Article 44 of the Constitution of India

The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The Article seems to have been the subject of much debate, yet at the same time, not of enough. Also, such debates seem to have left the subject of the Article i.e. the uniform civil code, reeling and spinning in an orbit and on an axis on its own, a solitary planet rotating around the sun (public opinion), with the occasional asteroid hit by either a media or an electoral hungry politician or political party, or the judiciary, or an activist to propel it out of its orbit, but only towards an aimless direction which even the propellers are not aware of, only to find it ultimately return to its singular orbit of indifference in due course. However, the writer will try to avoid delving into the bottomless cogmire of the politics involved in the lack of perseverance and initiative on the part of the government to enforce this directive principle of our constitution. However, the writer also at the very outset wishes to make it absolutely clear that he incontrovertibly believes that in a country like India, with all its divergent concepts of morality and practice of religious beliefs, no national integration can be achieved without the adoption of a common and uniform civil code. “A national identity is more vital to a country’s progress – and perhaps even to its survival – than the identity of various classes and communities.” [1]

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. [2] Recently, since the last two decades, especially since the landmark Shah Bano case, the definition of a “civil code” has been changing to include personal religious laws, customs and mores which are directly or indirectly related to gender, but more on this shall be elaborated below. 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.” [3]

ORIGIN AND HISTORY

It is important to understand the origins of the Article, and to understand the origins behind Article 44, it is necessary to understand the history behind the concept of a “uniform civil code”, and to understand the history behind the concept of the uniform civil code, it is necessary to delve into the historical archives of medieval and modern India, and to realise that the origins of the article can in fact be traced in our own ancient traditions.

There is no doubt that the advent of Islam into India produced far reaching consequences on Indian society. Indeed, Islam was the first religion which made a frontal attack on Hindu political, economic and social institutions and made them, more or less, subservient to it, at least during the era of the Mughals. They brought with them their different laws of inheritance and divorce and their conception of family life was entirely different. Yet however, we find uncompromising reformers such as Kabir and Nanak, both of who actively advocated for unity and harmony between Hinduism and Islam. However, their movements notwithstanding, there arose a movement among Muslims in the latter half of the nineteenth century, seeking to reject everything which could be called Hindu. Respect for the well known Sufi masters already mentioned above and their descendents, visit to Dargah’s and related activities could be explained to medieval Islam, but a movement was launched against these practices by orthodox Ulema’s on the ground that they were Hindu practices. It is necessary to outline these details in order to understand the policy of the British with regard to both the religions and their sects.

According to M.S. Ratnaparkhi [4] :

“The British rulers took the decision to unify all the secular laws. But at the same time, they took enough care not touch the personal laws.”

However, this is not exactly true, as both the past and present are testament to the very contravention of this statement. The best examples are various statutes such as the Indian Penal Code, the Indian Contract Act, Sales of Goods Act, the Indian Evidence Act, and the Civil and the Criminal Procedure Codes, all which were passed by the British during their reign in India. Add to this the various personal law statutes such as the Sati Prohibition Act, 1829; and the Child Marriage Restraint Act, 1929 all very clearly indicate that the British never really took into consideration the concept of secularisation of laws. What they really hoped to achieve was a codification of at least all the major laws upto a certain extent. However, they were careful not to tread too hard on various religious toes while doing so. However, the very fact that they worked towards the codification of laws helped in the development of the concept of a uniform civil code and ultimately led to a passionate debate in the constituent assembly and the concept being incorporated under Article 44 of the Constitution. Also, it is worthwhile noting that Article 44 almost managed to be incorporated as a fundamental right, missing the hallowed position in Part III of our constitution by a narrow margin of just one vote at the sub-committee stage.

