The Uniform Civil Code is one of the directive principles of state policy contained in he Constitution of India. It directs the state “to endeavour to secure for the citizens a uniform civil code throughout the territory of India”. It created controversy since its inception. The multiplicity of diverse religions caused alrming situations. The apex court from time to time, has reacted sharply, favouring its enforcement even at the cost of its ‘judicial discipline.’ The latest pronouncements in the cases of John Vallamottom and Anr. v. Union of India [1] and Smt. Sarla Mudgal v. Union of India & others [2] have set example for the ‘judicial activism’.
The Constitution of India ensures equality to all citizens irrespective of the caste, sex, creed, religion and place of birth. Freedom of Religion, its practice and propagation, freedom of culture, freedom to manage religious affairs and educational rights are guaranteed as fundamental rights to all citizens especially to minorities of the Constitution. Despite such effective constitutional safeguards, communal harmony and the peaceful co-existence of different communities and amity of citizens are affected on negative tenor.
Mr. Mohammad Ismail Sahib from the Madras Province opined for the amendment to the section that any group, community or section of people shall not be obligated to give up their personal laws. If we are including the provision of uniform civil code, that can be regimentation of the personal laws of the people. Such regimentation may create disharmony among the people. The same opinion was expressed by Mr. Nazirrudin Ahmad. He stated for the procedure by the legislature to be implemented for the recognition of uniform civil code by the citizens. The community should give their approval for the same. The uniform civil code is likely to violate the very essence of Art.19 of the Draft Constitution, “subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.” It seemed to be murdering the consciences of the members of different religions. [3]
But Mr. Hussain Imran from the Bihar Province opined that the legislature has to wait till whole 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 fights. Shri K.M.Munshi argued that the personal laws have to be unified in such a way that the way of life of the whole country may in course of time be unified and secular. The aim is to divorce the religion from personal laws and to create disharmony. Religion must be restricted to spheres which legitimately appertain to religion and the rest should be regulated by a uniform code. National unity is of the prime concern for us. [4]
Shri Alladi Krishnaswami Ayyar from Madras constituency opined that we should derive knowledge from the British that when they conquered India, they implemented uniform criminal law i.e. Indian Penal Code for all the citizens. People did not protest against the same so why would they protest now? Every system law is derived is not self-contained. They are derived from different parts of the world. So if we want to unite India then we have to forget the differences existed among the personal laws. [5]
Muslim Personal Law from Mughal regime down to the British administration of justice, was duly protected and implemented. It is derived from Islam and the Islamic way of life. It manifests the religious faith and cultural ethos of the Muslim community. It is part and parcel of Islamic religion and culture. Religion is a matter of faith and conscience. The culture and civilization incorporate the religious ethos. The Muslim personal law being the very core of Islamic religious faith amalgamates in itself ‘belief, ‘practice’ and ‘propagation’. Muslims, as a community, being the followers of different scholastic thoughts are divided into diverse sects and sub-sects which constitute religious denomination. Each sect of the Muslim has the fundamental rights to manage its own affairs in matter of religion under Art.23(b) of the Constitution of India.
Islamic family status, family relations, matrimonial issues and other related matters and their governance are the core and crux of the Muslim Personal Law. Of course, these institutions reflect the culture of the Muslim community. Under Article 29(1) of the Constitution of India, Muslims are empowered to preserve their distinct culture. Muslim Culture is intertwined and intermixed with the Islamic way of life. Muslim Personal law cannot be segregated from Islam and the Islamic culture. During the British regime, Muslims were allowed to follow their own personal laws. Permission to follow their personal laws assumed statutory recognition in the year 1753 by the Charter of George II, whereby, Muslims could get exemption from the application of the Mayor’s court. By the permission under the relevant provision of the Charter, Muslims could adjudicate their cases on the basis of their personal laws.
Non-interference with the personal laws was not the innovation of the British administration of justice. Rather, the British India inherited the same from its predecessor, the Mughal administration of Justice. Muslim rulers were convinced that neither it was just nor it was equitable to force other communities to give up their personal laws. Consequently they allowed all religious communities to practice and profess their own personal laws. The feasibility and legitimacy of the policy of the Muslim rulers to the effect influenced the British administration in India to promulgate the Muf’assil Regulation, 1772 during the time of warren Hastings, and later passed the Regulation of 1780.
