📰 The Uniform Civil Code
What were the Constituent Assembly debates about the UCC? What were the different arguments? Is uniformity even desirable for a nation that is as diverse as India? How have Courts looked upon the implementation of the UCC?
• Gujarat has joined the list of BJP-ruled States that have called for implementing the Uniform Civil Code (UCC). While there is no draft or model document yet for the UCC, the framers of the Constitution envisioned that it would be a uniform set of laws that would replace the distinct personal laws of each religion.
• The clause on UCC generated substantial debate in the Constituent Assembly about whether it should be included as a fundamental right or a directive principle. Dr. B.R. Ambedkar felt that while desirable, the UCC should remain “purely voluntary” in the initial stages. He stated that the Article “merely” proposed that the state shall endeavour to secure a UCC, which means it would not impose it on all citizens.
• It has been argued that while India does have uniformity in most criminal and civil matters like the Criminal Procedure Code and the Civil Procedure Code, States have made over 100 amendments to the CrPC and IPC, as well as several amendments to civil laws. Similarly, looking at the codified personal laws of various communities in India — all Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill, neither are Muslims and Christians under their personal laws.
The story so far:
• Ahead of the upcoming Assembly elections, Gujarat on October 29 joined the list of BJP-ruled States that have called for implementing the Uniform Civil Code (UCC). Gujarat Home Minister Harsh Sanghavi along with Union Minister Parshottam Rupala announced that the State will constitute a committee headed by a retired High Court judge to evaluate all aspects for implementing the UCC.
What did the Constituent Assembly say about the UCC?
•Article 44 contained in part IV of the Constitution says that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. While there is no draft or model document yet for the UCC, the framers of the Constitution envisioned that it would be a uniform set of laws that would replace the distinct personal laws of each religion with regard to matters like marriage, divorce, adoption, and inheritance. Part IV of the Constitution outlines the Directive Principles of State Policy, which, while not enforceable or justiciable in a court of law, are fundamental to the country’s governance.
•The clause on UCC generated substantial debate in the Constituent Assembly about whether it should be included as a fundamental right or a directive principle. The matter had to be settled by vote; with a majority of 5:4, wherein the sub-committee on fundamental rights headed by Sardar Vallabhbhai Patel decided that securing a UCC was not within the scope of fundamental rights.
•Members of the Assembly took starkly contrasting stances on the UCC. Some also felt that India was too diverse a country for the UCC. Member Naziruddin Ahmad from Bengal argued that certain civil laws in all communities were “inseparably connected with religious beliefs and practices”. He felt the UCC would come in the way of Article 19 of the draft Constitution (now Article 25) which guarantees the right to freedom of religion subject to public order, morality, and health. While he was not against the idea of a uniform civil law, he argued that the time for that had not yet come, adding that the process had to be gradual and not without the consent of the concerned communities.
•Member K.M. Munshi however, rejected the notion that a UCC would be against the freedom of religion as the Constitution allowed the government to make laws covering secular activities related to religious practices if they were intended for social reform. He advocated for the UCC, stating benefits such as promoting the unity of the nation and equality for women. He said that if personal laws of inheritance, succession and so on were seen as a part of religion, then many discriminatory practices of the Hindu personal law against women could not be eliminated.
•Dr. B.R. Ambedkar had more of an ambivalent stance toward the UCC. He felt that while desirable, the UCC should remain “purely voluntary” in the initial stages. He stated that the Article “merely” proposed that the state shall endeavour to secure a UCC, which means it would not impose it on all citizens. The amendments to protect personal laws from the UCC were eventually rejected.
What are the various arguments around the UCC?
•It has been argued that while India does have uniformity in most criminal and civil matters like the Criminal Procedure Code, Civil Procedure Code, and the Contract Act, States have made over 100 amendments to the CrPC and IPC, as well as several amendments to civil laws. For instance, BJP-ruled States reduced the fines prescribed and justified by the Centre under the amended Motor Vehicles Act. Another example could be that the law of anticipatory bail differs from one State to another.
