Common Civil Code after 370: 4 Marriage of Muslims or division of property between Christians; BJP is examining the dangers of creating a common law
On 24 November 2022, in an interview Union Home Minister Amit Shah said, 'BJP is determined to implement Uniform Civil Code, there is an offer and we will keep it.'
Exactly 15 days later, BJP's Rajya Sabha MP Kirodilal Meena introduced a private bill in the Rajya Sabha to introduce a uniform civil code, marking the first political step towards implementing a uniform civil code in the country. The BJP has started the test to make a uniform law across the country through a private member's bill.
What is Uniform Civil Code? Why has it become a topic of discussion across the country? Can this become law? Let's know about Uniform Civil Code
Question-1 What is Common Civil Code?
Answer- Generally there are two types of laws in a country. Criminal Law and Civil Law. Criminal cases like theft, robbery, assault, murder are tried in criminal law. It provides for the same court, process and punishment for people of every religion or community.
That is, whether the murder is committed by a Hindu or a Muslim, whether the person who lost his life in this crime is a Hindu or a Muslim, there is no difference in the FIR, trial and punishment.
Civil law emphasizes settlement or compensation rather than punishment. For example, there is a property dispute between two people, someone has defamed you, or there is an issue between husband and wife, or a property dispute in a public place. In such cases the court settles and compensates the aggrieved party. Tradition, customs and culture have a special role in civil laws.
Cases like marriage, property come under civil law. Customs, culture and traditions of different religions in India have special importance in matters related to marriage, family and wealth. Based on this, there are different laws for a particular religion or community. This is the reason why we also call such laws as personal laws.
As in Muslim marriage and division of property is governed by Muslim personal law. On the other hand, Hindus get married under the Hindu Marriage Act. Thus Christians and Sikhs also have personal law.
On the other hand, the Uniform Civil Code seeks to abolish personal law and create a uniform law for all, i.e. uniform law in personal matters for every citizen living in India, irrespective of religion or caste.
Eg- Muslim men can marry 4 times under Personal Law, but under Hindu Marriage Act it is a crime to marry second wife while the first wife is alive.
Question-2 When did the issue of creating a uniform civil code first arise?
Answer - In 1835 the British Government presented a report. It has talked about creating a uniform law across the country regarding crime, evidence and contracts. It was also implemented in 1840, but the personal laws of Hindus and Muslims were kept separate from it on the basis of religion. This is where the demand for a uniform civil code started.
BN Rao Committee was formed in 1941. It talked about creating a common civil code for Hindus. The Hindu Code Bill was introduced in the Constituent Assembly for the first time in 1948 after independence. Its purpose was to free Hindu women from wrong customs like child marriage, sati practice, head covering.
Many leaders including Jan Sangh leader Shyam Prasad Mukherjee, Karpatri Maharaj opposed this. At that time no decision was taken on this issue. When Bhimrao Ambedkar wrote a letter on 10 August 1951 and pressured Nehru, he was ready.
However, more than half of the party's MPs, including Rajendra Prasad, opposed this. Finally Nehru had to bow. Then in 1955 and 1956, Nehru divided the Act into 4 parts and passed it in Parliament.
The laws that were made are as follows-
1. Hindu Marriage Act 1955
2. Hindu Succession Act 1956
3. Hindu Adoption and Maintenance Act 1956
4. Hindu Minority and Guardianship Act 1956
Now Hindu women got divorce, cross-caste marriage, right to property, right to adopt girls. Polygamy of men was banned. Women got right to maintenance after divorce.
Rajendra Prasad, Shyam Prasad Mukherjee and other leaders said that when a law was made for women's rights, why only for Hindu women? Why is the same law not being made for women of all religions.
Question-3 Why is there so much opposition regarding the Uniform Civil Code?
Ans- Uniform Civil Code is opposed by minorities especially people from Muslim community. He says that he says that all citizens have the right to freedom of religion under Article 25 of the Constitution. That is why it is against the constitution to impose the same law on everyone in matters related to marriage and traditions.
According to Muslim experts Sharia law is 1400 years old. This law is based on the Quran and the teachings of Prophet Mohammad. Hence this is a matter of their faith. Muslims are worried that the religious freedom they enjoyed after 1947 is gradually being taken away from them.
Question 4- What has been said about Uniform Civil Code in the Constitution of the country?
Answer- The Uniform Civil Code is discussed in Part-IV of Article 44 of the Constitution. Regarding the directive principles of state policy, this article states that 'the state shall endeavor to enforce a uniform civil code for citizens throughout the country.'
The Directive Principles of State Policy in our Constitution act as a guide for governments. It states the principles or objectives that governments must work towards.
Question-5 Why is the bill passed by Kirodilal Meena considered a private bill?
Answer- Two types of Bills are introduced in Rajya Sabha or Lok Sabha. One Bill is a Government Bill and the other is a Private Member's Bill. A government bill is passed by a government minister. It is included in the agenda of the government.
Whereas any member of the Lok Sabha or Rajya Sabha who is not a minister can introduce a private member's bill. Even if he is a member of the ruling party. This is the reason why this bill of BJP MP Kirodilal Meena was called a private member's bill.
Question-6 The process of presenting a private member's bill?
Ans- A government bill can be introduced in the House on any day, whereas a private member's bill can be introduced only on Fridays. The MP has to prepare a draft of the private member's bill before introducing it. He has to give at least one month's notice to the Home Secretariat.
