Response No. 2 dated 17 November 2016 emailed to the Chairman, Law Commission of India, New Delhi on November 17, 2016 by Dr Syed Zafar Mahmood, convener, Watan ki Fikr
The questionnaire is unfair, biased and unconstitutional
1. The group of persons who framed the Law Commission’s questionnaire did not include equal number of men and women from different faiths of India. Hence, the questionnaire is unfair and unconstitutional.
2. Most of the questions in the Questionnaire themselves are biased against some religions and these favor some others. Hence the questions are unconstitutional.
3. The Questionnaire needs to be revised by a committee comprising equal number of experts from each faith duly recognized by the followers of the respective faiths.
LCI has sidetracked constitutional priority
4. We must consider Part IV of the Constitution in its totality. The chart prepared by me and emailed to the Hon’ble Chairman of LCI (copy attached) clearly shows that the Constitution has decided about the order of priority of all the directive principles. Out of 25 such DPs the one regarding Uniform Civil Code is placed at 19. Also, these 25 principles can be divided into nine categories based on the initial words used in the various articles of the Constitution covered in Part IV. These are as follows:
(i) The State shall regard among its primary duties
(ii) The State shall promote with special care
(iii) The State shall direct its policy towards securing
(iv) The State shall secure
(v) It shall be the obligation of the State
(vi) The State shall make provision
(vii) The State shall take steps
(viii) The State shall strive, and
(ix) The State shall endeavor.
5. Uniform Civil Code falls in the last category where lightest words have been used i.e. “the state shall endeavor” as against the phrases like the State shall regard among its primary duties, the State shall promote with special care, the State shall direct its policy towards securing, the State shall secure, it shall be the obligation of the State, the State shall make provision, the State shall take steps and the State shall strive – all of which give much stronger messages than the last one namely “the state shall endeavor”.
6. Yet, why the Law Commission of India has not shown interest in many other and constitutionally much more important directive principles and, instead, has overtaken the constitutional will and has thus sidetracked many constitutional priorities ?
7. The UCC is deliberately placed among the Constitution’s last priorities. Also, no other directive principle is the subject matter of so much national controversy as the UCC. The latter is even polarizing the country on religious lines which is injurious for a democratic system like ours. We are told that tens of thousands of adverse petitions have been filed with LCI regarding UCC reflecting sharp national cleavage. In any case the DPs are not mandatory.
Codification & reform can be attempted from within
8. Codification of personal laws needs to be attempted internally by the respective communities. Like in Hindu religion, Upnayana उपनयन should be discontinued as it takes away the right of women and shudras to read the sacred Vedas. This is discrimination against them and goes against the Constitution of India.
9. Likewise, the dichotomy between Mitakshara and Dayabhaga need to be sorted out.
10. The Hindu Undivided Family (HUF) should not be a basis for charging lesser rate of taxation. This is discrimination on religious grounds which is prohibited in the Constitution.
11. The institution of caste itself is undemocratic and violates the norms of social decency. It should have no role in the civil law of any cultured society. No person is by birth impure or polluted. Sixty six years of constitutional reservation for scheduled castes have failed to instill in the minds of the people the inhuman nature of the caste system. Hence, the caste system should be clearly and loudly deprecated and the discriminators based on caste should be meted out maximum punishment available in any relevant law.
12. Till that is done, para 3 should be deleted from the Constitution (Scheduled Caste) Order of 1950 as it discriminates among the citizens on the basis of religion which is prohibited in the Constitution.
13. There are separate provisions for succession in case of Hindu men and Hindu women dying intestate. The property of Hindu male devolves upon his heirs irrespective of the source of the income but the property of Hindu females devolves according to the source of the income. This shows as if the woman is a temporary occupier of the property and that the property must revert back to where it was inherited from and that the woman has no identity of her own. This discrimination against the Hindu women must be removed.
14. The Hindu Minority and Guardianship Act, 1956 provides that the father is the natural guardian of a Hindu minor when the minor is a boy or an unmarried girl and the mother would be the natural guardian after the father. It relegates the mother to a lower position than the father. This needs to be reviewed.
15. Besides, the Hindu Marriage Act reads, “If the court is satisfied that the party in whose favour an order of alimony / maintenance has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.” Thus, for the wife unchastity is the criterion for modifying or rescinding the order in her favour while for the husband it is sexual intercourse. The term “chaste” is difficult to define and can be interpreted differently by different people according to their moral and ethical standards. Sexual intercourse, on the other hand, is something that is difficult to prove. The Section admittedly prescribes different standards for men and women when it comes to a decision with respect to when an order for maintenance can be modified or rescinded. For instance, if a woman is out with a man at midnight, it might amount to being unchaste and the maintenance order might be modified but the situation is different in a man’s case. Thus, the Hindu Marriage Act holds on to the archaic notions of chastity and purity of women and making their rights dependent on these.
16. Intra-religion efforts at codification of personal law should be encouraged to bring in gender equality as above. Yet, no government agency should associate itself with such work.
(Phone 011-24375196. firstname.lastname@example.org. My response no. 1 was emailed to the Chairman, Law Commission of India on Nov 4, 2016)
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