THE CONTEXT: Recently, Uttarakhand state Assembly proposed the draft bill Uniform Civil Code (UCC), exploring its implications for India’s diverse social fabric and privacy, particularly about live-in relationships, and examines legislative attempts to balance gender justice with cultural diversity. The discourse reflects historical instances where legal homogenization resulted in negative outcomes, underscoring the need for a nuanced approach to the UCC.

ISSUES:

• Lack of a Working Draft: Initially, no working draft was available for discussion, leading to uncertainties about the government’s proposal. Without a working draft, discussions on the matter are somewhat speculative.
• Concerns Over Uniformity vs. Diversity: UCC might undermine India’s cultural and religious diversity by imposing a homogenized set of laws reminiscent of the British era’s policies that fueled partition. UCC could aim to homogenize the legal system at the expense of cultural nuances, citing the historical example of the Shariat Act of 1937 and its contribution to homogenizing Muslim personal laws, which arguably fueled separatist narratives.
• Provisions of the UCC Draft: The draft seems to largely incorporate provisions from the Special Marriage Act, 1954, and the Indian Succession Act, 1956, with some strategic tweaks, such as making religious conversion a ground for divorce.
• Live-In Relationship Regulations: The draft UCC includes controversial provisions for live-in relationships, such as mandatory registration and the possibility of criminal charges for non-compliance. This raises concerns about privacy and the potential for abuse.
• Definition of ‘Resident’: The UCC’s definition of a resident is broad and could apply the code to individuals who have never lived in Uttarakhand or are temporarily employed there, which could lead to legal complexities. This could include people working for the state or central government within or outside the state, even if they don’t live there.
• Criminalizing Unregistered Live-in Relationships: Making it an offense to be in an unregistered live-in relationship for more than a month appears excessive and punitive, especially in a society where such arrangements might be sought as a step before formal marriage. The requirement that the registrar notify the parents and the police station for partners under 21 years of age could infringe on the autonomy and privacy of young adults.
• Lack of Clarity in Registration Refusal and Appeal: The draft does not explain the consequences of a refusal to register a live-in relationship, nor does it provide a clear appeals process for such a decision. The system, as proposed, could be open to misuse, resulting in harassment and privacy breaches, particularly for inter-faith and inter-caste couples who face social resistance.
• Conflicting Age Provisions within the UCC: The draft seems to have conflicting provisions regarding the marriageable age and the age at which the state must be notified about live-in relationships.

THE WAY FORWARD:

• Political Consensus and Opposition from Religious Groups: Building political consensus and engaging in constructive dialogue with religious groups to address their concerns can help the smooth implementation of the UCC.
• Inclusion of Tribal Communities: The exemption of tribal communities from the UCC in Uttarakhand has sparked debate. Finding a balanced approach that respects the unique practices of tribal communities while working towards a more uniform legal framework for all citizens is essential.
• Gender Justice and Equality: One of the primary objectives of the UCC is to ensure gender justice and equality. Any provisions or amendments should be carefully crafted to uphold these principles.
• Maintenance of Women and Legitimacy of Children: Positive provisions related to maintenance rights for women and the legitimacy of children from live-in relationships should be retained while ensuring that they are implemented practically and non-intrusively.
• Inclusive Approach: The implementation of UCC should be an inclusive process, considering the concerns and perspectives of all stakeholders, including religious and cultural communities, legal experts, and civil society organizations.
• Privacy and Personal Freedoms: Addressing privacy and personal freedoms concerns, especially in live-in relationships, requires carefully reviewing the provisions to ensure they are not overly intrusive or punitive.
• Clarifying Applicability: The term ‘resident’ should be clearly defined to prevent the overextension of the UCC’s jurisdiction and ensure it applies appropriately to those it is intended to govern.
• Reconciliation of Age Provisions: All age-related provisions within the UCC should be consistent with each other and existing national laws to avoid legal confusion and conflict.
• Training and Sensitization: Impart training to registration officers, police, and other relevant authorities to handle sensitive matters related to the UCC, respecting individuals’ dignity and rights.

THE CONCLUSION:

The draft UCC, while aiming for equality and legal simplicity, overreaches in privacy and personal autonomy, demanding meticulous revision for practical enforcement without infringing on individual rights. It is vital to promote gender justice and legal uniformity while fostering and respecting the inherent diversity that defines the ethos of India.

UPSC PAST YEAR QUESTION:

Q.1) Discuss the possible factors that inhibit India from enacting a uniform civil code for its citizens as provided in the Directive Principles of State Policy. (2015)

Q.2) Given the diversities among tribal communities in India, in which specific contexts should they be considered as a single category?(2022)

Q.3) Communalism arises either due to power struggle or relative deprivation. Argue by giving suitable illustrations.(2018)

MAINS PRACTICE QUESTION:

Q.1) India’s quest for enacting a Uniform Civil Code (UCC) has been a subject of debate since the country’s independence. Analyze the potential implications of implementing a UCC on the diverse fabric of Indian society, especially in light of the proposed draft by the State of Uttarakhand.