•Experts thus argue that if there is plurality in already codified civil and criminal laws, how can the concept of ‘one nation, one law’ be applied to diverse personal laws of various communities? Besides, constitutional law experts argue that perhaps the framers did not intend total uniformity, which is why personal laws were placed in entry 5 of the Concurrent List, with the power to legislate being given to Parliament and State Assemblies.
•Looking at the codified personal laws of various communities in India — all Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill, neither are Muslims and Christians under their personal laws. Even at the time of drafting the Hindu Code Bill, several of its provisions actually sought to locate the complex links between the importance of inheritance, succession rights and the right to divorce. But facing staunch opposition from conservative quarters, it was amended, diluted, and watered down multiple times to finally be separated into four different Acts — the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act — in the 1950s.
•Constitutional law scholar Faizan Mustafa notes that while marriages amongst close relatives are prohibited by the Hindu Marriage Act of 1955, they are considered auspicious in the south of India. Even the Hindu Succession Act of 1956 made several compromises and could not make the daughter a coparcener till 2005. Wives are still not coparceners nor do they have an equal share in inheritance. Similarly, there is still no uniform applicability when it comes to the Muslim personal law or the Shariat Act that was passed in 1937. For instance, the Shariat Act is not applicable in Jammu and Kashmir and Muslims continue to be governed by customary law which is at variance with the Muslim personal law in the rest of the country. The applicability also varies for certain sects of Muslims. Besides, many tribal groups in the country, regardless of their religion, follow their own customary laws
•While the Supreme Court in 2019 hailed Goa as a “shining example” of an Indian State which has a functioning UCC, experts point out that the ground reality in Goa is more complex and that the Code has legal pluralities. The Goa Civil Code was given by the Portuguese in 1867; it permits a certain form of polygamy for Hindus while the Shariat Act for Muslims has not been extended to Goa with Muslims of the State being governed by Portuguese law as well as Shastric Hindu law. The Code gives certain concessions to Catholics as well. Catholics need not register their marriages and Catholic priests can dissolve marriages performed in church.
•Meanwhile, the BJP’s 2019 manifesto as well as the Uttarakhand Chief Minister Pushkar Singh Dhami’s UCC committee proposal argue that the uniform code would be formed by taking the best practices of various religions and tailoring them for modern times. Researchers say this would essentially mean picking up certain Muslim practices and applying them to the Hindu community (or vice-versa), and question whether there would not be any opposition to the same.
What has the Supreme Court said about the UCC?
•The Supreme Court in various judgements has called for the implementation of the UCC. In its Mohd. Ahmed Khan vs Shah Bano Begum judgement of 1985, where a divorced Muslim woman demanded maintenance from her former husband, the apex court while deciding whether to give prevalence to the CrPc or the Muslim personal law, called for the implementation of the UCC.
•The Court also called on the government to implement the UCC in the 1995 Sarla Mudgal judgement as well as in the Paulo Coutinho vs Maria Luiza Valentina Pereira case (2019).
What has the Law Commission said?
•The Modi government in 2016 requested the Law Commission of India to determine how to form a code in the presence of “thousands of personal laws” in the country. In 2018, the Law Commission submitted a 185-page consultation paper on the reform of family law. The paper stated that a unified nation did not necessarily need “uniformity”, adding that secularism could not contradict the plurality prevalent in the country. In fact, the term “secularism” had meaning only if it assured the expression of any form of difference, the Commission noted. While saying that a UCC “is neither necessary nor desirable at this stage”, the report recommended that discriminatory practices, prejudices and stereotypes within a particular religion and its personal laws should be studied and amended. The Commission suggested certain measures in marriage and divorce that should be uniformly accepted in the personal laws of all religions. Some of these amendments include fixing the marriageable age for boys and girls at 18 years so that they are married as equals, making adultery a ground for divorce for men and women and simplifying the divorce procedure. It also called for the abolition of the Hindu Undivided Family (HUF) as a tax-exempted entity.
