In my last post on the need for a Uniform Civil Code (UCC) to be a truly “Dharmnirpeksh” (equidistant from all faiths/neutral/secular) democracy, I had reproduced portions of the Constituent Assembly debate on UCC. In this post, the idea is to look at UCC through the observations of the Indian Supreme Court, starting with the well-known case of Shah Bano in 1985 until the decision of John Vallamattom v. Union of India in 2003.

To this end, large portions of these decisions have been reproduced so as to enable our readers to see for themselves that the arguments made by pro-UCC commentators have found more than a modicum of endorsement by the Supreme Court in a few decisions. If any of us had made the same statements today on social media or on facile talk shows such as “We The People”, the likes of Mr. and Ms. Old Monk and Burkha “Radia” Dutt would have lost no time in branding us “communal”, “anti-minority”, and what not…so much for “liberalism” and “secularism”.

1. Mohd.Ahmed Khan v. Shah Bano Begum- April 1985

This was a case involving the issue of providing maintenance/alimony under Section 125 of the Code of Criminal Procedure to a 62-year old Muslim woman (a mother of five children) who was divorced by her husband. The Supreme Court interpreted Muslim Personal law and the Criminal Procedure Code to rule in favour of the divorced woman, only to watch its decision being ultimately rendered toothless and otiose by the Congress Government through the duplicitously christened Muslim Women (Protection of Rights on Divorce) Act, 1986.

This decision has quite a few observations on the attitude of Islamist hardliners towards the issue of maintenance, and the lack of political will in the establishment to ensure that a Uniform Civil Code is brought into force. Following are some of the stinging observations of the Court:

It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves. The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain her.

The facile answer of the Board is that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephew and cousins, to support her. This is a most unreasonable view of law as well as life. We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women’s Association for the uplift of Muslim women, intervened to support Mr. Daniel Latifi who appeared on behalf of the wife.

It is also 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.

A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. 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. Dr. Tahir Mahmood in his book ‘Muslim Personal Law’ (1977 Edition, pages 200-202), has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says:

“In pursuance of the goal of secularism, the State must stop administering religion based personal laws”.

He wants the lead to come from the majority community but, we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community:

“Instead of wasting their energies in exerting theological and political pressure in order to secure an “immunity” for their traditional personal law from the state` legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.”

2. Ms. Jordan Diengdeh vs S.S. Chopra- May, 1985

Citing the Shah Bano case, the Supreme Court observed the following in this decision:

“We may add that under strict Hanafi Law, there was no provision enabling a Muslim women to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and it was the absence of such a provision entailing ‘unspeakable misery in innumerable Muslim women’ that was responsible for the dissolution of the Muslims Marriages Act, 1939. (See Statements of Objects and Reasons of that Act). If the legislature could so alter the Hanafi Law, we fail to understand the hullabaloo about the recent judgment of this court in the case of Mohd. Ahmed Khan v. Shah Bano Begum & Ors. interpreting the provisions of sec. 125 of the Criminal Procedure Code and the Muslim Law….

It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely, the times has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied.

There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. In the meanwhile, let notice

go to the respondents.”

3. Sarla Mudgal v. Union of India- May 1995

This was a case in which a Hindu husband converted to Islam to legitimize his second marriage. Following was the lamentation of the Supreme Court in this case:

“Till the time we achieve the goal – uniform civil code for all the citizens of India – there is an open inducement to a Hindu husband, who wants to enter 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 to escape from penal consequences.”

On the need for a UCC, here is what the Apex Court said:

“The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949.

The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code.

When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.

…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.

The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India.

It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to “public morals”, even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of “Suttee” in the interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).

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 Mahomedans.

The 1772 Regulations followed by the Regulations of 1781 whereunder 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 in 1832 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-miss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.

We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throughout the territory of India”. We further direct the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August, 1996 indicating there in the steps taken and efforts made, by the Government of India, towards securing a “uniform civil code” for the citizens of India.”

What is astonishing is that in the Sarla Mudgal case, the Deve Gowda-led United Front Government took the position before the Supreme Court that that it would take steps towards a UCC “only if the communities which desire such a code approach the Govt. and take the initiative themselves in the matter”. Therefore, until all communities together ask for a UCC, the government will not address the issue on its own!

Given that this is a Utopian expectation, it is clear that this is a way of lending a “secular” and “liberal” sheen to a decadent polity which is founded on and rooted in appeasement. Instead of convincing communities about the benefits of a UCC for national integration, to leave the issue entirely to the discretion of communities is plain and simple vote-bank politics.

To add to this, in Lily Thomas v. Union of India (2000) the Supreme Court reiterated the view that Article 44/UCC, which forms part of the Directive Principles of State Policy, is not enforceable by Courts. Therefore, all that the Courts can do is to merely and fervently recommend the implementation of the UCC. Clearly when enforceable judgments of the Supreme Court are reversed through legislative amendments, it would be naive to expect the Government to pay heed to mere “recommendations” which do not have the force of law.

4. John Vallamattom v. Union of India- 2003

In this decision, commenting on the interplay between the right to religion under Article 25 of the Constitution and a UCC under Article 44, the following is what the Supreme Court observed:

44. Before I part with the case, I would like to state that Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society.

Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law.

It is not matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matter of secular character within the ambit of Articles 25 and 26 is a suspect legislation.

Although it is doubtful whether the American doctrine of suspect legislation is followed in this country. In Smt. Sarla Mudgal, President, Kalyani and Ors. v. Union of India and Ors. , it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect to. 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.”

It is clear that the recurring theme in these decisions is that a UCC would go a long way is promoting national integration and in fostering a pan-Indian identity without affecting the credal and cultural pluralism of the country. Those who brand a pro-UCC stance as “communal” would do well to note that at no point are Hindu personal laws sought to be uniformly imposed on other communities under the facade of a UCC.

Therefore, there is no need or occasion for fear-mongering that a UCC is an attempt to “Sanskritize” or “Hinduize” non-Hindus. Instead, it is a critical step towards “Indianizing” everyone.

In the next post, I will compare the positions in India, US and UK on personal laws.

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J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (http://thedemandingmistress.blogspot.in/).