off moral policing of young couples.
• This worry is heightened by the police’s involvement. Couples will be reluctant to commit to a serious relationship since breaking the law can have both criminal and civil repercussions, as required by regulatory rules.

Abuses the Right to a Life of Dignity:

• Intimacy is further restricted in the most obvious way by the one-month limit (anyone in a live-in relationship for longer than one month from the date of getting into such a relationship without filing a statement will be punished). It violates the freedoms of expression and decision-making that are guaranteed by Article 21, which emphasises the right to a life of dignity.
• The Bill’s restrictions place limitations on people when they move in together, which makes it difficult for them to make the most profound decisions for themselves.

Which Factors Need to be Considered When Governing Consensual Relationships?

Creating an Unambiguous Policy in Line with the Constitution:

• What is a criminal offence and what is not needs to be clearly outlined in a democratic liberal state’s policy. This policy ought to be in line with the rights guaranteed by the Constitution. The conservative majority’s disapproval of particular social practices is insufficient justification for their criminalization.
• Joel Feinberg, a philosopher, acknowledges that a person’s morals encompass all aspects of him that the criminal law ought to consider. However, the law shouldn’t be concerned with every aspect of an individual’s morality.

The right to sexual privacy in light of the Supreme Court’s views on adultery:

• The former Indian Penal Code (IPC) had Section 497 that dealt with adultery. The existing law penalised only men, thereby discriminating against them based solely on their sex. However, the law’s criminalization of consenting sexual interactions was an additional important aspect.
• The judiciary firmly held in Joseph Shine v. Union of India (2018) that “treating adultery as an offence would tantamount to the State entering into a real private realm” while overturning the statute.
• Furthermore, it stated that the state is not responsible for meddling in the affairs of people “which were within the sphere of his or her constitutionally protected rights of privacy and self-determination.”

Respecting the Fundamentals of the Right to Privacy:

• Additionally, in K.S. Puttaswamy and Anr. v. Indian Union and Ors. The Indian Supreme Court further explained in 2017 that “the guarantee against arbitrary State action is violated when the State destroys a sanctified personal space, whether of the body or the mind.” An individual has a right to the integrity of their physical personality and privacy of the body.

Keeping People Inclusive and Avoiding Discrimination:

• Couples from different castes and religions may experience significant harassment from the government and social stigma in our nation. The evidence indicates that these marriages frequently face violence, including honour killings.
• Vulnerable couples are most likely to be impacted first by a proposed law with a heavy regulatory burden on live-in relationships. It is inevitable that the Bill’s provisions will worsen the situation rather than make it better. For the sake of maintaining the population’s physical integrity, states must enact inclusionary regulations.