What is the government’s stance?
•While the UCC is a long-time poll promise of the BJP, Union Law Minister Kiren Rijiju said in Parliament this year that the government currently had no plans to set up a panel to implement the UCC and requested the 22nd Law Commission of India to undertake an examination of various issues relating to the same. The chairperson and members of said Law Commission, which was set up in 2021, have not yet been appointed.
📰 Architecture, the profession, needs strengthening
•It is 50 years since the Architects Act (1972) was passed to help build the modern profession of architecture. Architects have made steady progress since then, established contemporary design’s value and expanded their professional base. There are now about 1,26,000 registered architects, with around 10,000 new registrations every year. However, instead of effusing confidence and success, architects seem to be facing the same dilemmas they confronted 50 years ago: the profession has yet to be recognised in its own right, there is bitter rivalry with its engineering cousins, low professional fee structures, poor protection from market forces and confusion about the road ahead. Equally perplexing are the solutions proposed and charting a path. There are many who want to seek the legal route, amend the Act and demand that the state protect the profession further.
A legal route is futile
•If history has any lessons to offer, it is the opposite. Acts do not guarantee excellence. Choking regulations are counterproductive; market forces are powerful and can countervail barriers to competition. In this context, pursuing a legal route to take on multitudinous challenges will be unproductive and futile. Instead, architects can do better if they abandon archaic notions of ‘profession’ built on narrow jurisdictional boundaries and focus on broad-basing practice, investing in internal cohesion, and improving professional ethics and quality of services. The path to securing a professional Act in architecture was not easy. Architecture emerged as a distinct profession and formed an influential association in the 19th century in the United Kingdom, but that was not the case in India. There were not enough architects or institutions to ensure parallel development. The first national-level association of architects was formed in 1929 with 158 members, many of whom were in Bombay. When professionalisation picked up momentum after Independence, and professional legislation such as the Dentists Act in 1948 and Indian Medical Council Act in 1956 were passed, it encouraged architects to revive their demands and struggle; they finally got their Act in 1972.
•The Act was seen by architects as essential to separate them from those offering vocational services and also engineers. However, the government was unwilling to accept their demands and refused to make rendering architectural services exclusive to architects as it found many building services to be overlapping with those of engineers. The government only conceded to protect the title ‘architect’, which only qualified and registered professionals can use. Architects have had complaints since then.
•Professionalisation is a monopoly of services given to those who acquire specialised knowledge. Eliot Freidson’s definitive work on professionalism justifies this as an organising principle of division of labour and argues that such monopoly is required since professionals acquire, govern and develop a special knowledge that society needs. Architects who enthusiastically subscribe to this ideal view overlook three key facts. First, a profession has no intrinsic privileges but is secured only through state-supported legislation. Second, in the Indian context, the profession was not formed free of contestations, and the debates have not ceased. Third, more importantly, the ground conditions have altered over the last three decades, and as an extensive consumer of professional services, the market has established itself as the lead patron. It now wields power to bulldoze any barrier to competitive procurement of services.
The state view
•State support for professions, which is critical to legitimise claims of a monopoly of services, has also been neither unconditional nor stable. Its view of what constitutes public good has changed and is currently aligned with the market economy. Large corporates and the building industry seek competition and lower fees. As patrons and powerful clients, they can ignore provisions of the Architects Act and the protocols that flow from here. Further, they prefer handing over projects to consultancy firms that offer full services, that include design and construction.
•More than in any profession, the dependency on the market and state has split architects into unequal groups. Using the categories described by Michael Reed, a scholar of organisational analysis, one can identify a minority group of influential elites and their larger firms on one side and a predominant group of independent architects with medium and small firms on the other. Elites view the market economy to their advantage and support competitive demands. They flourish when steep entry barriers, such as high turnover requirements imposed by the state and private firms, keep out many small and medium firms. This disparity cannot be addressed through legislation but can be engaged only through the professional collective.
