IMPACT OF UCC ON FUNDAMENTAL RIGHT IN REGIME OF BASIC

STRUCTURE

SUBMITTED TO: SUBMITTED BY:

Dr. Faizal Khan Km. Prerna Singh
PROFESSOR Ad. No. 15gsol102133
SCHOOL OF LAW En. No. 1510103041
GALGOTIAS UNIVERSITY

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 IMPACT OF UCC ON FUNDAMENTAL RIGHT IN REGIME OF BASIC
STRUCTURE
I. INTRODUCTION

“When one enters the Supreme Court, he or she sees a bronze structure of 210 centimeter height
installed on the lawn of the Supreme Court. It portrays Mother India in the form of a figure of a
lady, sheltering the young Republic of India represented by the symbol of a child, who is
upholding the laws of land,symbolically shown in the form of an open book, a balance is shown
dispensing the equal justice to all.”1

- Justice R.K. Agarwal

These words of the Supreme Court in recent PIL lay-outs the framework of Indian Judicial
System which is a source of perennial vitality and the hope for the welfare. The Preamble
declares India being a Secular, Sovereign, Socialist country and the Constitution framers
dreamed of an India where all citizens being subject to same set of laws. But the greatest curse of
India is different set of personal laws. It is a football in the political game which our
conservationist plays in the public life. India is a country which abounds in personal laws and
each community has its own personal law. But legal reform in personal laws has been one of the
critical yet neglected areas in Indian democracy. This reform is for the dignity and equality of all
Indians — irrespective of religious background. On the other hand, they suffer from the near
absence of any legal framework in matters of family, marriage, divorce, custody of children etc.
The issue of Uniform Civil Code (hereinafter UCC) has time to time taken place in the debate
among the citizens and every time there has been very less difference between the supporters and
the opponents. It is viewed through the mirror of reforming Muslim Personal Law and this might
be the prime reason Muslim society abhor the encroachment in their Personal Law. UCC is more
than a common code it’s rather bringing equality among the citizens. Let us first understand the
meaning of Article 44 of the Indian Constitution. Article 44 of the Indian Constitution says “The
state shall endeavor to secure for the citizens a uniform civil code throughout the territory of
India” means the state will try to achieve and secure uniform civil code for the citizens of India
1
National Lawyer’s Campaign for Judicial Transparency and Reforms v. Hon’ble Shri Justice J.S. Khehar, W.P.
(Civil) Diary No.- 43118/2016 December 30, 2016 (R.K. Agarwal, D.Y. Chandrachud JJ.) (Supreme Court of India)

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throughout the Indian Territory. Now, in Article 44 term uniform is used which means there will
be equal law for equals but if there is similar law for everyone then the word “common” should
be used and if we look at Article 14 of the constitution which is very much it says that unequal’s
will not be treated alike but equals will be treated alike. India has five major religion and have
distinct personal laws of its own. These communities divide their family laws on the basis of
caste, creed and sex. In Muslim the source of law is the Holy Quran but the two communities;
Shia and Sunnis differ on application of personal law. On other part in Christian’s communities
the two different groups viz Catholic and Protestants are regulated under two codified laws;
Christian Marriage Act, 1827 and Indian Divorce Act, 1869. In Goa and Daman & Diu the
codified law applicable to them is Portuguese Civil Code 1867; in Pondicherry the personal laws
are covered under French Civil Code, 1804. 2 So we Indians are either governed by those
costmary practices or the ‘century old codified laws.’

UCC has been in recent headlines after the petition filed by Shayara Bano against the
constitutional validity of Triple Talaq. In the present context Law Commission of India issued a
questionnaire to look into the personal laws keeping in mind the gender equalities. This
questionnaire was purely an academic quest to address the discrimination against the women.
UCC must not be mixed with triple talaq. At present scenario Uniform Civil Code is seen as a
tool of national integration it is expected that it will work as a gap filler and remove all the ill
practices in different religions. But with a huge mélange in every religion and people living in
different states of a same religion, it will be very difficult to make uniform law on a practical
ground for all religions. It must be wise enough to give up the paranoia and engage with the state
and other stakeholders to unite the vast country with its great diversity of languages, within the
common bond of constitutional justice based on the ideals of liberty, fraternity, equality and
justice.