A detailed discussion on the debate in the constituent assembly is necessary. In light of the fact that Article 44 is today a directive principle under our Constitution, the writer shall not delve into a detailed discussion on the arguments advanced in favour of the Article but shall only refer to them wherever required and shall limit himself only to a discussion on the polemics of those who spoke against the Article in its present form, for the motive of this piece is partly to try to understand and dissect the validity of such polemics. It was Mohammad Ismail Sahib who began what was to turn into a furious and extremely vocal debate by proposing an amendment to Article 35 [5] (as it was then numbered):

“Provided that any group, section or community of people shall not be obliged to give up its own personal in case it has such a law”

He supported this contention by citing examples of the various kingdoms of Yugoslavia and the kingdoms of the Serbs, Croats and Slovenes, who are obliged under various treaties to guarantee the rights of minorities. He also maintained that for the purpose of maintaining and securing harmony, it was not necessary to regiment the civil law of the people to include personal law. According to him, “every section of the people, being free to follow its own personal law will not really come into conflict with others.” A similar amendment was proposed by Naziruddin Ahmad [6] , albeit which was diluted in form from the amended proposed by Mohammad Ismail that:

“Provided that the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community ascertained in such manner as the union legislature may determine by law”

Naziruddin Ahmad seems to have realised quickly at the very inception of the debate that it may dissolve into a communal one between the Muslims and the rest of the assembly and hence chose his words carefully and further clarified [7] :

“In moving this, I do not wish to confine my remarks to the inconvenience felt by the Muslim community alone. I would put it on a much broader ground. In fact, each community has certain religious laws, certain civil laws inseparably connected with religious beliefs and practices. I believe that in framing a uniform draft code these religious and semi-religious laws should be kept out of its way.”

Also, other than attempting to justify how the impugned article would lead to an anomaly in the constitution as it may give the state some amount of latitude which may enable it to ignore the right conceded under Article 19, he further sought to differentiate “personal laws” and “fundamental personal laws” to try and justify for the pre-coded procedural and criminal laws, which were before, to a large extent, personal laws of the various communities. But it must be noted that he failed to expressly define these phrases and one can only now guess as to his classification of laws under these two heads. However, to give him due credit, Naziruddin Ahmad appears to have had less orthodox reservations than his predecessor towards the Article and which were, to large extent, extremely logical, contraire to the sheer fanaticism which largely engulfed the debate against the Article. However, his proposal of making such a code only optionally binding on the religious communities and only with their consent could not be accepted by the assembly, and for good reason. His disposition was obviously one of cautiousness. [8]

Mahboob Ali Baig Bahadur and B. Pocker Sahib Bahadur advanced arguments similar to those of the previous speakers. Statements by both these speaker’s, may however, be of interest to the reader:

Mahboob Ali Baig Bahadur: “my view of Article 35 is that the words “civil code” do not cover the strictly personal laws of the citizen. The civil code covers laws of this kind: laws of property, transfer of property, law of contract, law of evidence, etc. The law as observed by a particular religious community is not covered by article 35″

Pocker Sahib Bahadur: “in the first place, I would like to know the real intention with which this clause has been introduced. If the words “civil code” are intended only to matters of procedure like the civil procedure code and such other laws which are uniform so far as India is concerned at present well, nobody has any objection to that….but if it is the intended that the aspiration of the state should be to override and to have uniformity of law….it is a tyrannous provision which ought not to be tolerated.”

