Uniform Civil Code in India: The Past and the Future

On the 13th of this month, a Bench of Justices of the Supreme Court, questioned the government about its mandate on framing a Uniform Civil Code so that all religions are regulated by the same yardstick in measures of law. The Bench was hearing a petition, challenging a provision that compels Christian couples to wait for at least two years for divorce, whereas this period for other religions is one year. The BJP which has always supported the need for a uniform civil code in the country is under attack from various sections of the society for delaying the much needed reforms.
The Uniform Civil Code are a set of laws which will replace the personal laws, based on scriptures and customs of each religion (Hindu Code and Muslim Personal Law). This new set of laws will govern each and every citizen of the country irrespective of his religion. As of now, Goa is the only state with a uniform civil code called the 'Goa Family Law' (continuing after its annexation in 1961).

History:
(Pre-Independence)

• The British allowed personal laws to be governed by religious scriptures and customs of various communities. These personal laws involved inheritance, succession, marriage and religious ceremonies. The British took care of laws pertaining to crime, taxation, revenue, contracts, etc.
• The Lex Loci Report of October 1840 emphasised importance and necessity of uniformity in 'codification' of Indian law, relating to crimes, evidences and contract but recommended that personal laws of Hindus and Muslims should be kept outside of codification.
• These religious and customary laws were often discriminatory against women. Several reforms were made to these laws in the 19th century, like the Abolition of Sati and Widow Remarriage Act, with active participation of reformers like Raja Rammohan Roy and Ishwarchandra Vidyasagar.
• Women's organisations demanded a uniform civil code to replace existing personal laws, basing it on the Karachi congress resolution (1931) which guaranteed gender-equality.

(Post-Independence)

• In 1946, there were extensive debates in the Constituent assembly over the place of personal laws in the new Indian legal system. Some were of the opinion that India's personal laws were too divisive and a uniform civil code should be instituted in their place. Others resisted the proposal on the grounds that its imposition would destroy the cultural identity of the minorities.
• After independence, the then prime minister Jawaharlal Nehru, his supporters and other women members wanted a uniform civil code to be implemented. At the same time, then Law Minister pushed for reforms in the Hindu laws. Nehru saw this as the first step towards Hindu unity and the uniform civil code.
• The bill was met by severe opposition from many quarters including the then president, Rajendra Prasad and Congress party president, Vallabhbhai Patel and members of the Hindu fundamentalist parties. The conservative Hindu politicians, organisations and devotees were unhappy about being singled out as the only community whose laws had to be reformed.
• The main provisions opposed were those concerning monogamy, divorce, coparcenaries and inheritance to daughters. A scaled down version of four Hindu bills were successfully passed in the Parliament in 1955-56. They were Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, Hindu Adoptions and Maintenance Act.
• Since Act applied only to Hindus, women from the other communities remained subordinated. 

(Shah Bano Case, 1985)

• Shah Bano was a 73 year old woman who sought maintenance from her husband, Muhammad Ahmad Khan. Khan divorced her after 40 years of marriage by oral Talaaq and denied her maintenance. Unilateral divorce was permitted under Muslim Personal Law.
• Supreme Court ruled in favour of Shah bano under "maintenance of wives, children and parents" provision (section 125) of All India Criminal Code, which applied to all citizens irrespective of their religion. It also recommended that a uniform civil code be set up.
• This became a nation-wide political issue. The All India Muslim Board defended application of their laws. Criminal Code was seen as a threat to Muslim Personal Law, which they considered their cultural identity. For them, the judiciary recommending the uniform civil code was evidence that Hindu values would be imposed on every Indian.

Countries like Turkey and Tunisia have modernised their Islamic personal laws as have also Pakistan and Bangladesh. The Uniform Civil Code is not a magic wand and will not take care of all the problems faced by women overnight. It must emerge from an evolutionary process where participation of the civil society itself is important for the drafting of the code.

Justice R.M. Sahai in Sarla Mudgal, suggested that the Law Commission of India and the commission of minorities could work together to propose reforms, while co-opting bodies like All India Muslim Personal Law Board. There have also been recommendations to adopt a parallel civil and religious system, where in, certain matters like maintenance, inheritance, etc. civil law would prevail and be mandatory. These parallel systems exist in London, New York and Toronto. Such a parallel system would encourage an idea of uniformity that would respect autonomous laws for religious communities and address provisions inconsistent with the constitution.

