What Do You Mean By Uniform Civil Code Under Article 44 Of Indian Constitution?

India is a land of number of religions. Most of the religion is governed by their own personal laws which is based on customs and practices. These personal laws are related to the matters of marriage, divorce, maintenance, adoption and inheritance. Uniform civil code means a common law which is for every person irrespective of his/ her religion. The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but exempted personal laws of Hindus and Muslims from such codification. Due to this recommendation Indian Penal Code which deals with the matters of crimes, Indian Evidence Act which deals with the matters of evidence and Indian contract act which deals with matters of contract was enacted in 1860, 1872 and 1872 respectively. They don’t want to bring uniformity in personal laws as it would create a feeling of resistance in the minds of orthodox people of every religion. But these personal laws were against the gender equality. They deprived women in the matters of inheritance, remarriage and divorce. The British and social reformers like Ishwar Chandra Vidyasagar, Raja Ram Mohan Roy wanted legislation to improve the conditions of women and girls. Indian Succession Act which was also one of the first laws towards improving the condition of women was passed in 1865. The Indian Marriage Act, 1864 had procedures and reforms solely for Christian marriages. There were few more law like the Hindu Widow Remarriage Act, 1856, Married Women’s Property Act, 1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928 which proved to be a milestone towards the changing conditions of women in the Indian society.

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The Muslim Personal Law (Sharia Law) wasn’t as strictly enforced as the Hindu Law. Its application in Lower Courts lacked uniformity and faced obstacles due to bureaucratic procedures. As a result, the customary law, which was more oppressive to women, superseded.  Women, especially in the north and west India, were denied inheritance of property and dowry settlements, despite these provisions being present in the Sharia. Following pressure from the Muslim elite, the Shariat Law of 1937 was passed. According to the law, all Indian Muslims would be governed by Islamic Laws on marriage, divorce, maintenance, adoption, inheritance and succession. The Britisher never tried to form a Uniform Civil Code, despite all these laws having a common goal.

At the time of framing the Constitution, Dr. Bhimrao Ambedkar was very enthusiastic about bringing a uniform law which would guide all the citizens of our country irrespective of their religion. This was not possible because of high dissent from the members of the Assembly. He was only able to bring this in Directive Principles of State Policy under Article 44 of the Indian Constitution. Article 44 says that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” This is not bound over the government to bring Uniform Civil Code in country as DPSPs are not enforceable by any Court, i.e., the Court can’t force the government to enforce these principles or make laws regarding them. Another debate against enforcing Uniform Civil Code in India is that it is against the Freedom of Religion enshrined in Fundamental Rights under Article 25 to Article 28.

Judiciary had tried to implement this from time to time. But it’s conflict of interest with legislative nullifies it. The first one was Mohd. Ahmed Khan vs Shah Bano Begum and Ors [AIR 1985 SC 945]. In this the Court stated that Right to Maintenance under section 125 of Code of Criminal Procedure, 1973 is irrespective of religion of a person. In this case, Chief Justice Y.V Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. And so, the court directed Parliament to frame a UCC. But, due to pressure from orthodox Muslims leader, Legislature passed Muslim Women (Protection of Rights on Divorce) Act, 1986. As per the provisions of this Act, Muslim women’s right to get maintenance is up to Iddat period only. After that maintenance should be given by her family or Wakf Board. In the face of this burning controversy, the Supreme Court in the case of Danial Latifi & Anr vs Union of India [AIR 2001 SC 868] approached a middle path and held that reasonable and fair provisions include provision for the future of the divorced wife (including maintenance) and it does not confine itself to the iddat period only. The Constitutional validity of the Act was also upheld. This judgment was once again confirmed in Shamima Farooqui vs Shahid Khan [AIR 2015 SC 564]. The second attempt was done in Smt. Sarla Mudgal, President, Kalyani & Ors vs Union of India & Ors [AIR 1995 SC 1531]. In this the Supreme Court held that One cannot convert his or her religion only for the purpose of marriage. In this the Supreme Court again put its concern on enacting Uniform Civil Code. Court explicitly holds up the Hindu Code as the model on the basis of which the UCC should be drawn up. Justice Kuldeep Singh authored that “the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. He went on to note that, “When more than 80% 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 “uniform civil code” for all citizens in the territory of India”. Court’s advocacy for the code was again done in cases like John Vallamattom & Anr vs Union of India [AIR 2003 SC 242]. In this, CJI V.N. Khare mentioned 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.”

The last attempt was done in ABC vs The State (NCT of Delhi) [AIR 2015 SC 5003]. However, in Lily Thomas, Etc. Etc. vs Union of India & Ors [2000 (2) ALD Cri 686] it was held that the Court could not direct the Centre to introduce Uniform Civil Code. At the end of this, it is on the discretion of legislature that the code will be enabled in India or not. At present Goa is the only state where Uniform Civil Code is enacted. At all India level, Special Marriage Act, 1954 gives a view of the code in the matter of marriage. The Act set up the rules for inter – religion marriage. 

Utkarsh Shubham

Faculty of Law, University of Allahabad

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