Article 44 Of The Constitution Of India

The state shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India.

The Article seems to have been the subject of much debate, yet at the same time, not of
enough. Also, such debates seem to have left the subject of the Article i.e. the uniform
civil code, reeling and spinning in an orbit and on an axis on its own, a solitary planet
rotating around the sun (public opinion), with the occasional asteroid hit by either a media
or an electoral hungry politician or political party, or the judiciary, or an activist to propel
it out of its orbit, but only towards an aimless direction which even the propellers are not
aware of, only to find it ultimately return to its singular orbit of indifference in due
course. However, the writer will try to avoid delving into the bottomless cogmire of the
politics involved in the lack of perseverance and initiative on the part of the government
to enforce this directive principle of our constitution. However, the writer also at the very
outset wishes to make it absolutely clear that he incontrovertibly believes that in a country
like India, with all its divergent concepts of morality and practice of religious beliefs, no
national integration can be achieved without the adoption of a common and uniform civil
code. “A national identity is more vital to a country’s progress – and perhaps even to its
survival – than the identity of various classes and communities." [1]

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A question which would arise in the mind of a few readers, and they would certainly not
be the first, is what exactly comprises a “civil code"? Literally, it can be considered to
include all the civil laws of a particular community or nation. Legally, it has been
considered to include all personal laws of any religious or ethnic community, which
would include not only civil laws but also criminal laws and also any other customs or
mores which are exercised by such a community. This can be indirectly interpreted
through Entry 5 under List III of the seventh Schedule of the Constitution. [2] Recently,
since the last two decades, especially since the landmark Shah Bano case, the definition
of a “civil code" has been changing to include personal religious laws, customs and mores
which are directly or indirectly related to gender, but more on this shall be elaborated
below. The object of the code has been defined by the Supreme Court as “to effect an
integration of India by bringing all communities on a common platform on matters which
are presently governed by diverse personal laws but which do not form the essence of any
religion." [3]

ORIGIN AND HISTORY

It is important to understand the origins of the Article, and to understand the origins
behind Article 44, it is necessary to understand the history behind the concept of a
“uniform civil code", and to understand the history behind the concept of the uniform
civil code, it is necessary to delve into the historical archives of medieval and modern
India, and to realise that the origins of the article can in fact be traced in our own ancient
traditions.

There is no doubt that the advent of Islam into India produced far reaching consequences
on Indian society. Indeed, Islam was the first religion which made a frontal attack on
Hindu political, economic and social institutions and made them, more or less,
subservient to it, at least during the era of the Mughals. They brought with them their
different laws of inheritance and divorce and their conception of family life was entirely
different. Yet however, we find uncompromising reformers such as Kabir and Nanak,
both of who actively advocated for unity and harmony between Hinduism and Islam.
However, their movements notwithstanding, there arose a movement among Muslims in
the latter half of the nineteenth century, seeking to reject everything which could be
called Hindu. Respect for the well known Sufi masters already mentioned above and their
descendents, visit to Dargah’s and related activities could be explained to medieval Islam,
but a movement was launched against these practices by orthodox Ulema’s on the ground
that they were Hindu practices. It is necessary to outline these details in order to
understand the policy of the British with regard to both the religions and their sects.

According to M.S. Ratnaparkhi [4] :

“The British rulers took the decision to unify all the secular laws. But at the same time,
they took enough care not touch the personal laws."

However, this is not exactly true, as both the past and present are testament to the very
contravention of this statement. The best examples are various statutes such as the Indian
Penal Code, the Indian Contract Act, Sales of Goods Act, the Indian Evidence Act, and
the Civil and the Criminal Procedure Codes, all which were passed by the British during
their reign in India. Add to this the various personal law statutes such as the Sati
Prohibition Act, 1829; and the Child Marriage Restraint Act, 1929 all very clearly
indicate that the British never really took into consideration the concept of secularisation
of laws. What they really hoped to achieve was a codification of at least all the major
laws upto a certain extent. However, they were careful not to tread too hard on various
religious toes while doing so. However, the very fact that they worked towards the
codification of laws helped in the development of the concept of a uniform civil code and
ultimately led to a passionate debate in the constituent assembly and the concept being
incorporated under Article 44 of the Constitution. Also, it is worthwhile noting that
Article 44 almost managed to be incorporated as a fundamental right, missing the
hallowed position in Part III of our constitution by a narrow margin of just one vote at the
sub-committee stage.

