ABSTRACT
The Nucleus of this study deals with one of the primitive heated subject matters of Constitution i.e., Uniform Civil Code, Article 44/ Uniform Civil Code has from its origin in Constituent assembly till now after 76 years of independence remains Controversial, leading to polarization and vote bank politics.
Under this study the Constitutionality and Requirement of Uniform Civil Code would be analyzed on the footing of the various Judgements discussing Uniform Civil Code made by the Honorable Supreme Court.
This study wraps around the whole provisions dealing with the Uniform Civil code and the proclaimed conflicts of it with other Fundamental right. It will give a complete analysis of the Legality of Uniform Civil Code
Keywords: PERSONAL LAWS, NATIONAL INTEGRATION, FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES OF STATE POLICY, GENDER JUSTICE, RELIGIOUS LAWS
INTRODUCTION
Religion is the opium for masses, is one of most influential words said by Karl Marx. These words of Marx testify themselves in whole world including, INDIA the country with highest population on planet. Religion has played the most vital part in shaping the country, from culture to base for politics in the country. Still the greatness of India is expressed by the fact that preamble of Indian Constitution declares it to be a secular country, with no state religion of it. In fact, secularism is declared as the basic structure of the constitution[1].
There are already existing civil and criminal codes in the country, which are applicable to all disregard of the Race, Religion and Caste. But in spite of that there exist no specific code with respect to personal matters of citizens, there exist personal laws for them[2] which varies religion to religion.
Article 44 of Indian Constitution provides for Uniform civil code. It basically refers to a collection of rules that all country people must follow, regardless of their religious affiliation. The purpose of it is to strengthen integration and unity among people in country to secure Equality and gender justice for citizens. Under its ambit comes body of law relating to inheritance, adoption, maintenance, succession, divorce, marriage etc.
This study aims to bring clarity on the subject of uniform civil code and its constitutionality, by assessing various judgements of Honorable Supreme Court.
RESEARCH METHODOLGY
This study is based upon the Doctrinal method of Research, based upon the already existing sources as Constitution of India, Statutes, Cases, law review articles and textbooks, which includes both Primary and Secondary Sources.
LITERATURE REVIEW
“Aditya Raj
Uniform Civil Code: A Constitutional perspective”
Going through this Literature, it is determined that this literature, gives an overview of the topic in concise manner, which could be used to benefit, but here it puts this paper to a disadvantage because it lacks detailed research coupled with meagre exposition of judgements. This paper also lacks a coherent structure. [3]
“Dr Jagat Singh Chandpuri
Uniform Civil Code a Constitutional Mandate: Issues and Challenges”
Studying this piece of literature, it is learned that, it clearly justifies the title of study, analytical method of research has been put forth into work. Detail oriented approach signifies this paper and gives a transparent view of Issues and challenges faced by Uniform Civil code.[4]
After Researching on this topic of Uniform Civil Code, it is identified that analytical Emphasis on this topic from the perspective of The Apex Court Judgments is nowhere to be found, which establishes a research gap and by examining this topic from the above-mentioned perspective this paper has been written.
HISTORICAL BACKGROUND
During British regime, 1st law commission “lex loci report,1840”, highlighted that Indian laws must be codified to be uniform in terms of contracts, crimes, and evidence, but it was recommended that personal laws of Hindus and Muslims should not be included in this codification. [5]. So British codified various laws which are still applicable [6], but abstained to codify personal laws.
During framing of constitution, the submissions of Ambedkar, Munshi, Masani calls for adoption of Uniform Civil code is present, then the Sub-Committee on fundamental rights in its report submitted to Advisory Committee placed them in nonjusticiable Fundamental rights.
To which three members[7] of the subcommittee dissented and expressed themselves in the following manner:
“One of the factors that has kept India back from advancing into nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life. We are of the view that a uniform civil code should be guaranteed to the Indian people within a period 5 to 10 years.”
Then in Constituent Assembly, Ambedkar presented Draft Constitution and Uniform Civil Code was found in DPSP[8]. Muslim members[9] lead the discussions upfront and proposed amendments
- to keep personal laws out from the scope of Article 35(now 44); and
- to enforce the code provided under article 44, only after former approval of the masses in question.
The arguments put forth by them was:
- It violated the Freedom of Religion provisions of Constitution
- It would lead to conflict within the Muslim community.
- Personal laws cannot be tampered with, without the consent of religious minority.
These arguments were countered by the following points of eminent members[10] of Assembly including Ambedkar:
The Uniform Civil Code is crucial for maintaining the secular foundation of the Indian Constitution as well as for national unity. Instead of creating disharmony it would do opposite- it would create amity among communities
Ambedkar emphasized that the Uniform Civil Code is nothing new; a similar law already exists in the nation, with the exception of the fields of marriage and inheritance, which are the stated code’s primary objectives.. That the said provision is on prerogative of State and could bring into effect only when it wishes to and the consent of communities was obtained.
