This article has been written by Vishal Kumar, Advocate, Patna High Court.
Article 44 of the Constitution of India lists Uniform Civil Code as one of the Directive principles of state policy. Directive Principles of State policy, which comprises the Part IV of the Constitution of India, are guidelines for the State and Central governments to help them in framing laws and policies. However, these Directive Principles “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”, according to Article 37 of the Constitution which talks about the application of the Principles contained in Part IV.
In India, there are different sets of laws for different communities pertaining to personal matters like marriage, divorce, property, adoption, inheritance and maintenance. The Uniform Civil Code implies covering all these personal laws into one unified set of secular law, that will be applicable for each and every citizen of India irrespective of his/ her religious community. However, in India, Goa is the only state to have implemented the directive principle on the Uniform Civil Code and converted it into a law called the Goa Civil Code or the Goa Family Law. It is the set of civil laws that governs all the Goans irrespective of the religion or the ethnicity to which they belong.
The debate over constitutionalising the requirement for a Uniform Civil Code (UCC) began even before partition. Discussions began in the sub- committee on Fundamental Rights, which met between February and April 1947. Demands for a uniform civil code came not only from extreme Hindu nationalists, but from Modernists as well. Minoo Masani, a Parsi- member of Congress from Bombay, and Amrit Kaur, a Christian- member of Congress who represented CP and Behar, jointly demanded that the provision be included in the justiciable part of the constitution so that it could be enforceable by court. They argued that “One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life.” However, the majority of sub-committee members opposed this demand, and the provision was recommended to be incorporated in the Directive Principles section of the constitution.
During discussions in the Constituent Assembly, the dispute over the fundamental question of the relationship between unity and uniformity was only one aspect of the debate. The second aspect is related to the role of the constitution in promoting social, religious and cultural reforms. On the one side stood people, who wished to use the legal power and status of the constitution to modify religious customs and advance secularization and legal uniformity among all religious groups. On the other side were those who believed that a constitution should reflect the spirit of the nation as it currently was and should not impose deep social and cultural changes.
The Hindu viewpoint was probably best put forth by KM Munshi who said, “There is one important consideration which we have to bear in mind- and I want my Muslim friends to realize this- that the sooner we forget this isolationist outlook on life, it will be better for the country. Religion must be restricted to spheres that legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation. Our first problem and most important problem is to produce national unity in this country…There is no use clinging always to the past. We are departing from the past … we want the whole India to be welded and united together as a single nation. Are we helping those factors which help welding together into a single nation, or is this country to be kept up always as a series of competing communities?” B. Pocker Sahib Bahadur, a Muslim League representative from Madras replied: “there are ever so many multitudes of communities following various customs for centuries or thousands of years. By one stroke of the pen you want to annul all that and make them uniform.” Pocker Bahadur also attacked the uniform civil code as representing the tyranny of the majority. The standards of which community, he asked, would be taken as the basis for the uniformity of the code?
Naziruddin Ahmad, a Muslim representative from West Bengal, warned against overly radical constitutional provisions: “I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come. We believe that the power that has been given to the state to make the Civil Code uniform is in advance of the time… What the British in 175 years failed to do or were afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the state to do all at once. I submit, sir, that we should proceed not in haste but with caution, with experience, with statesmanship and with sympathy.” Ahmad stressed the importance of obtaining consent of the communities whose religious laws would be affected by the new code: “The goal should be towards a Uniform Civil Code but it should be gradual and with the consent of the people concerned.” He therefore recommended that the decision regarding the application of a uniform civil code should not be entrenched in the constitution but should rather be left to Parliament, which could obtain the consent of the communities through their representatives.
Eventually, the framers agreed with the draftsmen and decided to include the reference to a uniform civil code in the “Directive Principle of State Policy” as Article 44. It provides that “the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.” Dr Ambedkar, the chairman of the Drafting Committee, explained that the provision merely required the state to “endeavor to secure a civil code for the citizens of the country. It does not say that after the Code is framed the state shall enforce it upon all citizens.” Ambedkar stressed that Parliament would retain the authority to implement this policy recommendation, and that it was “perfectly possible” that it would decide that “in the initial stage the application of the Code may be purely voluntary.”
Many critics see the UCC debate, in the Constituent Assembly, as a missed opportunity to provide a clear and unambiguous definition of India’s identity as a Hindu or a secular nation. But the Assembly’s decision regarding Uniform Civil Code may also be seen as a deliberate decision to defer controversial choices between rival sets of beliefs and commitments. The assembly sought to assuage the fears of minority groups under conditions of deep mistrust between religious communities. The Assembly’s decision also represents the drafter’s acknowledgment in the moderate pace by which Indian national unity would emerge. The Assembly recognized the limitations of constitutional provisions in the face of the complicated societal reality which the constitution is expected to reflect. For this reason, it preferred to follow an incrementalist rather than revolutionary constitutional approach. The Assembly transferred the decision regarding the secular identity of the state from the legal back to the political arena, leaving the decision on whether and how to implement its recommendation to future parliamentarians.
The Supreme Court first directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case. In this case, a penurious Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125. The Court also held that Article 44 of the Constitution has remained a dead letter. The then Chief Justice of India Y. V. Chandrachud observed and quoted: A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies. After this decision, nationwide discussions, meetings, and agitation were held.
The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The explanation given for implementing this Act was that the Supreme Court had merely made an observation for enacting the UCC, not binding on the government or the Parliament and that there should be no interference with the personal laws unless the demand comes from within.
The second instance in which the Supreme Court again directed the government of Article 44 was in the case of Sarla Mudgal v. Union of India. In this case, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam, can solemnize second marriage The Court held that a Hindu marriage solemnized under the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage solemnized after converting to Islam would be an offence under Section 494 of the Indian Penal Code.
Justice Kuldip Singh also opined that Article 44 had to be retrieved from the cold storage where it has been lying since 1949. The Hon’ble Justice referred to the codification of the Hindu personal law and held, where more than 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘Uniform Civil Code’ for all the citizens in the territory of India. The Supreme Court’s latest reminder to the government of its Constitutional obligations to enact a UCC came in July 2003 when a Christian priest knocked the doors of the Court challenging the Constitutional validity of Section 118 of the Indian Succession Act. The priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the said Act was discriminatory against the Christians as it imposed unreasonable restrictions on their donation of property for the religious or charitable purpose by will. The bench is composed of Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshmanan struck down the Section declaring it to be unconstitutional. Chief Justice Khare stated that, we would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.
Thus, as seen above, the apex court has on several instances directed the government to realize the directive principle enshrined in our Constitution, and the urgency to do so can be inferred from the same. Seven decades after the Constituent Assembly, the questions raised in the debates have not withered away. The Constitution makers deferred some questions to the wisdom of a future day, when a consensus could emerge. I leave it to you to judge whether we have indeed ceased to be a divided society. You are needed to be certain that a consensus has indeed emerged, that would validate a common civil code, which would be welcomed by all. Any forcible imposition, is more likely to exacerbate those fissures, that our constitution makers have so deftly, sewn together. Making mandatory, what has hitherto been merely obligatory, may seem to be the path of virtue, but is often the cause of many schisms.
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