Striking Equilibrium between Articles 25-28 and 44: The Imperative for a Thoughtful Implementation of the Uniform Civil Code

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The Uniform Civil Code (UCC) has been a topic of contentious debate in India for decades. It is a concept that seeks to replace personal laws based on religious beliefs with a common set of laws governing various aspects of civil life, including marriage, divorce, inheritance, and adoption. While proponents argue that the UCC will promote equality and justice, opponents often fear that it may lead to the erosion of minority rights and cultural diversity. Striking an equilibrium between Articles 25-28 and Article 44 while implementing the UCC is of utmost importance to ensure that this process is not merely a political ploy but an intellectually deliberated pursuit of harmonious governance.

The need for a UCC must not be driven by emotional arguments of either the majority or minority communities, nor should it be a political charade. Instead, it must be approached with intellectual labour and rigorous deliberations, considering its implications on the diverse fabric of the nation.

Article 44 of the Indian Constitution, which promotes the UCC, is a Directive Principle of State Policy. These principles are guidelines for the government to achieve social and economic democracy. The UCC, as a DPSP, calls for progressive realization, taking into account the evolving nature of the country and its society.

India is a land of diversity, with a plethora of cultures, languages, and religions coexisting harmoniously. The principle of unity in diversity is the essence of our nation. Any effort to implement the UCC should be mindful of this diversity and seek to preserve and respect the unique cultural identities of various communities.

The current political move found support for its campaign in the judgment by Justices Kuldip Singh and R.M. Sahai in Sarla Mudgal vs Union of India (1995). In this landmark case, the judgment by Justices Kuldip Singh and R.M. Sahai raised the question of a common civil code and its potential implications on the freedom of religion guaranteed by the Constitution. The case received both encouragement and criticism, and it continues to be a pivotal reference in the ongoing discourse surrounding the adoption of a UCC in India.

The Sarla Mudgal case emphasizes the need for its implementation as a solution to the issue raised in the case, holding that the second marriage of a Hindu husband after conversion to Islam, without dissolving his first marriage under law, to be invalid. The court emphasising on misuse of personal laws, reiterates that Article 44 of the Indian Constitution mandates the state to secure a UCC for all citizens throughout the territory of India. A well-implemented UCC can rectify such discrepancies and ensure gender justice and equal rights. Justice Singh’s observation in the Sarla Mudgal case highlights that in the absence of a UCC, individuals might attempt to misuse religious freedoms to evade legal restrictions. A comprehensive UCC could prevent such misuse and bring consistency in the legal framework.

Justice Sahai also opined that the Practices associated with different religions may appear excessive or conflicting to others, but they are matters of conscience and should be approached with respect. Reason and logic may not play a significant role in such matters; instead, emotions need to be tempered with sincere effort. The need for a uniform civil code is acknowledged, but its successful implementation requires the cooperation of enlightened individuals, statesmen, and leaders who can create a conducive social climate and awaken the masses to embrace change

However, their stance was strongly criticized by H.M. Seervai, a distinguished constitutional lawyer, in an article entitled “Uniform Civil Code: Judiciary Oversteps its Brief” ( The Times of India ; July 5, 1995), highlighted that the judges had ventured beyond the scope of the case and addressed the idea of a common civil code. Justice Kuldip Singh’s argument, linking the absence of a uniform civil code to Hindu men converting to Islam to marry multiple wives, was deemed specious. Justice Sahai dissented and emphasized that religion encompasses more than just faith and belief. The judges overlooked Article 145(5), requiring majority concurrence, rendering their opinion on the compatibility of a common civil code with freedom of religion inconclusive. Seervai pointed out that the judiciary cannot enforce Article 44, which calls for a uniform civil code, as it falls under the purview of the executive and Parliament.

One of the core principles behind the demand for a UCC is to ensure gender justice and equal rights for all citizens. A well-crafted code should address discriminatory practices in personal laws and promote a more equitable society.

While the UCC aims to ensure equal treatment, it must not be used as a tool to impose majority beliefs on minority communities or attack their cultural practices. A balanced approach that respects diversity and protects minority rights is crucial.

Upon examining the Constituent Assembly debates, it is evident that B.R. Ambedkar believed in the significance of a Uniform Civil Code (UCC) for India. While considering the Special Marriage Act, his stance on the importance of individual choices in matters of marriage aligns with the principles reflected in the Act. Ambedkar emphasized that a UCC should be implemented voluntarily, considering the sentiments and preferences of various religious communities. This approach would foster a harmonious evolution of a uniform civil law in India’s diverse social fabric, as envisioned by Ambedkar.

The inclusion of the UCC in the DPSP should be seen as a guiding principle for formulating laws and policies, rather than a strict mandate. It provides room for social reforms and equitable solutions, rather than a simple yes-or-no approach.

The current debates surrounding the UCC are often politically motivated. Instead of engaging in mere rhetoric, policymakers must focus on drafting a comprehensive law that considers the diverse religious freedoms and practices while ensuring constitutional objectives are met.

The quest for equilibrium between Articles 25-28 and Article 44 while implementing the Uniform Civil Code is a multifaceted challenge. It requires intellectual rigor, unbiased deliberations, and a deep understanding of India’s diversity and cultural fabric. A well-crafted UCC can foster gender justice, equal rights, and social harmony, without compromising the essence of India’s unity in diversity. Striking this balance is essential for building a progressive, inclusive, and just society for all its citizens. Also in the context of implementing a UCC in India, it is essential to recognize the significant value of Article 25-28 of the Constitution, which enshrines the Right to Freedom of Religion as a Fundamental Right. While a UCC may be pursued as a Directive Principles of State Policy (DPSP), it must be carried out in harmony with the spirit of the Basic Structure doctrine, ensuring that the individual’s Fundamental Right to practice and profess their religion is respected and upheld.

The expectation from the 22nd Law Commission is that it will adopt an impartial, consultative, and attentive approach in understanding the complexities surrounding the Uniform Civil Code and consider the viewpoints of all relevant stakeholders before formulating any recommendations or proposals on the matter.

Authored By:
Mr. Aravindan Anandan
Assistant Professor, School of Legal Studies and Governance
Vidyashilp University

 

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