Research

Constitutional Validity
Our constitution has safeguarded the religious right of every individual under Articles-25 to 28. Our constitution has promoted freedom with regards
to practice, professing and promoting the religion of individual’s choice and managing its religious a airs and once a uniform Civil Code will be
adopted, there is a high risk of breach of these rights. In the case of Minerva Mills v. Union of India, the hon’ble supreme court with the help of the
preamble established a relationship between Directive principles of state policy and fundamental right. les of state policy (Part IV). Neither of them
can be subservient to the other and if Uniform Civil Code does anything which will be violative, then it is useless because every law needs to
maintain a balance between Fundamental Rights and Directive Principles of State Policy.

The signifcance attached to the directive principles was recognised in the Minerva Mills versus Union of India case, where the Supreme Court held that
the fundamental rights must be harmonised with the directive principles and such harmony is one of the basic features of the Constitution

In practice, this has not been the case and as the current government brings measures like increasing the age of girl child to 21 for marriage which is a
laudable step to ensure gender equality, it needs to think how to ensure the overall development of the society including women by bringing in a UCC
and how to balance the aims of Article 51 A (f) and Article 51 A(e) of the Constitution that deals with the aspects of valuing and preserving the rich
heritage of composite culture and renouncing practices that are derogatory to the dignity of women respectively

The Supreme Court ruled in Bijoe Emmanuel v. State of Kerala state that religion is more than just faith and belief; it also includes rituals, rites, and
religious acts that follow the religion's precepts. Courts are asked to evaluate not only whether a religious practice is an essential part of the religion,
but also whether governmental limits on the practice and propagation of religion satisfy the test of public order, morality, and health, and if not,
whether they should be upheld.

Declaration on Rights of National or Ethnic, Religious and Linguistic Minorities, 1992 ;

Article 2 declares, ―1. Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to
minorities) have the right to enjoy their own culture, to profess and practice their own religion and to use their own language, in private and in public,
freely and without interference or any form of discrimination.

2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.
Article 4(2) declares, ―States shall take measures to create favourable conditions to enable persons belonging to minorities to express their
characteristics and to develop their culture, language, religion, traditions and customs, except where speci c practices are in violation of national law
and contrary to international standard
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Diversity

India has a variety of cultures and is known for its diversity. People here follow di erent religions and have di erent beliefs, they follow di erent
practices and are governed by di erent personal and customary laws. In such a situation, it is hard to bring a law that can satisfy the needs of
everyone. In India, though the gotra marriage is not allowed, but on the other hand, there is a Hindu community that follows the customary practice
of Maman Kalyan, where the eldest daughter of a sister marries her mama based on the concept of “ what you take, you will return”. This marriage
is an exception to Hindu codi ed law, but the question here is, what about the other forms of custom, does the Uniform civil code add similar
exceptions? And if the answer is in a rmative, then what is the rationale for having the same law for all. We can’t idealise developed nations with
regard to their uniform civil code because they are not as diverse as India.

The beauty of India lies in its diverse culture and practices, beauty is in the inherent feature of co-existing in the same place with di erent thoughts
and beliefs.

The Indian population consists of the Hindus (82.41%), Muslims (11.6%), Christians (2.32%), Sikhs (1.99%), Buddhists (0.77%) and Jains (0.41%).
The Hindus themselves are divided into several sects such as Vaishnavas, Shaivites, Shaktas, Smartas etc. Similarly, the Muslims are divided into
sects such as Shias, Sunnis, Ahmadiyas etc. The languages spoken in India belong to several language families, the major ones being the Indo-
Aryan languages spoken by 75% of Indians and the Dravidian languages spoken by 20% of Indians. Other languages belong to the Austroasiatic,
Sino- Tibetan, Tai-Kadai, and a few other minor language families and isolates. India has the world’s second highest number of languages and to
preserve the plurality and diversity of India, It is important to preserve personal laws.