Prime minister Pandit Jawaharlal Nehru in 1954 opined that the present time is not the appropriate one to push for Uniform Civil Code[11].
First reference to Article 44 of the Constitution was made by Honorable Apex Court of India in the immediate judgement of Mohammad Ahmed khan vs. Shah Bano Begum[12], Bano a Muslim women, divorced by husband filed a petition for maintenance under section 125 CRPC[13]
The husband was under no legal obligation to pay her maintenance under Islamic Law after the period of iddat. The issue was finally decided by Supreme court by awarding her maintenance under section 125 of CRPC, irrespective of her religion personal law.
This case was the first Instance in which supreme court made an observation for Uniform Civil Code and encouraged Legislature to bring it into effect.
Later there were many Occasions of Honorable Apex Court, passing Obiter dicta[14] on Uniform civil code and its necessities of Uniform Civil Code.
CONSTITUTIONAL FRAMEWORK
Article 44 of the Constitution comes under the ambit of Directive Principles of State Policy (part IV). So, we do need to understand the concept of DPSPs.
Drafters of Constitution divided rights of citizens basically in two parts i.e., Justiciable and Non justiciable. Part III (fundamental rights) were made Justiciable and Part IV(DPSPs) as Non justiciable.
Article 37 states the nature of DPSPs, while they are non-enforceable in the courts, but still, they are fundamental to administration of the country and declares them as state’s duty to refer these foundations while acting in capacity of legislator.
There have been various instances of implementation of DPSPs by the State[15]. But there have been Instances when there have been conflicts between Honorable Supreme court and Government of India with subject to implementation of DPSPs
After Golak Nath v. State of Punjab[16] judgement, Apex court applied the doctrine of “just Equivalent” with regard to Article 31[17], This was a setback to the government’s plan for enacting socio-economic reforms and would have prevented the application of the DPSPs. The Constitution’s 25th amendment, enacted in 1971, was passed in order to overcome these barriers. In order to give directive principles included in Article 39(B)&(C) priority over fundamental rights found in Articles 14, 19, and 31, a new Article 31(C) was added to the constitution.
This amendment was challenged in the Kesavananda Bharti[18]case, and this was upheld Constitutionally valid, but the provision barring inquiry by court into the declaration by legislature, that law was for giving effect to policy under Article 39(b)&(c) was struck down i.e., Court kept the power of Judicial Review intact.
Then the 42nd amendment, 1976 was brought which give supremacy to all DPSPs over fundamental right was struck down by Honorable Supreme court in Minerva Mills case[19], and restored Article 31(C) to its original as after 25th amendment, 1971.
So as Uniform Civil Code comes under the ambit of DPSPs it’s the duty of state to further its policies in the light of Article 44 i.e., Uniform Civil Code.
APEX COURT PERSPECTIVE OF UCC
The Honorable Supreme court has made numerous observations on the Uniform Civil Code, which discusses its constitutionality and urgency to implement a Uniform Civil Code throughout India, all these major observations would be discussed in this study
- The Landmark case of Shah Bano[20] was the first in which the observations was made on Article 44. This case is compartmentalized into sections for better understanding of it.
FACTS: After receiving triple talaq from her husband, a Muslim woman filed a maintenance claim against him under Section 125 of the Code of Criminal Procedure, and the husband has paid maintenance during her Iddat period as prescribed by Muslim law[21]
VERDICT: Court held that Muslim women is entitled to maintenance under Section 125 CRPC[22] if she is not able to maintain herself even if the Iddat period has ended.
Observations on Uniform Civil Code: Honorable C.J. Chandrachud has showed a clear disregard as to no action on Uniform civil code
He in the judgement shows regret that Article 44, it continues to be a dead letter even though it may aid in national cohesion by removing divergent allegiances to laws with opposing ideas. He explicitly stated that it is the responsibility of the State to ensure a uniform civil code for its citizens, and without a doubt, the State also has the legislative power to do so.
He draws a conclusion that Justice for everyone is a much more effective way to administer justice rather than on individual basis.
- Further in case of S.S Chopra[23], where the SLP by wife is for nullity of marriage on grounds of impotence of Husband under Indian Divorce Act 1869, Court refused to declare marriage annul, but holds that it is irretrievable break down of marriage, but neither mutual consent nor irretrievable breakdown stands as ground for divorce under the said act.
So, the Court makes the comparison of relevant provisions of various marriage laws acts[24], which shows that the law relating to judicial separation, divorce and nullity of marriage is far, from uniform.
As a result, the Court compares the pertinent provisions of several marriage laws acts, which demonstrates how inconsistent the law is with regard to judicial separation, divorce, and nullity of marriage.