These statements again bring us back to the definition of what exactly is a “civil code”. As we have already observed, Naziruddin Ahmad failed to define and differentiate between the phrases “personal laws” and “fundamental personal laws”. The above two quoted speakers seemed to have latched on to this classification and set themselves on using it to their fullest advantage and intelligence, blissfully unaware of the comprehensions and interpretations of their statements. For example, it is surprisingly odd to hear Ali Baig Bahadur define a “civil code” as “laws of this kind: laws of property transfer of property, law of contract, law of evidence, etc.” Especially, since being a learned Muslim himself, he would be without a doubt aware that Islamic laws provide for all the subjects mentioned by him in his description. Similarly, Pocker too would be aware that procedural laws were always an important aspect of Islamic law, especially Islamic criminal law. Therefore, one can only infer from their word that the speakers were themselves unaware of what exactly they wanted, but rather, resisted this article more out their own personal zealousness towards their faith, rather than actually any sound bent of logic. In fact, they indirectly support the cause for a common civil code through both directly, as they seem to support the codification of laws, and indirectly as this evidently shows that many Muslims themselves seem to be unaware of the exact contours of Islamic substantive and procedural law, further enhancing the need for a common civil code. Also, it is worthwhile noting that the examples that were sighted by Mohammad Ismail Sahib in his contention in favour of the amendment are the very regions of the world which are today marred by ethnic conflicts and divisions of religious, regional, ethnic and economic nature.

THE JUDICIAL PURVIEW OF ARTICLE 44

There are a number of cases where the Supreme Court has referred to Article 44 and the concept of uniform civil code, mainly to highlight the lacklustre attitude of the executive and the legislature in the implementation of the directive. [9]

The statements and paragraphs quoted above from various relevant judgements of the highest constitutional court of the country clearly show the determination of the judiciary to persue the government towards the uniform codification of the laws. It has been pointed out earlier, and rightly so, that the issue of a uniform civil code or Article 44 is never directly raised before the hon’ble benches by counsels or petitioners. The major questions which have arisen in the above quoted cases are generally related to a specific question of a specific personal law such as marriage, divorce or succession. It has been raised as an ancillary issue by the bench itself in relation to the main question, generally stressing on a point that such petitions concerning the present matter could never have arisen had the legislature and executive enacted a uniform legislation for all religions and communities. The reason for this approach is because “inevitably, the role of the reformer has to be assumed by the courts 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 a far more satisfactory way of dispensing justice than justice from case to case.” [10] However, some [11] choose to raise their voices against such “judicial activism”, one of the most prominent whom has been M. Shabbir, who has chosen to write a scathing criticism of such an approach adopted by the court:

“Such remarks of the supreme court were not tenable legally as it was mandated to adjudicate on issues which have been raised before it for adjudication by applying the relevant rule of law. It is not competent to assume the role of legislature and executive disturbing the scheme of separation of power. It is duty bound to respect the scheme of separation of power. It is competent to behave as social, economic, political and legal reformer. Issue of uniform civil code and “national integration” are raised in the case under comment without legal authorization. Such unwarranted zeal is bound to create chaos and confusion. Apex judiciary in the past too has done like that causing agitation at national level….such behaviour of the Supreme Court does not satisfy the requirement of legality, reality and legitimacy. By such a disorderly stand of the apex judiciary the cause of national integration is bound to suffer adversely.” [12]

Such remarks by him are not only unwarranted but also show that he is judicially illiterate. Firstly, it is almost akin to judicial blasphemy (if such a crime is possible) to challenge the very authority of the Supreme Court to comment on a pertinent issue, even where such an issue does not have a direct bearing upon the case before it for its adjudication. Moreover, often such conflicts of personal law cannot be satisfactorily resolved except through appropriate legislation, which is why the court stresses on the legislature. Secondly, by making such remarks, it seems he chooses to negate all the benefits which have been derived by way of the scheme of public interest litigations (P.I.L.’s) which has without a doubt enormously benefited all sections of society and have helped in bringing about justice and hope to various individuals who otherwise had none. Thirdly, Shabbir refers to the protests which took place after the Shah Bano and Sarla Mudgal judgements. He however, fails to realise that it is only one section of the Muslim population, i.e. the Sunnis, who till date are not ready to accept the much required change. All other sections of the Muslim community have shown acquiescence towards these judicially pronounced provisions and are willing to accept change for the benefit of future generations and for the benefit of the nation as a whole. Fourthly, he has failed to explain how the “behaviour” of the Supreme Court does not “satisfy the requirement of legality, reality and legitimacy”. There is certainly no constitutional provision which expresses that the court may not pass such comments. Moreover, we do not follow the orthodox system of English common law wherein the courts are not allowed to adjudicate upon the constitutionality of a particular Statute passed by the legislature. Add to this the fact that it appears the trend is changing in England itself and now courts seem to be slowly advancing their authority to challenge the constitutionality and procedural propriety of statutes passed by the legislature. [13] Also, though Lily Thomas [14] nullified the Sarla Mudgal judgement [15] , and often in administrative matters, the courts have refused to pass specific orders against the legislature or executive on the ground that such an order would ruin the constitutional scheme, it is worthwhile noting the concluding remarks of Chief Justice Verma in Vishakha v. State of Rajasthan [16] where the court laid down a series of guidelines to prevent sexual harassment of women in employment:

“Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.”(Emphasis added)

THE QUESTION OF FEASIBILITY

It is unfortunate that barring the Muslim laws, nearly all the personal religious laws of all the various religious groups and communities have already been codified. Other than the codification of various personal Christian and Parsi laws and the massive codification of all Hindu personal laws, all other religions other than Muslims are brought under the ambit of the Hindu codes. In fact, even Muslim personal law has till a certain extent been codified. [17] However, a uniform codification still seems a distant dream, the closest to this elusive goal having been the enactment of the Special Marriage Act, 1954. This ultimately results in an unfortunate scenario of a battle against the uniform civil code being in fact a battle of the Muslim community against the national government, with every small yet genuine effort taken by the executive to try and achieve the directive enshrined in Article 44 meeting with staunch activism against such efforts by a section of the Muslim minority. Moreover, minority vote bank politics have also degenerated the constitutional democratic system and now we find a game of divide and rule being played out by various political parties, similar to the one which was played by the Britishers during the tenure of their rule.“When votes are counted and computerised, national integration turns out to be the casualty” [18] . A detailed examination of the arguments and their legal and social rationality raised by Muslims against the enactment of a uniform civil code has already been carried out by other learned authors and jurists [19] , and hence it is pointless to again delve into them here. However, perhaps the best explanation for the hostile Muslim stance has probably been enumerated by Tahir Mahmood who says:

“The Muslims generally have deep emotional feelings for their law which they regard as one of their distinctive possession.” [20]

It is true that Hindus are in general more liberal in their theology than most other religious communities. They are one of the few religious communities who have no specific rituals for conversion, and in fact, do not even encourage such conversion by members of other religions. It is also till a large extent one of the simpler religions to follow in terms of faith. They have been without a doubt one of the most cooperative of all religious communities by allowing the legislature to legislate on matters which were for centuries governed by the Holy Scriptures, even permitting the abolition of sati and infanticide and permitting widow remarriage and dowry prohibition. This has in no way resulted in a loss of their religious identity or self respect. On the other hand, Muslim clerics often exhort their community to rigorously follow the holy Quran without any deviations. They believe that the Holy Quran has given excellent laws about marriage, divorce, inheritance etc. which are indeed far better than the modern laws and so they should adopt them in spirit and letter. They also encourage the Burkha as they feel this is a part of the Muslim identity and regularly and mindlessly issue Fatwa’s against any of their community who they feel is living a life in derogation of Islamic principles. It is encouraging to see that the Muslim public refuses to acknowledge such Fatwa’s when it feels that they hold no water in terms of logic. Orthodox Muslims could try and learn from the fact that no less than nine Muslim countries have enacted progressive personal laws without losing their Islamic identity, self respect and faith and they are in no way less Islamic than any Muslim in India.

THE SOLUTION

The importance of a uniform civil code is never in doubt but what is is the cooperation of the Muslim community, especially the Sunnis. Most argue that once a uniform civil code is enacted things will automatically fall into place and the initial resistance will die down. However, experience has shown that laws can be effectively implemented only with the cooperation of those on whom they are to be implemented. 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. For example, child marriage and dowry are illegal and punishable offences, yet they are still prevalent in certain sections of our society.

