• Personal Laws: Civil codes pertaining to questions of marriage, divorce, succession, etc. Presently, You are governed by such laws on the basis of the community you belong to. Opponents of such personal laws have claimed that these laws are usually redundant, and are not compatible with the constitutional theme of equality and non-discrimination. Defenders have said that Personal laws form part of right to freedom of religion, and are in complete harmony with the Indian constitution.

• Uniform Civil Code: Article 44 mandates the state to pursue a uniform civil code, to ensure that citizens are subject to the same civil code. However, Article 44 is a Directive Principle of State Policy and not enforceable.

IMPORTANT TERMS & BACKGROUND

• Two camps: “Apathetic” and “Equal Respect”• Former was headed by BR Ambedkar and KM Munshi.• They were of the opinion that religion shouldn’t be brought

into the legal system of the country – and wanted a common civil and criminal code. Both had introduced notes attempting to have the UCC as an enforceable right.

• Both also believed that such commonality in the legal system would enable national integration and unity.

• Two arguments of the camp: Equality & National Integration. Even today, the same are the primary arguments.

CONSTITUENT ASSEMBLY

• The “equal respect” camp: Pocker Sahib and Ismail Sahib, introduced notes attempting to make “right to personal laws” an enforceable right.

• Emphasized on “right to religious practice” v. “religious worship”, former would include cultural practice, etc rather than routine acts of worship.

• The notes and proposals were rejected, so the camp tried to add a caveat to the eventual Article 44: “provided any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law”

• Wasn’t passed, obviously.• Arguments in favour of personal laws relied on religious freedom

and the harmonious existence of religion and a secular state• Munshi-Ambedkar compromise: the “no acceptance, no enforcement

of UCC” clause. Hence, the Directive Principles.

DEBATES: CONTINUED

• Article 13: Laws in derogation of the Fundamental Rights• Article 25: Freedom of religion (subject to public morality and health,

everyone has the freedom to practice, profess and propagate religion)• State, under 25(2) has power to regulate any secular religious practice

when it affects financial, political or social matters – purposes of reform.• Question unanswered: What is “secular activity” and what is “religious

practice”• Article 44: Already dealt with. Courts have ranted on about the lack of

such implementation. Directives have persuasive value when used for interpretation.

• Article 372: Allows for the enforcement of all laws in force, unless they are not in harmony with the Constitution.

expression “all the laws in force” includes not only enactments by the Indian legislature, but also laws enforced by the courts in the country. It includes personal laws viz., Hindu, Muslim, etc. as well as customary laws

CONSTITUTIONAL PROVISIONS

• Krishna Singh v. Mathura Ahir AIR 1980 SC 707: Whether Shudra can be a sanyasi or not. HC: Said such prohibition goes against Article 14 and struck it down. SC overruled, saying Personal Laws can’t be tested on the basis of Fundamental Rights, and that modern value systems are no yardstick to measure the constitutionality of Personal Laws.

• Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713) & Ahmedabad Women Action Group & Ors. v. Union of India (1997 3

SCC 573) – both went on to affirm such Mathura Ahir

• Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525) – this was the only exception, and said that any law that goes against FRs, is ultra vires to the extent of being violative.

JUDICIARY, CONSTITUTION & PERSONAL LAWS

• Pannalal Banslal Pitti v. State of Andhra Pradesh (1996 SC 1023):

• Talked about need to wait for progressive change.• Talked about the constitutional scheme of unity and diversity

“A uniform law, though it is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by the rule of law, gradual progressive change and order should be brought about. Making [a] law or [an] amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go.”

• Gita Hariharan v. . Reserve Bank of India 1999 2 SCC 228: Boldly struck down S. 6 of the HSA as it made the father the “natural guardian” of a child. And reasoned that it was violitive of the Funda Rights.

THE AGE OF JUDICIAL REALISM

Daniel Latifi (2001 7 SCC 740): •Petitioners contended that the Muslim Women (Protection of Rights on Divorce) Act 1986, violated a Muslim woman’s fundamental rights under the constitution articles 14 (fundamental right to equality before law), 15 (right to equal opportunity) and 21 (right to life and personal liberty).• Because, the law violates a Muslim woman’s rights to maintenance under Cr. Pc. Section 125. •Court chose the middle ground, and introduced revolutionary interpretations. Held that the concept of maintenance is for a divorced Muslim woman is different, as a husband is only obligated to maintain his wife for so long as she is in the period of iddah.•However, the Act does not forbid maintenance under Cr. Pc 125. And hence, should the wife be threatened with vagrancy, husband will have to maintain wife until she is capable of taking care of herself

LATIFI: WHEN THINGS BEGAN TO CHANGE

• Common code, as held in Pannalal might actually result in resentment rather than unity and integration

• “Uniformity” does not mean “sameness”. Just like “unity” is not the same as “assimilation”.

• The main purpose of a UCC is prevention of the derogation of FRs

• V. R. Krishna Iyer has emphasized that reform should be the main vehicle in preventing such a derogation, and not absolute imposition of a code that will be resented. The uniformity is not about the content, but the constitutionality.

• Scholar Razia Patel argues on similar lines, and says that change in derogatory personal laws should be the way to achieve such uniformity.

UNIFORM=COMMON?

• HSA amendment, provided daughters with equal share in property.

• Similarly, in the Mary Roy case, the Christian succession traditions were questioned, and the Courts upheld the petitioner’s argument, as the succession discriminated against daughters.

• However, Muslim law has been the lagging behind in such instances. Most reform laws don’t apply to Muslim law.

• Muslims in India follow the Hanafi school of jurisprudence – just like Morocco, Pakistan, Indonesia, etc.,

• All of these countries have been able to limit polygamy, child marriage, triple talaq, etc – by adding conditions that are all justified by Islam – hence, the change in the Muslim law here didn’t meet with resentment because they were in consonance with religious values, at the same time – didn’t value modern values either.

INSTANCES OF REFORM

• Hence, uniformity can be brought in through reform.

• This will ensure the “acceptance” of such uniformity, and will also legitimize these laws in the eyes of the cultural brigade.

• Gradual change is necessary for reform and acceptance of liberal values.

• This is also in consonance with the aims of Ambedkar and Munshi: “national integration and reconciliation”.

• Fears such as majority-domination will be assauged.

• Interests of the “discriminated party”, women, primarily, will be protected.

CONCLUSION