The court now believes it to be time to provide by legislature a uniform law for marriage and divorce as envisaged by the Article 44 and the Court also quotes the statement of Honorable C.J. Chandrachud made in Shah Bano[25] case in its judgement.
- Sarla Mudgal v. Union of India[26], another landmark case in history of Uniform Civil Code.
Facts of the case deals with Hindu husbands embracing Islam and solemnizing second marriage without dissolution of the first, the court held that second marriage would be void and the husband would be guilty of bigamy and liable to punished under section 494 of IPC.
In this case the Obiter Dicta (later declared on) and Actions of the court were quite landmark to Article 44:
- Justice Kuldip Singh, said that Uniform Civil Code is an unequivocal mandate under article 44 and decisive step towards national consolidation, he also quoted Sh. Pandit Nehru[27] and said even after 41 years, rulers are not in the mood to retrieve Article 44 from cold storage since 1949. Unified Personal Laws in India have not yet been attempted by any of the governments that have come and gone. There is no justifiable reason to delay the implementation of the Uniform Civil Code after more than 80% of the population has adopted codified personal laws.
- The unprecedented claim that Article 44 is based on the idea that in a civilised society, there is no relationship between religious and personal laws. While Article 44 exempts religion from personal legislation, Article 25 guarantees freedom of religion. Marriage, succession, and similar issues are not subject to Article 25–27.
- Personal laws of Hindus, Sikhs, Jains, Buddhist relating to marriage, succession all have sacramental origins, if they can forsake their sentiments why wouldn’t other communities.
- The bold move of asking the government to submit a responsible officer’s affidavit in this court detailing the measures taken and efforts undertaken by the government of India to secure a “uniform civil code” for Indian citizens.
So, this a Landmark judgment which clearly questioned government to indicate steps taken in furtherance of Uniform Civil Code and the clarity of the concept of Article 25 and 44 is given.
- In John Vallamattom case[28], statements on Uniform Civil Code of Sarla Mudgal case were reiterated, and regret was voiced at the Parliament’s inaction to pass the Common Civil Code, which would have aided in national integration by removing ideological inconsistencies.
- In Jose Paulo Coutinho case[29],again the reference to no action of government with subject to Uniform Civil code was made even though Hindu laws were codified in 1956 and despite the insistence of court in Shah Bano and Sarla Mudgal cases. State of Goa has been given as an example as only state having uniform civil code regardless of religion.
ARTICLE 44 & FUNDAMENTAL RIGHTS
As an opposition to Uniform Civil Code, Article 25 is always brought up by its critics, from Constituent assembly debates till now. Freedom of conscience and the free practise, professing, and promotion of religion are guaranteed by Article 25 of the Constitution. But this conflict was ended by the Honorable Supreme court while giving clarity on these Articles in Sarla Mudgal case, Court held that there exists no relationship between Personal and Religious laws in any civilized society. On one hand where one guarantees religious freedom (Article 25) other divests religion from social relations and Personal Laws (Article 44). Unambiguously, Articles 25 and 26 of the Constitution are not relevant to marriage, succession, or other similar secular affairs.
As aforementioned there exist no uniformity with regard to personal law in India, on other hand Article 14 Guarantees right to equality inside the territory of India, to mention few:
- Bigamy: It is a punishable crime for all, but except Muslims
- Adoption: Only Hindus can adopt child, Muslims has to take course of Guardianship
- Divorce laws: There exist different types of divorces in Muslims, which depreciates the position of Muslim woman compare to Hindu women.
Uniform Civil Code wouldn’t only bring Uniformity in all these laws, but would also emerge as a boon for LGBTQ+ community, who haven’t been given any Legal Right even after Decriminalization of Homosexuality by the Honorable Supreme court in Navtej Johar case.[30]
SUGGESTIONS & PRESENT SCENARIO
The Honorable Supreme Court has affixed the Onus on the Government to Implement Uniform civil code and repeatedly been asking for enactment of it.
Present NDA government (2023) as of recently has been taking steps for Furtherance of Uniform Civil Code:
- Under the NDA government’s 22nd law commission, the general public and recognised religious institutions were sought for their opinions on the Uniform Civil Code. [31]
- Honorable Prime minister and various cabinet ministers’ public statements in favor of Uniform Civil Code.[32]
But as to same archaic tales, it is being opposed by the Opposition parties and the religious Institutions.
As a few suggestions to the government so that Furtherance of Uniform Civil Code doesn’t lead to a total backlash by public is to:
- Concretize it only after the social atmosphere has been adequately created by the society’s elite and leaders who, rather than focusing on their own advancement, rise above and inspire the people to accept the change.
- Law commission to have consultations with minorities commission, religious institutions and bringing in a comprehensive legislation, keeping in consideration modern rights of woman.
- introduction of a temporary dual system of family law, which advocates for gradual change rather than the wholesale repeal of community-specific personal laws.