Again in 1937, the British Imperial Legislature assured the application of Muslim Personal Law to Muslims by enacting The Muslim Personal (Shariat) Application Act,1937. Under the Article 372, the Constitution of India ensures the application of “all the law in force in the territory of India immediately before its commencement.”
“…all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or a competent authority.
Explanation: The expression “law in force” in this article shall include a law passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed…”
The very letter and spirit of Article 372 of the Constitution reveal that the Muslim Personal Law is the ‘law in force’ as it is enacted by the competent legislature. Since its application, the Act has never been altered or repealed or amended by the competent legislature or other competent legislature till date, so it is ‘law in force’ or ‘living law’ according to Article 372 of the Constitution of India. Entry 5 of list III(Seventh Schedule) of the Constitution does recognize the existence of numerous personal laws. Muslim Personal law is one of the existing personal laws in India.
Muslim Personal Law being the part and parcel of the religion and culture of the Muslim Community, is duly protected by part III of the Constitution. In such constitutional scenario, if the state enacts any law which takes away or abridges the personal law of the Muslim Community, it shall start Article 13(2) of the Constitution which reads:
The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall extent of the contravention, be void.
The doctrine of ‘reasonable classification’ is recognized under Article 14 of the Constitution which deals with the ‘equality before the law’ and ‘ equal protection of the laws’ .Muslims in India have their own distinct language, religion and culture, thus, they constitute a ‘ separate class’ as a distinct community. tHe philosophy of ‘reasonable classification’, they constitute a ‘separate class’. Being a separate class , they are constitutionally entitled to have their separate set of personal laws.
It is paradoxical as on the one hand, all citizens are entitled to freedom of conscience and the right to profess, practice and propagate religion, and while on the other hand, the Constitution directs the state to endeavour to secure for the citizens a ‘Uniform Civil Code’ throughout the territory of India. Any section if citizens having a distinct language, script or culture of its own shall have the right to conserve the same. Every religion’s denomination or any section thereof shall have the right to manage its state of affairs in matters of religion.
Not only religious belief, but acts done in pursuance of religious performance or practice: rites, ceremonies observances and modes of worship are protected under Article 25(1) nad Article 26(b) of the Constitution. The constitutional provisions embody the principle of religious tolerance and serve to the secular nature of Indian Democracy which the architects of the Constitution considered the very basis of it. Freedom of conscience connotes individual’s doctrines and dogmas pertaining to all matters which are considered by him or her be essential and conducive to the spiritual well-being to carry out religious practices in pursuance of religious beliefs which are considered by that religious beliefs to be its essential and integral part. Such religious practices are constitutionally guaranteed as Fundamental Rights. Its practice is religious, if it is considered as the essential and integral part of the religion, and depends on the conscience of the follower of the religion and its tenets.
The practice of the Muslim Personal Law by the Muslim is the practice of Islam. The practice of Muslim Personal Law manifests the culture of the Muslim Community. Muslims are guaranteed by the Constitution to preserve and conserve their culture.
Religion is not only a matter of faith, but also prescribes ritual observation, ceremonies and modes of religious performance. The Muslim Personal Law is the integral part of Islam. Marriage, dower, divorce, maintenance, guardianship, administration of estate and inheritance, waqf, wills etc constitute the core of Muslim Personal Law. All these institutions are derived and developed by the primary and secondary sources of Shariat. It is an established postulate of the Islamic jurisprudence that in very concept of the Muslim Law, the essence of religion and values of ethics and morals are incorporated.
Islamic religious faith become meaningless if it is not practiced according to the dictates of Shariat. For example, in Islam, to have faith in five times daily prayers and Haj (pilgrimage) are not sufficient till the moment these are not performed according to the Sunnah(action of the Prophet) by the Muslims. According to the Constitutional Scheme, the state is under an obligation to protect the religious and cultural freedom of which Muslim personal Law is an inseparable part. Under the Islamic scheme, the ambit of Muslim Personal Law covers marriage, dower, guardianship etc. These are the important components of religious faith and practice as revealed by Allah, the Almighty in His Holy Book, expounded by the Prophet(peace and blessing be upon him), collected, codified and interpreted by the great caliphs and learned Imams.