A judicial solution has been suggested by Joseph Minattur, who claims that all that is needed is to dismiss action based on personal laws, unequal between religious groups as well as between men and women. He also feels that such judicial decisions are not likely to be challenged and hence with time, the rules of traditional law which are repugnant to the constitution will thus gradually fall into disuse. Though such an approach is not absolutely refutable, it is not a desirable course of action. At the very outset, this hypothesis falls flat in light of the Supreme Court judgement of Maharishi Avadhesh v. Union of India [21] , where the court dismissed a petition seeking a writ of mandamus against the Government of India to introduce a common civil code throughout the country. The court took the view that it was a matter for the legislature to decide and expressly held that the courts cannot legislate on such matters. Also, Joseph Minattur fails to explain exactly why such dismissals may not be challenged under Article 32 of our Constitution, considering these are the very rights and practices which are guaranteed or permitted to be exercised under Articles 25 and 26 of the same. Moreover, he also fails to explain exactly which aspects of traditional law are unconstitutional and why exactly so. He simply relies on the statement of Justice Das: “Even if there is a custom which has been recognised by law….that custom must yield to a fundamental right.” [22] However, this statement holds no water in the present context as it has already been expressly held by the Supreme Court that personal laws, such as Hindu law and Muslim law, are not included within the expression of “Law”. [23]

A solution may be found at the meeting of the national convention on uniform civil code which was held recently under the aegis of the bar council of India. The convention after much deliberation drafted a model uniform civil code. It was suggested at the convention that the proposed code may follow the pattern of the French civil code, or the Swiss code, or the personal law code of the republics of the erstwhile Soviet Union, which had also faced similar problems and successfully resolved them. It was generally agreed at the convention that the proposed code should be indigenous in content, moulded in format duly informed by the experience of other foreign codes. After a lengthy discussion, the convention framed a draft code which had the following features:

The draft code contemplated to infuse eclectic norms into personal law rights, for example, right to monogamous marriage, right to maintenance for either the husband or wife and parents of the child, etc.

The code envisaged an adjudicatory mechanism similar to the family courts at par with district courts from which the appeal would go to the high courts

The proposed court would have civil and criminal jurisdiction supported by simple procedural norms such as hearing in camera, legal representation, etc.

But all the above suggested measures will fail without a mindset for change. A mindset of nationalism, yet at the same time not nationalistic fanaticism. India must once again remember what it was meant to be since 1947 – a Nation. A Nation which was never supposed to let communal barriers come in between governance. India today is a nation which has what is universally acknowledged as one of the largest talent pools of the world, but which refuses to explore its potential and lethargically refuses to push itself to the next level. It is for this reason that it is wrong to criticise only the non enthusiastic approach of the government. We must criticise 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.

CONCLUSION

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. [24] 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. Such a new interpretation of the definition of a civil code broadens the scope of discussion and also helps to keep religious arguments and the resultant communal and political tendencies out of it. For example, the domestic violence act does not take religion into consideration while outlining offences within it. [25] Justice Leila Seth’s words aptly express the present perception which is starting to spread rapidly among citizens:

“These are not Hindu or Muslim or Christian or Parsi demands or laws – these are a cry for gender just laws; for giving women their human rights and their mandated constitutional rights. If we can’t give them all the rights in one go, let us progress little by little but let us not be stagnant. Let us move towards gender just laws and a uniform civil code.” [26]

Before parting the writer would like to quote Chief Justice Chagla, an eminent Muslim Judge [27] :

“That (Article 44) is a mandatory provision binding on the government….the Constitution was enacted for the whole country, it is binding on the whole country, and every section and community must accept its provisions and its directives.”

If only every Indian was equally liberal and nationalist in their approach to the laws of our land. Priority governance would become far simpler!