II. RIGHT TO RELIGION – HOW FAR CAN BE STRETCHED

We live in the era of welfare state which seeks to promote the prosperity and well-being of the
people.3 The Constitution is the mother of all the law every law must pass the test of

2
D.C. Manooja, Uniform Civil Code: A Suggestion, Vol. 42 : 2-4, JOURNAL OF THE INDIAN LAW INSTITUTE
448, 457 (2000)
3
Paschim Banga Khel Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426

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constitutional infirmities and has an overriding effect on any provisions, customs, and practices,
usages which offend the constitutional right of person, collectively or individually. Article 25 to
28 confers certain rights related not only to the citizens but also on every person in India. It seeks
to protect religion and religious practices from state interference. Supreme Court through
numerous judgments has nurturing the concept of welfare state; “The Constitution envisages the
establishment of a welfare state at the federal level as well as state level. In a welfare state the
primary duty of the govt. is to secure the welfare of the people.” The Constitution read with
Preamble enjoin the state to emphasize the principle of equality. Justice B.P. Jeevan Reddy in
S.R. Bommai v. Union of India4 observed, “…while the citizens of this country are free to
profess, practise and propagate such religion, faith or belief as they choose, so far as the state is
concerned, i.e., from all are equal and all are entitled to be treated equally.” Secularism has
been not been expressly incorporated other than Preamble. Article 25 (1) guarantees the right to
profess, propagate religion. The word ‘religion’ has not been defined and observed that,
“Religion is the belief which binds spiritual nature of men. It includes worship, beliefs, faith,
devotion, etc. and extends to rituals. Religious right is the right of a person believing in a
particular faith to practice it, preach it and profess it.”5 The scope was determined by the Court
in Lakshmindra Case and observed,

“Article 25, as its language amplifies, assures to every person

subject to public order, health and morality, freedom not only to
entertain his religious beliefs, as may be approved by his judgment
and conscience, but also to exhibit his belief in such outwardly act
as he thinks proper and to propagate or disseminate his ideas for
the edification of others.”

Thus a person can exercise his religious freedom so long as it does not overlap the fundamental
rights of others. The freedom of Art 25 & 26 can’t be absolute. Enjoyment of right must be
consistent with the enjoyment of rights by others.6 One fundamental right has to co-exist in
harmony with the exercise of other fundamental rights. Moreover there is no straight jacket
formula to determine any particular restrictions as reasonable. 7 Article 25 (2) (a) empowers the
state to regulate any secular activities related to religious. Indian Parliament from time to time

4
AIR 1994 SC 1918
5
Commr., HRE, Madras v. Sri Lakshmindra, AIR 1954 SC 282
6
Acharaya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098
7
State of Bihar v. K.K. Misra, (1982) 1 SCC 39

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has been regulated the personal laws irrespective of religion. The Special Marriage Act permits
any one to marry without renouncing their religion. The Special Marriage Act, 1954 and Indian
Succession Act, 1925 was not in consonance to the religious views of any community, but there
was no hue and cry about it.

Unfortunately the UCC is seen as imposition of Hindus Law on Muslim, if personal laws
are brought under the part of religions then the principles enshrined in the Article 14 will be
defeated. Religion should be restricted to religion only and secular activities attached to the
religion must be regulated for participation on equal terms in the larger life of nation. 8 The sweep
of Art 14 & 21 covering rationality and fairness along with dignity and quality of life shall
override the right conferred by the Art 25 & 26. It is to be noted that the right to quality is the
rule of law and basic feature of Constitution and no law can trespass the principle of equality
enshrined under Article 14. Parliament is empowered under Article 25 (2) (a) to make laws on
this subject matter which is fully a secular activity. The absence of common code results in the
misuse of religious freedom and tranny of basic principles of Constitution. UCC will be social
reform which means eradication of practices or dogmas which stand in the way of the country’s
progress as a whole. In Jorden Diengesh v. S.S. Chopra9 it was observed,

“…the law relating to the judicial separation, divorce and nullity of

marriage is far, far from uniform. Surely the time has come for a
complete reform of the law of marriage and makes uniform law
applicable to all people irrespective of religion or caste. We
suggest that the time has come for the interference of the
legislature in these matters to provide for a Uniform Civil Code of
marriage and divorce.”

The directive enshrined under Article 44 in no way infringes the freedom of religion guaranteed
by Article 25. Clause (2) of the article specifically saves the secular activities associated with
religious practices from the guarantee of religious freedom contained in clause (1) of Article
25.10 Former Chief Justice of India Mr. Justice Gajendragadkar has observed that it is the failure
on the part of the Legislature which could not implement the Article 44 and India needs the code
badly for the establishment of secular social order. 11 The judiciary too expressed the urgency to
8
Constituent Assembly Debates, Vol. VII, Page 547-48; V.N. Shukla, CONSTITUTION OF INDIA, 308-309
9
AIR 1985 SC 935
10
John Vallamatton v. Union of India, AIR 2003 SC 2902
11
supra note 2, at 2

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draft and implement common code in Mohd. Ahmed Khan v. Shah Bano 12, Sarla Mudgal v.
Union of India13, and Lily Thomas v. Union of India14 while providing substantial relief.

There is discrimination under personal laws which are forcefully put under the bracket of
religion. Hindus, Christians, Sikhs bars polygamy but the personal law of Muslim does not. The
practice of polygamy by Muslim man attenuates the equality, liberty principles. The status of
wife as well as widows under Muslim Law is distinct and is not a reasonable difference. A
Muslim wife is not entitled for maintenance after iddat period15 and personal laws of Hindus
entitle the Hindu, Parsi16, Christian17 woman to get maintenance till her death or remarriage.
Parsi Marriage and Divorce Act, 1936 as amended in 1988 has recognized 11 fault grounds of
divorce, with breakdown theory, fault theory and consent theory at par Hindu Law. 18 Indian
Divorce Act, 1869 amended in 2001 govern the Christians makes a distinction between the
husband and wife in the matter of grounds on which they can obtain dissolution of marriage. 19
The women under Muslim law can only get divorce through court of law whereas husbands can
divorce his wife at one breath. Hindu Marriage Act, 1956 does not make any distinction to obtain
a decree of divorce.20 The petition for mutual divorce under Indian Divorce Act, 2001 provides a
vague ground that the spouses have been living separately for a period of two years.21 The date of
presentation of petition for dissolution of a marriage under Hindu and Parsi Law is one year. The
multiplicity of Hindu law was resulting in equality particularly on issues like property. The
personal laws are onerous and unconstitutional. The personal law can’t override the
constitutional provisions and every act, rule or customs must be in consonance of Constitution.
UCC will be a ‘social reform’ which means eradicating the dogmas or ill practices which are not
the essence of the religion but stand affirm in the development of the nation as a whole.

III. CONSTITUTENT ASSEMBLY DEBATES ON UCC

12
(1985) 2 SCC 556
13
(1995) 3 SCC 635
14
(2000) 6 SCC 224
15
Sec. 3, Muslim Women (Protection of Rights on Divorce) Act, 1986
16
Sec. 40, Parsi Marriage and Divorce Act, 1936
17
Sec. 36 and 37, Indian Divorce Act, 1869
18
Sec. 31 and Sec 32, Parsi Marriage and Divorce Act, 1936
19
Sec. 10 and 10A, Indian Divorce Act, 1869
20
Sec. 13, Hindu Marriage Act, 1956
21
Sec. 10A (1), Indian Divorce Act, 1869

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Before trenching the constitutional provision of Article 44 which is the touching source of
directive to the govt. to enact UCC, the original intention of the framers of the Constituent
Assembly Debates must be accredited thoroughly. They debated on the relevancy, utility of
UCC. The sub-committee on Fundamental Rights mooted the idea of UCC under Article 35 of
the Constitution but it could only be absorb under Directive Principles of State Policies. 22 But
there were strong objections even after placing it under Directive Principles of State Policies.
Mohammad Ismail Sahib from Bengal mooted an amendment in the proviso to safeguard
personal laws. Another member from Madras, Nazruddin Ahmed provided for the attempt to get
consent from the legislatively recognized religious bodies before entering the arena of personal
laws.23 There were assertion from the opposing members that any attempt to encroach the area of
personal laws would tantamount to interfere in the right to religion which is a part of the life of
citizens. The members advocated that it would amount to violation of right to freedom of religion
and tranny of minorities. It was argued that India is moving towards the secularism and must not
act as a hindrance to the ethoes of Indian citizens. Mohammad Ismail Sahib put a note of caution
and observed, “Therefore, Sir, what I submit is that for creating and augmenting harmony in the
land it is not necessary to compel people to give up their personal law.”24Another member of
Constituent Assembly Nazir Ahmed remarked, “I submit Sir that we should proceed not in haste
but with caution, with experience, with statesmanship and with sympathy.” Dr. B.R. Ambedkar
conveyed the conscience of the country to the Constituent Assembly that UCC would not be
imposed upon the citizens but would be optional piece of legislation. Ambedkar observed,