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A detailed discussion on the debate in the constituent assembly is necessary. In light of

the fact that Article 44 is today a directive principle under our Constitution, the writer
shall not delve into a detailed discussion on the arguments advanced in favour of the
Article but shall only refer to them wherever required and shall limit himself only to a
discussion on the polemics of those who spoke against the Article in its present form, for
the motive of this piece is partly to try to understand and dissect the validity of such
polemics. It was Mohammad Ismail Sahib who began what was to turn into a furious and
extremely vocal debate by proposing an amendment to Article 35 [5] (as it was then
numbered):

“Provided that any group, section or community of people shall not be obliged to give up
its own personal in case it has such a law"

He supported this contention by citing examples of the various kingdoms of Yugoslavia

and the kingdoms of the Serbs, Croats and Slovenes, who are obliged under various
treaties to guarantee the rights of minorities. He also maintained that for the purpose of
maintaining and securing harmony, it was not necessary to regiment the civil law of the
people to include personal law. According to him, “every section of the people, being free
to follow its own personal law will not really come into conflict with others." A similar
amendment was proposed by Naziruddin Ahmad [6] , albeit which was diluted in form
from the amended proposed by Mohammad Ismail that:

“Provided that the personal law of any community which has been guaranteed by the
statute shall not be changed except with the previous approval of the community
ascertained in such manner as the union legislature may determine by law"

Naziruddin Ahmad seems to have realised quickly at the very inception of the debate that
it may dissolve into a communal one between the Muslims and the rest of the assembly
and hence chose his words carefully and further clarified [7] :

“In moving this, I do not wish to confine my remarks to the inconvenience felt by the
Muslim community alone. I would put it on a much broader ground. In fact, each
community has certain religious laws, certain civil laws inseparably connected with
religious beliefs and practices. I believe that in framing a uniform draft code these
religious and semi-religious laws should be kept out of its way."

Also, other than attempting to justify how the impugned article would lead to an anomaly
in the constitution as it may give the state some amount of latitude which may enable it to
ignore the right conceded under Article 19, he further sought to differentiate “personal
laws" and “fundamental personal laws" to try and justify for the pre-coded procedural and
criminal laws, which were before, to a large extent, personal laws of the various
communities. But it must be noted that he failed to expressly define these phrases and one
can only now guess as to his classification of laws under these two heads. However, to
give him due credit, Naziruddin Ahmad appears to have had less orthodox reservations
than his predecessor towards the Article and which were, to large extent, extremely
logical, contraire to the sheer fanaticism which largely engulfed the debate against the
Article. However, his proposal of making such a code only optionally binding on the
religious communities and only with their consent could not be accepted by the assembly,
and for good reason. His disposition was obviously one of cautiousness. [8]

Mahboob Ali Baig Bahadur and B. Pocker Sahib Bahadur advanced arguments similar to
those of the previous speakers. Statements by both these speaker’s, may however, be of
interest to the reader:

Mahboob Ali Baig Bahadur: “my view of Article 35 is that the words “civil code" do not
cover the strictly personal laws of the citizen. The civil code covers laws of this kind:
laws of property, transfer of property, law of contract, law of evidence, etc. The law as
observed by a particular religious community is not covered by article 35"
Pocker Sahib Bahadur: “in the first place, I would like to know the real intention with
which this clause has been introduced. If the words “civil code" are intended only to
matters of procedure like the civil procedure code and such other laws which are uniform
so far as India is concerned at present well, nobody has any objection to that....but if it is
the intended that the aspiration of the state should be to override and to have uniformity
of law....it is a tyrannous provision which ought not to be tolerated."

