Article 44: Uniform Civil Code and Personal Law as Fundamental Right

Author: Surbhi Raj Mina, National Law University, Delhi 

Article 44 of the Indian Constitution envisions a Uniform Civil Code (UCC) that seeks to create uniform laws for all citizens, irrespective of their religious beliefs. The objective of this study is to analyze the significance of Article 44 in ensuring equality and national integration while addressing the challenges surrounding its implementation. It explores the historical trajectory, judicial approach, current reforms, and socio-political context related to the UCC. Through a qualitative analysis of case law, constitutional provisions, and legislative efforts, the study investigates the implications of the UCC on gender equality, religious freedom, and social justice. The paper highlights key findings that the UCC would standardize personal laws, enhance women's rights, and foster national unity, but also faces challenges in terms of political resistance, religious diversity, and cultural preservation. The broader implication of this study emphasizes the need for a well-planned, inclusive approach to achieve the goals of Article 44 without compromising India's cultural diversity. The study also discusses the critical role of stakeholder support in the successful implementation of a UCC.

Uniform Civil Code, Article 44, National Integration, Gender Equality, Religious Freedom, Judicial Approach, Constitutional Reform.

The project will examine the jurisprudence revolving around Art. 44 emerging first from the Constituent Assembly debates. As observed by Granville Austin, the framers of the Constitution were acutely aware of India’s religious diversity and the need to protect minority rights while striving for national unity through legal uniformity – the paper will look at his interpretation on the original question of Art. 44. It will also look at how judges have interpreted the original ambit and purpose of the provision.

The paper will be largely focused on a doctrinal study of the evolution of the provision in landmark cases such as Shah Bano, Jordan Diengdeh, Sarla Mudgal, AWAG, Danial Latifi, Shabnam Hashmi and finally its interpretation in Shayara Bano and its consequences on the enforcement of the provision. This study builds on existing work by incorporating judicial perspectives and contemporary legislative reforms while considering the practical challenges of implementation.

The paper will also look at scholarly articles that have dealt with the problems and jurisprudence around Art. 44 and Art. 25 and whether a reconciliation between the two is possible.

This study adopts a qualitative research approach, analyzing primary sources such as constitutional provisions, judicial pronouncements, and legislative documents related to the UCC. Examples of major judicial pronouncements (e.g., Sarla Mudgal Case, Mohd. Ahmd Khan v. Shah Bano Begum is read to gain an insight into the judicial meaning of Article 44. Recent legislation is also reviewed in this article, for example, Uttarakhand Uniform Civil Code, 2024, and Uniform Civil Code Bill, 2019. Context of present India, this methodology enables the understanding of the broader legal, social, and political dimension of the UCC.

1. Examine how the courts have interpreted significant court rulings that emphasise the significance of a uniform legal system for all citizens, as well as their attitude to the UCC.

2. Identify any sociopolitical complications, including political dissent, religious pluralism, and cultural awareness, that interfere with successful implementation of a UCC.

3. Analyze the implications of the ongoing legislative reforms and enactments on social justice, gender equality, and national unity, including the Uttarakhand UCC, 2024 and the Uniform Civil Code Bill, 2019).

   
   

1. What role could the Uniform Civil Code (UCC) play in addressing gender inequalities in personal law for India while ensuring religious freedom and cultural pluralism?

2. Why is the implementation of India's Uniform Civil Code (UCC) challenging, and what can be done to remove the social, political, and legal barriers that are barring such a national endeavor?

Article 44 of the Indian Constitution, described as a Directive Principle, calls upon the State to take steps for the formation of a Uniform Civil Code (UCC) to cover all Indian citizens. The UCC aims to establish one set of laws that regulates personal matters such as marriage, divorce, inheritance, and property instead of institutionalized personal laws that govern different religious communities in India. A UCC seeks to bring about national integration by harmonizing divergent legal practices stemming from religion and also to promote equality and justice in terms of equality before the law by ensuring uniformity in legal rights to particularly women and marginalized groups.