Heritage trust vs UOI

[i] Article 14: The authorities are duty bound to preserve and protect the heritage of our country for the C/WPPIL/179/2020 CAV JUDGMENT DATED:
15/06/2021 present as well as the future generations. Any action of the authorities that results in denying the citizens of the country their heritage
would be arbitrary and unreasonable and consequently violative of Article 14. [ii] Article 21: The constitutional obligation to protect the heritage of
the country also ows from Article 21 of the Constitution. In
the case of Ramsharan Autyanuprasi and another vs. Union
of India and others, reported in 1989 Supp (1) SCC 251, the Supreme Court held that "... life in its
expanded horizons today includes all that give meaning to a man's life including his tradition, culture
and heritage and protection of that heritage in its full measure would certainly come within the
compass of an expanded concept of Article 21 of the Constitution." (para 13) [iii] Fundamental Duties and Directive
Principles of State Policy: The Hon'ble Courts have time and again invoked Fundamental Duties and Directive Principles of State Policy for giving
directions to the government. C/WPPIL/179/2020 CAV JUDGMENT DATED: 15/06/2021 Reliance is placed on paras 82 and 86 of the judgment in
the case of Intellectual Forum, Tirupathi vs. State of A.P, reported in (2006) 3 SCC 549 where the Hon'ble Supreme Court after referring to
Fundamental Duties and Directive Principles observed: "These two Articles are not only fundamental in the governance of the country but also it
shall be the duty of the State to apply these principles in making laws and further these two Articles are to be kept in mind in understanding the
scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various
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laws enacted by Parliament and the State Legislatures". Further, in para 60 of the judgment in the case of Formento Resorts and Hotels Limited vs.
Minguel Martins, reported in (2009) 3 SCC 571, the Supreme Court once again invoked fundamental duties and directive principles. In the above
judgments, they were invoked for protecting the environment. Article 51A(f) and Article 49 of the Constitution of India are for protecting the
heritage. C/WPPIL/179/2020 CAV JUDGMENT DATED: 15/06/2021 [iv] The doctrine of public trust: Unlike a private owner, the government always
holds the heritage of this country as a trustee or custodian for the people of this country. The constitutional obligation of the State to protect
heritage properties also ows from this doctrine of public trust. This doctrine is applicable not only to natural resources but also to 'monuments' and
'objects' as held in para 54 of the judgment in the case of Formento Resorts and Hotels Limited vs. Minguel Martins, reported in (2009) 3 SCC 571.
The doctrine requires preservation of heritage properties and stands violated whether the property is sold to a private party or is developed by the
government itself. Therefore, the Hon'ble Supreme Court in paras 76 and 77 of the judgment in the case of Intellectual Forum, Tirupathi vs. State of
A.P, reported in (2006) 3 SCC 549 applied the doctrine of public trust even though the government itself wanted to construct on the land.

Manipulation of Gender Justice for political gain

In the name of Gender Justice, the government is fueling women to raise voice against their personal laws and targeted women are from minority
communities, why so?

The reason is simple: they have ulterior motives which need to be satis ed. If the government is concerned about women, why are they not creating
a better protective society and a mechanism which can redress the grievances of women at earliest? We are living in a society, where every other
day, we read in news papers about rapes, dowry deaths and harassment. If we look into the aspect of triple talaq only, it was nowhere in the quran
that there is anything like instant talaq, it was the wrong interpretation of Surah Talaq and making it a ground to nullify all the Muslim personal laws is
arbitrary.

Personal laws
For instance, the marumakattayam system prevalent in Kerala, which was applicable to the Kerala Muslims prior to the Shariat Act, 1937, had a well
developed and advanced divorce and maintenance systems The system rooted in matrilineal law had well developed succession laws for women as
well. It was seen that the universality of north Indian sanskritized system washed away probability of a better social reform. As an afterthought such
customs which conferred rights upon the women excepted from the general law. This move also opened a can of worms

For example a Hindu woman is not a coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil
Nadu. Consequently she is not entitled to the share in the coparcenary. Thus it is oblivion to the fact that the codi cation of personal laws of Hindus has
not succeeded completely in eradicating the gender inequality.
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 Demerits
For instance, a practice or a tradition in one's personal law may be acceptable but on the other hand, it may not be acceptable to the people of other
personal laws. So, when the traditions will be in practice, the nature of the con ict will transform itself from general differences to hardcore animosity.
People nd it dif cult to accept or adapt to certain changes and when it comes to a society like India where religion de nes the way of life, people
connect themselves with their religion instead of understanding that it is the religion which is made by human beings and that human beings are not
made by the religion. This thought nds itself in the graveyard because some people still believe in burning. There needs to be a uniform law which
governs and regulate the behaviour of people of all the religions and not any particular section of the society.

