File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Article 44 of The Constitution: A Dead Letter

By establishing these positive obligations of the State, the members of the Constituent Assembly made it the responsibility of future Indian government to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contribution to the common good.[1]

The Directive Principles of State Policy (Article 46-51) in the Indian Constitution are the goals that the constitution makers wanted to get achieved with the passage of time. The Constitution of India came into force in 1950 and the directives provided there are the parameters of really analyzing the effectiveness of the nation as not a mere state but a; ‘Sovereign, Socialist, Secular, Democratic Republic’[2].

In this regard the debatable, controversial yet an important issue relate with one major directive i.e., securing a Uniform Civil Code wherein the Article 44 requires the State to secure for the citizens a Uniform Civil Code throughout the territory of India.

It gained much attention due to the fact of it being connected to religious sentiments, customary practices, and traditions and balancing it with the dictum of Secularism. A clash of personal laws and constitutional doctrines, the concept has its roots in pre-colonial India, emergence in post-colonial era, political delusions after certain judgments of the Apex Court and above all the non-justiciability of DPSP with a pump up of right of freedom of religion in a Welfare State.

Introduction
“Some people seem to believe that freedom of religion requires government to keep our lives free from religion. Well, I believe they’re just plain wrong. Our government was founded on faith. Government must never promote a religion, of course, but it is duty bound to promote religious liberty. And it must never put the believer at a disadvantage because of his belief.”[3]
-President George H. W. Bush

Under Article 44, the state shall endeavour to enact a Uniform Civil Code (hereinafter referred to as the UCC) for citizens throughout the country. The civil code, if enacted will deal with the personal laws of all religious communities relating to marriage, divorce, adoption, custody of children inheritance, succession to property etc. which are all secular in character of Indian state and to enhance fraternity of unity among citizens by providing them with a set of personal laws which incorporates the basic values of humanism.

Much misapprehension prevails about bigamy in Islam. Ironically, Islamic countries like Syria, Tunisia, Morocco, Pakistan, Iran etc. have codified the personal law where in the practice of polygamy has been either totally prohibited or severely curtailed to check the misuse and abuse of this obnoxious practice. The tragedy is that a secular country like India is lagging behind in according red carpet welcome to article 44.

It is said that “Raw haste, half-sister to delay”[4], same is the case of UCC. Politicizing the concept made it an issue and that issue is still debatable.

Meaning of Uniform Civil Code
A Uniform Civil Code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. The need for such a code takes in to account the constitutional mandate of securing justice and equality for all citizens. A uniform criminal code is applicable to all citizens irrespective of religion, caste, gender and domicile in our country. But a similar code pertaining to marriage, divorce, succession and other family matters has not been brought in to effect. The personal laws vary widely in their sources, philosophy and application. Therefore, there is an inherent difficulty and resistance in bringing people together and unifying those when different religions and personal laws govern them.

Article 35 of the draft Constitution of India was added as a part of the Directive Principles of the State Policy in part IV of the Constitution of India as article 44. It was incorporated in the Constitution as an aspect which would be fulfilled when the nation would be ready to accept it and the social acceptance to the UCC could be made.

A question which would arise in the mind of a few readers, and they would certainly not be the first, is what exactly comprises a “civil code”? Literally, it can be considered to include all the civil laws of a particular community or nation. Legally, it has been considered to include all personal laws of any religious or ethnic community, which would include not only civil laws but also criminal laws and also any other customs or mores which are exercised by such a community. This can be indirectly interpreted through Entry 5 under List III of the seventh Schedule of the Constitution.

The object of the code has been defined by the Supreme Court as to effect an integration of India by bringing all communities on a common platform on matters which are presently governed by diverse personal laws but which do not form the essence of any religion.

Background
# British India (1858-1947)
The debate for a uniform civil code dates back to the colonial period in India. Prior to the British Raj, under the East India Company (1757-1858), they tried to reform local social and religious customs. Lord William Bentinck, the Governor-General of India, tried to suppress sati, the prescribed death of a widow on her husband's funeral pyre, and passed the Bengal Sati Regulation, 1829. This was later extended outside Bengal to all English territories in India.