A blueprint
•The profession can strengthen itself in three ways. To begin with, it should quickly abandon the 19th and 20th-century definitions of the profession that relies on carving out exclusive jurisdictions. Architects should reimagine their profession as part of a system of practices that draws strength from related building services such as building science and project management. It would serve better to build an alliance of building professionals, increase their collective relevance and enhance bargaining power. The second aspect is to help smaller and medium firms by lobbying to remove severe entry barriers that deny them projects. Equally important is the third way. Strengthening what Freidson calls the ‘soul of the profession’ by focusing on ‘practice and institutional ethics’, thereby, enhancing the quality of services. If any amendment to the Act is taken up, it should acknowledge the changed conditions of practice and enable alliances between professions.
•From a distinctive beehive-shaped hut of the Jarawa tribe to a Shompen hut crafted with leaves of junglee supari with a cage for wild pigs built beneath it, and a Nicobarese hut made using the thin stems of local cane covered by thick dry grasses — each offers a peek into the lives of tribal communities that most Indians will never see.
•In a first-of-its-kind bid to showcase the heritage of tribal communities, especially those of Particularly Vulnerable Tribal Groups (PVTGs), the Anthropological Survey of India (AnSI) has recreated the huts of several communities at its different regional centres.
•The effort has drawn praise from several quarters, including Prime Minister Narendra Modi.
•“Laudable effort, which will spread awareness of India’s glorious tribal culture and traditions,” Mr. Modi said on November 3, commenting on a tweet by the Ministry of Culture, which said the initiative would help promote “cultural heritage and optimise unused spaces”.
•These huts have come up outside five regional centres of the AnSI in consultation with the local communities, M. Sasikumar, Joint Director, AnSI, told The Hindu, adding that researchers and scientists have worked on constructing them during the entire month of October.
Authentic design
•Mr. Sasikumar said that the huts are not only authentic in design, and built using the same materials used by the tribal people, but also contains artefacts which they use, thus offering a rare glimpse into the lives of these communities who reside in locations which are not easily accessible to others.
•For instance, the traditional Jarawa hut, called a chadda, has traditional baskets, bows and arrows, and other artefacts used by the community.
•“The zonal anthropological museums of AnSI are important tourist destinations and the construction of these tribal huts and a monolith within the premises will help increase interest of visitors,” Mr. Sasikumar said.
📰 COP-27 puts climate compensation on agenda for first time
•‘This won’t guarantee compensation or necessarily acknowledge liability, but is intended to lead to a conclusive decision no later than 2024’
•Delegates at the COP-27 climate summit in Egypt agreed after late-night talks to put the delicate issue of whether rich nations should compensate poor countries most vulnerable to climate change on the formal agenda for the first time.
•For more than a decade, wealthy nations have rejected official discussions on what is referred to as loss and damage, or funds they provide to help poor countries cope with the consequences of global warming.
•COP-27 President Sameh Shoukry told the plenary that opens this year’s two-week United Nations conference attended by more than 190 countries the decision created “an institutionally stable space” for discussion of “the pressing issue of funding arrangements”.
•At COP-26 last year in Glasgow, high-income nations blocked a proposal for a loss and damage financing body, instead supporting a three-year dialogue for funding discussions.
No guarantee
•The loss and damage discussions now on the COP-27 agenda will not guarantee compensation or necessarily acknowledge liability, but are intended to lead to a conclusive decision “no later than 2024”, Mr. Shoukry said.
•The issue could generate even more tension than at previous conferences this year as the Ukraine war, a surge in energy prices and the risk of economic recession have at once added to governments’ reluctance to promise funds and poor nations’ need for them.
•Negotiations on Saturday night before the agenda’s adoption “were extremely challenging,” Harjeet Singh, head of global political strategy at the non-profit Climate Action Network International, said. “Rich countries in the first place never wanted loss and damage to be on the agenda.”
