On October 29, almost a month before the Assembly elections in Gujarat, the state’s Bharatiya Janata Party-led government announced that it would form a party to implement a civil law in the government. The BJP formed a similar party in Uttarakhand in May and has vowed to implement a communal law and re-election in Himachal Pradesh.
The civil code contains common laws that govern marriages, divorces, adoptions and successions for all Indians. Currently, these practices are governed by the personal law of one’s religion.
Opposition leaders have called such a move illegal, saying only the Union government can implement a civil law. However, legal scholars argue that while it may not be wrong to bring in civil law at the state level, there are practical obstacles to such legislation.
Even at the national level, experts argue, it is not clear what kind of civil law it is. Moreover, they say that it is possible to take benefits that are enjoyed only by Hindus and therefore, the BJP may not decide.
Is it allowed by law?
Opposition leaders said the BJP’s attempt to implement a civil law at the state level was illegal. Congress leader and senior counsel P Chidambaram said that the civil law proposed by the BJP can only be brought by the House. Also, Congress Rajya Sabha MP Shaktisinh Gohil said that the civil law would need a constitutional amendment, which only the House could take up.
Those who believe that this law can only be brought up by the House can invoke Article 44 of the Constitution, which states that civil law applies to “all citizens throughout India”.
However, many experts disagree with this line of reasoning. Article 44 is under Part IV of the Constitution, which lays down advisory principles that cannot be enforced in court, and acts as a guide when states make laws, says he.
Instead, the power to make laws comes from Article 245 of the Constitution and 246 and Schedules in the Seventh Schedule, explained Alok Prasanna Kumar, senior research fellow at legal think tank Vidhi Center for the Constitution. “It didn’t come out of Episode IV,” he said.
Kumar explained, “Governments are empowered under Article 246 notification and List III of the Seventh Schedule to make laws relating to ‘personal laws’.” Article 246 deals with the distribution of legislative powers between the House and the states. Along with the Union and states lists, there is an equivalent list, List III, which allows the Center and the states to make laws.
Marriages, divorces, adoptions, successions, joint families and separations listed in the list have just come under the jurisdiction of the Center and the states.
According to Article 254, if a state enacts a schedule law which is inconsistent with the existing main law, then the main law will prevail. However, if the government receives approval from the president regarding its anti-corruption law, then that government law becomes effective in that country.
Currently, there are only a few important laws in this area related to religion, such as the Hindu Marriage Act, 1955 and the Indian Christian Marriage Act, 1872. “The laws are like that. [a state’s uniform civil code] it will be very different from the laws of the Union on the same subject (like Hindu Marriage Act, Shariat Law etc.) so the president has to approve it,” said umar.
In July, Union Law Minister Kiren Rijiju also told Parliament that state governments also have the right to enact a civil law.
It’s a work problem
As a result, experts believe there are no legal barriers to moving that code. “The president will immediately agree if the BJP government passes this law [a uniform civil code],” said PDT Achary, deputy secretary of the Lok Sabha. “If a law is passed by a non-BJP government, the president will have a different opinion.”
Senior counsel and legal expert Gopal Sankaranarayanan said, “Technically, it is [a state-specific uniform civil code] It’s possible if you agree with the president.”
However, even though civil laws can form a state, they are very difficult to implement in practice.
“When you do marriage and divorce, it’s a form of government,” Sankaranarayanan said. “[In the United States,] people choose specific countries [to get married in] in terms of lifestyle, travel etc., it varies from country to country. You bring that kind of system to India.
Explaining the practical difficulties, Sankaranarayanan cited the hypothetical example of a couple who got married in Karnataka under the state’s civil law (as opposed to the national law) and then decided to separate. after they moved to Delhi. “So I will move my divorce petition to Delhi, I will be governed by the Karnataka law or the place [Delhi] Where are we as a married couple?” he asked.
Sankaranarayanan continued, “You can imagine the kind of problem that would cause.”
Therefore, to consider a civil law of the state, he said, “it is like a learning process”. If there is a civil law, he believes, it should be national.
Is it too difficult?
Although civil law avoids these problems of jurisdiction, experts believe that it has many problems. “It’s not really possible,” said Sarasu Esther Thomas, law professor at the National Law School of India University, Bangalore and an expert in family law. “We just say that civil law means that you combine Hindu law, Muslim law, etc. But law is different from that.”
Kumar said, “What is marriage, what is divorce, what is inheritance… everything is different in every religion and not everyone accepts the civil laws.” For example, he pointed out that Muslims consider marriage a contract, which can be annulled under certain laws like all contracts, but Hindus and Christians consider it a sacrament or a temple which makes it difficult. cancellation.
Further, Thomas said that there are many requirements even in Hindu law that have not yet been written down. The Hindu Code Bill was a set of laws passed in the 1950s that abolished marriage for Hindus and regulated matters such as inheritance, adoption, marriage and divorce. This law is often used as a justification by the Hindu Authority to bring a civil law across all religions.
“There is no uniform Hindu code to begin with,” he said, pointing out that in many areas such as who marries whom, Hindu customs are governed.
“So, even if you see the Hindu Code Bill, which tried to bring in a similar Hindu code, it couldn’t because it was so different,” Thomas said.
Therefore, it is difficult to have one civil law to unify customs across all religions, according to experts. Kumar said that the Uttarakhand Uniform Civil Code committee has reached four thousand opinions and it is difficult to analyze them.
Failure of Government
Because of this, experts believe that even if the BJP has political arguments, it is unlikely that a party-led government will be able to implement a civil law “If you bring a civil law, What will you do about Hindus. Separated Families?” asked Vijay Kishor Tiwari, an assistant professor of law at the West Bengal National University of Juridical Sciences, Kolkata. That’s why they don’t give up. A Hindu Non-profit Family is a family-owned enterprise that enjoys tax exemption.
Furthermore, Thomas points out, “HUF [Hindu Undivided Family] The law is not quite the same.”
As a result, Tiwari believed that the BJP would not bring any civil legislation. “That’s my reading of their strategy,” Tiwari said. “The main complaint of the BJP is that polygamy and triple marriage were allowed for Muslims, privileges not granted to Hindu men.”
The Union government has criminalized triple talaq in 2019. “I think we will lose the remaining rights of brides in the future,” he said.
Scholars have also questioned why a civil law is necessary. In its 2019 Lok Sabha manifesto, the BJP said that “gender equality” cannot be achieved until a civil law is implemented. However, scholars believe that there is no such thing as a uniform civil law, and that there are other ways to make laws fair.
“A lot of women think that when we’re moving toward gender equality, we don’t need equality,” Thomas said. “I think the way forward is to have similar laws like the Domestic Violence Act, Children’s Rights Act, the Care and Welfare of Parents and Elderly Persons Act, which protect the people regardless of their laws.”
The Law Commission of India took a similar stance in a 2016 civil law policy paper. It said states should deal with “discriminatory laws rather than provide a civil code that is not necessary and unnecessary” .
Other scholars have also argued that the Civil Code in Goa, which is said to be a model of a model civil law, has different provisions for different religions and may not be appropriate for the woman.
“It’s not because we have this law in Goa that everything is hunky-dory,” said Albertina Almeida, a human rights activist and expert on marriage laws in Goa. “Based on my own experience, I think this is a false distinction between civil law and personal law.”