Diversity in personal matters with religious differentiation leads to sentimental tension between different communities as has been learnt by bitter experience from history leading to partition and subsequent events till today. By 42nd amendment; expression ‘Unity of Nation’ was replaced by the ‘Unity and Integrity of the Nation’ and Article 51A provides: It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to adjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.
The Constitution makers wanted to establish a ‘Secular State’ and with that purpose they codified Article 25 which guaranteed freedom of religion, freedom of conscience and freedom to profess, practice and propagate religion to all persons. As per Clause 2(a): Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activities, which may be associated with religious practices. A belief seems to have gained ground that it is for the Muslims community to take a lead in the matter of reforms of their personal law. But it is the State which is charged with the duty of securing a uniform civil code for the citizens of this country. This duty has been imposed on the State with the objective of achieving national integration by removing disparate loyalties, which have conflicting ideologies. The question arises- why the Union Government failed to discharge the constitutional mandate for more than 6 decades? The Answer by the Supreme Court was “lack of political courage” – which many other responsible persons have amplified as the fear of losing Muslim votes at the next election. One more logic is given that even if a common civil code is framed, it should be optional for the Muslims to adopt its provisions. It is only a diluted version of the forgoing pleas, viz. that the Shariat is immutable and that no code can be imposed on Muslims without their consent. It is meaningless to draw-up a Uniform Civil Code as enjoined by the Article 44, if it is not binding on every citizen.
When Section 125 CrPC was extended to divorced women, Muslims contended that it should not be applied to them as it was contrary to Shariat but Supreme Court turned down this contention and rejected the argument that according to Sharia, husband’s liability to provide for maintenance is limited to iddat. It was held that Section 125CrPC overrides personal law. Even, minor girls are victims of polygamy and Nikah Halala and various form of contract marriage viz. Nikah Mutah and Nikah Misyar and such incidents are routinely published in electronic, print and social media. That is why India urgently needs a Uniform Civil Code or Indian Civil Code in spirit of the Articles 14, 15 and 44 of the Constitution. Goa has a common civil code since 1965, which is applicable on all. Now a pertinent question arises- if Uniform Civil Code can be implemented in Goa, why not throughout the territory of India?
In Constituent Assembly, Nasiruddin says: “certain aspects of the Civil Procedure Code have interfered with our Personal Law and very rightly so and also that marriage and inheritance are similar practices associated with religion”.[Vol-VII, pg542]
The Apex Court in Shah Bano Case [(1985) 2 SCC 556] had held thus: “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that ‘the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand difficulties involved in bringing persons of different faiths and persuasion on a Common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the Court because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But, piecemeal attempts of Courts to bridge that gap between personal laws cannot take the place of a Common Civil Code. Justice to all is for more satisfactory way of dispensing justice than justice from case to case.”
In Jordan Diengdeh Case [(1985) 3 SCC 62] the Apex Court observed: “It was just the other day that a Constitution Bench of this Court had to emphasize the urgency of infusing life into Article 44 of this Constitution, which provides that: ‘The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India’. The present case is yet another focusses…on the immediate and compulsive need for a uniform civil code. The total unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before mentioning the facts of the case, we might as well refer to the observations of Justice Chandrachud in the recent case decided by Constitution Bench”
In Sarla Mudgal Case, the Supreme Court again observed as thus: “One wonders how long will it take for the government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu Law, personal law of Hindus, governing inheritance, succession and marriage was given a go by as back as 1555 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of uniform personal law in country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage succession and like maters of a secular character cannot be brought within the guarantee enshrined under Articles 25-27. The personal laws of Hindus, such as relating to marriage, succession, and the like have all a sacramental origin, in the same manner as in the case of the Muslims or Christians. Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and national integration, some other communities would not, though the constitution enjoins the establishments of a common civil code for whole of India. It has been judicially acclaimed in the United States of America that the practice of polygamy is injurious to public morale even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or practice of Satti in the interest of public order. Bigamous marriage has been made punishable amongst Christians by the Act 1872, Parasi by the Act 1936 and Hindus Buddhists Sikhs and Jains by Act 1955. The successive governments till date have been wholly remiss in their fundamental duty of implementing the constitutional mandate under Article 44 of the Constitution of India. We therefore request the Government of India through the Prime Minister of the Country to have a fresh look at Article 44 of the Constitution of India and endeavor to secure for the citizens a uniform civil code throughout the territory of India. We further direct the government of India through Secretary, Ministry of law and justice to file an affidavit of a responsible officer in this Court in august 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a uniform civil code for citizens of India. Justice Sahai in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the government in this respect.
In John Vallamattom Case [(2003) 6 SCC 611] the Apex Court held: “Before I part with case, I would like to state that Article 44 provides that the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Article 25 and 44 show that the former guarantee religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Article 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Article 25 and 26 is a suspect legislation, although it is doubtful whether American doctrine of suspect legislation is followed in this Country. In Sarala Mudgal vs. Union of India, it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Article 25 and 26 of the Constitution. It is matter of 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 Supreme Court also observed that “the power of the Parliament to reform and rationalize the personal laws is unquestioned and the command of Article 44 of the Constitution is yet to be realized”.
The Supreme Court in Sarla Mudgal Case [AIR 1995 SC 1531: (1995) 3 SCC 635] had held that fundamental rights relating to religion of members of any community would not be affected thereby. It was held that personal law having been permitted to operate under authority of legislation the same can be superseded by a uniform civil code. Article 44 is based on concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom and Article 44 seeks to divest religion from personal law. Marriage, succession and like matter of secular character cannot be brought under Articles 25, 26 and 27 of the Constitution.
Gender Justice and Gender Equality is not only the basic dictum of socialist secular democratic republic like ours but also integral part of Article 14 of the Constitution. But, successive governments have failed to implement a Uniform Civil Code or Indian Civil Code for all citizens in spirit of Articles 14, 15 and 44 of the Constitution. Therefore, Government should constitute a judicial commission or an expert committee or direct the Law Commission to examine the best practices of the Common Civil Code of developed countries and international conventions and draft Indian Civil Code. The draft should be published on website for larger public discussion, debate and feedback.
(The writer is advocate, Supreme Court and spokesperson of BJP)