The Muslim Women (Protection of Rights on Marriage) Bill, 2019 became the first legislation to be tabled in Parliament by the Narendra Modi dispensation in its second term, with Law Minister Ravi Shankar Prasad asserting the legislation was a must for gender equality and justice. The bill was introduced following a division of votes, with 186 members supporting and 74 opposing it. The bill was introduced in the lower house to replace an Ordinance issued in February by the previous BJP-led NDA government. The Bill was earlier introduced in December 2017 but owing to dissolution of the 16th Lok Sabha last month, the previous bill had lapsed as it was pending in the Rajya Sabha. The government had promulgated the Ordinance on triple talaq twice — in September 2018 and in January 2019 — as the contentious bill remained pending in the Rajya Sabha, though it was passed by the Lok Sabha. The Bill proposes to make the practice of instant triple talaq a penal offence.
What’s the issue all about- A brief history:
The case dates back to 2016 when the Supreme Court had sought assistance from the then Attorney General Mukul Rohatgi on pleas challenging the constitutional validity of “triple talaq”, “nikah halala” and “polygamy”, to assess whether Muslim women face gender discrimination in cases of divorce.
Opposing the practice of triple talaq, the Centre told the top court that there is a need to re-look at these practices on grounds of gender equality and secularism.
The Supreme Court later announced the setting up of a five-judge constitutional bench to hear and deliberate on the challenges against the practice of ‘triple talaq, nikah halala’ and polygamy.
The issue gained political momentum on March 2017 when the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that the issue of triple talaq falls outside the judiciary’s realm and that these issues should not be touched by the court.
However, on August 22, the Supreme Court set aside the decade-old practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.
A bill in this regard:
In September, the government had proposed the Muslim Women (Protection of Rights on Marriage) Bill in the Parliament and sought to make triple talaq a punishable offence under the law.
At first, the Bill was passed in the Lok Sabha but it failed to secure a majority in the Rajya Sabha. The Bill was postponed till the winter session of Parliament. Following this, an ordinance was issued by the government after the bill failed to get cleared in Rajya Sabha amid protests by the Opposition.
The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
Definition: It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
The Bill provides that the Magistrate may grant bail to the accused: The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate.
Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
Arguments favouring the bill:
Bill is needed so that even Muslim women also get equality on par with other Muslim men.
Triple talaq adversely impact rights of women to a life of dignity and is against constitutional principles such as gender equality, secularism, international laws etc.
The penal measure acts as a “necessary deterrent”
It significantly empowers Muslim women.
The practice of triple talaq has continued despite the Supreme Court order terming it void.
The practice is arbitrary and, therefore, unconstitutional
The law is about justice and respect for women and is not about any religion or community
It protects the rights of Muslim women against arbitrary divorce
Instant triple talaq is viewed as sinful and improper by a large section of the community itself.
The fine amount could be awarded as maintenance or subsistence.
Arguments opposing the bill:
It is well established that criminalising something does not have any deterrent effect on its practice.
Since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature only.
Civil redress mechanisms must ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage
The harsh punishment defies the doctrine of proportionality.
Three years in prison of the convicted husband will end up penalising the already aggrieved wife and children too.
The punishment will aggravate the insecurity and alienation of the Indian Muslim community
In the recent Supreme Court judgement, it never said that triple talaq is to be criminally punished.
Invoke a secular law that already exists: Protection of Women from Domestic Violence Act (PWDVA), 2005.
Parliament should have passed a law stating that the utterance of the words “talaq, talaq, talaq” would amount to “domestic violence” as defined in the PWDVA.
The PWDVA was conceived as a law that ensures speedy relief — ideally within three months — to an aggrieved woman
While PWDVA is civil in nature, it has a reasonably stringent penal provision built into it
It could be just a piece of legislation rather than a kind than a kind of relief to the women.
Some representatives have given it a political and religious color.
Some Muslim women’s groups raised concerns about “maintenance” if the husband is sent to jail.
The mutual divorce provision is missing in the proposed law and needs to be debated.
Time has come to put an end to the suffering of Muslim women who have been at the receiving end of instant talaq for several years. More than 20 Islamic countries have already banned the practice.
Recently, China has offered Bhutan a “package solution” to its boundary dispute. Although the package solution is not specified, it may be seen as a revival of the 1996 proposal by China for a territory swap.
Territory Swap: In 1996, China wanted to exchange the valleys to the north of Bhutan (an area of 495 square kilometres), with the pasture land to the west (including Doklam), totalling 269 square kilometres. The deal would have benefited Bhutan by giving it the larger chunk of land, and resolving its tensions with China.
