Dreams of a Uniform Civil Code in India look realizable after Supreme Court’s nudge

Supreme Court, Uniform Civil Code,

(PC: Lexinsider)

In what is expected to bring the issue of Uniform Civil Code in the limelight, the Supreme court has observed that despite the expectations of Constitution makers and “exhortations” by the Court, no attempt has been made to achieve the object and the Uniform Civil Code (UCC) remains elusive for Indian citizens.

A Supreme Court Division Bench comprising of justices Deepak Gupta and Aniruddha Bose made this observation during a verdict about holding that the Portuguese Civil Code, 1867 shall govern the rights of inheritance and succession in respect of properties of a Goan domicile situated anywhere in the country. During the proceedings on this case, the bench observed that even after the Hindu laws were codified in 1956, “there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this court in the case of Mohd Ahmed Khan vs Shah Bano and Sarla Mudgal and Others vs Union of India and Others”.

The bench also cited Goa as a “shining example” where the Uniform Civil Code was in force irrespective of the religion of those domiciled in the state. The Court also observed, “Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there is no provision for verbal divorce.” Although two major steps by the Modi government: the banning of Triple Talaq and the removal of Article 370 in Jammu and Kashmir, are steps taken in the direction of the a Uniform Civil Code, the UCC dream has not yet been materialised. It is futile to even expect a Uniform Civil Code from a government other than the NDA government.

It must be noted that the apex court has stressed upon the need of a Uniform Civil Code in the past as well. In this context, it is indispensable to refer to two landmark rulings of the apex court. The first one obviously being, Mohd. Ahmed Khan v Shah Bano Begum (AIR 1985 SC 945). This ruling had come to light as the Supreme Court had stood up for the rights of Muslim women in a progressive judgment and did what the legislature had failed to do for the last 35 years, i.e. grant maintenance rights to the Muslim wife by holding that the Muslim wife was entitled to claim maintenance under the provisions of Section 125 of the Code of Criminal Procedure, 1973 even after dissolution of marriage. This had come as a landmark ruling given that under the old Mohammedan law of dower (mehr), all that the husband needed to do was make a prefixed one time payment called dower to the wife after arbitrary dissolution of marriage in lieu of maintenance. In this landmark ruling the Court had also observed, “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” The apex court had also observed, “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 Supreme Court had made another far-reaching observation about how a belief seemed to have gained ground that it was for the Muslim community to take a lead when it came to the issue of reforming their personal law. The Supreme Court had, however, rightly observed that “No community is likely to bell the cat by making gratuitous concessions on this issue.”

It is strange how even today there have been similar arguments batting for reforms from within the community. It has been around 34 years since the Shah Nano judgment was pronounced, and till now there have been no signs of any reforms coming from within the community. And now it is clear that the State will have to take the first move. Instead of expecting social change to compel changes in law, the law should be seen as an instrument of social change. It is important to mention here that despite the Court making such compelling observations, the Rajiv Gandhi government of that time did not pay any heed to the apex court observations on the issue of Uniform Civil Code. As opposed to making any progressive move, the government of that time made sure that the respite granted to Muslim women was short lived and enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986 to reverse the effect of the Shah Bano judgement.

Another Supreme Court ruling which must be perused when it comes to the issue of Uniform Civil Code is the Sarla Mudgal v Union of India [(1995) 3 SCC 635] in which the Supreme Court decided a significant question of law by holding that where a Hindu man married under the Hindu law, converted to Islam and got married for a second time, without dissolving his first marriage, then such second marriage would be illegal and such a man could be punished for bigamy under the provisions of Section 494 of the IPC, 1860. In this case too the Supreme Court stressed upon the need of a Uniform Civil Code. In this case the Supreme Court went to the extent of requesting the Government of India through the Prime Minister of the country to take a fresh look at Article 44 of the Constitution, which places a positive obligation upon the state to secure a Uniform Civil Code throughout the territory of India. The Court also observed, “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.”

It is, therefore, clear that despite the Supreme Court recognising the need of a Uniform Civil Code in some of its historic and landmark rulings, the subsequent governments have turned a blind eye towards the Constitutional goal. It must be borne in mind that though the Uniform Civil Code is a Directive Principle of State Policy, which are not justiciable before the Courts of the country, however, are “nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” What this basically means is that while the Directive Principles are not justiciable in Courts, these principles remain fundamental to governance of the country. These are also positive obligations cast upon the State, which is made duty bound to apply these principles in law making. Contrary to the popular opinion, the Directive Principles are not a dead letter. While the Constitution does not give the option of getting these Principles enforced through the Courts, it was believed that a failure to implement these principles would trigger a backlash during elections, which would serve as a sanction for the enforcement of these Principles. Thus, Directive Principles of State Policy are not mere guidelines for the State but real constitutional goals which the State must at all times, strike to achieve.

It can be concluded that as far as the obligation of securing a Uniform Civil Code throughout the territory of India is concerned, the legislature is not there yet. While the Supreme Court has time and again made thought provoking observations on this issue, with the recent Supreme Court observations, it is expected that some kind of positive development will take place in the right direction and this elusive object would finally be achieved.