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These statements again bring us back to the definition of what exactly is a “civil code".
As we have already observed, Naziruddin Ahmad failed to define and differentiate
between the phrases “personal laws" and “fundamental personal laws". The above two
quoted speakers seemed to have latched on to this classification and set themselves on
using it to their fullest advantage and intelligence, blissfully unaware of the
comprehensions and interpretations of their statements. For example, it is surprisingly
odd to hear Ali Baig Bahadur define a “civil code" as “laws of this kind: laws of property
transfer of property, law of contract, law of evidence, etc." Especially, since being a
learned Muslim himself, he would be without a doubt aware that Islamic laws provide for
all the subjects mentioned by him in his description. Similarly, Pocker too would be
aware that procedural laws were always an important aspect of Islamic law, especially
Islamic criminal law. Therefore, one can only infer from their word that the speakers were
themselves unaware of what exactly they wanted, but rather, resisted this article more out
their own personal zealousness towards their faith, rather than actually any sound bent of
logic. In fact, they indirectly support the cause for a common civil code through both
directly, as they seem to support the codification of laws, and indirectly as this evidently
shows that many Muslims themselves seem to be unaware of the exact contours of
Islamic substantive and procedural law, further enhancing the need for a common civil
code. Also, it is worthwhile noting that the examples that were sighted by Mohammad
Ismail Sahib in his contention in favour of the amendment are the very regions of the
world which are today marred by ethnic conflicts and divisions of religious, regional,
ethnic and economic nature.

THE JUDICIAL PURVIEW OF ARTICLE 44

There are a number of cases where the Supreme Court has referred to Article 44 and the
concept of uniform civil code, mainly to highlight the lacklustre attitude of the executive
and the legislature in the implementation of the directive. [9]

The statements and paragraphs quoted above from various relevant judgements of the
highest constitutional court of the country clearly show the determination of the judiciary
to persue the government towards the uniform codification of the laws. It has been
pointed out earlier, and rightly so, that the issue of a uniform civil code or Article 44 is
never directly raised before the hon’ble benches by counsels or petitioners. The major
questions which have arisen in the above quoted cases are generally related to a specific
question of a specific personal law such as marriage, divorce or succession. It has been
raised as an ancillary issue by the bench itself in relation to the main question, generally
stressing on a point that such petitions concerning the present matter could never have
arisen had the legislature and executive enacted a uniform legislation for all religions and
communities. The reason for this approach is because “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 that 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." [10] However, some [11] choose to raise their voices against such “judicial
activism", one of the most prominent whom has been M. Shabbir, who has chosen to
write a scathing criticism of such an approach adopted by the court:

“Such remarks of the supreme court were not tenable legally as it was mandated to
adjudicate on issues which have been raised before it for adjudication by applying the
relevant rule of law. It is not competent to assume the role of legislature and executive
disturbing the scheme of separation of power. It is duty bound to respect the scheme of
separation of power. It is competent to behave as social, economic, political and legal
reformer. Issue of uniform civil code and “national integration" are raised in the case
under comment without legal authorization. Such unwarranted zeal is bound to create
chaos and confusion. Apex judiciary in the past too has done like that causing agitation at
national level....such behaviour of the Supreme Court does not satisfy the requirement of
legality, reality and legitimacy. By such a disorderly stand of the apex judiciary the cause
of national integration is bound to suffer adversely." [12]

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Such remarks by him are not only unwarranted but also show that he is judicially
illiterate. Firstly, it is almost akin to judicial blasphemy (if such a crime is possible) to
challenge the very authority of the Supreme Court to comment on a pertinent issue, even
where such an issue does not have a direct bearing upon the case before it for its
adjudication. Moreover, often such conflicts of personal law cannot be satisfactorily
resolved except through appropriate legislation, which is why the court stresses on the
legislature. Secondly, by making such remarks, it seems he chooses to negate all the
benefits which have been derived by way of the scheme of public interest litigations
(P.I.L.’s) which has without a doubt enormously benefited all sections of society and have
helped in bringing about justice and hope to various individuals who otherwise had none.
Thirdly, Shabbir refers to the protests which took place after the Shah Bano and Sarla
Mudgal judgements. He however, fails to realise that it is only one section of the Muslim
population, i.e. the Sunnis, who till date are not ready to accept the much required change.
All other sections of the Muslim community have shown acquiescence towards these
judicially pronounced provisions and are willing to accept change for the benefit of future
generations and for the benefit of the nation as a whole. Fourthly, he has failed to explain
how the “behaviour" of the Supreme Court does not “satisfy the requirement of legality,
reality and legitimacy". There is certainly no constitutional provision which expresses
that the court may not pass such comments. Moreover, we do not follow the orthodox
system of English common law wherein the courts are not allowed to adjudicate upon the
constitutionality of a particular Statute passed by the legislature. Add to this the fact that
it appears the trend is changing in England itself and now courts seem to be slowly
advancing their authority to challenge the constitutionality and procedural propriety of
statutes passed by the legislature. [13] Also, though Lily Thomas [14] nullified the Sarla
Mudgal judgement [15] , and often in administrative matters, the courts have refused to
pass specific orders against the legislature or executive on the ground that such an order
would ruin the constitutional scheme, it is worthwhile noting the concluding remarks of
Chief Justice Verma in Vishakha v. State of Rajasthan [16] where the court laid down a
series of guidelines to prevent sexual harassment of women in employment:
“Accordingly, we direct that the above guidelines and norms would be strictly observed
in all work places for the preservation and enforcement of the right to gender equality of
the working women. These directions would be binding and enforceable in law until
suitable legislation is enacted to occupy the field."(Emphasis added)

