THE SIMMERING BRAWL OF ARTICLE 44

 

 

India is a democratic country where the people form a government of their own choice. In such a nation, where diversified cultures exist, in fact wherein after every 100 kilometers the language of the natives change, the possibility of bringing uniformity for the purpose of equality seems unjust. With a variety of customs and usages prevailing in this country, the brawl over Article 44 of the Constitution has been the most controversial topic of discussion since the past 64 years when the codification of Hindu Laws took place in the year 1956.

Part IV i.e. Articles 36 to 51 come under the umbrella of Directive Principles of State Policy (DPSP) which were adopted in the Indian Constitution by the Irish Constitution of 1937. According to Article 37, the Directive Principles of State Policy are non-justifiable and are also non-enforceable in the court of law. These refer to those principles which are to be kept in mind by the legislators while they are framing their law and policies. They constitute a certain set of guidelines or code of conduct for the legislators and the administrators of the country. These principles were embodied to achieve the main objective as laid down in the Preamble to the Constitution i.e. ‘Justice, Social, Economic, Political; liberty, equality and fraternity.’

Article 44 of the Constitution of India provides for a Uniform Civil Code for all its citizens throughout the territory of India. This refers to a common idea of similar set of civil rules irrespective of their religion, caste, sex etc. UCC seeks to govern every citizen with a common set of rules. This concept entails from the very roots of Civil Law Code which means a systematic collection of laws designed to comprehensively deal with the core areas of private law such as for dealing with business, negligence, lawsuits and practices. The main objective of this article is to highlight in brief about the simmering topic of UCC and why it should not be introduced in India.

The Portuguese Civil Code 1867 is used as a uniform civil code in the state of Goa which is till date the only state of India propagating UCC. Under this code, the residents of Goa are governed by this common civil code despite of their religion or ethnicity. The laws co-existing with this Code are the Goa Civil Code, Goa Family Law, etc.

READ  Scope of Administrative Law

The noteworthy point revolving around this controversy is the presence of the word ‘Secular’ in the very Preamble to the Constitution of India i.e. ‘secular, democratic, republic’. Secularism signifies that there should be no discrimination on the grounds of religion or any religious institution thereof. Freedom of religion, faith and belief is one’s personal choice and has also been given due significance by enumerating it as a part of Fundamental Rights and incorporating Articles 25 and 26 henceforth.

Since the very root of this whole discussion over UCC has been justified on the ground that Article 44 is different from Articles 25 and 26, but let me put up this question that bringing the same order in the whole of India for example an Indian Civil Code or an Indian Family Law, will this resolve the dispute of those minority and underprivileged sections of the society? And not to forget will this also be able to govern the citizens of those tribal areas who practice and propagate their own customs and usages? How will a Uniform Civil Code bring uniformity in such a nation where even a suit was filed related to distribution of property between two different religions all together?[1] The mere introduction of UCC can only be justified on the ground that it will make the work of the judicial system easier as they will not have to study and deal in depth with different laws of different religions and communities. The limelight has to be brought towards the diverse implications of concerning secularism in India and how codification of Uniform Civil Code will affect such personal laws.

Firstly, it is practically very difficult to adjust in a common law for the purpose of marriage when Hindus practice it as a religious sacrament and Muslims as a civil contract.

Secondly, UCC is perceived by the minority communities as an encroachment to their religious freedom. This might create a fear in their minds that their customs and traditions will be neglected and dominated by religious communities only.

Thirdly, with the coming into force of UCC the basic fundamental right of an individual to practice religion of one’s own choice will be infringed because this will provide a wider ambit to the State for intervening in such religious practices, therefore reducing the freedom of religion.

READ  A Critique On Protection Of Children From Sexual Offences (POCSO) Act

Fourthly, rather than amending the whole law it is much better and feasible to bring about changes in different personal laws by making gradual changes in each of them and ensuring gender equality and prolonged interpretations. This is a very sensitive and a tough task which is very demanding in terms of time and human resource at least for the time being in force. Any act of biasness can lead to communal violence by a majority or minority group.

Lastly, in such difficult times it is neither feasible nor suitable considering a major opposition by the Muslim community and jihad. Adequate time has to be given for mellowing down the intensity of such controversies and inculcating more confidence in the community.

As a matter of fact, there has been a serious need to codify Muslim laws as they have been misused to a greater extent which consequently followed the landmark judgment of Mohd. Ahmed Khan v. Shah Bano Begum and Ors.[2] Due to the gross misconduct of such laws that people use them according to their own whims and fancies, Supreme Court found it fit to order the liability of such a husband to maintain his divorced wife beyond the period of iddat if she is not able to maintain herself by torch bearing the secular nature of Section 125 Cr.PC being applicable to all such religions.

Another landmark judgment of Shayara Bano v. Union of India[3] abolished the unjustified and unconstitutional custom of Triple Talaq within the Muslim community hence providing justice to those underprivileged Muslim women who have been fighting for their rights since time immemorial. But the question stays unanswered that if we pass a law in India which is uniform in nature then how will the provision of Article 15(3) of the Constitution be justified on the grounds of equality? Where on one side we talk about giving states special powers to make any special laws for protection of females and on the other side we talk about bringing a uniform civil code for attaining equality when our constitution itself contains such a gender biased law. Keeping in view today’s scenario where we are finding most of the female community misusing their rights, will it still be justified for bringing a UCC for protecting “dignity of women, equality, gender justice and national integrity”.

READ  Salient features of Indian constitution

Freedom of Religion has not only been recognized nationally but also internationally. Certain statues have been adopted by the United Nations to protect belief and faith of every individual. For example, UN Charter (Article 55), Universal Declaration of Human Rights 1948 (Articles 18 and 26), International Covenant on Civil and Political Rights 1966 (Articles 18 and 26), Declaration on the Elimination of all forms of Intolerance and Discrimination based on Religion or Belief 1981 (Article 6), International Covenant on Economic, Social and Cultural Rights 1976 (Article 13) amongst few of them.

Thus the whole point of view with which this article is written is to bring forth that the issue of gender inequality in this nation is a lot greater than equality among different communities. The work of a democratic country will be fulfilled when a reasonable difference will be recognized between the two genders of the society. It is suggested that India should be celebrated for its diversified culture, but specific groups or weaker sections of the society must not be underprivileged in this process. The personal laws of different communities must be preserved and inequality must be eradicated from the society even if not in its absolute form.

The observation given by Apex Court in the decision of Lily Thomas v. Union of India[4] held that “the desirability of Uniform Civil Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.”

Due to absence of ‘Consensus’ on the formulation of a Uniform Civil Code and also the limitations on drafting of such a code, codification of laws can at least take place among the Muslim community or any other community for that matter but should not be ultravires to the Constitution. India in the present scenario is not ready for such a drastic change.

 

[1] The Ram Janam Bhoomi case

[2] 1985 AIR 945, 1985 SCR (3) 844

[3](2017) 9 SCC 1

[4] AIR 2000 SC 1650, ¶668

Author: Shubhi Dhiman,
School of Law, UPES Dehradun; 3rd year

Leave a Comment