By Ashwini Kumar Upadhayay
Directive Principles are affirmative instruction to secure Justice – social, economic, political; Liberty of thought, expression, belief, faith, worship; Equality of status and of opportunity and to promote fraternity, assuring dignity of individual, unity and national integration. Therefore, it is duty of the Government to direct their activities in such a manner so as to secure the high ideals set forth in the Preamble and Parts III and IV of the Constitution. The Directives are an amalgam of diverse subjects embracing life of nation and include principles, which are statements of socio economic rights and social administrative and international policy.
The object of Uniform Civil Code is essential to promote fraternity unity and national integration. It proceeds on assumption that there is no connection between religion and personal laws in a civilized society. While Constitution guarantees freedom of conscience and of religion, it seeks to divest religion from personal law and social relations and from laws governing inheritance, succession and marriage, just as it has been done even in Muslim Countries like Turkey and Egypt etc.
Dr. B.R. Ambedkar, during the Constituent Assembly debate said: “In fact, bulk of these different items of civil laws have already been codified during the British Rule and the major items still remaining for a Uniform Civil Code are marriage, divorce, inheritance and succession”.
The several enactments, which have been made by the Parliament since Independence in the name of Hindu Code relating to marriage, succession, adoption and guardianship, relate only to Hindus including Budhists, Jains and Sikhs and excludes Muslims, who are major slice of India and are more vociferously objecting to frame a common civil code.
In Shah Bano case, the Supreme Court observed: “It is a matter of regret that Article 44 has remained dead letter. It provides that ‘the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’ but there is no evidence of any official activity for framing a common civil code. A belief seems to have gained that it is for Muslim community to take a lead in the matter of reforms of their personal law. Common civil code will help the cause of national integration by removing desperate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is for the State, which is charged with the duty of securing a uniform civil code and it has legislative competence to do so. A counsel in this case whispered 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 beginning has to be made, if the Constitution has any meaning. Role of the reformer has to be assumed by the Courts because; it is beyond endurance of sensitive minds to allow injustice when it is so palpable. Piecemeal attempts to bridge the gap cannot take the place of Common Code. Justice to all is for more satisfactory way of dispensing justice than justice from case to case”.
The objection against common civil code that it would be a tyranny to minority community was strongly rejected by Munshi: “An argument has been advanced that the enactment of a common civil code would be tyrannical to minorities. Nowhere in advanced Muslim countries, personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of a common civil code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. When the Sharia Act was passed, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs for generations since they became converts they had done so. They didn’t want to confirm to Sharia and yet by legislation of the Central Legislature where certain Muslim members who felt that Sharia law should be enforced upon the whole community carried their points. Khojas and Cutchie Memons unwillingly had to submit to it. When you want to consolidate a community, you have to consider the benefit, which may accrue, to the whole community and not to the customs. It is not therefore; correct to say that such an Act is tyranny of the majority. If you look at the Countries in Europe, which have a common civil code, everyone who has gone there from any part of the world and even minorities has to submit the common civil code. The point is whether we are going to consolidate and unify our personal law. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance of succession. What have these things got to do with religion. I really fail to understand. There is no reason why there should not be a common civil code throughout the territory of India. 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 consolidated nation. Our first problem and the most important problem is to produce national unity in this country. We think we have got national unity but there are many factors and important faction, which still offer serious dangers to national consolidation. It is very necessary that whole of our life insofar as it is restricted to secular sphere must be unified in such a way that we may be able to say- ‘We are not merely a nation because we say so, but also in effect, by the way we live, by our personal law, we are a strong and consolidated nation.’ From that point of view, I submit, the opposition is not, if I may say so, very well advised. I hope our friends will not feel that, this is not an attempt to exercise tyranny over a minority community; it is much more tyrannous to majority community”.
Alladi Krishnaswami Iyer said: “A Common Civil Code ran into every department of civil relation to the law of succession, to the law of marriage and similar matters; there could no objection to the general statement that ‘State shall endeavour to secure a Uniform Civil Code”.
