The 22nd Law Commission of India had decided again to solicit views and ideas
of the public at large and recognized religious organizations about the Uniform
Civil Code. [https://lawcommissionofindia.nic.in/notice/uniform-civil-code-public-notice/
accessed on 18 June 2023 at 10 : 19 p.m.]
Article 44 of Constitution of India says that the State shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India.
In context of Uniform Civil Code, few have called that it is a "universal
predicament for lawyers and legal systems."
[ Werner Menski, "The Uniform Civil Code Debate in Indian Law: New Developments
and Changing Agenda", German Law Journal, 2008, Vol. 09, https://www.cambridge.org/core/journals/german-law-journal/article/uniform-civil-code-debate-in-indian-law-new-developments-and-changing-agenda/7C713AF95B16AF5CD2F39ADBBD868951
accessed on 18 June 2023 at 10 : 32 p.m.]
The expanse of Article 44 can be understood by looking at Article 37. Article 37
says that Directive Principles "are nevertheless fundamental in the governance
of the country and it shall be the duty of the State to apply these principles
in making laws." However, once an Act is passed and if it contains provision for
enforcement, then such an Act or its provisions would be enforceable as well. If
we look at another Directive Principle in Indian Constitution, that is, Article
48A, there is a law viz. Environment Protection Act, 1986 which can be related
to that Directive Principle and that Act is fully enforceable.
Apart from Article 44 which talks about Uniform Civil Code, it is useful to note
that Article 25 (1) is a part of fundamental right. It is also important to keep
in mind that Article 31C says that no law giving effect to the policy of the
State towards securing all or any of the principles laid down in Part IV shall
be deemed to be void on the ground that it is inconsistent with, or takes away
or abridges any of the rights conferred by article 14 or article 19; and no law
containing a declaration that it is for giving effect to such policy shall be
called in question in any court on the ground that it does not give effect to
such policy. Therefore, there is an important interplay of Constitutional
provisions in relation to Uniform Civil Code.
Laws and UCC : Clarifying the Concept
While India has a penal law in the name of Indian Penal Code, 1860 and Code of
Criminal Procedure, 1973 which is uniformly applicable to all its citizens, yet,
there are certainly laws which are meant for specific religions. One can also
see Hindu Marriage Act, 1955 which is applicable on certain specific religions
and not on all religions.
Through Constitution (42nd Amendment) Act, 1976 the word "Secular" was added and
thereby the Preamble was amended.
Theories and UCC: A Jurisprudential Background
It would be useful to see what legal pluralism in view of John Griffiths is
about : it is the "presence in a social field of more than one legal order". [J.
Griffiths, 24 J. Legal Pluralism & Unofficial L. 1 1986, Available at http://safaat.lecture.ub.ac.id/files/2014/11/Griffiths-What-is-Legal-Pluralism.pdf
Accessed on 18 June 2023 at 10 : 39 p.m] So, in the overall architecture of
legal pluralism, one can clearly see that A.44 being a part of Constitution
which contains clear stipulation of UCC, the uniformity in civil code is within
the theoretical framework of legal pluralism as well.
There are views that "Legislating a Uniform Civil Code is much more obligatory
than bringing a political election manifesto into reality.......".[" Vishnu S.
Warrier, 17 June 2023, Available at https://organiser.org/2023/06/17/163422/bharat/common-civil-code-nothing-personal-about-laws/
Accessed on 18 June 2023 at 10 : 42 p.m.]
If we look at the views of certain decided cases in India, in Damodar Ramnath
Alve vs Shri Gokuldas Ramnath Alve 1997 (4) BomCR 653 it was said that
"Portuguese Civil Procedure Code has the unique distinction and the privilege of
already having a "Uniform Civil Code", as envisaged by the Founding Fathers of
the Constitution under Article 44 of the Constitution of India, which equally
governs and regulates the juridical relations of its citizens, irrespective of
their race, sex, caste or creed."
Therefore, Hon'ble Bombay High has itself said that Founding Fathers of
Constitution desire to have a uniform civil code.
However, there are few places in India where Uniform Civil Code is already
there. It was noted in Damodar Ramnath (Supra) that the Hon'ble the then Chief
Justice of India, Shri Y.V. Chandrachud while delivering the Inaugural Speech at
the Conference held by the Goa, Daman and Diu Advocates Association on 'The
Family Laws of Goa, Daman and Diu' had said:
"It is heartening to find that the dream of uniform Civil Code in the country
finds the realization in the Union Territory of Goa, Daman and Diu only."
Therefore, there is no element of doubt that Uniform Civil Code is implementable.
Way back in 1971, in Mohammad Abu Zafar Mohammad ... vs Israr Ahmad
1971 All 366 the Bench said that Article 44 "simply states the directive
principles of State Policy as to how laws will be made." The issue in that case
was about a property litigation.
When talking about extent of fundamental rights, it needs to be kept in mind
that Constitution itself permits through Article 33 that the extent of
application of fundamental rights for certain classes can always be restricted
or even abrogated.
Conclusion and Future of UCC
With this discussion and need around uniform civil code which is nevertheless an
inseparable part of Constitution, the legislature has to understand the needs
and desires of people and take desired steps.
At this juncture, one can recall what was stated by Joseph Raz in the following
way : "The doctrine of the rule of law does not deny that every legal system
should consist of both general, open, and stable rules (the popular conception
of law) and particular laws (legal orders), an essential tool in the hands of
the executive and the judiciary alike." (Joseph Raz, The Authority of Law :
Essays on Law and Morality, 1979, Clarendon Press). The concept of Uniform Civil
Code perfectly fits into the definition of "rule of law", as Raz espouses.
Award Winning Article Is Written By: Ms.Jyoti Zongluju, Advocate, Supreme Court of India
Authentication No: JL319424604621-13-0723