The introduction of a UCC has been a dilemma in India notwithstanding its constitutional permissibility. Formulating a uniform legal code is considered difficult and politically risky given the extreme diversity in terms of religion and culture that the country harbors. The implementation has also not been easy given various communities' reluctance to adopt the UCC, mainly out of fear of losing their religious identity and autonomy. The difficulty in putting in place a UCC has also been compounded by discussions of its possible infringement on religious freedom, particularly of minority groups.

The essence of this paper is to analyze both the benefits and the challenges of enforcing a Uniform Civil Code in India. The constitutional objects of Article 44 will be considered, as well as an examination of the judicial and historical developments surrounding debates on the UCC. The research will also delve into developments that have taken place with the purpose of setting a UCC. Furthermore, this research will talk about the fast impacts of a UCC concerning national integration, religious freedoms, and gender equality.

The scope of this research comprises legislative development, judicial interpretation, historical context, and the recent reforms with reference to the UCC. It shall also deal with resistance against the implementation and issues of practicability. 

Historical trajectory 

There were debates in the constituent assembly regarding UCC in draft article 44. Dr. B.R. Ambedkar rejected the revisions and supported the State’s ability to intervene in the personal laws of distinct communities. Dr. B.R. Ambedkar had reassured the assembly that the UCC would initially be voluntary, allowing citizens to opt into the code rather than be compelled to follow it. The current mandatory implementation of the Uttarakhand UCC appears to conflict with this vision, raising constitutional concerns about its enforceability. 

The constitution (forty- second amendment) Act, 1976, introduced an important term, “secularism”. The Indian cultural diversity and various religious practices existing in India make it essential to grant people the freedom to practise and propagate any religion of their choice. However, the Indian Constitution also provides for ‘equality before law’. In a country where freedoms of speech and expression, as well as religious practice are guaranteed, the existence of separate laws and rules for different religions raises the question of the Uniform Civil Code. The Uniform Civil Code (UCC) seeks to standardize personal laws across religions, aligning with the constitutional principles of equality and non-discrimination enshrined in Articles 14, 15, and 44. India’s current personal law system varies by religion, leading to unequal treatment in matters like marriage, divorce, and maintenance. For example, Muslim personal rules allow polygamy, but the Hindu Marriage Act (1955) requires monogamy. In Mrs. Pragati Varghese v. Cyril George Varghese (1997), it was declared that the Christian Divorce Act (1869) was misogynist in effect because it imposed more responsibilities on women. In a similar vein, the Supreme Court upheld the Muslim Women Protection of Rights and Divorce Act (1986) for incorporating equal provisions for divorced women, despite the fact that it was contested in Danial Latifi v. Union of India (2001) on the grounds of purported bias.

Articles 25 and 26 give rights to individuals and denominations to conduct religious activities and manage religious affairs, so religious freedom is protected under these provisions. However, the exercise of those rights is subject to control in the interest of public order, health, morality, and welfare. The UCC aims at achieving uniformity in personal laws and ensuring equality under Article 44 while Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. In this way, the UCC attempts to make personal laws uniform on the grounds of gender equality and secularism without infringing on individual religious freedoms, thus ensuring a balance between the diversity of religious practices and the constitutional mandates. By removing conflicting laws on marriage, divorce, and inheritance, the UCC would advance gender equality by eliminating discriminatory practices in personal laws, mainly those directed against women; update antiquated laws and resolve contradictions; hence, accentuate national integrity and the principle of "One Nation, One Law" and, thus, promote national integration. In addition, it is hoped that a UCC would help preserve the secular tenets enshrined in the Constitution and reduce the space for religiously propelling vote-bank politics.

Yet, many hurdles have been envisaged in the implementation of the UCC. The huge cultural and religious diversity in India makes it difficult to evolve a uniform legal system that can respect the customs and sentiments of every community. Minority communities are resistant to the UCC out of fear that their respective religious practices may be interfered with.

Current Reforms  

To ensure uniform civil laws throughout India, the Uniform Civil Code Bill, 2019, tabled in Lok Sabha, seeks to form a National Inspection and Investigation Committee. It aims to substitute traditional religious personal laws, covering topics like marriage.

Divorce, succession, and adoption, ensuring nondiscrimination based on Article 15 and equivalence based on Article 14. Despite roadblocks such as resistance from the community, legal challenges, lack of cultural adaptations and the risk of politicisation, the Bill promotes gender equality, simplifies legal processes, and consolidates national unity.