“My second observation is to give them an assurance. I quite

realise their feelings in the matter, but I think they have read rather
too much into Article 35, which merely proposes that State shall
endeavour to secure a civil code for the citizens of the country. It is
perfectly possible that the future Parliament may make a provision
by way of beginning that the Code shall apply only to those who
make a declaration that they are prepared to be bound by it, so that
is the initial stage of application of the Code may be purely
voluntary. It is not the novel method.”25

22
Present Article 44 of the Constitution, 1950
23
S. Sanal Kumar, Uniform Civil Code or ‘Unilateral Civil Code’, LIVE LAW, (July 15, 2016), available at
http://www.livelaw.in/uniform-civil-code-unilateral-civil-code/ (Last visited February 25, 2017)
24
Constituent Assembly Debates, Volume VII, November 23, 1948.
25
supra note 7, at 4

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There had been a long debate in the constituent assembly whose President was Sardar Vallabh
Bhai Patel himself and during the debate Dr. B.R Ambedkar said that “Article 44 only mean that
state will try to establish only one civil code in the country and there is nowhere written in article
44 that state will establish it and any state will only be mad if it will go against its people’s will.”
B.R. Ambedkar’s only effort was to let the people of India feel and adjust to the social change
and reform in the practices so that people start try to think what is progressive for them rather
than staying with the orthodox thoughts which only will provide some amount of satisfaction that
they are following the norms and going according to the laws written in holy books but at the
same time it will pull them back and not let them move on the prosperous road. Thus the idea to
have uniformity in the matters of personal laws was defeated and hence Uniform Civil Code was
incorporated under Article 44 as Directive Principles of State Policies. Since then it has become
a ‘letter dead’ in the Constitution of India.

IV. INTERNATIONAL PERSPECTIVE

International Laws are body of rules established by custom or treaty and recognized by nations
as binding in their relation with one another. It is the “law of nations” that are the part of
Municipal Laws unless inconsistent with them.26 The status of the International Laws within the
legal system of a country is generally determined by the Constitution a State. Constitution of
India not only vests equal status and rights to women but also gives Parliament the power to
make any law for the whole or any part of the Territory of India for implementing any treaty,
agreement or convention with any other country or countries or any decision made at any
International Conference, Association or Other body. Hence India has ratified various
international conventions and has changed the laws in the consonance with those treaties. India
being the signatory of various International Conventions and under International Law a state that
ratifies the international instrument is legally bound to implement those provisions. The
provisions that govern India’s foreign affairs are laid down in Art. 51, 73, 253 read with a
number entries enumerated in List I of Schedule VII of the Constitution. However since the
executive and legislative power of the Parliament can pass any law with subject to certain
implied restrictions.27 The Hon’ble Supreme Court in this context opined,

26
Vishakha v. State of Rajasthan, AIR 1997 SC 3011 ¶ 14
27
Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845

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 “This power, it may be added, is of course subject to the limitations
which the Constitution of the state may either expressly or by
necessary implication impose in that behalf; in other words, the
question as to how treaties can be made by a sovereign State in regard
to a cession of national territory and how treaties when made can be
implemented would be governed by the provisions in the Constitution.
Stated broadly the treaty-making power would have to be exercised in
the manner contemplated by the Constitution and subject to the
limitations imposed by it”28

The National Commission to Review the Working of the Constitution (NCRWC) 2002 in its
Report observed that the state cannot isolate itself from the rest of the world and Parliament has
enough power under Article 253 to implement any treaty, agreement for the whole or any part of
India. Thus the Constitution embodies the basic framework for implementation of international
treaties undertaken by India in domestic legal system. India has rectified International Covenant
on Civil and Political Rights, 1966 and International Convention on Elimination of All Forms of
Discrimination against Women (CEDAW), 1979 is constitutionally bound to implement. 29 It is
openly accepted that the major religious community’s personal laws govern their marital and
family matters and non-interference by the govt. demands change in the approach.30 India has
been submitting periodic compliance report vis-à-vis the implementation of Committee Report.31
The Committee noted that the Government has adopted a policy of non-interference in the
personal laws and thus could not adhere to the ratified Convention.32 Article 5 of the CEDAW
clearly states that the State Parties to modify the social and cultural pattern to eliminate the
prejudices and customary. It is very simple and easy to understand that the language of the
Convention. Its main purpose is to modify and rework on the issue of all those laws which is
based on the idea of inferiority.33 Article 16 (a) of the CEDAW except the govt. (state parties) to
take all appropriate measures to remove discriminations related to marriage and family relations.
The international mechanism requires the state to carry out its international obligation
undertaken by it by ratifying international treaties.
28
¶ 34
29
Article 51, 73 & 253 of the Constitution of India, 1950
30
UNITED NATIONS, Report of the Committee on the Elimination of Discrimination Against Women, Supp No 38,
A/55/38, 22nd Session 17 Jan- 4 Feb 2000 and 23 rd Session 12-30 June 2000, General Assembly Official Records,
New York 2000 at 8
31
Joyti Rattan, Uniform Civil Code in India: A Binding Obligation Under International and Domestic Law, 46(4),
JOURNAL OF INDIAN LAW INSTITUTE 577, 587 (2000)
32
Id.
33
Id. at 578,

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 The other international mechanism which requires the state parties to remove
discriminatory laws and advocate equality is- International Convention on Civil and Political
Rights (ICCPR), 1996. It also states that the State Parties to the present Covenant undertake to
ensure equal right of men and women in enjoyment of civil and political rights. 34 It makes it clear
that all persons are equal before law and are entitled without any discrimination to the equal
protection of the law.35 India follows the dualist theory of for the implementation of international
law.36 The international conventions do not automatically get enforced. It requires the legislation
to be made by the Parliament to implement the ratified conventions, agreements. But by the
virtue of Article 51(c), 73, 253 read together obligates the state to comply with the international
law. Unfortunately the Government has not expressed any concern and the personal laws –
marriage, divorce, succession, guardianship, inheritance are subject to discriminatory practices,
sexual stereotypes. India being a secular country and Part III contains Articles which propounds
equality, liberty at large. But there are laws which bluntly these principles and continue to be
there even after seventy years of independence.

V. ROAD AHEAD

“We may have different religions, different languages, different colored skin, but we all belong
to one human race”

- Kofi Annan

Family law is a fascinating subject, particularly in India where family law differs from
community to community. Every religious group is governed by its own personal law. As far as
personal laws are concerned what we need is bring reform in each of them to make them relevant

34
Article 3 of the International Convention on Civil and Political Rights (ICCPR), 1996
35
Article 34 of the International Convention on Civil and Political Rights (ICCPR), 1996
36
Jolly Jeorge Varghese v. Bank of Coachin, AIR 1908 SC 470

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in the prevailing socio-economic and political trends for the changing time. Instead of external
enforcement, let these changes be internal reforms. The legislature must draw the distinction
between the religious faith, religious practices, and religious beliefs. Religious practices which
act as holdback in reforming the society must give a way for the citizens as a whole. Article 44
relating to Uniform Civil Code attracted very little attention from the legislators and legal
academics. In fact, it remained a pious wish of the framers of the Constitution which was
occasionally echoed in various form. Since Nehru’s time to the present ruling regime there has
been a spontaneous effort to make a uniform law in civil matters. Uniform civil code is seen as
an effective tool to make the federal structure, strong but the major obstacle is Muslim personal
law and the heads of the Muslim Community who are taking this change as the interference by
the government in their personal matters such as Marriage, Divorce, Property distribution etc.
UCC is also expected to deduct the bad customs which are still prevailing in approximately all
the religions in India and the discrimination on the ground of gender can also be countered. And
we will be very successful in shuttering down the shops of politicians who on every election try
to entice general citizens and cultivate vote for them. It will not be wrong to comment that the
“Political Will is Lacking” to fulfill the positive obligations imposed upon the state by Article
44.

When the common civil code is envisaged, it is not only the laws of religious
communities into considerations but also the laws of tribal communities which are not violation
of Constitution. The enactment of civil code will be an affirmation of secular values enshrined
under the Constitution. Thus for doing a substantial justice for the masses it is indeed imperative
to have a common civil code. The absence of UCC which affect the lives of millions of women
from all communities does not mean that the state should adopt the code with one stroke of pen.
But there must be a pause before the enactment of the code; is it possible or practicable to
extricate the divergent personal laws to formulate a uniform code acceptable to all. Thus UCC is
vital for safeguarding the rights of oppressed irrespective of religious communities they belong.
The gender code will bring the personal laws in conformity with the legally binding principles of
international laws as well as in consonance with constitutional principles. Time has come
forward in our endeavors to form a ‘real welfare state’ where first three words of Constitution
‘We The People’ finally has some meaning.

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