Article 44: Uniform Civil Code

India is home to various religions and people. It has a rich history dominated by religious beliefs and practices upon which the country rests. Despite all the differences people call India their home. What if they were all governed by one single system of law? Yes, there are various laws that are same for all irrespective of what faith the person belongs to. Some examples are The Constitution, The Indian Penal Code, the Criminal Code of Procedure, Partnership Act and many others. But at the same time, actions that affect day to day life of a common man are governed by Personal Laws. They differ in terms of religion and govern practices like marriage, property, business, gifts, children and much more. For a country to achieve maximum justice there must be equal treatment for all. This is where the idea of a Uniform Civil Code (UCC) plays its part. Around and after Independence, there has always been a dispute when it comes to religious problems, and the topic of UCC has always been brought up. Whether in its support or in its opposition, it continues to be a strong and distinctive bone of contention. This article will try to understand properly the meaning and the gravity behind Article 44.

What are Personal Laws?

To properly grasp the purview of Article 44, it is important to know the base for its existence and what it concerns. For this, meaning of personal laws should be understood.

In India, to honor the interests of every community, personal laws were established. These have been derived from religious texts. Personal laws govern various aspects such as marriage, divorce, property, inheritance, business, maintenance, gifts, children, and much more.

These laws have been followed since colonial times. They were first formed by Warren Hastings in 1772, for Hindus and Muslims separately for litigation relating to personal matters.[1] After independence, efforts have been made to modernize personal laws so as to bring uniformity among various religions. 

The Hindu Personal Laws cover the interests of Hindus, Sikhs, Jains and Buddhists. The Muslim Personal Laws are derived from those of Shia law, and although are uncodified have the same legal status as a codified law. Judicial precedent plays a large part in Muslim Law. The Christian Law thus governs the interests of Christians. For years these laws remain to be the epicenter when it comes to family law and related legal issues in the country. They have also raised many questions where, every time the topic of UCC also raises its voice.

What is Article 44?

Article 44 states:

44. The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.[2]

It means that the state should attempt to make one common law for all citizens in India. Let us break it down for easier understanding:

  • Uniform: Same or Unchanged.
  • Civil: Laws in relation to a community.
  • Code: Collection of written laws, to cover a specific matter.

The UCC advocates for the construction of one common law for all in India, irrespective of their religion. Just like in the personal laws, it would cover every matter of the community of India as a whole. This should cover all family law matters such as stated above, marriage, divorce, property, inheritance, business, maintenance, gifts, children, and much more.

It should promote larger social justice, equality for all, empowerment of women and vulnerable sections, while maintaining religious freedom for all. It should protect facets such as secularism, fundamental rights, and fundamental duties.

It falls under Part IV, Directive Principles of State Policy of the Indian Constitution. DPSPs are non-enforceable, and therefore, it is an article that is a suggestion to the State to achieve social and economic justice in the country. Thus, public opinion becomes crucial in the enforcement of DPSPs and thus that of Article 44. It is this reason why Article 44 becomes a controversial topic when religious topics are brought up.

Presently, Special Marriage Act of 1954 allows any citizen to marry outside the boundaries of any personal law. Further, Goa is the only State having a common family law; although it is not fully a uniform civil code, it is the closest to a one.

The Wrangle of Article 44

As mentioned in this article over and over again, India constitutes of various religious groups of people. This is exactly what becomes the root cause behind the wrangle about a Uniform Civil Code throughout the country, and has been going on since Independence. Preserving and protecting one’s religion becomes the base of the debate. Minorities genuinely feel the threat towards their religion when UCC comes up.

Originally in the drafting of the constitution, the UCC was under Art.35 of the draft Constitution[3]. The debate around this draft triggered much conflict, wherein opposition came from Muslim members. They wanted to keep personal laws out of the drafts’ scope. They held on keeping a provision that operationalized the draft Art.35, (which would later be put up as Art.44 of the Constitution) only with the prior permission of the community.

The three things under which the article gained extreme opposition was;

1) that, the implementation of UCC would violate the freedom of religion;

2) that, it will create disharmony between communities; and

3) that, personal laws should not be interfered with, without the consent from the community.

However, the supportive members advocated that UCC was the way to uphold the country’s unity and the secular aspect of the constitution. They put forward the point of women equality and rights, which would only be possible through UCC. They also reminded that it was not just the Muslims that would have to deal with UCC, but Hindus also had to. Furthermore, it was social reform legislation, one needed to attain maximum possible social justice.[4] In the words of Dr. B.R Ambedkar, “We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights.”