In a country as diverse as India, it becomes cumbersome for the judiciary to judge cases when different laws apply to different communities. The Uniform Civil Code will be an important step towards national integration and national unity. Article 44 of the Constitution says that 'the state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India'. Although this article is not justiciable, the state has an obligation towards civil society to set up the uniform civil code. It is important in the sense, that it will promote gender equality and do away with archaic personal laws of Muslims which allow unilateral divorce and polygamy.

(sources: Indian Express and Wikipedia)

Supreme Court strikes down NJAC Act (99th Constitutional Amendment Act)

The Supreme Court, recently, declared that the National Judicial Appointment Commission Act was ultra vires to the provisions of the constitution. A five-judge Constitution Bench ruled with a 4:1 majority that judges' appointment shall continue to be made by the Collegium System which consists of the Chief Justice of India and the four senior-most judges of the Supreme Court. The Bench underlined that the NJAC sought to interfere with the independence of the judiciary, of which appointment of judges and primacy of judiciary in such appointments, were 'indispensable' features. By striking down the 99th Constitutional Amendment Act, the Supreme Court has raised a lot of eyebrows, with the country divided over whether the move has been in the best interests of the society or not.
To read more about the composition and working of the NJAC visit the following link. http://zamanexplains.blogspot.in/2015/04/independence-of-judiciary-in-danger.html

History:

• First Judges Case (1982) - Supreme Court held that in matters of appointment of judges, the government must consult the Chief Justice and other judges of the Supreme Court, but the consultation does not mean concurrence. In short, the advice of the judges was not binding on the government.
• Second Judges Case (1993) - Supreme Court reversed its earlier ruling and made the advice of the CJI (Chief justice of India), binding on the President, in matters of appointment of judges. But CJI had to consult his two senior-most colleagues.
• Third Judges Case (1998) - Supreme Court opined that the consultation process adopted by CJI requires 'consultation of plurality of judges'. This paved the way for the Collegium System for appointment of judges. The CJI was to consult a collegium of four senior-most judges of the SC and even if two judges gave an adverse opinion, the recommendation to the government would not be made.

Ever since then, the Collegium System has been followed to make judicial appointments to the Supreme Court and the High Courts. But the Parliament passed the NJAC bill and also got it ratified in twenty State Legislative Assemblies, thus putting an end to the Collegium System.

Views in support of the ruling:

• Basic structure of the Constitution was violated by the Act, as it encroached upon 'Independence of Judiciary'. As per the Supreme Court, the composition of the NJAC was flawed. The presence of the Union Law Minister and two eminent experts, in the six member NJAC and the two member veto provisions seemed to violate the 'Primacy of the Judiciary'. 
• The Constitution also directs State to separate the Executive from the Judiciary but the inclusion of the Union Law Minister in the NJAC went against this provision.
• The government is the biggest litigant before the courts. India is one of the few countries where actions of political executive are brought before the judiciary in public interest litigations. Then how can judges appointed by the government be expected to be neutral while judging a case.       

Voices of Dissent:
The government and different sections of the society has expressed disappointment with the ruling.

• The government thinks that the Supreme Court is ignoring the will of the people of this country as the bill had been passed by both the houses of the Parliament and ratified by most of the state assemblies.
• The Supreme Court has made the assumption that 'primacy of the judiciary' is indispensable for 'independence of judiciary'. The Supreme Court felt that the composition of the NJAC and the veto provisions would reduce the 'primacy of the judiciary'. But there are other ways to protect the 'independence of the judiciary'.
• Supreme Court feared that the 'two eminent persons' in the NJAC would be political appointees, but they were to be selected by a panel which consisted of the CJI, the Prime Minister and the Leader of Opposition, which did not leave much room for favoritism.     

Although the NJAC Act has been struck down and the Collegium system revived, the Supreme Court has invited the government to propose and discuss theories which will improve the Collegium system and make it more transparent, efficient and accountable.                                                                

Human Development Index and Multidimensional Poverty Index: A brief overview

Human Development Index:
The Human Development Index is an indicator to define and measure the levels of development of a nation. Every year the UNDP(United Nations Development Programme) releases an HDR (Human Development Report) which ranks the countries as per their HDI. The HDI was developed by Mahbub ul Haq and Amartya Sen, along with other economists in the 1990s.
HDI measures development by combining 3 indicators-

1. Health
2. Education
3. Standard of Living

Health component is measured by life expectancy at birth with a minimum value of 20 years and a maximum value of 83.57 years.

Education component of HDI is measured by two indicators; Mean of years of schooling (for adults aged 25 years) and Expected years of schooling (for children of school entering age).

