Art. 44 of the Constitution came up for comment decades ago and in Ms. Jordan Diengdeh vs S. S. Chopra AIR 1985 SC 935 the court (two judges) suggested for a complete reform of 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 refer 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, all groups hold their Divinely revealed law cannot suffer non-Divine modification, and members of their community must seek solutions emerging from within the concerned group, ensuring acceptability, being fresh interpretations rather than ham-handed legislative 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 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”. In 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. 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 illusory. 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?
Art. 37 says the provisions contained in this Part of the Constitution shall not be enforceable by any court, but the principles (Directive Principles of State Policy) 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.
Note the article states the provisions “shall not be enforceable by” any Court but does not state that inadequate or improper action in pursuance of or inaction negating the operation 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, considering recent events.
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.
However, when we come to Art. 44, we learn that the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India. Is it anybody’s case that this palpable, perceptible,discernible shift from the mandatory or directory shall strive, further emphasised in shall in particular strive, to the recommendatory words “shall endeavour to secure…” is just an accident? Why do certain people focus on what is not the focus in the Constitution?
Is it also accidental that this provision is part of a set of provisions aiming at parity in treatment of various people? Remember that India was a country where practices like untouchability prevailed, and needed to be addressed. Where even the emphasised mandatory directive provision is not enforceable by any Court, will this suggestive recommendation expression be given so much weight that Courts start requiring the State to do something about a common civil code?
The Supreme Court has observed that even in a statute, “legislative futility is to be ruled out so far as interpretative possibility permits”.
“Endeavour to secure”: what does it mean? The words chosen are not declare, provide, lay down, promulgate, enact or legislate. The intent seems to be that something must be secured in the sense of being obtained. That securing is the obtaining of agreement if there can be persuasion of the type that finds acceptance among classes, religious, social, ethnic, etc., of citizens. The state, it is submitted, must make an effort, it must endeavour to secure: it cannot impose at all.
“Uniform”: what does it mean? The word used is not “one” civil code or an “identical” civil code or even the fashionable “common” civil code. Uniformity suggests similar treatment, coming as it does immediately after provisions pertaining to equality of treatment before the law, of the various classes of citizens. Inasmuch as there is disparity of treatment based on principles of reasonable classification, a differentiation in treatment is sometimes found in the affirmative actions aimed at removing disparities.
In that view of the matter a uniform civil code would mean a body of codified law that ensures that similarly placed persons in particular situations are governed by a law that is applicable across the spectrum of that group. An example: the Transfer of Property Act holds a transfer with a condition repugnant as valid. Transferees can ignore the condition, which is declared to be void. It then creates exceptions for leases and cases where the condition is necessary for the better enjoyment of a portion of adjacent property retained by the transferor. Now is this Act, applicable to all Indians, yet recognising a disparity of treatment between the one who has transferred all his property and the one who has retained part of it, not uniform? Cases abound where it is possible for people to “contract out of” the law’s prescriptions. All of them are legally recognised exceptions, differences, and two persons in the same set of circumstances can, depending on whether they have contracted out or not, end up with disparity of legal results or consequences. This disparity is apparently acceptable, but when Muslims seek to transact regarding personal matters such that consequences for them are different from those of non-Muslim brothers who choose to be governed by any other law (all, mind you Indian laws), that is considered disparity, lack of uniformity, even a hindrance to national integration. Why? Is it only
because these are Muslims?
To be continued
Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad