UNIFORM CIVIL CODE (ARTICLE 44 OF THE CONSTITUTION) A DEAD LETTER

Author(s): Shabbeer Ahmed and Shabeer Ahmed

Source: The Indian Journal of Political Science , JULY - SEPT., 2006, Vol. 67, No. 3
(JULY - SEPT., 2006), pp. 545-552
Published by: Indian Political Science Association

Stable URL: https://www.jstor.org/stable/41856241

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The Indian Journal of Political Science
Vol.LXVn,No.3, July-Sept, 2006

UNIFORM CIVIL CODE (ARTICLE 44 OF THE CONSTITUTION)

A DEAD LETTER

Shabbeer Ahmed

The Constitution of India came into force in 1950. Since then, Article 44 has been gathering dust
with no government at the centre ever having any guts and wisdom to touch it. Figuratively
speaking, it has remained a dead letter. This tragic situation certainly buries the spirit of the
constitution a thousand fathoms deep. Under Article 44, the state shall endeavor 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 persomi 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.

Introduction

Today, with a deepening of democratic processes, each caste and community is becoming
more conscious of its identity and today our polity is mainly based on thesé identities. Politicians
have been fighting elections mainly on the basis of caste and communities and have thus aggravated
the feeling of identities. In Rajasthan, when Roop Kanwar committed Sati, the Rajputs defended it as
a matter of their identity. The Rajput youth stood with swords to defend the memorial created there.

Democracy in a country like India, with its pluralist tradition lasting over thousands of years
cannot succeed without respecting pluralist ethos. It is interesting to note that the west has discovered
pluralism recently after Second World War and hence call it post-modernist phenomenon. But India
has known it even during the medieval ages.

Modernization has brought new problems though we have begun to imítate the west yet we
have failed to recognize the intractable social structure; changes are embraced much more easily in
the upper class economic elite in stark contrast to the masses. This is much more so as far as Muslims
are concerned. This is much greater degree of poverty and illiteracy among them compared to other
communities. There is a very weak middle class among them to advocate modernization and change.
This is precisely why the priestly class, which itself comes from the poor strata, has a much greater
hold over the community.

And yes, we have to find a solution to the problem of gender discrimination in the given laws
in all communities. How to go about it? This is given raise to think about the framing of a common
civil code. But when we remember the issues like Rajput's one as mentioned earlier, it is very difficult

in such a politicai atmosphere to think of enacting a Uniform Civil Code (UCC). The caste practices
among Hindus are far more important than any law of the country. Each caste has its own customs and
traditions, which supersede all laws of the country. In several parts of U.P., if any boy of lower caste

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 The Indian Journal of Political Science 546

marries a girl of upper caste, they are publicly beh

The reality in India is much more complex th

secularized. The process of secularization in India,
tortuous. And no law, however ideal, can become a
realities. A law has to be socially rooted, in order

What is a Civil Code?

The civil code is a set of laws governing the civil matters of the citizens in the country relating
to matters like marriage, divorce, adoption, custody of children, inheritance, succession to propert
etc.

The Common Civil Code if enacted will deal with the personal laws of all religious communities
relating to the above matters 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.

The Need for a Uniform Civil Code

The need for a Uniform civil code (hereinafter refered to as 'UCC') was felt as soon as the
constitution came into force. Even after 54 years, this directive could not be implemented for reasons
better known to all those concerned with this directive. The UCC also aims to overcome the

particularistic and often reactionary aspects of personal laws of various religious communities. The
objective thus is also to bring a social reform and uplifting the status of women. The UCC is eminently
desirable in the interest of modernization of society and for a common system of Justice for all.

The absence of UCC gives rise to piquant, unwarranted and ugly situations. In the words of
court: Marriage is the very foundation of civilized society. The relation once formed, the law steps in
and binds the parties to various obligations and liabilities there under. Marriage is not an institution in
maintenance of which the public at large is deeply interested. It is the foundation of the family and in
turn of society without which no civilization can exist. Till the time, we achieve the government
uniform civil code for all the citizens into second marriage while the first marriage is subsisting to
become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as many as
four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu

law and escape from penal consequences."

