Art. 44 of the Constitution came up for comment two decades ago and in Ms. Jordan Diengdeh vs. S. S. Chopra AIR 1985 SC 935 the court (two judges comprising the bench) suggested a complete reform of the law of marriage (in that case involving a Christian and a Sikh) quoting with approval from Mohammed Ahmed Khan vs. Shah Bano (AIR 1985 SC 945), where the necessity of uniform civil code in the country was suggested by the Court (five judges comprising the bench) which quoted Art. 44 of the Constitution and said there was “no evidence of any official activity for framing a common civil code for the country.” Restricting the scope of that the Court proceeded to defer to the belief that it was for the Muslim community to take the lead in the matter of reform of their personal law.
The observation in that case aside, not a single instance has been forthcoming of any community as a body coming forward for a change-over from their personal law to common codified law: at best some reform-desiring members of the one or the other group have tried to create awareness of anomalous results in certain areas, and been naturally resisted by groups which hold their Divinely revealed law cannot suffer non-Divine modification, and members of their community must seek solutions emerging from within the concerned group. Obviously, these would be more acceptable, being actually fresh interpretations rather than any new legislation or substitution.
The Court said a common civil code will “help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. There was apparently at least a perception that national integration was somehow obstructed because of diversity of laws. People don’t have loyalty to laws. Following diverse personal laws, operating in a non-secular, personal field, internal to a group, has little to do with loyalty to country: it was not as if a foreign law was being followed: what was being followed was a local law that had evolved locally over the centuries and was not even as originally created: what prevailed was a hybrid version peculiar to the sub-continent. The further observation “laws which have conflicting ideologies” implies some “conflict” in the laws’ ideologies. Conflict would arise only if two sets of laws were to be applied to one set of people in a given situation, whereas in personal law matters a particular personal law would find application within a particular group, and not different laws. Where would the conflict be? Certainly not in the laws, for we would all be following differing laws, which would govern relations between those of us that formed part of one group only, and not another with a different “ideology”. Where we come into transaction situations with others of other groups, codified national laws would govern, as they do now.
Stating further that the State had the duty to secure a common civil code for the country, the Court proceeded also to say that (the State) “unquestionably has the legislative competence to do so”. That conclusion there is at least some reason to question: the words of article 44 are not the imperative language of other articles as seen below.
Art 26 of the Constitution says subject to public order, morality and health, every religious denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion; … etc.
Now, a religious institution is not necessarily only a mosque where worship is performed. Any institution that caters to any aspect of religious practice would qualify as a religious institution. Wakf, Qazi, Bait-ul-Maal, setting of calendars on moon sightings signalling the start of months, institutions for the sacrifice at Eid-ul-Zuha, for collection of zakaath and its distribution… what part of this is divorced from religion?
A Constitutionally guaranteed freedom and right to establish and manage institutions for religious purposes, and for a community to manage its own affairs in matters of religion, cannot be eroded or diluted by such interpretation of another provision (a direction to try to secure a certain result) as to render the guarantee itself nugatory or illusive. A right to establish and manage institutions for religious purposes presupposes that those institutions can function as such and not be mere showpieces to be held up only for effect. None of these institutions would at all remain functional if the right and freedom enshrined as above is eroded. Effectively, a constitutionally guaranteed freedom and right would be negated. It is submitted that that would not be at all proper or acceptable from any legal standpoint.
The definitions of words and/or phrases like “religion” and “religious purposes” would be very significant, and affairs in matters of religion do not mean just worship! The practice of Islam for instance would encompass various matters of that religion and so far none has suggested that public order, morality or health are affected by my marriage to more than one woman or my divorce by unilateral action consistent with my personal law, or my distribution of my inherited property in a certain manner amongst my family, or the way my family ladies and men dress, the way we worship, the way we celebrate our festivals, etc., which are for me all religious matters. Not one of these involves public morality or order. How then can one Constitutional provision be so interpreted without reason as defined in the guarantee, as to render otiose or unmeaning the guarantee enshrined in the Constitution?
From Art. 29 which says any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same, we see that the definition of “minority” is not obscure, and it can be ascertained from the characteristics mentioned, viz., a section of citizens having a distinct language, script or culture of its own: ipso facto, anyone can be a minority.
Art. 30: all minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. It is immediately clear that here we have a more inclusive definition of “minority”: numerically smaller (vis-à-vis total population) group of citizens who have a common religion or language! Muslims, Parsis, Christians…any questions about what the Constitution meant by minority is set at rest.
Art. 37 says the provisions contained in this Part of the Constitution shall not be enforceable by any court, but the principles therein laid down 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.
Therefore if a citizen were to invoke the Court’s power seeking direction to the State to implement a directive principle of State policy, the application would be liable for rejection. The words are not “enforceable at the instance of any citizen”, and therefore under no circumstances would they be enforceable by Courts. Not being enforceable directly at all, indirect enforcement by suo motu directives of Courts would also, it is submitted, stand excluded. Courts, it is submitted, ought not to place themselves in situations that tend to erode their authority: would the Court suggest the State do something, which suggestion is far short of an order, which latter itself the Court stands precluded from, and therefore has no power to enforce? Differently put, if the Court directs the State to enact a uniform civil code and the State refuses, can the Court do anything about it?
Note the article states the provisions “shall not be enforceable by” any Court but does not state that action in pursuance of a directive principle “shall not be called in question before any Court”. Therefore, while one citizen cannot seek direction to enforce, another can sustain a challenge to the exercise of power by the State. Grey waters, with uncertainties lurking.
Scrutiny of these shifts in phraseology is a tool that aids understanding of intent. Art 38 (1) says the State shall strive to promote the welfare of the people … while (2) adds emphasis by saying the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities…
The mandatory “shall strive…” in No: 1, changes to the “… shall in particular, strive…” in No: 2.
An emphasis is provided by the framers of the Constitution where they desired to emphasise a point. In Art 39, we learn the State shall, in particular, direct its policy towards securing… (note the continued use of the “in particular, strive…”), with this article also seeking parity between citizens. In Art. 39A requiring that the State shall secure that operation of the legal system promote justice, the mandatory expression “…shall secure…” is again present.
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