SOURCE:

https://www.barandbench.com/columns/uniform-cut-and-paste-quick-appraisal-uttarakhand-uniform-civil-code-bill

THE CONTEXT: In its latest judgment, with respect to same-sex marriage, the Supreme Court has stated that there is no fundamental right to marry.

RELATED KEY JUDGEMENTS:

• Section 377 of the IPC: Section 377 IPC was a law made by the British, that criminalised sex between non-heterosexual couples was punishable with 10 years imprisonment. For decades, the LGBTQ community and others argued that this section was discriminatory, and provided legal protection to the harassment and intimidation of gay couples.
• Navtej Singh Johar v. Union of India Case (2018): In September 2018, a five-judge bench of the Supreme Court unanimously decriminalized consensual sex between two adults irrespective of their gender and partially struck down Section 377 of the IPC. The court referred to those areas of the section that criminalized consensual unnatural sex as “irrational, indefensible and manifestly arbitrary”. However, in its ruling, the court also made it clear that other aspects dealing with unnatural sex with animals and children still remained in force, and that it was confining its order to consenting acts between two adults.
• NALSA Case Judgement: The judgement was delivered by a two-judge bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri on 15th April 2014. The court held that transgenders fall within the purview of the Indian Constitution and thus are fully entitled to the rights guaranteed therein. The court made a distinction between biological sex and Psychological sex.

NEED FOR LEGALISATION:

• Upheld by court judgement: It had also been held by the court in diverse decisions that in India a person is entitled to autonomy, dignity, privacy and the right to choose their own partners to live with or in marriage. Especially after Navtej Johar, it is logical to assume that they may prefer to develop a long-term relationship, including that of marriage.
• Essentiality of marriage: Marriage brings along with it a host of advantages for the couple, including succession in the field of inheritance, adoption of children, taking decisions in case of hospitalisation, and benefits from employers. More than anything else, in the eyes of society, it sanctifies the relationship and gives it legitimacy. Without that legitimacy, LGBTQI communities are stigmatised.
• Fundamental rights: The Supreme Court of India has read the right to be treated with dignity into Article 21. It is on that basis, that positive rights, including the rights to education, food, environment have been evolved. Thus, it is reasonable to develop the concept of the right to marry into Articles 19 and 21.
• India signatory to Universal Declaration of Human Rights (UDHR): The Supreme Court has used the provisions of UDHR to elaborate rights under the Constitution. India, being a signatory to UDHR, must take steps to protect the human rights of same sex couples. Article 16 of the UDHR, 1948 provides that, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family’’.

ISSUES WITH COURT JUDGEMENT:

• Violation of human rights: Under the UDHR, the right to marry is a human right .Ignoring the right to individual is violation of UDHR as India is an original signatory to the Universal Declaration of Human Rights (UDHR) and even Constitution was greatly influenced by the UDHR. As a signatory country to the UDHR, legislation by Parliament and State Legislatures in India must be in accord with the UDHR.
• Reduces them to second class citizen: Not recognising marriage for same sex couples is not only discriminatory against them. The unintended consequence of the judgment in the larger society is that the notion that same-sex couples are “not fit for marriage” will be established and will reduce them to second-class citizens.
• Issues with Supreme Court judgement: Though for transgender persons, the court holds that marriage between a trans-man and a cis-woman or between a transwoman and a cisman is legal. Thus, the court has rightly made the leap from biological sex to gender, which is self-identified in accordance with NALSA. But the court couldnot  made the leap for from biological sex to sexual orientation.

THE WAY FORWARD:

• Queer inclusive Policies: Legal and the law enforcement systems need to be on the issues of same sex marriages. Inclusive approach for queer couples must be planned and adopted by the Government and society.
• Dialogue and Engagement: Engaging in a dialogue with religious leaders and communities can help bridge the gap between traditional beliefs and modern attitudes towards same-sex relationships. By working together, we can create a more inclusive society where everyone has the right to love and marry whomever they choose, regardless of their gender.
• Sensitization: The Court must pass the directions to sensitise the authorities on this behalf and should set up committees to look into a number of issues to protect same-sex couples from any harassment.

THE CONCLUSION:

However, the flaw is fundamental which needs to be corrected, sooner than later. The sooner this wrong is set right, the better it would be for society as a whole. It requires constant efforts and collaboration from all stakeholders, including the LGBTQIA+ community, the government, civil society, and religious leaders.

PREVIOUS YEAR QUESTION 

Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy. (2017)

MAINS PRACTICE QUESTION

The recent judgement on same-sex marriage is a violation of the fundamental rights of the queer community. Examine.

NOTE: Please refer to Mains focus article for more: https://blog.lukmaanias.com/2023/10/21/on-marriage-equality-the-supreme-court-stops-short/

SOURCE:https://www.thehindu.com/opinion/lead/the-courts-no-fundamental-right-to-marry-is-wrong/article67450210.ece#:~:text=There%20is%20no%20fundamental%20right%20to%20marry%2C%20it%20holds.,be%20protected%20from%20any%20harassment.