The provisions of the Indian Constitution

Part III of the constitution that is, Article 12 to Article 35 provides for fundamental rights,
which are enforceable by the High Courts of the various states and the Supreme Court of India. Part
IV of the constitution provides for socio-economic rights styled as Directive Principles of state policy
and are not enforceable by any court of law. However, Article 37 clarifies that such directive principles
"are nevertheless fundamental in the governance of the country and it shall be the duty of the state to

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Uniform Civil Code (Article 44 of the Constitution) 547

apply these principles in making laws."

Under Part IV of the Constitution, Article 44, states that "the state s
Uniform Civil Code for citizens throughout the country". On the other h
Constitution, Article 25 provides" Freedom of conscience and free profession,
of religion." The tussle is mainly between these two articles.

The Supreme Court since two decades has started a trend (which is n
well settled law) that the Directive Principles and Fundamental Rights ou
constituted, and whenever possible fundamental Rights should be adjusted i
effect to the trend can manifestly be evinced in ABK Singh v.Union of In
Rao v. Union of India2 and Griha Kalyan Kendra Worker's Union v. Union

It is the state, which is charged with the duty of securing a UCC for the
and unquestionably, it has the legislative competence to do so.

Development so far in the domain of UCC

The Constitution of India came into force in 1950. Since then, Article
dust with no government at the centre ever having any güts and wisdom
situation certáinly buries the spirit of the constitution a thousand fathoms

Of course, article 44 was not drafted without uproar and objections in th

against the making of UCC for the entire nation.4 Firstly, it would infringe
freedom of religion enshrined in article 25 and secondly, it would be highly d
of the minorities. It is submitted that the first objection is highly misconceive
in article 44 in no way offends religious freedom of faith and guarantee artic
of clause (2) provides an exception to the effect that any existing or futu
social welfare and reform shall not be affected by the operation of this art
objection that the enactment would be tyrannical to minorities, Shri K.M. Mu
committee in the constituent assembly said that nowhere in the advised Musli
law of each minority has been recognized as a sacrosanct as to prevent the

Pundit Jawaharlal Nehru, while defending the introduction of the Hin

a UCC in parliament in 1954, said "I don't think at the present moments th
me to try to push is through". It appears that even 51 years thereafter, the
willing to retrieve article 44 from the cold storage where it is lying since
which have come and gone, have so far failed to make any effort towards u
Indians.

The broad approach of the Judiciary can be well appreciated at this Junc
and discussion in the domain of UCC. A Constitution bench speaking through
in Mohd. Ahmed Khan v. Shah Bano Begum5 observed:

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The Indian Journal of Political Science 548

"It is a matter of regret that article 44 of our con

provides that the state shall endeavor to secure a unifo
territory of India. There is no evidence of any official act
country. A belief seems to have gained ground that it is f
matter of reforms of their personal law. A common Civil
by removing disparate loyalties to laws, which have co
bell the cat by making gratuitous concessions on this i

The Supreme Court has reiterated the same in the

this, on July 23, 2003, the Hon'ble Supreme Court ha
common civil code for the country as that would help t
bench comprising the Chief Justice V.N. Khare, Just
made this suggestion while declaring as unconstitution
1925 (ISA) on the ground that it wařarbitrary, irration
which says that the state shall not deny to any person eq
laws within the territory of India.

Under section 1 18 of the ISA, applicable only to C

niece or any nearer relative shall have power to bequeat
except by a will executed not less than 12 months befo
from its execution I some place provided by law for saf

The bench was allowing a writ petition from a Chris

the provision as it discriminated against Christians beq
religious purposes. Writing the main judgment, the Ch
that article 44 of the constitution has not been given eff

But, the reactions of many religious groups against th

of UCC sank in a surprise. The All India Muslim Person
the Supreme Court observations on enforcement of a u
be imposed on any particular religion.

Mohammed Rabe Hasan Nadwi, chairman of the AIM

consistent stand of the AIMPLB that a uniform civil c
would like to lose the rights and privileges granted to
Farooqui, general secretary of the voluntary group nat
court should have avoided such comments in the current
the Muslim personal law, she feels it should not be inte

Arguments 'For' the enforcement of UCC

1. The Common Civil Code will bring all the perso

divorce, adoption, inheritance, succession to proper

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Uniform Civil Code (Article 44 of the Constitution) 549

space for the practices of all communities in a just manner and integra
of humanism.