Dr BR Ambedkar said: “We have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete criminal court………We have the law of transfer of property which deals with property relation and which is operative throughout the country…….. I can cite innumerable enactments, which would prove that the country has practically a Civil Code, uniform in its contents and applicable to the whole of the country.”
In John Vallamattom v. Union of India, [AIR 2003 SC 2902 : (2003) 6 SCC 611], the then Hon’ble Chief Justice of India Justice V. N. Khare, with whom the other two Judges, Justice Sinha and Justice Lakshman agreed and observed: “A common civil code will help the cause of national integration by removing all 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”.
In Sarla Mudgal case [AIR 1995 SC 1531: (1995) 3 SCC 635], while insisting the need for a Common Civil Code, the Supreme Court has held that the 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 the 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 social relation and personal law. Marriage, succession and like matter of secular character cannot be brought under the Articles 25, 26 and 27. Hon’ble Judges requested the Prime Minister of India to have a fresh look at Article 44 and endeavour to secure for the citizens a uniform civil code throughout the territory of India and wanted the Court to be informed about the steps taken. However, in Lily Thomas case, the Court clarified the remarks made in Sarla Mudgal case was only as an opinion of the Judges and declared that no direction have been issued for any legislation. At the same time, the Court did not express any dissenting view of the need for a common civil code. It only held that to have a legislation or not is a policy decision and Court cannot give any direction to the Executive.
Diversity in personal matters along with religious differentiation leads to sentimental tension between different communities as has been learnt by bitter experience from the history leading to partition and subsequent events till today. It can never be forgotten that the policy of British imperialism was ‘divide and rule’ and for that purpose, they would at times can anything, which might make the cleavage between Hindus and Muslims, wider and wider. The British rulers, thus, lost no opportunity in inserting even newer wages like communal award, which planted separate representation in the legislature according to religion; and eventuality led to lamentable partition, which truncated the motherland and involved so much of bloodshed and inhuman outrages.
The ideological concept, which led to partition was the assertion of the Muslims that they constitute a ‘Nation’ separate from the Hindus. Even though Hindu leader did not admit two-nation theory. Partition is an accomplished fact and cannot be wiped off. The framers of the Constitution had in their mind the fresh experience of atrocities, which were committed at the time of partition of India. When the Muslims were given the options to go away to new dominion, it was quite natural for the leaders of divided India to aspire for the unity of the one nation, namely, Indian, so that history might not repeat itself.
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 abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour 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. But at the same time they sought to distinguish between essence of a religion and other secular activities, which might be associated with religious practice but yet did not form a part of the core of the religion, and with this end in view they inserted Clause 2(a) as thus: “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.”
Anybody, who raises an objection to implementation of Article 44 becomes guilty of violation of the Preamble, Article 44 as well as Article 51A and any Government, which yields to such demands, even after 69 years of the adoption of the Constitution, would be not only liable to the charge of throwing the Constitution to the winds, but also of being a party to violation of Articles 44 and Article 51A, and also of guarantee of equality and non-discrimination on the ground of religion, race, caste, sex and place of birth under Articles 14-15 of the Constitution.
Article 51A enjoins every citizen to renounce practices derogatory to dignity of woman. It enjoins every citizen to develop scientific temper, humanism and the spirit of inquiry and reform. It needs little arguments to point out that a man marrying up to 4 wives or divorcing his wife by utterance of word ‘Talaq’ thrice; or refusal to maintain a divorced wife after a limited period; are all practices derogatory to the dignity a woman. Therefore, any person, who resorts such practices or urges that such practices should be immuned or that Article 44 must be wiped off or restricted to persons other than Muslims, is violating the Article 51A. Whether that provision of the Article 51A are unenforceable in the Court of law or not, is a different question; but in other countries, such a person would have lost his citizenship if not something more.
It is a radical argument that Article 44 should not be implemented because it is opposed to Sharia. It is pertinent to quote former CJI Justice Chagla’s article ‘Plea for Uniform Civil Code’: “Article 44 is a mandatory provision binding the Government and it is incumbent upon it is to give effect to this provision… The Constitution was enacted for the whole country, it is binding for the whole country, and every section and community must accept its provisions and its Directives.”