THE CONTEXT: In its latest judgment, the Supreme Court of India has taken some steps to protect same-sex unions from discrimination. But in the final analysis, the Court limited itself to protecting only a few rights instead of granting full recognition to same-sex marriage.

MORE ON THE NEWS

• In November 2022, two same-sex couples moved the Supreme Court, arguing that their inability to marry under Indian family law amounted to a violation of their fundamental rights to equality, life and liberty, dignity, free speech and expression, etc.
• A five-judge Constitution bench headed by Chief Justice D Y Chandrachud reserved its judgment after a 10-day hearing in the matter in May 2023 and delivered its final verdict on October 17,2023.
• A five-judge Bench of the Supreme Court announced a 3:2 verdict on petitions seeking the rights for members of the LGBTQ community to marry and choose family.
• The Court declined to legalise same-sex marriage, placing it upon the Parliament and State governments to decide if non-heterosexual unions can be legally recognised.
• The Centre has been told to establish a high-powered committee under the Cabinet Secretary to consider the scheme of rights flowing from the civil union.

KEY CASES RELATED TO QUEER RIGHTS:

• The 2014 NALSA judgment affirmed transgender people’s fundamental rights.
• In 2017, K. Puttaswamy v Union of India linked privacy with the rights of queer persons.
• The landmark Navtej Singh Johar judgement in 2018 read down Article 377, decriminalising homosexuality as an unnatural offence.

IS THE RIGHT TO MARRY A FUNDAMENTAL RIGHT?: RECENT VERDICT

• According to the recent court verdict, marriage is an institution set up under law and same-sex couples do not have a right to participate in it unless the law permits them to do so.
• The Court upheld the Special Marriage Act, 1954 in its current form, e., permitting marriages only between a ‘man’ and a ‘woman’. It does not extend it to same-sex marriages.
• It upheld the institution of marriage flows from the statutes created by the state and the right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution but a statutory right.
• The Court held that same-sex marriage is possible only through specific law and that it can’t read into existing laws. The issue of codifying has been left to the government, which has been told to set up a committee to deliberate on same-sex marriages issue.

OTHER OBSERVATIONS:

• The right to enter into a union and ability to choose partner is mentioned in Article 19 and Article 21.
• The court observed that the bar on union between two queer persons based on their gender identity would be in violation of right under Article 15.
• CJI also added that in Article 21 – sex must also be used to mean sexual orientation.

ISSUES:

• Denied right to marry: As the recent verdict has not granted any approval on the right of marriage, this is discriminatory to queer people. As they are denied to create a union solely on account of their sexual orientation. Society’s recognition of marriage is a public recognition of that form of commitment that is being denied here.
• Issue of adoption: The current laws embody a discriminatory assumption that only heterosexual parents can, as a couple, be appropriate parents.
• Historical injustice: Queer people are facing historical injustice in the society and a larger web of discrimination is going on which affects not only their fundamental right but human rights as well. Discrimination also has indirect and deep consequences on society as
• Religious and Cultural Beliefs: The union of same-sex couples is seen against religious and cultural beliefs. Also, it is seen as against the primary purpose of marriage that is procreation and thus seen as unnatural.
• Legal issues: There are concerns that allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights. There are not appropriate laws in the country to regulate on these issues.

THE WAY FORWARD:

• Granting recognition to marriage: It should be on the part of the legislature to frame adequate laws to grant recognition to the marriage of queer people. It is the duty of the State to extend necessary protection. It would signal a positive message and acceptance in society for queer people as well.
• Regulatory framework: There should be a separate anti-discrimination law and proper laws for punishment for the discriminatory practices against queer people to undo the historical injustice against the community as current laws are fragmented.
• Collective force: There is a need of collective force for advocacy of queer marriage and all the NGOs, the activism has to be even strongly come forward and work on strategies and policies to bring in the consensus to understand the challenges.
• Adoption regulation: Law on adoption should be on the basis of merit, not on sex. Merely because a relationship is regulated by law, it does not mean that couples who are not married does not mean they are not serious about their relationship.
• Global recognition: A growing number of governments around the world are considering whether to grant legal recognition to same-sex marriages. India should also come forward to grant legal recognition for protection of their rights. State legislatures can enact laws recognising and regulating same-sex marriages; the Constitution under Articles 245 and 246 empowers both the Parliament and the State to enact marriage regulations. They need to create a gender-neutral law for marriage.

THE CONCLUSION: This judgment will only delay the already long and arduous struggle to create the conditions where same sex couples could live a life in freedom without fear. There is a need to create a more inclusive society by giving equal rights regardless of their gender.

PREVIOUS YEAR QUESTION

Q. Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy. (2017)

MAINS PRACTICE QUESTION

Q. The recent verdict has left the issue of codification of law to recognise same-sex marriage to the government instead of stepping into the domain of legislature. How far do you think this will address the concerns of queer people?. Explain in the context of recent judgments on queer people by Supreme Court.

SOURCE: https://indianexpress.com/article/opinion/columns/pratap-bhanu-mehta-writes-on-marriage-equality-the-supreme-court-stops-short-8987605/