THE QUESTION OF FEASIBILITY

It is unfortunate that barring the Muslim laws, nearly all the personal religious laws of all
the various religious groups and communities have already been codified. Other than the
codification of various personal Christian and Parsi laws and the massive codification of
all Hindu personal laws, all other religions other than Muslims are brought under the
ambit of the Hindu codes. In fact, even Muslim personal law has till a certain extent been
codified. [17] However, a uniform codification still seems a distant dream, the closest to
this elusive goal having been the enactment of the Special Marriage Act, 1954. This
ultimately results in an unfortunate scenario of a battle against the uniform civil code
being in fact a battle of the Muslim community against the national government, with
every small yet genuine effort taken by the executive to try and achieve the directive
enshrined in Article 44 meeting with staunch activism against such efforts by a section of
the Muslim minority. Moreover, minority vote bank politics have also degenerated the
constitutional democratic system and now we find a game of divide and rule being played
out by various political parties, similar to the one which was played by the Britishers
during the tenure of their rule.“When votes are counted and computerised, national
integration turns out to be the casualty" [18] . A detailed examination of the arguments
and their legal and social rationality raised by Muslims against the enactment of a
uniform civil code has already been carried out by other learned authors and jurists [19] ,
and hence it is pointless to again delve into them here. However, perhaps the best
explanation for the hostile Muslim stance has probably been enumerated by Tahir
Mahmood who says:

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“The Muslims generally have deep emotional feelings for their law which they regard as
one of their distinctive possession." [20]

It is true that Hindus are in general more liberal in their theology than most other religious
communities. They are one of the few religious communities who have no specific rituals
for conversion, and in fact, do not even encourage such conversion by members of other
religions. It is also till a large extent one of the simpler religions to follow in terms of
faith. They have been without a doubt one of the most cooperative of all religious
communities by allowing the legislature to legislate on matters which were for centuries
governed by the Holy Scriptures, even permitting the abolition of sati and infanticide and
permitting widow remarriage and dowry prohibition. This has in no way resulted in a loss
of their religious identity or self respect. On the other hand, Muslim clerics often exhort
their community to rigorously follow the holy Quran without any deviations. They
believe that the Holy Quran has given excellent laws about marriage, divorce, inheritance
etc. which are indeed far better than the modern laws and so they should adopt them in
spirit and letter. They also encourage the Burkha as they feel this is a part of the Muslim
identity and regularly and mindlessly issue Fatwa’s against any of their community who
they feel is living a life in derogation of Islamic principles. It is encouraging to see that
the Muslim public refuses to acknowledge such Fatwa’s when it feels that they hold no
water in terms of logic. Orthodox Muslims could try and learn from the fact that no less
than nine Muslim countries have enacted progressive personal laws without losing their
Islamic identity, self respect and faith and they are in no way less Islamic than any
Muslim in India.

THE SOLUTION

The importance of a uniform civil code is never in doubt but what is is the cooperation of
the Muslim community, especially the Sunnis. Most argue that once a uniform civil code
is enacted things will automatically fall into place and the initial resistance will die down.
However, experience has shown that laws can be effectively implemented only with the
cooperation of those on whom they are to be implemented. There are far too many
examples where laws and statutes enacted have failed to curb such insensitive and
orthodox practices which they were enacted to curb and abolish in the first place. For
example, child marriage and dowry are illegal and punishable offences, yet they are still
prevalent in certain sections of our society.

