• INTRODUCTION

Article 44 directs the state to secure for its citizens a Common Civil Code which is applicable throughout the territory of India.

Eventhough the state has not yet made any efforts to introduce a Uniform Civil Code in India, the Judiciary has recognised the necessity of uniformity in the application of civil laws. But, as it is only a Directive Principle, it cannot be enforced in a court of law.

  • BACKGROUND

The issue of applicability of a Uniform Civil Code has been Controversial right from the very beginning. Big opposition was faced in the Constituent Assembly for incorporating Article 44 in the Constitution, particularly from the Muslim Community.1

The contention of the opposition was that there cannot be a Uniform Civil Code for such a diverse population with different religious faiths, customs, festival, food and culture.

Shri K.M. Munshi said:

~ “if the personal law of inheritance, succession, etc. is considered as a part of religion, the equality of women can never be achieved.”

Dr. B.R. Ambedkar stated following arguments in favour of insertion of Article 44 in the Constitution:

  • There is already a common criminal code in India for all irrespective of one’s religion.
  • Even the Civil laws are uniform upto a great extent like applicability of Transfer of Property Act, 1882 and Negotiable Instrument Act, 1881 to all.
  • He cited the example of the North-West Frontier Province which was not subject to Shariat Law prior to 1935.
  • He also affirmed that it is just being inserted as a Directive to the State. Therefore, it is not enforceable and the state can make endeavours when considered appropriate.
  • DEVELOPMENT

Not much of progress has so far been made towards achieving the ideal of a Uniform Civil Code. The only Tangible step so far has been the Codification and Secularisation of Hindu laws. Codification of Muslim Personal Laws still remains a sensitive matter.

It is imperative that law be divorced from religion for any substantial development in this field.

  • JUDICIAL BUILDOUT

The Judiciary, especially the Hon’ble Supreme court of India, has wasted a lot of ink while writing numerous judgements in which it has expressed the urge for the uniformity in civil laws in India. Some Landmark rulings are hereby mentioned below.

Mohd. Ahmed Khan v/s Shah Bano Begum

The Court, while upholding the right for maintenance to a Muslim Woman has expressed its regrets and said that Article 44 has remained to be a DEAD LETTER as there is no evidence of any official activity for framing of a Common civil Code.

The Court emphasized: “A common civil code will help the cause of National Integration by removing disparate loyalties to laws which have conflicting ideologies.”

It also has said, “A beginning has to be made if the Constitution is to have any meaning.”

Sarla Mudgal v/s Union of India

The Supreme Court directed the Prime Minister to take a ‘Fresh Look’ at the Article 44 of the Constitution which enjoins the state to secure a uniform civil code which, according to the court is imperative for both, protection of the oppressed and promotion of national unity and integrity. The Division Bench [Kuldeep Singh and R.M. Sahai, JJ] in their separate but congruent judgements observed the following:

  • Since 1950, a number of governments have come and gone but they had failed to make any efforts towards implementing the constitutional mandate under article 44 of the constitution. 

3 A.I.R. 1985 S.C. 945

4 1995 3 SCC 635

  • There is no necessary connection between religion and personal law in a civilised society.
  • Marriage, Succession and like matters are of a secular nature and therefore, they can be regulated by law.

John Vallamattom v/s Union of India

In this judgement, the then C.J.I., V.N. Khare had observed:

“…It is a 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 the cause of national integration by removing the contradictions based on ideologies….”

Seema v/s Ashwani Kumar

The Supreme Court recommended that the Registration of Marriages shall be compulsory for all and it would be an effort in order to bridge the gap towards Uniformity in Civil Laws. 

Jose Paulo Coutinho v/s Maria Luiza Valentina Pereira

In a very recent judgement delivered on September 13, 2019, Justice Gupta said, “It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the DPSD had hoped and expected that the state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India

Goa is a shining example:

The bench stated, “Goa is a shining example for an Indian state which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam, there is no provision for Verbal Divorce.

  • Law Commission of India’s view: Formulation of a UCC is neither necessary nor desirable at this stage.

In its consultation paper on ‘Reform of Family Law’, the Law commission had highlighted the importance of recognition of difference that exists in the Indian Society and opined that formulation of a Uniform Civil Code is neither necessary not desirable at this stage.

While diversity of Indian Culture can and should be celebrated, specific groups, or weaker sections of the society must not be dis-privileged in the process. Resolution of this conflict does not mean abolition of difference. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.

  • CONCLUSION

The uniform civil code will in the long run ensure equality. Also, UCC will help to promote Gender Equality. Not only this, it will lead to national integration and draw minorities into the mainstream. Also, it will encourage communal harmony.

To understand the spirit of UCC, education, awareness and sensitization programmes must be taken place and the Uniform Civil Code should act in the best interest of all religions and sexes.

About the author

Shivam Srivastava is a 4th-year law student at IIMT & School of Law. He has been a perceptive writer and a keen learner. He has actively taken participation and has represented its institute in numerous National Events. Also he has won many Quizzes, Parliamentary Debates, and Moot Courts.
Shivam sees that world to be a place where everyone is seen with one eye and not as a place where survival of the fittest prevails.

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