However it was a big worry for India, as the Doklam swap would have given China access to the strategically sensitive “chicken neck” of the Siliguri corridor.
Repeated Claim Over Sakteng: China also repeated its claim on Bhutan’s eastern boundary at Sakteng. Earlier, China has made the claim over Sakteng at an online meeting of the 58th Global Environment Facility (GEF) Council, while unsuccessfully objecting to the funding request to develop the Sakteng Wildlife Sanctuary project in eastern Bhutan.
China claims that the boundary between China and Bhutan has never been delimited. It has had disputes over the eastern, central and western sectors of Bhutan. However, Bhutan outrightly rejected the claim made by China by saying that Sakteng is an integral and sovereign territory of Bhutan.
According to Bhutan, China and Bhutan have a dispute in only two sectors of the border, one in the north (central) – Pasamlung and Jakarlung, and second in the west – Doklam.
There has been no mention of eastern Bhutan, where Sakteng is based, in 24 previous rounds of boundary negotiations held between the two countries between 1984 and 2016.
Reason Behind the New Offer: The aim may be to pressure Bhutan into concluding a deal quickly on terms on offer, otherwise the claims may keep increasing. The similar offer was made to India on Arunachal Pradesh, which subsequently expanded to include a Chinese claim on Tawang in 1985.
Concerns for India
In 2017 China had intruded into Doklam plateau, which is claimed by Bhutan, leading to a standoff between Indian and Chinese Armies. Even after the India-Bhutan Friendship Treaty of 2007, Indian military is virtually responsible for protecting Bhutan from the kind of external threat that the Chinese military poses.
According to the India-Bhutan Friendship Treaty of 1949, Bhutan allowed India to "guide" its foreign policy and defence affairs. However, the 1949 treaty was amended in 2007 to respect the sensitivities of Bhutan regarding its sovereignty. Under the India-Bhutan Friendship Treaty of 2007, the two sides have agreed to cooperate closely with each other on issues relating to their national interests.
Neither Government shall allow the use of its territory for activities harmful to the national security and interest of the other. China has said that a third party should not point fingers in the China-Bhutan border issue, which is an apparent reference to India.
Bhutan has protested against Chinese territorial claims in eastern Bhutan and said that it will also contest in future if China refers to the territory as disputed. Safety of Border from China is a concern for both India and Bhutan. Therefore, both sides need to work together on this issue.
According to a study titled State of Food Security and Nutrition in the World, hunger and malnutrition is increasing around the world. In this scenario, achieving the Sustainable Development Goal (2) of ‘Zero Hunger’ by 2030 will be very difficult.
The State of Food Security and Nutrition in the World is the most authoritative global study tracking progress towards ending hunger and malnutrition.
**It is produced jointly by the Food and Agriculture Organization (FAO) of the United Nations, the International Fund for Agriculture (IFAD), the United Nations Children’s Fund (UNICEF), the UN World Food Programme (WFP) and the World Health Organization (WHO).
Steep Rise: The study estimates that almost 690 million people went hungry in 2019 – up by 10 million from 2018, and by nearly 60 million in five years (2014-2019).
Hunger is an uncomfortable or painful physical sensation caused by insufficient consumption of dietary energy. For decades, FAO has used the prevalence of undernourishment indicator to estimate the extent of hunger in the world, thus “hunger” may also be referred to as undernourishment.
Chronic Hunger: There has been no change in the hunger trend since 2000, After steadily diminishing for decades, chronic hunger slowly began to rise in 2014 and continues to do so.
Regional Hotspots: Asia remains home to the greatest number of hunger (381 million). Africa is second (250 million), followed by Latin America and the Caribbean (combined 48 million).
Rate of Hunger: The rate of undernourishment (hunger) in Africa is double compared to Asia and it is expected that by 2030, Africa will be home to more than half of the world’s chronically hungry.
Impact of Covid-19: The Covid-19 pandemic could also push over 130 million more people into chronic hunger by the end of 2020.
Reasons: High costs and low affordability was the main reason behind the hunger.
Affordability: The study estimates that 3 billion people or more cannot afford a healthy diet.
In sub-Saharan Africa and southern Asia, this is the case for 57% of the population.
The key reason behind malnutrition is the high cost of nutritious foods and the low affordability of healthy diets for vast numbers of families.
According to the study, a healthy diet costs far more than USD 1.90/day, which is the international poverty threshold.
It puts the price of even the least expensive healthy diet at five times the price of filling stomachs with starch only.
Impact on Children: According to the study, in 2019, nearly a third of children under five (191 million) were stunted (too short) or wasted (too thin). Another 38 million under-fives were overweight.