A judicial solution has been suggested by Joseph Minattur, who claims that all that is
needed is to dismiss action based on personal laws, unequal between religious groups as
well as between men and women. He also feels that such judicial decisions are not likely
to be challenged and hence with time, the rules of traditional law which are repugnant to
the constitution will thus gradually fall into disuse. Though such an approach is not
absolutely refutable, it is not a desirable course of action. At the very outset, this
hypothesis falls flat in light of the Supreme Court judgement of Maharishi Avadhesh v.
Union of India [21] , where the court dismissed a petition seeking a writ of mandamus
against the Government of India to introduce a common civil code throughout the
country. The court took the view that it was a matter for the legislature to decide and
expressly held that the courts cannot legislate on such matters. Also, Joseph Minattur fails
to explain exactly why such dismissals may not be challenged under Article 32 of our
Constitution, considering these are the very rights and practices which are guaranteed or
permitted to be exercised under Articles 25 and 26 of the same. Moreover, he also fails to
explain exactly which aspects of traditional law are unconstitutional and why exactly so.
He simply relies on the statement of Justice Das: “Even if there is a custom which has
been recognised by law....that custom must yield to a fundamental right." [22] However,
this statement holds no water in the present context as it has already been expressly held
by the Supreme Court that personal laws, such as Hindu law and Muslim law, are not
included within the expression of “Law". [23]

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A solution may be found at the meeting of the national convention on uniform civil code
which was held recently under the aegis of the bar council of India. The convention after
much deliberation drafted a model uniform civil code. It was suggested at the convention
that the proposed code may follow the pattern of the French civil code, or the Swiss code,
or the personal law code of the republics of the erstwhile Soviet Union, which had also
faced similar problems and successfully resolved them. It was generally agreed at the
convention that the proposed code should be indigenous in content, moulded in format
duly informed by the experience of other foreign codes. After a lengthy discussion, the
convention framed a draft code which had the following features:
The draft code contemplated to infuse eclectic norms into personal law rights, for
example, right to monogamous marriage, right to maintenance for either the husband or
wife and parents of the child, etc.

The code envisaged an adjudicatory mechanism similar to the family courts at par with
district courts from which the appeal would go to the high courts

The proposed court would have civil and criminal jurisdiction supported by simple
procedural norms such as hearing in camera, legal representation, etc.

But all the above suggested measures will fail without a mindset for change. A mindset of
nationalism, yet at the same time not nationalistic fanaticism. India must once again
remember what it was meant to be since 1947 – a Nation. A Nation which was never
supposed to let communal barriers come in between governance. India today is a nation
which has what is universally acknowledged as one of the largest talent pools of the
world, but which refuses to explore its potential and lethargically refuses to push itself to
the next level. It is for this reason that it is wrong to criticise only the non enthusiastic
approach of the government. We must criticise ourselves as a nation and as citizens of
India, for it is not the executive, legislature and the judiciary which comprise a Nation. It
is the citizens themselves who form the heart, the lungs and the stomach of one.

CONCLUSION

The object behind Article 44 is to effect an integration of India by bringing all

communities on a common platform on matters which are presently governed by diverse
personal laws but which do not form the essence of any religion. [24] It is hoped that
despite the odds stacked against it, the uniform civil code will one day become a reality. It
is also heartening to see that the plea for a uniform civil code rests these days more on
contentions related to gender bias and harassment rather than theological considerations.
Such a new interpretation of the definition of a civil code broadens the scope of
discussion and also helps to keep religious arguments and the resultant communal and
political tendencies out of it. For example, the domestic violence act does not take
religion into consideration while outlining offences within it. [25] Justice Leila Seth’s
words aptly express the present perception which is starting to spread rapidly among
citizens:

“These are not Hindu or Muslim or Christian or Parsi demands or laws – these are a cry
for gender just laws; for giving women their human rights and their mandated
constitutional rights. If we can’t give them all the rights in one go, let us progress little by
little but let us not be stagnant. Let us move towards gender just laws and a uniform civil
code." [26]
Before parting the writer would like to quote Chief Justice Chagla, an eminent Muslim
Judge [27] :

“That (Article 44) is a mandatory provision binding on the government....the Constitution

was enacted for the whole country, it is binding on the whole country, and every section
and community must accept its provisions and its directives."

If only every Indian was equally liberal and nationalist in their approach to the laws of
our land. Priority governance would become far simpler!