By establishing these positive obligations of the State, the members of the
Constituent Assembly made it the responsibility of future Indian government to
find a middle way between individual liberty and the public good, between
preserving the property and the privilege of the few and bestowing benefits on
the many in order to liberate the powers of all men equally for contribution to
the common good.
The Directive Principles of State Policy (Article 46-51) in the Indian
Constitution are the goals that the constitution makers wanted to get achieved
with the passage of time. The Constitution of India came into force in 1950 and
the directives provided there are the parameters of really analyzing the
effectiveness of the nation as not a mere state but a; ‘Sovereign, Socialist,
Secular, Democratic Republic’.
In this regard the debatable, controversial yet an important issue relate with
one major directive i.e., securing a Uniform Civil Code wherein the Article 44
requires the State to secure for the citizens a Uniform Civil Code throughout
the territory of India.
It gained much attention due to the fact of it being connected to religious
sentiments, customary practices, and traditions and balancing it with the dictum
of Secularism. A clash of personal laws and constitutional doctrines, the
concept has its roots in pre-colonial India, emergence in post-colonial era,
political delusions after certain judgments of the Apex Court and above all the
non-justiciability of DPSP with a pump up of right of freedom of religion in a
“Some people seem to believe that freedom of religion requires government to
keep our lives free from religion. Well, I believe they’re just plain wrong. Our
government was founded on faith. Government must never promote a religion, of
course, but it is duty bound to promote religious liberty. And it must never put
the believer at a disadvantage because of his belief.”
-President George H. W. Bush
Under Article 44, the state shall endeavour to enact a Uniform Civil Code
(hereinafter referred to as the UCC) for citizens throughout the country. The
civil code, if enacted will deal with the personal laws of all religious
communities relating to marriage, divorce, adoption, custody of children
inheritance, succession to property etc. which are all secular in character of
Indian state and to enhance fraternity of unity among citizens by providing them
with a set of personal laws which incorporates the basic values of humanism.
Much misapprehension prevails about bigamy in Islam. Ironically, Islamic
countries like Syria, Tunisia, Morocco, Pakistan, Iran etc. have codified the
personal law where in the practice of polygamy has been either totally
prohibited or severely curtailed to check the misuse and abuse of this obnoxious
practice. The tragedy is that a secular country like India is lagging behind in
according red carpet welcome to article 44.
It is said that “Raw haste, half-sister to delay”, same is the case of UCC.
Politicizing the concept made it an issue and that issue is still debatable.
Meaning of Uniform Civil Code
A Uniform Civil Code administers the same set of secular civil laws to govern
all people irrespective of their religion, caste and tribe. The need for such a
code takes in to account the constitutional mandate of securing justice and
equality for all citizens. A uniform criminal code is applicable to all citizens
irrespective of religion, caste, gender and domicile in our country. But a
similar code pertaining to marriage, divorce, succession and other family
matters has not been brought in to effect. The personal laws vary widely in
their sources, philosophy and application. Therefore, there is an inherent
difficulty and resistance in bringing people together and unifying those when
different religions and personal laws govern them.
Article 35 of the draft Constitution of India was added as a part of the
Directive Principles of the State Policy in part IV of the Constitution of India
as article 44. It was incorporated in the Constitution as an aspect which would
be fulfilled when the nation would be ready to accept it and the social
acceptance to the UCC could be made.
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.
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.
# British India (1858-1947)
The debate for a uniform civil code dates back to the colonial period in India.
Prior to the British Raj, under the East India Company (1757-1858), they tried
to reform local social and religious customs. Lord William Bentinck, the
Governor-General of India, tried to suppress sati, the prescribed death of a
widow on her husband's funeral pyre, and passed the Bengal Sati Regulation,
1829. This was later extended outside Bengal to all English territories in
The Lex Loci Report of October 1840 emphasised the importance and necessity of
uniformity in codification of Indian law, relating to crimes, evidences and
contract but it recommended that personal laws of Hindus and Muslims should be
kept outside such codification.
The Muslim Personal law (based on Sharia law), was not strictly enforced as
compared to the Hindu law. It had no uniformity in its application at lower
courts and was severely restricted because of bureaucratic procedures.
# Post Colonial Era (1947-1985) : The Hindu Code Bill and DPSP
The Indian Parliament discussed the report of the Hindu law committee during the
1948–1951 and 1951–1954 sessions. The first Prime Minister of the Indian
republic, Jawaharlal Nehru, his supporters and women members wanted a uniform
civil code to be implemented.
As Law Minister, B. R. Ambedkar was in charge of presenting the details of this
bill. It was found that the orthodox Hindu laws were pertaining only to a
specific school and tradition because monogamy, divorce and the widow's right to
inherit property were present in the Shashtras. Ambedkar recommended the
adoption of a Uniform Civil Code. Nehru later supported Ambedkar's reforms but
did not share his negative view on Hindu society.
The Hindu bill itself received much criticism and the main provisions opposed
were those concerning monogamy, divorce, abolition of coparcenaries (women
inheriting a shared title) and inheritance to daughters. The first President of
the country, Rajendra Prasad, opposed these reforms; others included the
Congress party president Vallabhbhai Patel, a few senior members and the Hindu
fundamentalist parties. The fundamentalists called it "anti-Hindu" and
"anti-Indian"; as a delaying tactic, they demanded a Uniform Civil Code.
Thus, a lesser version of this bill was passed by the parliament in 1956, in the
form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and
Guardianship Act etc.