2. The one common argument given by all the political parties highlight
implement the Uniform Civil Code is that implementing Article 44 violat
provided under Article 25 i.e., "Freedom of conscience and free prof
propagation of religion." The counter argument I would like to cite
Article 25 itself under Clause 2, where it is clearly indicated that this ar
operation of any existing law.

3. With the non-implementation of Article 44 of the constitution, a

violated which provides for Right of equality and prohibition of discrim
of sex and religion. Many personal laws relating to marriage, inheritance
adoption and property relations in all communities are unjust - especi

4. Ambiguity is created due to the presence of different laws governing

as marriage, particularly in the case of polygamy and divorce. Also, p
law for Muslims under the Muslim Personal Law supporting child ma

5. It creates an uneasy division on the basis of religion when certain

status. When even the law of the land is not the same for all people
increasingly difficult to preach equality among the citizens.

6. All laws including penal laws are applied to one and all in this country
as to religion, race, caste, creed, sex etc... The anomaly is that it is no
personal law. The matters vis-à-vis marriage, inheritance, divorce, Muslim
conversions etc. in Muslim religion. There is an urgent need to rectify t
piggledy situation so as to bring light in the lives if Muslim womenfo
and one law shall be the lodestar.

7. Much misapprehension prevails about bigamy in Islam. Ironically, Isla

Tunisia, Morocco, Pakistan, Iran etc have codified the personal law wh
polygamy has been either totally prohibited or severely curtailed to
abuse of this obnoxious practice.

The tragedy is that a secular country like India is lagging behind in accord
article 44.

Arguments 'Against' the enforcement of UCC

1 . All the personal civil codes have unjust laws pertaining to women an
be changed, not on the principle of uniformity but on equality and ju
downtrodden. If all the communities can sit together and remove the in

laws, uniformity will inevitably come about. What is now needed is n

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The Indian Journal of Political Science 550

but a just civil code.

2. After having a kind perusal at the Supreme

intentioned the judges may be but such issues wi
are not getting Justice in Muslim personal law. B
the Muslim women. Law is not the solution. In su
ready to accept a uniform code.

3. Muslims are educationally and economically back

about the equality then they should work on the
issue of Uniform Civil Code and also it depends

4. The foremost argument of AIMPLB is that, Sha

implementation of Uniform Civil Code would me
from their personal laws and fundamental right
human being does not make it. Therefore, nobod
the Muslims.

5. The ideal of secularism cannot be achieved unles

based on religion give a place of preference and
article 44 of the constitution. Therefore, it is the
uniformity in social relations, which would be th
and the strongest democracy in the world. The
Court to enact a uniform civil code in order fo
religious sects to preserve the unity and' integrity

6. Uniform personal law is purely political - a com

argument that Hindus have a code, and to force
the joint family property law, which entrusted po
point. Do we want a Uniform civil code (really
sake to give the B JP and others a communal edg

Conclusion

The Indian constitution envisages a secular state by guaranteeing religious freedom to all
under the umbrella of a religion free state. This is apparent from an examination of articles 25 to 30.
The religious freedom is however subject to certain limitations. Similarly, though the state is forbidden
from propagating or promoting any religion, it can constitute a general fund through taxation for the
promotion and maintenance of all religions, and to provide aid in suitable cases, without discrimination.
These provisions clearly indicate the great role played by religion in certain aspects of our life. It is
true that in bringing a common code for all religions is no easy task for the legislature. Indian secularism
has, therefore, to develop the philosophy of coexistence. To achieve the philosophy of coexistence
the support of two powerful factors are necessary- a high degree of tolerance by all religions sects and

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Uniform Civil Code (Article 44 of the Constitution) 551

strict adherence by all concerned to the principles of equality and nondisc

keystones of our constitutional edifice.

