[Editorial Analysis] The commission’s omissions

Mains Paper: 2 | Judiciary

Prelims level: Uniform civil code

Mains level: Law panel’s recommendations on personal law are selective, ill-judged.

Context

• The 21st Law Commission on its last day in office, the Consultation Paper on Reform of Family Law is an uncommissioned document.

• On June 17, 2016, the government had made a reference to the Commission to examine matters in relation to uniform civil code but, finding that the issue is vast and its potential untested in India.

• This paper suo motu offering a catalogue of unsolicited recommendations for amending personal laws.

Important highlights of this report

• There is no reflection of judicial acumen in the paper, which says nothing that has not been said earlier in scholarly works or court judgments.

• Suffering from legal and factual inaccuracies, it is conspicuously selective in picking up the shortcomings of various personal laws.

• Being the outcome of a long consultation process, in the fitness of things, it should have annexed a list of consultees and texts of their submissions.

• In which abruptly ends with a lament for the lack of legislation on inheritance rights of children born out of wedlock.

• Should a Muslim author who has written extensively on the uniform civil code and on the personal laws of all communities be heard only on a few chosen issues of Muslim law?

• In any case, all my publications were available to the Commission and the document reflects some of my views, avoiding any acknowledgement.

• In its section on Muslim law, the Commission has steered clear of topical issues, saying that these are sub judice.

• As this legal maxim is no impediment to expressing scholarly opinions or making official recommendations for reform, the excuse is a pie in the sky.

• The apex court itself sometimes solicits the Commission’s views on matters under adjudication.

• In the Special Marriage Act, a secular law available to all communities, the list of “prohibited degrees in marriage” is copied verbatim from Hindu Marriage Act.

Other issues

• Agricultural property, as a state subject under the Constitution, cannot be covered by any central law.

• A provision under the Hindu Succession Act, when enacted in 1956 pointedly exempted it from its purview.

• Under the 2005 amendments to the Act, the provision was deleted by way of a legislative routine called weeding out “spent” provisions.

• In a parliamentary committee report, to give the states a free hand to determine the applicability of the Act to agricultural lands.

• Yet, the deletion is generally misunderstood to mean the automatic extension of the Act to agricultural properties.

• It is astonishing to find this wrong understanding enshrined in the Commission’s document.

Conclusion

• The document thus neither answers the government’s specific reference on the uniform civil code nor makes any unprecedented recommendation for legal reform.

• It is just one more addition to textbooks available in the market and more confusing than some of them on certain subtle points of law.