Wednesday, September 19, 2018

Some notes from the law commission report

An evening with nothing to do. Pakistan is slitting throats of Indian troops on the border and another group of idiots is watching a match with terrorist nation. Yes, no terrorism coming in the way of sports bullshit. So I decided to spend the time well reading the Law commission report. These are the comments that caught my eye.

Para 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

Para 1. 4

Therefore, it is urged that the legislature should first consider guaranteeing equality ̳within communities‘ between men and women, rather than ̳equality between‘ communities.2 This way some of the differences within personal laws which are meaningful can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity.

Para 1.5

The fact that secular laws such as the Special Marriage Act, 1954 also continue to suffer from lacunae suggests that even codified or religion-neutral laws offer no straightforward guarantee of justice. 

Para 1.15

This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. 

Para 1.19

Thus, 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. 

Para 1.20

India has historically prided itself over its diversity. Conversations on ̳secularism‘12 and also ̳multiculturalism‘,13 have intrigued not only philosophers, political scientists and historians but also common Indian citizens.
 Para 1.21

The term secularism only has meaning if it can also assure that the expression of any form of ̳difference‘, not just religious but also regional does not get subsumed under the louder voice of the majority; and at the same time no discriminatory practice hides behind the cloak of ̳religion‘ to gain legitimacy.

Para 1.35

Thus a ̳united‘ nation need not necessarily have ̳uniformity‘ it is making diversity reconcile with certain universal and indisputable arguments on human rights.
Overall, so far the tone is basically arguing for 'diversity' - basically putting away any chance of any reform. The report then delves into obscure tribes and practices and so on and so forth (very informative, I had no idea about these)

Para 2.3 is a gem I thought :)

For instance, the relatively easier procedure of divorce under Islamic law for men and women is also reflected in the relatively open attitudes towards remarriage of divorced and widowed women, a right that most Hindu women achieved through legislation. However, once the legislation was in place, Hindu law evolved through a series of piecemeal legislative interventions on recognition of women as coparceners in 2005, recognition of diverse customs within the Hindu Marriage Act (Madras Amendment) 1967 incorporating priest-less marriages among many others. Amendments to Christian marriage and divorce laws in 2001, and Hindu Adoption and Maintenance Act,1956 and Guardians and Wards Act, 1890, in 2010 are also examples of how once codified, personal laws can be opened up for further public debates and scrutiny. Thus, history shows that amendments to codify personal laws is not only a tried and tested way of bringing targeted social legislation but also of developing jurisprudence on family laws.

Post that it rambles along all types of laws - Hindu, Muslim, Christian and Parsi, throws mud at HUF using the link of an article in The Hindu: 

However, today, when it has been seventy-two years since independence, it is high time that it is understood that justifying this institution on the ground of deep-rooted sentiments at the cost of the country‟s revenues may not be judicious.

The rest of it was not very meaningful to me, but what is interesting is the thorough disinterest in going the UCC way. 

As far as I am concerned, UCC is long way off, it is important for the government to remove laws that are openly discriminatory against Hindus....