The Lex Loci Report of October 1840 emphasised the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification.

The Muslim Personal law (based on Sharia law), was not strictly enforced as compared to the Hindu law. It had no uniformity in its application at lower courts and was severely restricted because of bureaucratic procedures.

# Post Colonial Era (1947-1985) : The Hindu Code Bill and DPSP
The Indian Parliament discussed the report of the Hindu law committee during the 1948–1951 and 1951–1954 sessions. The first Prime Minister of the Indian republic, Jawaharlal Nehru, his supporters and women members wanted a uniform civil code to be implemented.

As Law Minister, B. R. Ambedkar was in charge of presenting the details of this bill. It was found that the orthodox Hindu laws were pertaining only to a specific school and tradition because monogamy, divorce and the widow's right to inherit property were present in the Shashtras. Ambedkar recommended the adoption of a Uniform Civil Code. Nehru later supported Ambedkar's reforms but did not share his negative view on Hindu society.

The Hindu bill itself received much criticism and the main provisions opposed were those concerning monogamy, divorce, abolition of coparcenaries (women inheriting a shared title) and inheritance to daughters. The first President of the country, Rajendra Prasad, opposed these reforms; others included the Congress party president Vallabhbhai Patel, a few senior members and the Hindu fundamentalist parties. The fundamentalists called it "anti-Hindu" and "anti-Indian"; as a delaying tactic, they demanded a Uniform Civil Code.[5]

Thus, a lesser version of this bill was passed by the parliament in 1956, in the form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act etc.

An objection was taken to this provision in the Constituent Assembly by several Muslim members who apprehended that their personal law might be abrogated.This objection was met by pointing out:
1) that India had already achieved a uniformity of law over a vast area; 2) that though there was diversity in personal laws, there was nothing sacrosanct about them; 3) the secular activities, such as, inheritance, covered by personal laws should be separated from religion; 4) that a uniform law applicable to all would promote national unity; and 5) that no legislature would forcibly amend any personal law in future if people were opposed to it.[6]

The Special Marriage Act, 1954, provides a form of civil marriage to any citizen irrespective of religion, thus permitting any Indian to have their marriage outside the realm of any specific religious personal law.

Article 44: A necessity or not?

View of the makers:
K.M. Munshi took a very rigid view in negating the claims of majoritarian over sweep over the minorities.He states, “We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What have these things got to do with religion I really fail to understand?”[7]

Shri Alladi Krishnaswamy Ayyar gives a much more realistic reason to aim for a UCC and bases his argument on the fallacy of having strict water tight existence of the communities.[8]

B. R. Ambedkar was also a staunch supporter of the UCC. He denied the claims that a common civil code in a vast country, like India, would be impossibility. He stated that the only sphere which did not have a uniform law was that of marriage and succession; rest all areas of civil law, such as transfer of property, contract, the Negotiable Instrument Act, Easement Act, Sale of Goods etc. were uniform in nature.[9]

The Constituent Assembly Debates around the UCC and the erstwhile article 35 had a lot of dissent towards it. The issue of dominance by the majority communities was the main bone of contention.

Judicial Perspective on Article 44:
Although Supreme Court had assumed the role of a social reformer in many other previous cases,[10]but it was the Shah Bano’s case[11]usurped a landmark position in the history of debates on religion, secularism and the rights of women. If we carefully sidestep the political drama that later unfolded, we would be able to trace the problems the courts of our country have been facing due to the separate conflicting personal laws.

The SC has emphasized that steps be initiated to enact a UCC. In Ms. Jorden Deingdeh v. S.S. Chopra[12], the Court said that the time has now come for a complete reform of the law of marriage and make a UCC for the country.