•Some criticised the dismissive language on liability, but although weaker than hoped, getting the issue formally on the agenda will oblige wealthier nations to engage on the topic.
•“They rightly expect more solidarity from the rich countries, and Germany is ready for this, both in climate financing and in dealing with damage and losses,” German Foreign Minister Annalena Baerbock said in a statement.
Protective shield
•Germany wants to launch a “protective shield against climate risks” at the conference, an initiative it has been working on with vulnerable states such as Bangladesh and Ghana.
•Bangladeshi-based environmental research body, the International Centre for Climate Change and Development said it was “good news” loss and damage was officially on the agenda.
•“Now the real work begins to make finance a reality,” Salmeel Huq, director of the centre, said.
📰 Indian black honeybee is a Western Ghats discovery
•A new species of endemic honeybee has been discovered in the Western Ghats. The new species has been named Apis karinjodian and given the common name Indian black honeybee.
•The finding has been published in the September issue of Entomon, a peer-reviewed journal brought out by the Association for Advancement of Entomology.
•The research team behind the discovery comprised Shanas S. from Kerala Agricultural University’s Integrated Farming Systems Research Station, Karamana, here; Anju Krishnan G., a Ph.D. research scholar from the Zoology Department of S.N. College, Cherthala (affiliated to the University of Kerala); and Mashhoor K. from the EMEA College of Arts and Science, Malappuram. It is after a gap of more than 200 years that a new species of honeybee has been spotted in the Western Ghats. The last honeybee described from India was Apis indica in 1798 by Fabricius. Although Fabricius named the Indian bee Apis indica, it was not considered a valid species till now. The research team restored the status of Apis indica based on a new measure for species discrimination in honeybees termed ‘Radio-Medial Index (RMI).’
•They obtained high-resolution photographs of the type specimen from the Natural History Museum, Copenhagen, Denmark, to prove the distinct identity of Apis indica, which led to the discovery of Apis karinjodian.
•Apis karinjodian has evolved from Apis cerana morphotypes that got acclimatised to the hot and humid environment of the Western Ghats. Molecular analysis of mitochondrial DNA was also carried out and molecular sequence data available in the public open database NCBI-GenBank also helped confirm the species status of the new honeybee. The research work took more than three years.
•The distribution of Apis karinjodian ranges from the central Western Ghats and Nilgiris to the southern Western Ghats, covering the States of Goa, Karnataka, Kerala and Tamil Nadu.
📰 Centre, employees for detailed study of EPFO case verdict
•The Union Labour Ministry, the Employees’ Provident Fund Organisation (EPFO) and organisations of employees and employers are studying the Supreme Court order on Friday upholding the validity of the Employees Pension (Amendment) Scheme of 2014.
•Sources in the Labour Ministry said it would come up with detailed guidelines for the employees and employers on implementing the verdict.
•A.K. Padmanabhan, workers’ representative on the EPFO Board of Trustees, told The Hindu that the Supreme Court had upheld the verdict in the case of RC Gupta vs EPFO.
•“Maybe, there are some points which need to be clarified. We have been maintaining that what EPFO has done to a section of workers was an injustice. We will study the judgment before making a detailed comment. Many of our unions have gone to the court demanding clarification on this issue,” Mr. Padmanabhan said.
‘Incomplete verdict’
•BMS national secretary V. Radhakrishnan said the apex court had not taken a decision on a number of issues that were connected with the minimum pension.
•“This verdict is incomplete. Certain aspects in the verdict such as approving the EPFO’s argument that the average of last 60 months’ salary should be considered for calculating the pension are not good for the workers. But the verdict clearly declined to accept the EPFO’s argument that the worker will have to remit the Union government’s component of 1.16%. This is a welcome step. Our view is that this verdict needs more clarity from the court,” he said.
•K.E. Raghunathan, another member of the board representing employers, said the judgment needed to be studied in detail on its deliverables from each stakeholder such as the EPFO, employers and employees for a detailed remark.