Standard of living is measured by calculating GNI (Gross National Income) at PPP (Purchasing Power Parity) in US dollars. The HDI is the geometrical mean of the normalised indices which gives a value in the range of 0.0-1.0.

As per their achievements, countries can be broadly classified into 3 categories-

1. High Development Countries with an HDI of 0.8-1.00
2. Medium Development Countries with an HDI of 0.5-0.799
3. Low Development Countries with an HDI of 0.0-0.499

The last HDR released in 2015 by the UNDP which stated the HDI of India to be 0.586 with a life expectancy at birth of 66.4 years. India ranks 135th among 187 countries and is ranked poorly compared to other BRICS nations. The top five ranked countries as per the HDR 2014 are Norway, Australia, Switzerland, Netherlands and the United States. The medium ranked countries include are South Africa, Egypt, Mongolia, Philippines and Indonesia. The bottom five ranked countries are Sierra Leone, Chad, Central African Republic, DR Congo and Niger.

Multidimensional Poverty Index:

The global Multidimensional Poverty Index is an international measure of acute poverty covering over 100 developing countries. It was introduced as a replacement for the Human Poverty Index (HPI). The HPI (1997-2009) used country averages to reflect aggregate  deprivations in health, education and standards of living but failed to identify the deprivations of an individual, a household or a group of people. The MPI overcomes these shortcomings by capturing overlapping deprivations and how many deprivations people face on an average. The MPI can be successfully broken down by indicators to show how multidimensional poverty affects different persons, regions and ethnic groups. It was developed in 2009 by the Oxford Poverty and Human Initiative and the UNDP.

The same three dimensions are used for the calculation of MPI which were used for HDI. Each dimension consists of several indicators. They are-

• Health: Child Mortality and Nutrition.
• Education: Years of Schooling and School Attendance.
• Standards of Living: Cooking Fuel, Toilet, Water, Electricity, Floor, Assets.

These 10 indicators are used to calculate the MPI. The first four indicators are weighted at 1/6 whereas the rest are weighted at 1/18. An individual or household can be classified as MPI poor if they are deprived in 1/3rd or more of the indicators i.e. greater than or equal to 33.33%.

 The formula used for calculation of MPI of a country is, MPI = H . A, where H= Percentage of people who are MPI poor and A = Average Intensity of MPI poverty across the poor.

The MPI has emerged as a powerful tool to identify regions and groups afflicted by severe poverty which can help policy makers to target these groups and support them through various poverty alleviation schemes.

Between 1999 and 2006 India has reduced its MPI by 0.050 units or 16%, from 0.300 to 0.251. This reduction is mainly due to reduction in H, the number of people identified as poor. Reduction in intensity in A was small but still significant. Reduction in India's MPI has been positive at 1.2 % per year but the progress has been less than some of its neighbours, which are significantly poorer in terms of income. Nepal reduced the percentage of poor people from 64.7% to 44.2% from 2006-2011, 4.1 percentage points per year, while Bangladesh's poverty rates decreased by 3.2 points per year.

Human Poverty Index:

Before the MPI was introduced, the HDR also contained the HPI statistics for various countries. Although the HPI was supplanted with the MPI, it was an important measure of poverty for policy makers in developing countries. The first HPI data was released in the year 1997.

HPI concentrates on three essential elements of human life already reflected in HDI: longevity, knowledge and decent standards of living. The HPI was calculated separately for developing countries and high-income OECD (Organisation for Economic Co-operation and Development) countries.

HPI-1 (for developing countries) =  

P1 : Probability at birth of not surviving to age 40 (times 100)
P2 : Adult illiteracy rate
P3 : Unweighted average of population without sustainable access to an improved water source and children under weight for age
a : 3

HPI-2 (for OECD countries) = 

P1 : Probability at birth of not surviving to age 60 (times 100)
P2 : Adults lacking functional literacy skills
P3 : Population below income poverty line (50% of median adjusted household disposable income)
P4 : Rate of long-term unemployment (lasting 12 months or more)
a: 3

(sources: en.wikipedia.org and hdr.undp.org)

       

