The Law Commission on Friday brought out a consultation paper, instead of a comprehensive report, on personal laws in India. The panel suggested that given the lack of consensus over a uniform civil code, personal laws can be preserved, but only as long as they do not contradict the fundamental rights enshrined in the Constitution. Friday was the last day of the panel’s term.
The panel said that personal laws also have to be codified, but this cannot be done in a way that contradicts the Constitution. The commission recommended that Parliament first focus on achieving gender equality within communities, instead of between communities. “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,” it said.
The Law Commission also asserted that both freedom of religion and the right to equality must be preserved. “Both these rights are valuable and guaranteed to every citizen of the country and to necessitate women to choose between one or the other is an unfair choice,” it said. The panel suggested that “piecemeal changes” be made to personal laws to achieve this balance.
However, it added that freedom of religion does not mean social evils like dowry, child marriage, sati and triple talaq should be protected by law. “For these practices do not conform with basic tenets of human rights nor are they essential to religion,” the panel said.
The Law Commission said even right to equality cannot be considered an absolute right. It said that “preferential rights and protections are maintained for vulnerable or historically subordinated sections of the society, for there is no equality in treating unequals as equals”.
The panel specifically suggested changes to several personal laws. Under Hindu law, the commission suggested modifications such as restitution of conjugal rights, abolition of co-parcenary and recognising the rights of illegitimate children. Under Muslim law, the panel discussed changes in inheritance law through codification as well as rights of widows.
Under Parsi law, the commission suggested protecting married women’s right to inherit property even if they marry outside their community. It also pitched for the expansion of the Juvenile Justice (Care and Protection) Act, 2015, to make it a secular law that covers all communities.
The Law Commission also said that the guidelines for adoption should be amended, and all gender identities should be accommodated by altering the language of the Act.