P Chidambaram writes: Ideology trumps Constitution

Presumptuous?

Parliament tin surely undertake the task of making laws connected different civilian aspects, similar marriage, divorcement and succession. However, it was presumptuous connected the portion of the authorities of Uttarakhand to instrumentality upon its shoulders the work to marque a instrumentality connected matrimony and divorcement oregon succession and inheritance. In the archetypal place, Uttarakhand cannot guarantee that the instrumentality volition use to each citizens of India. Even successful respect of persons calved successful Uttarakhand, the authorities instrumentality volition use lone arsenic agelong arsenic the idiosyncratic resides oregon is domiciled successful Uttarakhand. If a idiosyncratic does not similar the law, the idiosyncratic tin simply permission the state. Two domiciles of Uttarakhand whitethorn solemnize their matrimony extracurricular Uttarakhand. The authorities tin bash thing to halt them from leaving oregon marrying.

Secondly, Uttarakhand cannot presume that its instrumentality volition beryllium disposable oregon applicable to a idiosyncratic calved successful Uttarakhand passim the territory of India. If specified a idiosyncratic marries oregon adopts a kid oregon registers a volition extracurricular Uttarakhand, the question of applicable instrumentality volition arise. The Uttarakhand instrumentality whitethorn beryllium successful struggle with the Parliamentary instrumentality successful unit and, successful that situation, the instrumentality made by Parliament volition prevail.

Uttarakhand whitethorn person made a UCC, but it was truly the cardinal authorities that was firing connected the shoulders of Uttarakhand. It was a trial shot. As expected, the instrumentality has sparked a statement due to the fact that the assemblage competent to analyse the thought of UCC — the 21st Law Commission — had successful its study of August 31, 2018 concluded that “this Commission has truthful dealt with laws that are discriminatory alternatively than providing a azygous civilian codification which is neither indispensable nor desirable astatine this stage”.

It appears that the purpose of Uttarakhand was not to marque a progressive and wide instrumentality successful tune with the changing values, morals and mores of society. It was, successful the words of the Union Home Minister, to region the “regressive idiosyncratic laws”. Uttarakhand’s instrumentality is an assertion of majoritarianism.

Reform?

The Act has 3 parts. The archetypal portion (sections 4 to 48) concerns ‘marriage and divorcement ’, the 2nd (sections 49 to 377) concerns ‘succession’, the 3rd (sections 378 to 389) deals with ‘live-in relationship’, and the 4th is ‘miscellaneous’.

Some provisions of Part 1 are welcome. Bigamy and polygamy are forbidden. The property of matrimony for girls is 18 and for boys is 21. It is compulsory to registry a marriage.

Some provisions are plainly

unconstitutional. The Act applies to a ‘resident’ whether residing wrong oregon extracurricular Uttarakhand.  It is an over-broad explanation that includes (i) a imperishable worker of the cardinal authorities employed (i.e. posted) successful Uttarakhand for the clip being and (ii) a beneficiary of immoderate strategy of the ‘central government’. The Act whitethorn person breached the territorial jurisdiction of Uttarakhand. Some provisions are debatable, for illustration the provisions regarding divorce. Some provisions are presumption quoist. A idiosyncratic could beryllium lone a antheral oregon pistillate and a ‘marriage’ could beryllium solemnized lone betwixt a antheral and a female.  Some provisions are regressive. The anachronistic alleviation of ‘restitution of conjugal rights’ has been retained.

Part 3 that deals with ‘live-in relationship’ is some regressive and unconstitutional. The instrumentality claims to use to ‘residents’ of Uttarakhand staying ‘outside’ Uttarakhand, an evident illustration of an oxymoron. The full of Part 3 is simply a gross penetration of idiosyncratic state and privacy, and volition beryllium struck down arsenic unconstitutional. The Rules (Rule 15 to 19) are worse.  Believe it oregon not, they prescribe duties and rights of live-in partners.

Conflict?

Part 2 deals with ‘succession’. Subject to further analysis, it seems that successful the lawsuit of ‘intestate succession’, the features of the Hindu Succession Act, 1956 person been adopted with insignificant changes and incorporated into the law, excluding immoderate rules of succession prevalent among different spiritual communities. The Act defines ‘estate’ and seems to admit ‘coparcenary interest’ successful the estate, implying that the Act has deferred to the customary practices of the Hindu community.

In the lawsuit of ‘testamentary succession’, the rules nether the Indian Succession Act, 1925, arsenic interpreted by the Courts, person been lifted and incorporated.

The extra-territorial scope of the instrumentality will, prima facie, beryllium unconstitutional.  By words and implication, the Uttarakhand instrumentality has deferred to the bulk and brushed speech the features of idiosyncratic laws prevalent among non-Hindu communities. Has the instrumentality sowed the seeds of betterment oregon conflict? Only clip volition tell.