It is 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 a uniform civil code throughout the territory of India". 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 lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State, which is charged with the duty of securing a uniform civil code for the citizens of the country, and, unquestionably, it has the legislative competence to do so. The difficulties involved in bringing persons of different faiths and persuasions on a common platform are appreciable but a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between 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 (1). One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law – personal law of the Hindus-governing inheritance, succession and marriage was given go-bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27 (2). Any legislation that brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation. It is a matter of regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies (3).
The political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus were concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mohammedans. The 1772 Regulations followed by the Regulations of 1781 where under it was prescribed that either community was to be governed by its” personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. 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 the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. 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/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The Successive Governments till date have been wholly re-missed in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.
It must be noted that the legislative competence is one thing, the political will, sensitivity and courage to use that competence is quite another. Thus, unless and until the political parties unite together for the common betterment of India, the hope for a UCC will always remain a distant reality. They must sacrifice their own personal interests and work for the interest of nation at large. The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate. The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. This thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. This rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review (4). The Supreme Court provided a sound legal base in the form of guidelines for preventing sexual harassment of women at workplace in Vishaka v State of Rajasthan, (1997) 6 SCC 241 even in the absence of legislative will to fill in the vacuum. Thus, judicial law making is permissible in certain exceptional circumstances and the problem of UCC can be solved by this process. A careful perusal of the recent decisions of the Supreme Court shows that the same is happening in a systematic and phased manner, for the common betterment of society at large.
© Praveen Dalal. All rights reserved with the author.
* Consultant and Advocate, Delhi High Court
Contact at:
pd37@rediffmail.com/ perry4law@yahoo.com Phone No: 9899169611.
http://praveen-dalal.blogspot.com/ http://perry4law.blogspot.com/ http://perry4law.rediffblogs.com/ (1) Mohd Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945.
(2) Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
(3) John Vallamattom and Anr v Union of India, (2003) 6 SCC 611.
(4) Praveen Dalal; “Judicial review: Nuisance or absolute necessity”, www.naavi.org, posted on 06-08-04.