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Legal Pluralism And Article 44 Of Constitution

'Legal Pluralism and Article 44 of the Constitution'

"The founding fathers developed a democratic constitution to incorporate all facets of society into one Bharat. Article 44 aims to promote uniformity for citizens of different religions"[1]

India is diverse country, having people from different religion and culture came to together to live in harmony. It is a home for people of different religions, making a complex structure in terms of different religious populations. In India, division of population is 80% are Hindus, 13.4% are Muslim, 2.3% are Christians, 1.9% are Sikhs, 0.8% are Buddhists, 0.4% are Jains.[2] Due to multiplicity of religions, there are multiple personal laws. Each religion is having a its own personal laws, for example- for Hindus- Hindu Marriage Act, 1955 for Muslim- Shariat law, for Christians- The Indian Christain Marriage Act, 1872, etc.

The Indian Constitution recognises the differences in the culture of different religions and aims to protect the same under Right to religion. But at the same time, the Constitution also provides article 44, which seeks to provide Uniform Civil Code for citizen of India. The Uniform Civil Code aims to provide uniformity in personal laws, prescribing the laws which would be applicable to all people irrespective of their religions.

In 1950, the article 44 into existence with the Constitution of India, since then, no government ever has the wisdom or guts to touch it. Article 44 has gathered dust and has remained dead letters. Article 44 has not been implemented as the legislators have believed that the society is not ready for such a drastic change, and such a change will be considered as a direct attack on the religion by the people. But now is high time for such change, as there are many reasons why such change is required for the betterment of the society.

Why Uniform Civil Code is Required?

There are many reasons why enactment of Uniform Civil Code would be a valuable addition to the laws governing the family relations.

Firstly, the Uniform Civil Code will act as a unification tool for people of different religion as it will provide laws which will be applicable to all people irrespective of their religion, which will put everyone on the same footing.

Secondly, due the difference in personal laws, people of different religion exercise their rights differently as different restrictions are imposed by different personal laws. This difference in exercise of rights arises even in exercise of fundamental rights.

For example- Right to marry a person which is a fundamental right protected under article 21 of the constitution.[3] Under Hindu Marriage act, the parties can get married only if bridegroom has completed the age of 21 years and the bride has completed the age of 18 years.[4] Whereas, under Muslim personal laws, the parties after attaining the age of puberty becomes eligible for marriage. In Muslim personal law, the right to marry is more liberal compared to Hindu personal law, as for an individual belonging to Muslim community can get married after attaining the age of puberty which is usually 15 years whereas an individual belonging to Hindu community has to attain the age of majority to get married.

Uniform Civil Code will provide uniformity in the exercise of rights by people belonging to different religion.

Thirdly, Uniform Civil Code will remove the grey areas present in personal laws. After the codification of personal laws, there have been many grey areas in the laws, which both the legislators and courts have refused to resolve due to their critical nature. Many personal laws are also conflict with secular legislations such as Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

For example: Under Muslim law, after attaining the age of puberty parties can get married which is in conflict with Protection of Children from Sexual Offences Act, 2012, which penalises sexual act with the person below the age of 18 years. Not only POCSO, Muslim personal law is also in conflict with the spirit of Prohibition of Child Marriage Act, 2006, which aims to prohibit the child marriage.

Although, in the event of any inconsistency between the provisions of the POCSO Act and any other law, the provisions of the POCSO Act shall have overriding effect.[5] Therefore, POCSO Act will prevail over the personal law.[6] But still it is not a well-established legal position.

Fourthly, Uniform Civil Code will eliminate the discrimination caused by personal laws. Personal laws cause discrimination at two levels- between people belonging to different religion and between male and female.

Discrimination between people belonging to different religion, as discussed above people from different religion exercises their rights differently.

Discrimination between male and female, personal laws are conservative in nature. Personal Laws when granting rights puts husband and wife on the different footing.

For example- In Hindu marriage act, there is difference in age of bride and bridegroom required for marriage. Even in Special Marriage act, there is no parity for marriage age.

The legislators are currently underway to introduce Prohibition of Child Marriage (Amendment) bill, 2021. The amendment seeks to bring the gender parity by increasing the marriage age of women to 21 years, making the marriage age of men and women same.

Another example can be the practice of triple talaq under Muslim Personal Laws, which was struck down by the Supreme court.[7]

Uniform Civil Code can be used overrule discriminatory personal laws.

Approach India Should Adopt
In India, due to attachment of people towards their religious, any attempt to pass uniform civil code which will override the personal law may be opposed by the public. Therefore, India should take Piecemeal approach,[8] making changes gradually over the time. The courts are now actively striking down the practices which are against general practice followed in society like triple talaq or child marriage. Over the past few years slowly the various personal laws have been made more and more similar, though they remain formally different.[9]

India is a multi-religious country with large differences in different sections of society, uniform civil code will be an step towards the removing such differences. Uniform Civil Code will be a value addition towards regulating personal affairs of people. Uniform Civil Code has become a necessity for progressive laws as the society is moving towards just and equal legal system. Although uniform civil code will receive some opposition from the general public but slow and gradual changes will not receive same level of public opposition.

Therefore, way forward for India is keep making such slow and gradual changes, The Prohibition of Child Marriage (Amendment) bill, 2021 is effective step, responsibility to bring such changes in legal system is vested on both the courts and legislators.

  1. Pannalal Bansilal Pitti v. State of Andhra Pradesh 1996 SCC (2) 498.
  2. Religious composition of India. (n.d.). inINDIAaa.
  3. Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368.
  4. Section 5(iii), The Hindu Marriage Act, 1955.
  5. Section 42(a), Protection of Children from Sexual Offences act, 2012.
  6. Khaledur Rahman v. State of Kerala, 2022 SCC OnLine Ker 5833.
  7. Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC).
  8. Uniform Civil Code. (2019, October 7). Drishti IAS.
  9. Menski, Werner "The Uniform Civil Code debate in Indian law: new developments and changing agenda" German Law Journal, 9 (3), pp.211-50

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