In view of the religious and cultural background of the Muslim Personal Law, any attempt by judiciary or any other wings of Government of India to change or codify or repeal it, would amount to rebellion against Allah, the Almighty, the Prophet(peace and blessing upon him), great caliphs, learned Imams and its followers. Also, any such attempt would violate the religious and cultural freedom of Muslims which are guaranteed by the Constitution of India.
The Indian judiciary on the issue of the Uniform Civil code and the Personal Law has not been consistent. It has adopted diverse approaches on different occasions. The Division Bench of the Calcutta High Court in Naresh Chandra Bose v. Schindra Nath Deb [6] held that the expression “law in force” under Article 372(2) of the Constitution is not limited to statutory laws, but it is extended tom cover the customary laws and personal laws like that of the Muslim community. Further, Article 44 of the Constitution itself recognized the existence of different sets of personal laws of different communities.
The Supreme Court in Krishna Singh v. Mathura opined that in process of applying the personal alws of the parties, the judges of the High Court ‘could not introduce their concepts of modernity’. In view of the Supreme Court, the Constitution has maintained the position of personal laws status quo.
The Delhi High Court in Harvindra Kaur v. Harmander Singh [7] appreciated the sanctity of personal laws. The relevant observations of the Delhi High Court are extracted below:
- The introduction of the Constitutional in the home of Personal Laws is most appropriate.
- The Constitution is like introducing a bull in a China Shop.
- It will prove to be a ruthless destroyer of the marriage institution and all it stands for.
- In privacy of home and the married life, neither Article 21 nor Article 14 have any place.
- In sensitive place which is most intimate and delicate, the introduction of cold principles of the constitutional law will have the effect of weakening the marriage bong.
Academicians have the similar view: [8]
Inside the privacy of homes, to the cases paternal, marital, filial and fraternal relationships that requirement of our constitutional law, we must appreciate, have only a limited application.
Chief Justice Gajendragadar opined that the non-implementation of Article 44 amounted to a grave failure of Indian democracy. He expressed his conviction for its early implementation. In his view, a Common Civol Code was imperative for evolving a new secular social order. [9]
Justice Hedge, the Judge of the Supreme Court observed: Religious-oriented laws were a concept of medieval time, alien to modern societies which are secular as well as cosmopolitan. So long our laws are religious-oriented laws, we can build up hardly a homogeneous nation. [10]
The Constitution Bench in the case of Mohd. Ahmad v. Shah Bano Begum [11] opined on the Uniform Civil Code, while it was not the issue for the judicial interpretation before the Supreme Court. The relevant observation held unanimously by the five judges are noted below: [12]
It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that the state shall endeavour to secure for the citizens of India a uniform civil code. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim Community to take a step in the reformation of laws towards the Uniform Civil Code. A common civil code will help a cause of national integration by removing desparate loyalties to laws which have conflicting ideologies. No community is likely to bell a cat by making gratuitous concession on this issue of the state which is charged with the duty of securing an Uniform Civil Code for the citizens of the country and, unquestionably, it has legislative competence to do so. We understand the difficulties in bringing different persons of diverse faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution has any meaning. Inevitably, the role of the reformer has to be assumed by the court itself because, it is beyond the endurance of the sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridhge that gap between the 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.
Again in a two judges bench of the Supreme Court in Ms. Jorden Diegdeh v. S.S.Chopra [13] reiterated:
…the time has come for the intervention. ..in these matters to provide for a Uniform Civil Code of marriage and divorce.