The Uttarakhand Uniform Civil Code, 2024, mandates suitability and suitability registration of marriage and live-in relationships, makes archaic acts such as polygamy and triple talaq illegal, defines a uniform marriageable age, and ensures equality in divorce rights. It advances the cause of gender equality and the decriminalization of children living together, but excludes LGBTQs, primarily works through criminalization and is susceptible to exploitation of monitoring instruments against interfaith and minority households.

For these projects, striking a balance between diversity and equality continues to be a major problem.

Judicial approach 

In the case of Mohd. Ahmed Khan v. Shah Bano Begum, it was stated that "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 a uniform civil code for the citizens throughout the territory of India. There is no evidence of any official activity for framing a uniform 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 will help the cause of national integration by removing disparate loyalties to laws, which have conflict ideologies. No community is likely to bell the cat making gratuitous concessions on this issue.”

In the famous Sarla Mudgal case (1995), in which a husband was punished for bigamy after converting to Islam and getting married a second time, the Supreme Court upheld the fundamentals of Article 44. The Court underlined that the notion that there is no intrinsic link between religion and personal legislation in a contemporary, civil society is reflected in Article 44. It highlighted the obvious advantages that a Uniform Civil Code (UCC) would provide to its residents and questioned why it had not been implemented sooner, even though Hindu laws were codified and applied to a sizable section of India's population.Later, on July 23, 2003, the Supreme Court argued that a UCC would encourage national integration and urged Parliament to pass it. 

While declaring Section 118 of the Indian Succession Act, 1925 to be arbitrary, illogical, and in violation of Article 14 of the Constitution, which ensures equality before the law and equal protection of the laws within India, Chief Justice A.R. Lakshmanan made this recommendation.There are still notable gender differences in immovable property inheritance, both in actuality and in some legal systems. It is possible to address gender disparities in personal laws, and a UCC would fundamentally alter inheritance and succession laws in many societies. It would create a just system that would guarantee women's equal property rights.

The central issue is the timeline for the current government to implement the Uniform Civil Code, as envisioned by the framers of the Indian Constitution. Although traditional Hindu personal laws on inheritance, succession and marriage were codified as early as 1955-56, the adoption of a uniform personal law has faced delays without clear legal or factual justification. Article 44 is based on the principle that religion and personal law should be separated in modern society.  Article 44 is based on the principle that religion and personal law should be separated in modern society. While Article 25 guarantees religious freedom, Article 44 seeks to distinguish religion from matters of social relations and personal law. 

Article 44 of the constitution has largely remained unenforced, with minimal progress towards establishing a Uniform Civil Code. Implementing the UCC nationwide would promote national integration by eliminating conflicting legal systems based on different ideologies. It is the State’s responsibility to ensure a Uniform Civil Code for all citizens, and it has the legislative authority to achieve this. A meaningful effort must be made to realise the Constitution’s intent. While incremental judicial measures have a common civil code. A UCC is a more effective and equitable approach to justice than dealing with issues on a case-by-case basis. 

It makes sense to conclude that a Uniform Civil Code (UCC) is necessary in a secular India. However, it is neither desirable nor practical to impose such a rule on a community that is resistant to change. Many people are hesitant to abandon religious customs in favour of laws that are secular. Better literacy rates, a greater comprehension of socio-political issues, thought-provoking conversations, and greater social and religious mobility would all be necessary to create a UCC. The worries of minority religious groups, such as feelings of insecurity and fears of losing their cultural identity, must be taken into account when implementing the UCC. These concerns need to be properly addressed. Only with the agreement and support of all pertinent communities and stakeholders can the UCC be implemented successfully. It should also emphasise incorporating controversial and modern topics while honouring cultural diversity. Promoting this objective among communities—Hindus, Muslims, Christians, and Parsis—is probably going to have a beneficial impact and lessen resistance from fundamentalists. Enacting the UCC successfully requires a cooperative and inclusive approach.

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5. Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (1985)

6. Sarla Mudgal v. Union of India, (1995) 3 SCC 635.