CONCLUSION
After going through the various Judgements of The Honorable Supreme Court, it brings clarity to the research question of Concept and Constitutionality of the Uniform Civil Code. These Judgements explicitly states the Urgency of the Uniform Civil Code, to bring Equality among women from various religions, to bring uniformity among laws dealing with personal matters irrespective of religion, for national integrity, for Gender justice (LGBTQ+) and for Better civilized society. This highlights the necessities to enact Uniform Civil Code
Now coming to Constitutionality of Uniform Civil Code, these judgements had clearly dealt with proclaimed conflict of Uniform Civil Code and Fundamental Right of Article 25, and the court has clearly discharged this theory has said that personal and religious laws have no connection. We have also gone through the scenario of Directive Principle of State policy superseding Fundamental rights, so this may conclude the debate over the Constitutionality of the Uniform Civil Code.
REFERENCES
[1] S.R. Bommai vs. Union of India, A.I.R. 1994 S.C. 1918
[2] Hindu Marriage Act, Acts of parliament, 1955(India)
The Indian Christian Marriage Act, Acts of parliament, 1872(India)
….
[3] Aditya raj, Uniform Civil Code – A Constitutional Perspective, 3 NYAAYSHASTRA LAW REVIEW.
[4] Dr. Jagat Singh Chandpuri ,Uniform Civil Code a Constitutional Mandate: Issues and Challenges, 4 (6) IJLMH Page 1010 – 1018 (2021), DOI: https://doij.org/10.10000/IJLMH.112363
[5] Banerjee, Anil Chandra, English Law in India 134(Abhinav Publications 1984)
[6] The Indian Evidence Act, No.1, Acts of parliament, 1872(India)
The Indian Penal Code, No.45, Acts of parliament,1860(India)
The Code of Civil Procedure, No.5, Acts of parliament,1908(India)
….
[7] M.R Masani, Hansa Mehta and Amrit Kaur
[8] Directive Principles of State Policy as Draft Article 35 later turned into Article 44.
[9] Ismail Sahab, Nazzirudin Ahmad and Pocker Sahib Bahadur
[10] K.M. Munshi, Alladi Krishnswamy and Ambedkar
[11] Uday Veer Singh, UNIFORM CIVIL CODE “A CONSTITUTIONAL MECHANISM TO MAINTAIN EQUALITY”,6 IMPACT: IJRHAL, 2 (2018),
http://www.impactjournals.us/download/archives/2-11-1526122790-9.%20format.%20hum-Uniform%20Civil%20Code.pdf
[12] Mohammad Ahmed khan v. Shah Bano Begum, 1985 AIR 945
[13] The Code of Criminal Procedure, §125, No 2, Acts of Parliament, 1973(India)
[14] The obiter dicta means “things said by the way,” and is used in legal field to refer to an opinion or non-necessary remark made by a judge.
[15] Policies like MGNREGA gets their authority from Article 39(a).
Laws such as the Child Labour (Prohibition and Regulation) Act 1986 derives of Article 39(g)
…….
[16] Golak Nath v. State of Punjab, AIR 1967 SC 1643
[17] Compulsory acquisition of Property – Repealed
[18] Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461
[19] Minerva Mills v. Union of India, AIR 1980 SC 1789
[20] Mohammad Ahmed khan v. Shah Bano Begum, 1985 AIR 945
[21] Mulla’s Mahomedan Law (18th Edition, ·para 279, page 301).
[22] The Code of Criminal Procedure, §125, No 2, Acts of Parliament, 1973(India)
[23] Ms. Jordan Diengdeh vs S.S. Chopra,1985 AIR 935,
[24] Christian Marriage Act 1872, Hindu Marriage Act 1955,
Special Marriage Act 1954…
1936, Dissolution of Muslim Marriage Act, 1939.
[25] Mohammad Ahmed khan v. Shah Bano Begum, 1985 AIR 945.
[26] Sarla Mudgal vs Union of India,1995 AIR 1531.
[27] Pandit Jawahar Lal Nehru, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push(UCC) it through”.
[28] John Vallamattom & Anr. vs Union of India, (2003) 6 SCC 611.
[29] Jose Paulo Coutinho v. UMARIA LUIZAVALENTINA PEREIRA & ANR. , (2019) 12 S.C.R.390.
[30] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
[31]Uniform Civil Code, Law Commission of India
Uniform Civil Code – Public Notice (NEW) | Law Commission of India | India
[32] Times Of India,
SOURCES
- Ind. Const. § 14,25,26,27,37,44.
- https://www.insightsonindia.com/polity/indian-constitution/significant-provisions/dpsps/implementation-of-dpsps/.
- Narendra Kumar, Constitutional law of India (10th ed. 2021).
- M P Jain, Indian Constitutional Law (8th ed.)
ANKIT KUNDRA
3RD YEAR PUSSGRC