The end of the debate rested upon leaving the UCC as a directive principle for the state, and not making it an obligation. Therefore, Art.44 was added in the DPSP, and left with only one line. This way, it would become a principle to attain larger social justice in the future.

The task of drawing up a set of rules that would govern all communities is a very intimidating and tedious, considering that the lawmakers have to deal with a varying interests and religious sentiments of all. Misinformation about UCC leads minorities into believing that it is a way of imposing the ways of the majority on them. The complexity and sensitivity of the issue causes decreasing political will, and fear of opposition and riots. Politicization of the UCC debate is caused due to different positions and leadership in politics, and influence by personal laws. As it is largely believed that the personal laws came into being because of religious beliefs, it is argued that they (personal laws) should not be disturbed; risking the animosity and tension between the religious communities. India as a declared secular nation, guarantees its minorities the right to religion, culture and customs preserved under Art.25 through Art.30; and that the implementation of UCC will go against these articles.

In its contrast, implementation of the UCC will lead to a more integrated, unified India. When issues arise in terms of personal laws, they have been solved under other common laws existent in the country. Personal laws become a loophole to operate an alternative judicial system that runs on age old practices and can be at various times derogatory and a violation of human rights. UCC will also give more rights to women, adding to growth and human rights perspective of the country. UCC does not aim to remove right to religion in the country; rather it promotes the equality of religion and thus equality of people. It will lead to a coherent legal system and easier administration. The most important point being put forth is of a modern progressive nation. Not just economic growth is important, so is social growth.

Post-Independence Cases in Relation to Article 44

There have been various instances wherein the Supreme Court has recommended that the Center should in fact set up a UCC. These have been familiar cases since independence. In the case of Mohammad Ahmed Khan v. Shah Bano Begum [5], also known as the Shah Bano case, the court recommended UCC for a women’s rights purpose. The case was related to triple talaq under the Muslim personal law. The ease of such divorce had led many women helpless and vulnerable.

The second case, Sarla Mudgal v. Union of India[6] wherein change of religion of the husband from Hindu to Muslim can give right to solemnize the second marriage was the issue. The court here held that Hindu marriage can only be dissolved under Hindu Law, and it does not allow bigamy. Clearly, if there was a common marriage and divorce law, this case would not have happened. Again, the court recommended UCC, in protecting women from such acts.

Another important and recent case John Vallamattom v. Union of India[7] wherein the Indian Succession Act, 1925, section 188, applicable to non-Hindus was challenged saying that it imposed restrictions on Christians for donations of property by will. Even though the bench struck down the section, it again rose as a UCC debate, on whether it should be applied.

In all of these and many more cases, the issues were settled with taking in consideration the other common laws such as the IPC, CrPC and the Constitution to give maximum justice available to the aggrieved party.

Conclusion

So far, it has been established that the Art.44 is a fragile issue to be dealt with. On one side lies the development of the country by providing greater social development, while on the other side remains the question of religious freedom. There must be a better way of educating, creating awareness and answering questions in relation to this sensitive topic. Further, drafting an actual common law is a monumentally delicate and tough task, as it has to be made sure that every community is dealt with justly and fairly. A progressive and broad minded outlook is needed among the people of India in spirit of such code. At the same time, jurists must be aware of the sensitivity of the issue and making sure that religious sentiments of people are preserved. The Uniform Civil Code being a touchy topic remains a matter of time and patience and lies in what the future holds.


[1] Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History (6th ed.)

[2] The Constitution of India, 1950.

[3] Constitution Assembly Debates- 23rd Nov. 1948.

https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-11-23

[4] Constitution of India: Article on DPSPs.

https://www.constitutionofindia.net/constitution_of_india/directive_principles_of_state_policy/articles/Article%2044

[5] Mohammad Ahmed Khan v. Shah Bano, AIR 1985 SC 94

[6] Sarla Mudgal v. Union of India, AIR 1995 SC 153

[7] John Vallamattom v. Union of India, AIR 2003 SC 2902

Sai Kulkarni from Marathwada Mitra Mandal’s Shankarrao Chavan Law CollegePune

“Curiosity is the engine for discovery, inquiry and learning’ Just a curious girl working to leave a mark.”

One thought on “Article 44: Uniform Civil Code

  1. This article was informative. Was searching for the reasons why Art. 44 was such a heated topic. Now I have an idea about the backdrop of inclusion of UCC in DPSP and not a mandatory instruction.

    Liked by 1 person

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