By Dr. G.V. Rao
The Preamble to the Constitution of India was amended by the Parliament to add the words secular, and socialist to it by the 42nd Amendment in 1976 to fully read as: “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens….”
The Preamble propounds the idea of equality before law and equal protection of laws. It begins by “We the people” and ends with “secure to all its citizens”. Therefore, the expectation is laws are to be made evenly applicable to all. Further, one would believe that the 42nd amendment incorporating the two words “secular” and “socialist” are in furtherance of the already existing democratic principles and ideas in the Preamble, of providing citizens the hallowed ideals of justice, liberty, equality and fraternity.
The moral central to the framing of the Constitution is encompassed in the last stated virtue i.e.: “…. FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”. Therefore, in the end, while binding all other rights and cherished ideals, what the Preamble seeks to achieve is the assurance of the dignity of the individual while maintaining the unity and integrity of the nation. No constitutional expert can dispute that the conclusion arrived at in the Preamble is not the central objective of the Constitution for which it has been framed.
The premise is that people have enacted the Constitution to secure to themselves justice, liberty and equality, so that every individual’s right and dignity, both personal and collective are protected, under the larger frame-work, namely the unity and integrity of India. When we speak of “unity and integrity”, we mean the geographical boundaries of the nation and the harmonious coexistence and intermingling of its people freely in the unified entity, while strengthening the nation under a common flag. The primacy, therefore, is to underscore and highlight the requisite legal and political environment which promotes the concept of a unified nation, under a democratic system of governance which welds its people into a cohesive unit by legal mechanisms, intricately interweaving them into a strong fabric.
While addressing Fraternity, it’s important to note the exceptionally laudable efforts made by the hero of public causes and the stalwart of public interest litigation in India, former Harvard Professor Dr Subramanian Swamy. He claims that by DNA, all Indians are brothers and sisters, irrespective of their caste, creed, sex and religious belief. That there is the fundamental basis and the bedrock for our guidance in bringing out reform to the challenges posed before us. Hence, our failure to reform could pose a threat to the unity and integrity of India Secularism cannot be a principle which divides the country and its people who are bound together by millennia of history. What it espouses is the peaceful coexistence and healthy respect for each other’s religious faiths; there is no room for hardliners. Secularism means a belief in all religions, while practicing one’s own. Indians have come to celebrate all religions as their own, while rejoicing their individual faiths. We are a country which has given birth to the largest number religious faiths and home to every other in the world.
The founding fathers of the Constitution were conscious that a Uniform Civil Code (UCC) was a need for establishing a strong and integrated nation, and realised that its codification and implementation could be a slow and daunting task. Therefore, in the inclusion of it as Directive Principles of State Policy was an expectation that future governments would keep making such efforts till they succeed.
It was effectively worded in Art-44: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The mandate was clear and unambiguous and the Constituent Assembly debates clearly reflect that Dr Ambedkar had accepted the pleas advanced by KM Munshi and Sir Alladi Krishnaswamy Ayyar that there was no conflict between freedoms guaranteed under Article 25 to 28 pertaining to “Right to Freedom of Religion” and bringing about the UCC. Munshi made it clear that the matter had been discussed threadbare in several committees before being tabled in the House, and stated: “Therefore, the House has already accepted the principle that if a religious practice followed so far covers a secular activity or falls within the field of social reform or social welfare, it would be open to Parliament to make laws about it without infringing this Fundamental Right of a minority.”
It was absolutely evident that what they had uppermost in their mind was uniformity of laws in furtherance of the secular character of the polity in order to maintain the unity and integrity of India. They felt it was important to separate religion from personal law.
Munshi further added: “Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country.”
Sir Alladi Krishnaswamy Ayyar, analysed the matter in a very succinct manner and said that the aim of the UCC was to bring about peace, harmony and cohesiveness; it is not for dividing us, but uniting the people. It is summed up as: “The second 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.”
The counterpoint was put forward by Pocker Sahib Bahadur, Mahboob Ali Baig Sahib Bahadur and Mohamed Ismail Sahib, who felt that the UCC would interfere in the religious affairs of minorities and should not be included. It was Imam Hussain who took a more generous view of the matter and stated: “For that, we should first await the coming of that event when the whole of India has got educated, when mass illiteracy has been removed, when people have advanced, when their economic conditions are better, when each man is able to stand on his own legs and fight his own battles.”
That time has come now. With the advent of modern technology, all communities in India are exposed to the fast-paced development of a modern world in a global village. We ought to enlighten all sections of our society to break free from archaic mindsets and regressive thinking and guide them towards adopting a simplified legal architecture.
Ambedkar further stated: “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.”
We have witnessed numerous reforms carried out in the personal law of all communities by legislative enactments. The most notable ones are: abolishment of untouchability and Sati, prohibition of divorce by triple talaq, rights of women in inheritance, custody of the child, prohibition of bigamy, widow remarriage, payment of maintenance, etc. It is the job of legislatures to carry on the reform agenda.
It’s indeed a welcome development that the Delhi High Court has reiterated the call for a UCC in its recent judgement of Satpraksh Meena vs Alka Meena. It has highlighted the refrain in numerous judgements of the apex court holding that the UCC is a necessary reform that needs to be brought about in the interest of the citizenry of the country and for the administration of justice.
In the Shah Bano judgment reported in, (1985), Chief Justice YV Chandrachud, speaking on behalf of the constitution bench, observed: “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.” It is unfortunate that the then government of the day brought about an act of Parliament to negate the progressive judgement. The same sentiment was also echoed in Sarla Mudgal vs Union of India (1995).
Since then, other judgments of the apex court followed with the same thinking such as in Lily Thomas (2000), Jose Paulo Coutinho vs Maria Luiza Valentina Pereira (2019), John Vallamattom and Another vs Union of India, (2003), ABC vs State (NCT of Delhi) (2015).
However, the most important directions were made in Jordan Diengdeh vs S.S. Chopra (1985), when Justice Chinappa Reddy said: “We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take.”
The recent consultation paper of August 31, 2018, of the Law Commission on “Reform of family law” is an admirable step in the right direction, although it doubted the feasibility of implementing the UCC. It has neatly outlined the area of variances under each personal law and has also categorised certain common heads applicable to all personal laws and broadly listed themas:
- compulsory registration of marriages,
- uniform age of consent for marriage,
- irretrievable break down of marriage as ground for divorce,
- Community of Property upon Marriage and Divorce
- Laws should be made disabled-friendly,
- Colonial inheritance of Restitution of Conjugal Rights should be abolished
- Bigamy upon Conversion,
- Welfare of Illegitimate children,
- Adoption law under the Juvenile Justice (Care and Protection of Children) Act, 2015
- Piecemeal amendments may be made in all personal laws to ensure the uniform grant of maintenance to children.
- Succession must be based on proximity to the deceased rather than preference to male line heirs.
It has further identified separately the reform that needs to be brought in the personal laws of various denominations which are glaring.
It is now clearly established that the matter is not an issue for a political controversy. Instead, it is an important and progressive step towards not only proper administration of justice but for a cohesive “personal law” regime which will lead to greater unification and harmony among various communities.
In view of the constant observations being made by the apex court in all of these numerous judgements for the last over four decades, it is highly imperative that the government make an attempt with a draft legislation for discussion and circulation among the legal fraternity, Bar Associations, legal academia in all universities and law colleges for a review and recommendations to be made within two years.
—The writer is Senior Advocate, Supreme Court of India