Shifting of Diet: A global switch to healthy diets would help check the backslide into hunger while delivering enormous savings. Shift to a healthy diet will reduce the health costs associated with unhealthy diets. The diet related social cost of greenhouse gas emissions, estimated at USD 1.7 trillion, could also be cut by up to three-quarters by 2030.
Transform Food Systems: The transformation of food systems will not only reduce the cost of nutritious foods but also increase the affordability of healthy diets.
The study calls on governments:
To mainstream nutrition in their approaches to agriculture.
Work to cut cost-escalating factors in the production, storage, transport. distribution and marketing of food – including by reducing inefficiencies and food loss and waste.
Support local small-scale producers to grow and sell more nutritious foods and secure their access to markets.
Prioritize children’s nutrition as the category in greatest need.
Foster behaviour change through education and communication;
Embed nutrition in national social protection systems and investment strategies.
This study is the reminder that such a huge percentage of humanity is still going hungry and should be a wake up call for the government in particular and society in general. Innovative strategies such as shifting towards Smart Food is the need of the hour, which is highly nutritious and will certainly help to reduce hunger.
Study: Punjab’s law plays ‘minimal role’ in spiking Delhi’s pollution
A study argues that Delhi’s meteorology and the quantity of chaff burnt play a greater role in worsening air quality than the time chosen by farmers in Punjab to start crop burning.
Crop burning is a traditional practice in Punjab and Haryana of razing fields off rice chaff to prepare it for winter sowing.
It begins around October and peaks in November, coinciding with the withdrawal of southwest monsoon.
Subsidies and assured procurement of rice have led to a rise in the rice acreage in these States.
Coupled with increased farm mechanization, large quantities of rice stubble have increased over the years.
However, it has been pointed out that a change in Punjab’s water policy in 2009 that mandated farmers to delay sowing to late June (to discourage groundwater extraction), led to sowing being delayed by an average of 10 days compared to 2002-2008.
This, consequently, delayed harvesting and rice chaff burning.
As a result, the pollutants and the particulate matter from chaff, along with other sources of pollution in Delhi, which stuck in the lower atmosphere of the Indo-Gangetic plain, exacerbated winter pollution.
The study states that the role of legislation appears to be minimal, and indeed can sometimes decrease as well as increase air quality problems depending on the meteorological conditions of the time.
According to the study, ultimately, the halting of crop residue burning would greatly aid the newly established National Clean Air Programme [NCAP], which aims to reduce emissions from various sectors including agricultural residue burning.
The NCAP proposes to reduce pollution by 20-30% in annual PM concentration by 2024.
A Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly.
They cover areas like- Marriage, divorce, maintenance, inheritance, adoption and succession of the property. It is based on the premise that there is no connection between religion and law in modern civilization.
Historical perspective – The debate for a uniform civil code dates back to the colonial period in India.
Pre-Independence (colonial era)
The Lex Loci Report of October 1840- It stressed the importance and necessity of uniformity in the codification of Indian law, relating to crimes, evidence and contract. But, it also recommended that personal laws of Hindus and Muslims should be kept outside such codification.
The Queen’s 1859 Proclamation- It promised absolute non-interference in religious matters.
So while criminal laws were codified and became common for the whole country, personal laws continue to be governed by separate codes for different communities.
Post-Colonial era (1947-1985)
During the drafting of the constitution, prominent leaders like Jawaharlal Nehru and Dr B.R Ambedkar pushed for a uniform civil code. However, they included the UCC in the Directive Principles of State Policy (DPSP, Article 44) mainly due to opposition from religious fundamentalists and a lack of awareness among the masses during the time.
Some of the reforms of this period were:-
The Hindu code bill -The bill was drafted by Dr.B R Ambedkar to reform Hindu laws, which legalized divorce, opposed polygamy, gave rights of inheritance to daughters. Amidst intense opposition of the code, a diluted version was passed via four different laws.
Succession Act-The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005
The Hindu Marriage Act
Minority and Guardianship Act
Adoptions and Maintenance Act
Special Marriage Act:
It was enacted in 1954 which provided for civil marriages outside of any religious personal law.
Shah Bano case (1985):-
A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.
The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. Further, It recommended that a uniform civil code be set up.
Facts about the case:
Under Muslim personal law, maintenance was to be paid only till the period of iddat. (three lunar months-roughly 90 days ).
Section 125 of CrPC (criminal procedure code) that applied to all citizens, provided for maintenance of the wife.
Impact – After this historic decision, nationwide discussions, meetings and agitations were held. The then government under pressure passed The Muslim Women’s (Right to protection on divorce ) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.