The Home Secretariat examines whether the Bill is consistent with the provisions of the Constitution. After checking it lists it.
The decision to accept or reject a private bill rests with the Speaker of the Lok Sabha or the Speaker of the Rajya Sabha. After the bill is approved, it is debated in the House. It is then voted on. If the bill is passed by a majority in both houses, it is sent to the President. After the signature of the President, the bill becomes a law.
Since 1952, thousands of private member's bills have been passed till now. Out of these, only 14 private member bills could take the form of law. The Supreme Court (Extension of Criminal Appellate Jurisdiction) Bill- 1968 was the last private member's bill which became law in 1970.
After that, no private bill could be passed by both houses. In the 16th Lok Sabha i.e. between 2014-2019, 999 private bills were introduced, but only 10% of the bills could be debated.
Question 7: Why was the vote taken to introduce Kirori Lal's private bill in the Rajya Sabha?
Answer: As soon as Kirori Lal Meena introduced the private member's bill on Friday, several opposition forces including Congress, TMC, CPI started opposing it. He started demanding its withdrawal. After this, the Vice President and Speaker of the Rajya Sabha Jagdeep Dhankhar conducted the voting. 63 votes were cast in support of the bill, while 23 votes were cast against. Thus this bill was introduced in the Rajya Sabha.
Question-8 Kirodilal Meena is a BJP MP and there is a BJP government at the centre, then why this bill was introduced as a private member's bill?
Answer- CSDS professor and political expert Abhay Dubey says that 'The government is doing a kind of litmus test through this bill, because it is not easy to implement. People think that this will only affect minorities, but it is not. Hindus can also be affected by it. There may be opposition from them too. That is why the government wants to know the stand of other parties, the mood of the country and the mood of saints and seers regarding this bill.
Senior journalist and author Rashid Kidwai says, 'There are both legal and political aspects behind this. Even though BJP-ruled states talk about implementing it, it is not possible to implement it at the state level. Whenever this is implemented it will be implemented only at the central level and even for that it is not easy to implement. So he wants to see at what level he is opposed.
On the other hand, BJP is also trying to create Hindu-Muslim polarization under its pretext. He wants someone to oppose him, make a controversial comment, so that he can make it a big issue in the next election.'
Question-9 BJP supported the passage of the bill, what is the party's stand on this issue?
Answer- Union Home Minister Amit Shah said in an interview that 'Uniform Civil Code has been our issue ever since our party was formed. Due to this, Shyam Prasad Mukherjee resigned from the post of Industries Minister and founded the Bharatiya Jana Sangh.'
There is not a single proclamation in which we have not talked about the Uniform Civil Code. There can be no basis of law in a secular country. The framers of our constitution also said that the legislatures and parliaments of the country should enact a uniform civil code whenever there is relevance.
In another interview, Amit Shah said that a panel chaired by a retired Supreme Court judge has been formed to implement the Uniform Civil Code in Uttarakhand, Himachal Pradesh and Gujarat.
Other states are also making plans in this regard. I think many states will implement the Uniform Civil Code in their own way. Even after this, if it is not implemented till 2024, then after returning to power, we will implement it in the entire country.
Question 10: What will happen next on the bill in the current political climate?
Answer: According to Supreme Court lawyer Virag Gupta, three things can happen with this bill going forward.
1. Kirodilal Meena can withdraw this bill in case of controversy and opposition after discussion.
2. The Government may refer it to a Parliamentary Committee or Law Commission for suggestions.
3. This will be discussed in the Rajya Sabha. Like a public bill, if the bill is passed in the Rajya Sabha, it will be tabled in the Lok Sabha. Even there, if the bill is passed after discussion, it will be sent to the President. After it is passed by the Parliament, the President can veto it.
If the approval of the President is received, it will become a law, but its scope is very less, because the matter is being discussed in the Supreme Court Law Commission as well as in many states. On the other hand, to implement the Uniform Civil Code, along with the amendment of the old laws, a new legal system will also have to be created, which is not possible through a private bill.
Normally such a bill would require a simple majority to become law, but the opposition can seek a two-thirds majority or the approval of state legislatures, says Virag Gupta. Delays in this debate may kill this private bill before it becomes law.
There are total 543 seats in Lok Sabha. A two-thirds majority would require 362 votes. BJP alone has 303 members in Lok Sabha, while NDA has 330 members. While Rajya Sabha has total 250 members. A two-thirds majority would require the support of 167 members. The BJP currently has 92 MPs and the NDA 110 in the Rajya Sabha, meaning the BJP is far from a majority in both houses if a two-thirds majority is required. (Data till 19 July 2022)
Question 11: Are there any similar civil courts in other countries?
Answer: At present Goa is the only state in the country, where Uniform Civil Code is applicable. This is known as the Portuguese Civil Code of 1867. Goa merged with India in 1961. Even after this this law remained in force there.
If we talk about other countries, most of the Muslim countries follow Sharia law. Countries like Pakistan, Iraq, Iran, Yemen and Saudi Arabia have one law for all.
In countries such as Egypt, Singapore, Malaysia and Sri Lanka, Sharia law applies only as personal law. Israel has different family laws for different religions.
Christian-majority countries, including the US, have uniform laws for all citizens regarding marriage, divorce, and property matters. However, in America, there is a relaxation in matters related to marriage and divorce for the tribal community.
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