As far as the plea of Muslim identity is concerned, it is nothing but a relic of the two-nation theory, which was asserted by Muslim leaders to carve out a separate State on the basis of religion. On the other hand, Nationalist Indian leaders all along urged that there was only one Nation, viz. India; and after the Muslims went away on the partition, there was nothing to stand in the way of proclaiming in the Preamble that the goal of India was One Nation united by the bond of fraternity.
There should not be any fear of losing identity when the Constitution guarantees religion, language, culture, in Articles 26, 29, 30 of the Constitution. After the partition, the Muslims who preferred to remain in divided India knew very well what they could get from the Secular Indian Government. Hence, to cry for more, is nothing but a resurrection of slogan ‘Islam in Danger’ which led to the partition of India.
It is next contended that even though a common civil code is desirable, it should not be implemented until Muslim themselves come forward to adopt it. It is only a diluted form of plea for abolition of Article 44, because Article 44 may virtually be effaced if Muslims never come forward with their consent. None of Directives lay down that they can be implemented only if there is 100% consents of citizens throughout the territory of India. The Constitution was adopted after due deliberation as to its provisions being beneficial to people of India, by the Constituent Assembly having enough Muslim representatives.
Illiterate/ignorant parents don’t desire that their children should go to school instead of helping them in agriculture, or earning money in factories. Should the implementation of Article 45 wait until these people give their consent? The controversy arising from Shah Bano case clearly exposed that it is only a section of Muslim community, who would not accept it. Is there any precedent in any country, where the caprices of such a fraction of the population having allowed to stand in the way of unity, integrity and progress of the entire nation and the implementation of the fundamental law of the country, adopted by a solemn Constituent Assembly? Article 44 is addressed to State thus it is duty of State to implement it in consonance with Articles 14-15.
The Supreme Court has observed: “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 personnel law…….But it is the State which is charged the duty of securing a uniform civil code for the citizens of the country. This duty has been imposed on the State with the object of achieving national integration by removing disparate loyalties to laws which have conflicting ideologies.” The question arises – why then has the Union Government failed to discharge the Constitutional mandate for more than 6 decades? The Answer has been pithily answered by the Court – “lack of political courage” – which many other responsible persons have amplified as the fear of losing Muslim votes at the next election.
The State has failed to implement Article 44 and also violated the norm of much-vaunted secularism. It is curious that the Government has not yet protested against the decision of the Indian Muslim Personal Law Board to setup parallel Courts in many localities to decide the cases under Shariat, even though the setting up of such a parallel Courts will not only sound a death knell to Article 44 of the Constitution, but also to other provisions providing for one system of judiciary throughout the territory of India for all its people. It is definitely a retrograde step cutting at the roots of the Constitution of India.
It is also urged that the Shariat is immutable being founded on the Quran which is ordained by the God. Apart from the historical fact that this issue has been concluded by the partition of India and adoption of the Constitution, it has been belied by the multifarious changes by way of reform in all the Muslim State e.g. Egypt, Jordan, Morocco, Pakistan, Syria, Tunisia, Turkey – where no question of Hindu dominance arose.
It is pertinent to State the Report of the Commission on Marriage and Family Laws, which was appointed by the Government of Pakistan in 1955, and which should have demolished, once for all, the plea that the Shariat is immutable. In words of Allama Iqbal, “The question which is likely to confront Muslim Countries in the near future, is whether the Law of Islam is capable of evolution – a question which will require great intellectual effort, and is sure to be answered in the affirmative. ”One more logic is given that even if a common civil code is formulated, it should be optional for Muslims to adopt its provisions. It is only a diluted version of the forgoing pleas, viz. that the Shariat is immutable; that no Code can be imposed on Muslims without their consent. It is unmeaning to draw-up a uniform civil code as enjoined by Article 44 if it is not binding on every citizen.
