Prof. Dr. K L Bhatia
Article 44 of the textual Constitution of India enjoins Uniform Civil Code for the citizens of India. Its constitutional lexicon unequivocally encapsulates: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
The clear and neat object of this Article is to have a uniform civil code, i.e., uniform personal law for the purpose of national unity and integration and national consolidation aiming at to achieving amity and synergy amongst all the citizens of India beyond conundrum and consternation. This would strengthen the secular and federal character of the Constitution as well as its inalienable humanism. If Uniform Civil Code is ever evolved, indeed, shall secure the dignity of the individual by the various freedoms and basic rights mandated to build a welfare State contained in Part IV — Articles 36-51 are in the nature of Social Policy directions to the State to move for the overall welfare of the people of India. They are aimed at to achieving the goals of ‘Welfare State’ based on the utilitarianism and social engineering principles of the maximum happiness and interests of the maximum number of people with least friction. The genesis of Directive Principles of State Policy was explained in the Sapru Committee Report, 1945: “We have come to the conclusion that in addition to these fundamental rights, the Constitution should include certain directives of State policy which should be regarded as fundamental in governance of the country”.
In the backdrop of the above, it discerns that our Constitution is not mere paper perfection, but in unambiguous terms our Constitution is what a Constitution does, not what it professes. It’s three strands are: protecting and enhancing national unity and integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the lot of the mass of Indians; the three strands are mutually dependent and inextricably intertwined, which the founding authors’ erudite contributions in the field of our constitutional jurisprudence had spun a seamless web that moves forward to making ‘The Founding Deed’ a Transformative Jurisprudence. The transformative jurisprudence helps to shift the contours of jurisprudence from theory to practicum. “Once perhaps the lawyer’s extraversion it is now firmly embedded within moral philosophy, political theory and social theory. … Recent trends in jurisprudence exhibit a variety of movements linked by an increasing awareness of the fruits of interdisciplinary co-operation, and buttressed by a more sophisticated methodology. It is apparent that with its increasing professionalism, jurisprudence has now moved into the twenty-first century.”
Be that as it may, the philosophy and working of Uniform Civil Code (Article 44: Draft Article 35: CAD, Vol. VII, pp. 540-552)) is explanatory in the erudite intellectualism of those who could foresee a futuristic constitutionalism from practicum approach and not sadistic as well as microscopic attitude. Those who had minuscule and infinitesimal attitude desired its death knell in the womb. However, it survived as an integral part of the foundational fundamentals of the Constitution as its fons juris because of the erudite nationalistic scholastic articulation in the Constituent Assembly of India. Shri K. M. Munshi in nationalistic ferver opined: “If you will look at the countries in Europe which have Civil Code, everyone who goes there from any part of the world and every minority, has to submit to the Civil Code. It is not felt to be tyrannical to the minority. The point however is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular. 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? But after all we are an advancing society. We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If however the religious practices in the past have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. This is what is emphasized by this article.”
Shri Alladi Krishnaswami Ayyar in his erudite eloquent opined: “A Civil Code, as has been pointed out, runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters. How can there be any objection to the general statement here that the State shall endeavour to secure a uniform civil code throughout the territory of India? The objection was that religion was in danger, that communities cannot live in amity if there is to be a uniform civil code. The article actually aims at amity. It does not destroy amity. The idea is that differential systems of inheritance and other matters are some of the factors which contribute to the differences among the different peoples of India. What it aims at is to try to arrive at a common measure of agreement in regard to these matters. It is not as if one legal system is not influencing or being influenced by another legal system. In very many matters today the sponsors of the Hindu Code have taken a lead not from Hindu Law alone, but from other systems also. Similarly, the Succession Act has drawn upon both the Roman and the English systems. Therefore, no system can be self-contained, if it is to have in it the elements of growth. …”
Dr. B. R. Ambedkar lucidly, logically and intelligibly opined: “I am afraid I cannot accept the amendments which have been moved to this article. I do not propose to touch on the merits of the question as to whether this country should have a Civil Code or it should not. That is a matter which I think has been dealt with sufficiently for the occasion by my friend, Mr. Munshi, as well as by Shri Alladi Krishnaswami Ayyar. … We have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts, and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it. … It would be perfectly possible for Parliament to introduce a provision of that sort; so that fear which my friends have expressed here will be altogether nullified. I therefore submit that there is no substance in these amendments and I oppose them.”
In the backdrop of this, it is a fortiorari submitted that we in India have already uniformity of codified laws such as Civil Procedure Code, Criminal Procedure Code, Indian Penal Code, Evidence Act, Contract Laws, Partnership Act, Negotiable Instruments Act, Companies Act, Transfer of Property Act and a host of other such codified laws that apply uniformly to all people of India following different faith. It is a misconceived objection that this Article shall infringe the fundamental right to freedom of religion engraved in Article 25 and shall amount to a tyranny to the minority.
Be that as it may, the Apex Court in Mohammed Ahmed Khan v. Shah Bano Begum (known as Shah Bano case :1985) and Sarla Mudgal, President, Kalyani v. Union of India (1995) has a proprio vigore advocated for an early Uniform Civil Code and asserted its judicial policy that a Uniform Civil Code in India shall strengthen the unity and integrity of India. The Court also observed that Article 44 is based on the concept of uniformity in familial laws and there is no necessary connection between religion and personal laws in a civilized society. These two cases deal with women and women’s rights to maintenance under sections 125 and 127 of Criminal Procedure Code, 1973. The Court unequivocally held that sections 125 and 127 of Criminal Procedure Code, 1973 cannot contemplate with equanimity its women and apply equally to women professing different religious faiths.
In Ms. Jorden Diengdeh v. S. S. Chopra (1985) , the Supreme Court has suggested that time has come for the intervention of the legislature in these matters to provide for a Uniform Code of marriage and divorce. The Court has reiterated the same view in John Vallamattom v. Union of India (2003) :
“…Article 44 provides that the State shall endeavour to secure for the citizens uniform civil code throughout the territory of India. The provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. 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 help the cause of national integration by removing the contradictions based on ideologies”.
From the above it discerns that what the legislatures were required to do the Apex Court has given the blue print for the legislatures to do and Court’s approach neatly exhibits the “evolution of expounding philosophy of the Constitution of India relatable evolves the nature of transformative jurisprudence in India and its dimensions through Judicial Process. Social, economic, cultural and political forces have inspired the conservative reformation of constitutional justice significantly more liberty affirming than stereotypes.”
(The author is former Head and Dean Faculty of Law and Founder Director The Law School, University of Jammu)
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