In uni cation of the personal laws, an important question that arose was what will be the ingredients of the Uniform civil code. Since, the personal laws
of each religion contain separate provisions, their uni cation will bring not only resentment, but also enmity in the public towards one another,
therefore the Uniform Civil Code will need to bring in such laws that strike a balance between the protection of the fundamental rights and the
religious principles of the different communities that exist in the country.

Law Commission
1.3 In the absence of any consensus on a uniform civil code the Commission felt that the best way forward may be to preserve the diversity of
personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India

1.19 while framing a law it has to be borne in mind and 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.

Tribals
1.22 In Madhu Kishwar & Ors v. State of Bihar the Court had observed that: In face of these divisions and visible barricades put up by the sensitive
tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on
an elitist approach or on equality principle, by judicial activism, is a di cult and mind-boggling e ort. ...it is not desirable to declare the customs of
tribal inhabitants as o ending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the
Court.

1.23 Articles 371 (A) to (I) and the sixth schedule of the constitution of India provides certain protections or rather exceptions to the states of Assam,
Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law.
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 1.24 The Government of India Act, 1915, was amended in 1919 adding section 52A giving exemption to the application of Indian laws to
―backward tract‖ to be declared by the Governor-General-InCouncil. In exercise of that power a large area was declared to be Backward-Tract in
North-East including Garo Hill District, Naga Hills District and Khasi and Jantiya Hills District except Shillong Municipality and Cantonment

1.26 Article 371A was inserted by Constitution (13th Amendment) Act, 1962, which provides that, no Act of Parliament in respect of: (i) religious or
social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to
Naga customary law, and (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly
of Nagaland, by a resolution so decides.

1.27 Articles 371 B- 371 H o er similar exemptions to other states in the North East.

1.29. These protective provisions help us create gender-sensitive laws rather than gender blind laws. Various Central Acts have been held to be not
applicable, being in con ict with the customary law or local laws. For example, recovery of debts due to Banks and Financial Institutions Act, 1993
was held to be non-applicable being in con ict with the Rules for Administration of Justice in Nagaland, 1936. Section 1(3) of the Code of Civil
Procedure, speci cally provides that it shall not apply to the State of Nagaland and the tribal areas.

1.31 In Nagaland, women can now inherit self acquired property even though some tribes are sceptical of women inheriting village land and then
marrying outside their tribe.15 Undoubtedly, the young generation has social attitudes and aspirations of universal and global principles which require
adherence to the principles of equality and humanity.

1.32. For instance, Garo and Khasi tribes of Meghalaya are matriarchate, that is, they follow a female line of descent and property is inherited by the
youngest daughter. Among the Garos, the son-in-law comes to live with his wife‘s parents.

2.37. The Marriage Laws (Amendment) Bill, 2010, proposed that under the HMA 1955 and the SMA 1954 there should be a ground of irretrievable
breakdown of marriage for divorce, provided that the wife has a right to oppose such petition on the grounds of grave nancial hardship. The
maintenance of child(ren) born out of the marriage should be consistent with the nancial capacity of the parties to the marriage. The Bill also provides
that after lling for divorce by mutual consent, the six months waiting period should be done away with. The Bill for Irretrievable Breakdown of
Marriage was introduced in Parliament in 2013 addressing many of the problems of the 2010 bill. However, due to the reasons explained in next part, it
lapsed.

2.92. Although polygamy is permitted within Islam, it is a rare practice among Indian Muslims
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The Indian Constitution is supposed to protect tribal interests, especially tribal autonomy and their rights
over land, through Fifth and Sixth Schedules. Scheduled Areas of Article 244(1) are notified as per the
Fifth Schedule and Tribal Areas of Article 244(2) are notified as per the Sixth Schedule

Goa Civil code

. Uniform civil code in Goa Goa is the only Indian State to have a Uniform Civil Code. The Goa Civil Code which is also known as Goa Family Law is
a uniform civil law for the residents of Goa. It has many exceptions to itself that makes it not a uniform code in the actual sense. For instance, although
equal property rights for both sons and daughters are speci ed in the main provisions of the Code and parents are not entitled to disinherit their
children entirely. Half of the property is the minimum requirement that is to be passed on to the children, there are inequality in the adoption and the
rights of illegitimate children are also unequal as compared to legitimate children. Similarly, Catholic Christians can solemnize their marriage in the
Church after taking permission at the of ce of Civil Registrar, but non-Catholics can only register their marriage at the of ce of Civil Registrar. Again,
there are exceptions to the practice of monogamy for only Hindus and other communities are not permitted to practice it
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