Uniform Civil Code - Dr Syed Zafar Mahmood's
Response to Law Commission of India's Questionnaire
on Uniform Civil Code
Response No. 2 dated 17 November 2016
emailed to the Hon'ble Chairman,
Law Commission of India, New Delhi
by Dr Syed Zafar Mahmood, Convener, Watan ki Fikr, CISRS House,
14 Jangpura B, New Delhi 110014. Phone 011-24375196. firstname.lastname@example.org
(My response no.
1 was emailed to the Hon'ble Chairman, Law Commission of India on 04 Nov
2016. Copy is attached):
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
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
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
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.
Dr Syed Zafar Mahmood
17 Nov 2016