The Constitution of India on the Uniform Civil Code
Part IV, Article 44 of the Constitution states that “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”.
However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. This indicates that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory.
Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a Uniform Civil Code for India but there has been no attempt at framing one.
Goa Civil Code
Goa is the only Indian state to have a UCC in the form of common family law. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation.
The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and also between children (regardless of gender).
Every birth, marriage and death have to be compulsorily registered. For divorce, there are several provisions.
Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq.
During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.
Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.
The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.
However, the code has certain drawbacks and is not strictly a uniform code. For example, Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits polygamy.
Uniform Civil Code and Arguments For & Against
Arguments in favour of the Uniform Civil Code:
It Will Integrate India- India is a country with many religions, customs and practices. A uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.
Will Help in Reducing Vote Bank Politics- A UCC will also help in reducing vote bank politics that most political parties indulge in during every election.
Personal Laws Are a Loophole- By allowing personal laws we have constituted an alternate judicial system that still operates on thousands of years old values. A uniform civil code would change that.
Sign of a modern progressive nation- It is a sign that the nation has moved away from caste and religious politics. While our economic growth has been significant, our social growth has lagged behind. A UCC will help society move forward and take India towards its goal of becoming a truly developed nation.
It will Give More Rights to Women- Religious personal laws are misogynistic in nature and by allowing old religious rules to continue to govern the family life we are condemning all Indian women to subjugation and mistreatment. A uniform civil code will also help in improving the condition of women in India.
All Indians Should be Treated the Same- All the laws related to marriage, inheritance, family, land etc. should be equal for all Indians. UCC is the only way to ensure that all Indians are treated the same.
It Promotes Real Secularism- A uniform civil code doesn’t mean that it will limit the freedom of people to follow their religion, it just means that every person will be treated the same and all citizens of India have to follow the same laws regardless of any religion.
Change has been the law of nature-A minority of people should not be allowed to pick and choose the laws they want to be administered under. These personal laws were formulated in a specific spatiotemporal context and should not stand still in a changed time and context.
Many provisions of specific personal laws are in violation of human rights.
Article 25 and Article 26 guarantee the freedom of religion and UCC is not opposed to secularism.
The codification and unification of the variegated personal laws will produce a more coherent legal system. This will reduce the existing confusion and enable easier and more efficient administration of laws by the judiciary.
Does India not already have a uniform code in civil matters?
Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc. States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws. Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List. But “personal laws” are mentioned in the Concurrent List.
Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.
Why is UCC may not desirable at this point?
Secularism cannot contradict the plurality prevalent in the country. Besides, 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.
The term ‘secularism’ has meaning only if it assures the expression of any form of difference. This diversity, both religious and regional, should not get subsumed under the louder voice of the majority. At the same time, discriminatory practices within a religion should not hide behind the cloak of that faith to gain legitimacy.
How does the idea of a Uniform Civil Code relate to the fundamental right to religion?
Article 25 lays down an individual’s fundamental right to religion; Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”; Article 29 defines the right to conserve distinctive culture.
An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter. The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion.
What is needed now?
Need of the hour is the codification of all personal laws so that prejudices and stereotypes in every one of them would come to light and can be tested on the anvil of fundamental rights of the Constitution. By codification of different personal laws, one can arrive at certain universal principles that prioritise equity rather than imposition of a Uniform Code, which would discourage many from using the law altogether, given that matters of marriage and divorce can also be settled extra-judicially.
Suggestions for Implementing a Uniform Civil Code:
To realize the goals of the DPSP and to maintain the uniformity of laws, the following suggestions need immediate consideration:
A progressive and broadminded outlook should be encouraged among the people to understand the spirit of the UCC. For this, education, awareness and sensitisation programmes must be taken up.
The Uniform Civil Code should be drafted keeping in mind the best interest of all the religions.
A committee of eminent jurists should be constituted to maintain uniformity and care must be taken not to hurt the sentiments of any particular community.
The matter being sensitive in nature, it is always better if the initiative comes from the religious groups concerned.
The Way Forward for UCC: Gradual Change
India has a unique blend of codified personal laws of Hindus, Muslims, Christians, Parsis. There exists no uniform family-related law in a single statute book for all Indians which is acceptable to all religious communities who co-exist in India. However, a majority of them believe that UCC is definitely desirable and would go a long way in strengthening and consolidating the Indian nationhood. The differences of opinion are on its timing and the manner in which it should be realized.
Instead of using it as an emotive issue to gain political advantage, political and intellectual leaders should try to evolve a consensus. The question is not of minority protection, or even of national unity, it is simply one of treating each human person with dignity, something which personal laws have so far failed to do.
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