Insurgency in the North-East: NSCN(I-M) in Manipur

The peace accord signed between the NSCN(I-M) (National Socialist Council of Nagaland(Issac Muivah)) and Prime Minister Narendra Modi in August this year, was a major breakthrough for India in containing insurgency in the North-East. The NSCN, a Naga nationalist Military group, was formed in 1980 by Issac Swu, T. Muivah and S.S. Khaplang. It later split into two factions: NSCN(I-M) led by Issac Swu and T. Muivah, and the NSCN(K) led by S.S. Khaplang. The main objective of both the NSCN factions is to establish a sovereign state, "Nagalim", unifying all the areas inhabited by the Nagas in North-Eastern India and northern Myanmar.
The formidable presence of NSCN(I-M) in Nagaland and various parts of Manipur, Assam and Arunachal Pradesh was a huge security concern for India. With the peace treaty signed, the central government also ensured that the NSCN(I-M) is distanced from other insurgent groups such as the NSCN(K) (National Socialist Council of Nagaland(Khaplang)), ULFA (United liberation Front of Assam), National Democratic Front of Bodoland-Songbijit and KLO (Kamtapur Liberation Organisation) which had come together under an umbrella organisation known as the UNLFW (United National Liberation Front of Western South East Asia). The major terror attack in Manipur in June this year was the handiwork of UNLFW. The biggest benefit of the accord will be in respect with China. China has been known to be covertly aiding UNLFW and other insurgent groups. With the peace accord signed India has ensured that NSCN(I-M) will share much needed intelligence, thus helping Indian Armed Forces to strengthen their position in the North-East.
On paper, everything is running smoothly but the ground reality has been different altogether. Since the signing of the peace accord, there have been reports of the NSCN(I-M) setting up training camps in Manipur and recruiting cadres. This may contribute to flare-up of inter-tribal tensions in the fragile state which is already fraught with communal tensions. Cases of extortion, arms and drugs smuggling have risen and it is reported that most of these are carried out by NSCN(I-M) cadres. The NSCN(I-M) is looking to increase its 2500 strong cadre by another 1000 from Manipur. With the legitimacy of the peace accord, it is looking to expand its operations in Manipur. The parallel government of NSCN(I-M) in Nagaland is running smoothly.
The possibility of the Manipur insurgents uniting against the NSCN(I-M) looms large and the NSCN(K) will not let go of any opportunity to destabilise the region by directly supporting the Manipur insurgents. The Centre must ensure that peace in Manipur is not broken due to the NSCN(I-M)'s activities which might worsen the conditions in the coming months. 

Elections and Aadhar Cards

With elections due in Assam, Kerala, West Bengal, Tamil Nadu and Puducherry in the first half of the next year, the Election Commission has started the annual revision of electoral rolls throughout the country. One of the major challenges of the EC is to have a clean electoral roll with full enrolment. Relentless Urbanization, inter-city and intra-city movements are major roadblocks to having an accurate and updated electoral roll in urban areas.
Duplication of names on electoral rolls is another problem which the EC has to face and before the Electoral Photo Identity Cards (EPICs) were made mandatory for voting, bogus voting was prevalent in various parts of India. To curb this menace of bogus voting, the Electoral Photo Identity Cards were introduced. This proved to be a very important step and reduced bogus voting substantially.
But the problem of duplication of names on electoral rolls still persists. Although the EPIC assigns a unique number to each person, there is no way to prevent a person from issuing a second one if he/she does not voluntarily disclose information and there is no reliable reference against which checking can be done. The only option left is matching of photos which is a very tedious and time consuming affair. This problem can be solved with the help of Aadhar Cards.

• Duplication of Aadhar Cards is near impossible as they have reliable backing by the way of fingerprints and iris scans for identification. Election officials just need the Aadhar number and check for its authenticity through the UIDAI (Unique identification Authority of India) website.
• With the help of Aadhar Card, it is possible to enrol a person in a particular polling station/constituency and remove his name from other polling stations/constituencies, thus avoiding duplication and also making voter enrolment simpler.
• Unlike EPICs, Aadhar Cards can be issued to minors also, they can automatically be included in the electoral rolls as they turn 18. Updating of electoral rolls will become much more easier.
• Aadhar Cards may prove to be very important in the process of e-voting, if it is embarked upon in the near future.

Just as the EPICs helped in tackling the menace of impersonation in booths, Aadhar Cards can be the answer to duplication as well as efficient and accurate update of electoral rolls. The EPICs can be slowly phased out to make way for Aadhar Cards which will also save cost. A recent Supreme Court order has stated that the Aadhar Card will be used only for Public Distribution System (PDS) and kerosene and cooking gas subsidies. The Election Commission must move the Supreme Courts to allow Aadhar number in the electoral rolls to ensure smooth functioning of elections in the country.