Justice O. Chinappa Reddy speaking for the court, referred to the observations of the court in the Shah Bano’s case and observed:
It was just the other day that a Constitution Bench of the Court had to emphasize the urgency of infusing the life into Article 44 of the Constitution which provides for a Unform Civil Code. The present case is yet another which focuses our immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a Uniform Civil Code…
Now, the latest but very controversial verdict of the Supreme Court in the Smt. Sarla Mudgal case wherein the Supreme Court, preferred to deal with the Uniform Civil Code was not raised for the judicial treatment. Factually speaking, Meena Mathur one of the petitioners was married to Jitender Mathur. Her husband embraced Islam and married Fatima, the name after her conversion to Islam. The marriage was solemnized when both embraced Islam and adopted Islam as a way of their life accordingly. Petitioner contended that the conversion of her husband to Islam was just to remarry by circumventing the provision of section 494 of the Indian Penal Code,1860. He asserted that, being a Muslim, he could marry to the extent of four, provided he was able to do justice to all the wives according to the dictates of the Holy Quran and Sunnah of the Prophet (peace and blessing be upon him). Another petitioner, Geeta’s husband, converted to Islam and married after conversion to a Muslim girl. His first wife contended that her husband’s conversion to Islam was just to facilitate the second marriage as in the Islamic matrimonial system, a male could marry to the extent of four at a time. Geeta, a Hindu wife whose husband converted to Islam married to Deepa, a Hindu girl after conversion to Islam, contended that the conversions to Islam were to facilitate the marriage. Factual narrations in the preceding lines reveals that the issue of the Uniform Civil Code was not raised before the Supreme Court for its verdict. Nevertheless, Justice Kuldip Singh preferred to opine on the need and the relevance of the Uniform Civil Code in India. For reason best known to Justice Kuldip Singh and his companion judge Justice R.M.Sahai who suo-moto picked up the issue of the Uniform Civil Code and expressed his opinion on its length. Both expressed their favor for the implementation of it relying on the Shah Bano case of ‘unity in diversity’ as one of the peculiarities of India. He did not pay heed to the doctrine of ‘secularism’ in the Indian context. He brushed aside the religious and cultural freedom of Indian Muslims guaranteed to them as Fundamental Rights by the Constitution of India and preferred to observe:
…those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in Indian Republic there was only one nation-Indian nation… and no community could claim to remain a separate entity on the basis of the religion.
To secure a Uniform Civil Code, Justice Kuldeep Singh manifested unwarranted zeal and finally made an earnest appeal to the government of India:
We, therefore, request the Government of India through the Prime Minister of the country to have fresh look at the Article 44 of the Constitution of India and endeavor to secure for the citizens an Uniform Civil Code throughout the territory of India.
Article 44 is based on the concept that there is necessary connection between religion and the personal law in civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal laws. Marriage, succession and like matters of a secular nature cannot be brought within the guarantee enshrined under Article 25, 26 and 29. The legislation-not religion- being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded or supplemented by introducing a Uniform Civil Code. In this view of the matter no community of human civil code for all the citizens in the territory of India.
Besides other key concepts, secularism, religious and cultural freedom constitutes the ‘basic structure’ of the Indian Constitution. Religious freedom under Article 25 is not confined to freedom of conscience but its ambit covers tight to practice, profess and propagate the religion by its own citizens. Indeed, the religion is a wide and pervasive concept. It is confined to ‘faith’ only because ‘practice’ and ‘propagate’ are the part and parcel of the religion. ‘Faith’ represents the inner aspect of religion, while ‘practice’ and ‘propagate’ manifest the ‘external aspect’. Lastly, the general public has to understand the intricacies and implement the code.
By: Debajyoti Saha
End Notes
[1] Writ Petition (Civil) No. 242 of 1997.
[2] Writ Petition (civil) no. 242 of 1997.
[3] C.A.D,vol.VII,pp.538, 540-552
[4] id
[5] id
[6] AIR 1956 Cal. 224
[7] AIR 1984 Del.66 of 75.
[8] See Bhattacharya, A.M., Muslim Law and the Constitution(ed.2nd.,1994), Mohammad Shabbir, Muslim Personal Law and Judiciary(ed. 1st,1988) and Tahir Mahmood, Personal Laws in Crisis(ed.1st, 1986)pp.17,47-48, 133.
[9] Gajendragakar, Secularism and Constitution(ed.1st 1977) p.126.
[10] Sec.S.Hdge, Islamic Law in Modern India(ed.1st 1977) p.3.
[11] AIR 1985 SC 945.
[12] Ibid.
[13] AIR 1985 SC 935.
