“I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.”- Dr. B. R Ambedkar, Constituent Assembly Debates
After Independence, the personal laws attracted the attention of the constituent assembly and heated debates in favour of Uniform Civil Code and against it took place. The uniform civil code was debated under Article 35. Muslim members strongly opposed it whereas most of the Hindus Members supported it. Dr. Ambedkar the chief architect of the Indian Constitution was in the favour of the interference of the personal laws. On the floor of the Constituent Assembly, the issue of the Common Personal Laws suffered convulsions caused by the utterance of the progressive legislators, dissenting voices of their so-called conservative breathed, apprehension echoed by the spokesmen of the minorities, bricks and buckets thrown from outside by laymen and lawmen.[1]
According to Mohammad Ismail from Madras believed that “The personal laws were a part of the way of life of the people and they were the part and parcel of religion and culture. He used section 35 with section 33 which provides that ‘any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law”. Nazir Alimad, another member of the Constituent Assembly moved a provision to Article 35 which read as follows “Provided that the personal law of any community which has been guaranteed by the statutes shall not be changed except with the previous approval of the community ascertained in such a manner as Union legislature may determine by law.”
He further remarked that the Common Personal Law would create inconvenience not only to Muslims but to all religious communities who had religion-oriented laws. He further pointed out that the very concept of Common Personal Law clashed with the religious and cultural freedom guaranteed to every citizen. He was also apprehensive that under Article 35 the state may violate the religious freedom of the citizens.
“Article 44 of the Constitution of India lists Uniform Civil Code as one of the Directive Principles of State Policy. BJP believes that there cannot be gender equality till such time India adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonizing them with the modern times.”[2]
The Constitution of India has enumerated certain Directive Principles of State Policy with a view to achieving amelioration of the socio-economic condition of the masses. In this era, these policies strengthen and promote this concept by seeking to lay down some welfare goals to promote the welfare of the people and achieve economic democracy. One such Directive principle is the Constitutionally-enshrined Uniform Civil Code. Article 44 requires the state to strive to secure for the citizens of India a uniform civil code throughout India.
This Article is considered fundamental to the governance of the country. The mandate of Article 44 is addressed to the “State” which includes the Government and Parliament of India and the Government and Legislatures of each of the states and all other local and municipal bodies, and other bodies under the Government of India.
The founding fathers of our Constitution could anticipate the issues related to such legislation. They wanted the Code to be enacted and enforced at the end of an evolutionary process, whereby each and every person is in a position to accept and actually practice the same in their everyday life.
Article 44 of the Indian Constitution which is central to the discussion of the Common Personal Laws provides that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The concept of the Uniform Civil Code is one of the Directive Principles of State Policy which are not enforceable in any court, but the principles laid down in Part IV of the Indian Constitution have been considered Fundamental in the governance of the country.
“I have consistently argued that though Directive Principles of State Policy are not justifiable they are as much part of the Constitution as the Fundamental Rights and, therefore, they deserve as much attention and importance as the Fundamental Rights does.”[3]
The court has also held that not only the Fundamental Rights must be harmonized with the Directive Principles of State Policy but such harmony is the basic feature of the Indian Constitution.[4]
But the court through interpretation has also stratified some of the Fundamental rights mentioned under Article 14, 19 and 21 to be fundamental and held as a part of the basic structure.
One of the fundamental duties imposed by the Constitution on all citizens of India, who definitely include our parliamentarians and state legislators, is “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities”. The Directive Principle mentioned in Article 44 is expected to be harmonised with this duty.
“If consensus may be arrived at between different communities of people in consonance with this duty, the process of realization of a uniform civil code may be conceived of. But so long as such a consensus does not arise the process of realization of a uniform civil code will have to wait.”
[1] Tahir Mahmood, Personal laws in crisis (Metropolitan Book Co., Delhi, 1st Edn., 1996).
[2]BJP Manifesto of 2014 elections.
[3] M.P. Singh “The Statics and the Dynamics of the Fundamental Rights and the Directive Principles – A Human Rights Perspective” 1 SCC (2003).
[4] Minerva Mills v Union of India [(1980) 3 SCC 625].