The founding fathers placed article 44 in the directive principles of state

fundamental in governance of the country do not lay the state under a pos
either by legal or constitutional means. Moreover, the language in which it
express a hope rather than issue a mandate. Nevertheless, the legislature is
to achieve the most ideal goal set out by the article. These are no more r
social issues which are affecting the human populace and relationships am

In pursuance of the goal of secularism, the state must stop administering

laws. The researcher asserts that whether the lead comes from majority co
must act. Every rational being committed to secular principles accepts this vi
state to achieve national harmony through the implementation of the dire
IV of the constitution.

Despite the progressive judicial pronouncements and juristic opinions

out the directive under article 44 of the constitution, parliament has don
noble ideal. At this juncture, Justice Kuldip singh's candid observations
accorded a red carpet welcome. He stated:7

"The traditional Hindu law - personal law of the Hindus - governing

and marriage was given a go by as back 1955-56 by codifying the same.
whatsoever in delaying indefinitely the introduction of uniform persona
learned judge proceeded further to observe that those who preferred to
partition, were aware of the fact that Indian leaders did not believe in the
nation theory and also that in Indian republic there would be only one nat
community could make a claim to be a separate entity on the basis of the
lawman, even a layman, appreciate this judgment."

However, everything depends upon the government's urge to impleme

makes it compulsory that everybody will have to wear helmet while driving, t
off their turbans? Or if the government legalizes the abortion to control p
Christians accept it? Or if the government legalizes killing of cows, will it no
be dealt with carefully. Religion is a sentimental and sacred issue in India. Go
everybody before doing anything. It is high time that the Government tak
order to implement the Uniform Civil Code rather than dilly-dallying around
short-term political gains. But nothing can be done overnight. A slow, steady
are necessary because justice delayed is justice denied but if justice is hurried
matter, how arduous and long stand the task be; the legislature should l
achieving this constitutional ideal. But bringing uniform legislation should n
of distribution of legislative powers envisaged in VII schedule of the consti

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The Indian Journal of Political Science 552

References :

1. AIR 1981 SC 298

2. AIR 1982 SC 232

3. (1991) 1 SCC 611

4. C.A.D. (Constituent Assembly Debates) Vol II pp.546-548
5. 1985 2 SCC 556

6. 1995 3 SCC 635

7. Supra note. 5

ARTICLES

1) B .G. Verghese, Who is afraid of a Uniform Civil Code? The Hindu ( 1 3/8/2003)

2) Personal Laws and Common Sense, The Hindu (28/7/2003)

3) Supreme court suggest framing of a common civil code, The Hindu (23/7/2003)

4) Vir Sanghvi, Towards a Uniform Civil Code, Sunday Hindustan Times (10/8/2003)

5) Do we need a uniform civil code? Hindustan Times (30/72003)

6) A.G. Noorani, UCC: Keep the faith, Hindustan Times (28/7/2003)

7) Babir K. Punj, Common chord - A Uniform approach to the Law, Times of India ( 1 5/8/200

8) B JP welcomes court suggestion on common civil code, The Hindu (24/7/2003)

9) Who is for a Common Civil Code? Hindustan Times, (22/1/2004)

10) Religious groups unhappy with SC s remarks on UCC, Hindustan Times, (23/7/2003)

1 1) J. Venkatesan, SC suggests framing of a Common Civil Code, The Hindu, (24/7/2003)

12) Chandan Mitra, What if we had a Uniform Civil Code, The pioneer (August, 2003)

13) Rakesh Bhatnagar, The long wait for Uniform Civil Code, Times of India, (March 4, 1 997)

14) Christopher Jaffrelot, Ambedkar and the Uniform Civil Code, Ambedkar and untouchability
analyzing and fighting Castes, Permanent Blach Publications 2004

15) Ms. Ritu Raj, Uniform Civil Code and National Integration, Competition Success Revie
November 2003

16) V.R. Krishna Iyer, Unifying Persona Laws, The Hindu (8-7-2003)

17) Rajeev Dhawan, Codifying Personal Laws, The Hindu ( 1 -8-2003)

JOURNALS

1) Too personal to be Uniform? Lawyer's Collective, July 2003

2) D. Sura Reddy , Article 44: Adead Letter? Journal of Indian Law Institute, 1 996.

3) Saty anarayana, Uniform Civil Code: A myth? Cochin University Law review, 1 986.

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