Dissecting a directive

Uniform Civil Code: A Mirage? by M.P. Raju, Media House, Delhi, 2003; pages 400, Rs.395.

THERE has been a lively debate in the media on the constitutional directive to enact a uniform civil code, following certain remarks made recently by the Chief Justice of India, Justice V.N. Khare, as the head of a three-member Bench. He observed, while allowing the writ petition challenging Section 118 of the Indian Succession Act in the John Vallamattam case on July 21, 2003, that it was a matter of regret that Article 44 of the Constitution had not been given effect to and that Parliament was still to step in to frame a common civil code. "A common civil code will help the cause of national integration by removing the contradictions based on ideologies," he added.

A controversy erupted over the propriety of the Chief Justice's remarks. It was felt that the remarks were irrelevant to the petition that the Bench was hearing - which sought the striking down of the legal provision that prevented Christians from bequeathing property for religious and charitable purposes. Also, the other members of the Bench, Justices S.B. Sinha and A.R. Lakshmanan, in their separate concurring judgments, made no mention of Article 44, which directs the state to endeavour to secure for the citizens a uniform civil code.

The Bharatiya Janata Party, which has made the enactment of a uniform civil code one of its slogans, and has closely identified this with its brand of aggressive cultural nationalism, promptly expressed agreement with the Chief Justice's remarks. The BJP had agreed to keep the issue out of the National Agenda for Governance (NAG) in deference to the sentiments of its allies in the ruling National Democratic Alliance (NDA) at the Centre, but would apparently not miss an opportunity to display its commitment to its original agenda.

The much-debated Article 44 has been controversial because of its political use by the Hindu Right in the recent years and the different ways in which legal scholars have interpreted it. The book under review brings considerable clarity to many issues raised by the controversy. Dwelling on the history of the framing of Article 44 and the assurances given in the Constituent Assembly, the author, M.P. Raju, a Supreme Court lawyer and a researcher on issues affecting minorities, states that the directive was not intended to do away with personal laws, whether based on religion, culture or custom. It was aimed at bringing in social reform even in the area covered by personal laws or culture in tune with the constitutional scheme. It is unwise to think that the Supreme Court, as Raju explains while reminding the government and the legislature of their duty to comply with Article 44, meant to go against the very constitutional objective of unity in diversity, or the fundamental duty of respecting and cherishing a composite culture.

The Chief Justice's comments on Article 44 were not the first of their kind; the Supreme Court has made similar observations earlier. Although such observations were seen to be inconsistent, contradictory and conflicting, they point to the duty of the legislature to examine and bring in all the personal laws and customary laws in tune with the fundamental rights under the constitutional scheme, especially to purge them of the anti-women and discriminatory provisions and practices, Raju claims in his book.

Dwelling on the various cases in which the Supreme Court has referred to Article 44, Raju opines that the court has shown a lack of consistency with regard to the permissibility of different personal laws under it. The observations of some of the Judges in the cases of Shah Bano, Jordan Diengdeh, Sarla Mudgal and John Vallamattam have not been supported by other judgments or orders. In particular, the Supreme Court's orders in the cases of Pannalal Pitti, Maharishi Awadhesh, the Ahmedabad Women's Action Group, and Lilly Thomas take an alltogether contrary view with regard to the desirability of removing the personal laws by bringing in a uniform civil code and the propriety of the court suggesting to Parliament that it implement the directive in Article 44, Raju points out.

Raju shares the view that the idea of a uniform civil code had its origin in the opposition to the Hindu Code Bill. The opponents of the Hindu Code Bill demanded a provision for a uniform civil code more as a stalling tactic than as a principled position; they insisted that the Bill be withheld until it was modified and made applicable to all Indians. Eventually the Hindu Code Bill could not be passed until the finalisation of the draft of the Constitution.

The book reveals that B.R. Ambedkar, a staunch supporter of the Hindu Code Bill, agreed to include Article 35 (corresponding to the present Article 44) in the draft Constitution mainly in the hope that it would later facilitate enactment of the Hindu Code Bill. No wonder, Ambedkar meant Article 35 to be a dormant provision as revealed in his significant remark that the Muslim opponents of the provision had "read rather too much" into it. He had also assured the members of the Constituent Assembly that no personal laws would be changed using the power under this directive without the consent of the communities concerned.

Ambedkar, the book shows, was clear that after the Code was framed the state would not enforce it upon all citizens merely because they were citizens. "It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary," he had said.

However, the BJP's post-Shah Bano advocacy of a uniform civil code placed the whole issue as that of a uniform civil code versus the minorities. The appendices in the book, carrying the Constituent Assembly Debates on the issue and the relevant Supreme Court judgments, would be immensely useful to anyone interested in the subject.