An objection was taken to this provision in the Constituent Assembly by several
Muslim members who apprehended that their personal law might be abrogated.This
objection was met by pointing out:
1) that India had already achieved a uniformity of law over a vast area; 2) that
though there was diversity in personal laws, there was nothing sacrosanct about
them; 3) the secular activities, such as, inheritance, covered by personal laws
should be separated from religion; 4) that a uniform law applicable to all would
promote national unity; and 5) that no legislature would forcibly amend any
personal law in future if people were opposed to it.
The Special Marriage Act, 1954, provides a form of civil marriage to any citizen
irrespective of religion, thus permitting any Indian to have their marriage
outside the realm of any specific religious personal law.
Article 44: A necessity or not?
View of the makers:
K.M. Munshi took a very rigid view in negating the claims of majoritarian over
sweep over the minorities.He states, “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?”
Shri Alladi Krishnaswamy Ayyar gives a much more realistic reason to aim for a
UCC and bases his argument on the fallacy of having strict water tight existence
of the communities.
B. R. Ambedkar was also a staunch supporter of the UCC. He denied the claims
that a common civil code in a vast country, like India, would be impossibility.
He stated that the only sphere which did not have a uniform law was that of
marriage and succession; rest all areas of civil law, such as transfer of
property, contract, the Negotiable Instrument Act, Easement Act, Sale of Goods
etc. were uniform in nature.
The Constituent Assembly Debates around the UCC and the erstwhile article 35 had
a lot of dissent towards it. The issue of dominance by the majority communities
was the main bone of contention.
Judicial Perspective on Article 44:
Although Supreme Court had assumed the role of a social reformer in many other
previous cases,but it was the Shah Bano’s caseusurped a landmark
position in the history of debates on religion, secularism and the rights of
women. If we carefully sidestep the political drama that later unfolded, we
would be able to trace the problems the courts of our country have been facing
due to the separate conflicting personal laws.
The SC has emphasized that steps be initiated to enact a UCC. In Ms. Jorden
Deingdeh v. S.S. Chopra, the Court said that the time has now come for a
complete reform of the law of marriage and make a UCC for the country.
In Shah Bano’s case the court has elucidated that ‘a common civil code will help
the cause of national integration by removing disparate loyalties to laws which
have conflicting ideologies.’
V. R, Krishna Iyer J. who is known to have given a scintillating judgment in
Bai Tahira v. Ali Hussain Fissalli Chowthiaalso has an Ambedkarian view
point on common civil code. Instead of being a majoritarian undertaking, the
common code is supposed to be a collection of the best from every system of
How can the Supreme Court declare one practice as unconstitutional and violative
of human dignity for one section of women but let it remain constitutional for
another section of women since their personal laws allow it to be so? In the
case of State of Bombay v. Narasu Appa Mali, the Supreme Court was to face
with such a situation.
In Sarla Mudgal v. UOI, the SC has directed the Prime Minister to
take a fresh look at Art. 44 of the Constitution which enjoins the State to
secure a UCC which accordingly to the Court is imperative for both the oppressed
and promotion of national unity and integrity. But in Lily Thomas v. UOI, SC
clarified the remarks made by it in earlier Sarla Mudgal case and asserted that
it has not issued any direction in that case for the enactment of UCC.
In Danial Latifi v Union of India, a five judge constitutional bench upheld
the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986;
that was passed after huge hue and cry in Shah Bano’s Case.
In John Vallamatton v. UOI, a three judge bench of the SC has once
again expressed its regret for non- enactment of Common Civil Code. It was said
that Article 44 is based on the premise that there is no necessary connection
between religion and personal law in a civilized society.
All marriages must be registered : First step towards UCC – In Seema v.
Ashwani Kumar, the SC has held that all marriages, irrespective of their
religion, be compulsorily registered.
Is there a way out?
The importance of a uniform civil code is never in doubt but what is is the
cooperation of the Muslim community, especially the Sunnis.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. Many judicial solutions have also failed harshly. We must
criticize 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.
“… a mandate of the Constitution, though not enforceable by courts is
nonetheless binding on all the organs of the State. If the State ignores those
mandates, it ignores the Constitution.”
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. 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.
It solely depends on prudent citizens to think and act logically and not under
blank influence of some politically run propagandas. In the end, UCC is a
directive that needs to get attained for a Welfare State like India, that writes
on a board of religiously diverse canvass with ink of Secularism, till then it
remains a ‘Dead Letter'. -Vanshika Sharma
Granville Austin,The Indian Constitution,pp.50-52
Preamble to the Constitution of India
Remarks to the National Association of Evangelicals in Chicago, Illinois,
from March 3, 1992.
1 Lord Alfred Tennyson in his poem Love Thou Thy Land, With Love Far
Brought, first published in 1842.
Chavan & Kidwai 2006, pp. 83–86.
VII CAD 540-2
Constituent Assembly Debates (Proceedings), Vol. VII, Tuesday Nov. 23, 1948
Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd
Fazlunbi v. Khader Ali, 1980 SCR (3)1127.
Mohd. Ahmed Khan v. Shah Bano Begum (1985) 3 SCR 844
AIR 1985 SC 934
AIR 1979 SC 362
AIR 1952 Bom 84
(1995)3 SCC 635
AIR 2000 SC 1650
AIR 2001 SC 3262
AIR 2003 SC 2902
AIR 2006 SC 1158
Hegde,Directive Principles of State Policy in the Constitution of
India(The Rau Lectures) at pp. 49-50
Law Article in India
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