In Shah Bano’s case the court has elucidated that ‘a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.’
V. R, Krishna Iyer J. who is known to have given a scintillating judgment in Bai Tahira v. Ali Hussain Fissalli Chowthia[13]also has an Ambedkarian view point on common civil code. Instead of being a majoritarian undertaking, the common code is supposed to be a collection of the best from every system of personal laws.

How can the Supreme Court declare one practice as unconstitutional and violative of human dignity for one section of women but let it remain constitutional for another section of women since their personal laws allow it to be so? In the case of State of Bombay v. Narasu Appa Mali[14], the Supreme Court was to face with such a situation.

In Sarla Mudgal v. UOI[15], the SC has directed the Prime Minister to take a fresh look at Art. 44 of the Constitution which enjoins the State to secure a UCC which accordingly to the Court is imperative for both the oppressed and promotion of national unity and integrity. But in Lily Thomas v. UOI[16], SC clarified the remarks made by it in earlier Sarla Mudgal case and asserted that it has not issued any direction in that case for the enactment of UCC.

In Danial Latifi v Union of India[17], a five judge constitutional bench upheld the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986; that was passed after huge hue and cry in Shah Bano’s Case.

In John Vallamatton v. UOI[18], a three judge bench of the SC has once again expressed its regret for non- enactment of Common Civil Code. It was said that Article 44 is based on the premise that there is no necessary connection between religion and personal law in a civilized society.

All marriages must be registered : First step towards UCC – In Seema v. Ashwani Kumar[19], the SC has held that all marriages, irrespective of their religion, be compulsorily registered.

Is there a way out?
The importance of a uniform civil code is never in doubt but what is is the cooperation of the Muslim community, especially the Sunnis.There are far too many examples where laws and statutes enacted have failed to curb such insensitive and orthodox practices which they were enacted to curb and abolish in the first place. Many judicial solutions have also failed harshly. We must criticize ourselves as a nation and as citizens of India, for it is not the executive, legislature and the judiciary which comprise a Nation. It is the citizens themselves who form the heart, the lungs and the stomach of one.

V. Conclusion
“… a mandate of the Constitution, though not enforceable by courts is nonetheless binding on all the organs of the State. If the State ignores those mandates, it ignores the Constitution.”[20]

The object behind Article 44 is to effect an integration of India by bringing all communities on a common platform on matters which are presently governed by diverse personal laws but which do not form the essence of any religion. It is hoped that despite the odds stacked against it, the uniform civil code will one day become a reality. It is also heartening to see that the plea for a uniform civil code rests these days more on contentions related to gender bias and harassment rather than theological considerations.

It solely depends on prudent citizens to think and act logically and not under blank influence of some politically run propagandas. In the end, UCC is a directive that needs to get attained for a Welfare State like India, that writes on a board of religiously diverse canvass with ink of Secularism, till then it remains a ‘Dead Letter'. -Vanshika Sharma

End-Notes
[1]Granville Austin,The Indian Constitution,pp.50-52
[2]Preamble to the Constitution of India
[3]Remarks to the National Association of Evangelicals in Chicago, Illinois, from March 3, 1992.
[4]1 Lord Alfred Tennyson in his poem Love Thou Thy Land, With Love Far Brought, first published in 1842.
[5]Chavan & Kidwai 2006, pp. 83–86.
[6]VII CAD 540-2
[7]Constituent Assembly Debates (Proceedings), Vol. VII, Tuesday Nov. 23, 1948
[8]Ibid
[9]Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd November, 1948
[10]Fazlunbi v. Khader Ali, 1980 SCR (3)1127.
[11]Mohd. Ahmed Khan v. Shah Bano Begum (1985) 3 SCR 844
[12]AIR 1985 SC 934
[13]AIR 1979 SC 362
[14]AIR 1952 Bom 84
[15](1995)3 SCC 635
[16]AIR 2000 SC 1650
[17]AIR 2001 SC 3262
[18]AIR 2003 SC 2902
[19]AIR 2006 SC 1158
[20]Hegde,Directive Principles of State Policy in the Constitution of India(The Rau Lectures) at pp. 49-50