Polygamy is totally prohibited in Tunisia and Turkey. In countries like Indonesia, Iraq, Somalia, Syria, Pakistan and Bangladesh, it is permissible only if authorized by the prescribed authority. Unilateral Talaq has been abolished in Egypt, Jordan, Sudan, Indonesia, Tunisia, Syria and Iraq etc. In Pakistan and Bangladesh, any form of extra judicial Talaq shall not be valid unless confirmed by an arbitration council but in India, it is continuing. The Dissolution of Muslim Marriage Act, 1939, provided Muslim women to obtain dissolution in certain cases, which they do not have under Shariat. Under the Act, marriage with another woman would be treated as an act of ‘cruelty’ to bar a husband’s suit for restitution of conjugal rights. The Act has been adopted in Pakistan and Bangladesh with amendments. The statement of objects and reasons of the Act, which has been conceded by Muslims in India, Pakistan and Bangladesh is illuminating: “There is no provision in the Hanafi Code of Muslim Law enabling a married Muslim women to obtain a decree from the Court dissolving her marriage in case a husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her un-provided for and under other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India.”
Government should come forward with firm pronouncement instead of being beguiled by statements issued by few fundamentalists. Shariat is controlled by legislation in Pakistan and Bangladesh. In India, a uniform law of maintenance was adopted by Section 488 CrPC. When Section 125 CrPC extended to divorced women, Muslims contended that it should not be applied to them as it was contrary to Shariat but 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 125 CrPC overrides the personal law.
The Supreme Court interpreted that under Section 3 of the Act, 1986, a Muslim husband is liable to make provision for the future of a divorced wife even after iddat period. [Sabra Shamim versus Maqsood Ansari, (2004) 9 SCC 606] Justice Khalid of Kerala High Court reminded the plight of Muslim women and wanted the law to be amended to alleviate their sufferings and above decisions were approved by the Supreme Court in Shamim Ara v State of UP [(2002) 7 SCC 518].
Goa has a common civil code since 1965, which is applicable on all its citizens. Now a pertinent question arises – if Uniform Civil Code can be implemented in Goa, then why not throughout the territory of India.
In the Constituent Assembly, Mr. Nasiruddin’s speech says thus: “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, P542]
Even, minor girls are victim of Polygamy and Nikah Halala and various form of contract marriage viz. Nikah Mutah and Nikah Misyar. Such incidents are routinely published in Electronic, Print and Social Media. That is why India urgently needs a Uniform Civil Code in spirit of Article 44 read with Articles 14, 15 and 21 of the Constitution.
It is necessary to study the Civil Laws of the developed countries particularly the Common Civil Code of America, France, China and Japan. It is also necessary to incorporate the best practices of all religions and communities. It is pertinent to state that Goa has a Common Civil Code since long time. Therefore, the same code may be amended and adopted as a Common Civil Code throughout the territory of India.
The right of equality guaranteed under Article 14, right against non-discrimination guaranteed under Article 15 and right to life and liberty guaranteed under Article 21 can’t be secured and Gender Justice and Gender Equality cannot be achieved without implementing the Uniform Civil Code in spirit of Article 44 read with Articles 14, 15, 21.
If the Preamble is key to understand the Constitution of India, the Directive Principles are its basic ideals. The Constitution makers poured their mind by setting forth humanitarian socialist secular principles, which epitomized hopes and aspirations of people and declared the Directive Principles as the fundamentals in the governance of the country. Therefore, it is duty of the Government to implement it.
Keeping in view the above stated facts, constitutional obligation of to implement Article 44 of the Constitution, Judgments of the Supreme Court in Shah Bano, John Vallamattom, Sarla Mudgal and Shayara Bano and the benefits of Common Civil Code for all citizens, the Government should constitute a Judicial Commission or High Level Committee and direct the Law Commission of India to draft a Uniform Civil Code within 3 months while considering the best practices of all religions and sects, Civil Laws of developed countries and international conventions; and publish it on website for 60 days for wide public debate and feedback.
—The author is BJP Spokesperson and Advocate, Supreme Court