ARTICLE 44: NEED FOR ANOTHER CONSTITUTIONAL REFORM

By:- Adv Palak Gupta

BSc. L.L.B. L.L.M. ( pursuing)

Advocate in the Hon’ble Supreme Court of India, Delhi High Court, Bombay High Court and Punjab Haryana High Court

• Abstract

Author in this article highlights the necessity of transmuting Article 44 of the Indian Constitution as a Fundamental Right[1] from Directive Principles of State Policy[2] in the view of current scenario and need of keeping personal laws in consonance with each other to achieve the objective of elimination of ongoing discrimination. In this era of governing such a large population in a Secular, Democratic, Republic without any communal hatred where the religious fault lines hang around our necks as an albatross- one should realize the importance of providing equal status to all citizens, promoting gender equality and accommodating the aspirations of youth by integrating the entire nation with one Code. The idea of a Uniform Civil Code has been found in the manifesto of present government as a nationalistic outlook for ‘ONE INDIA’. [3] Author emphasizes on idea of conceiving this Article as a fundamental right read in pari metria with other fundamental rights consolidating the basic structure enshrined in the Preamble of our Constitution.[4]. The foundation established by Maneka Gandhi v. Union of India [5] where the apex court evaded the question of injustice in law, author crucially stress upon the abolition of practices which have made the society male dominated. Marriage which is a very foundation of a civil society[6], author wants to establish the nexus between diminishing value of essence of marriage as well as the female gender associated in this bond due to these practices

• Introduction

India is a pluralistic society and country of religions inhabited by variety of people but, it is non-religious  and respects the beliefs, faiths and religions of everyone hence, deviating itself from an association towards any particular religion.[7]Also, recognizing the feature of Secularism to constitute basic structure of Indian Constitution[8], the framers of constitution formulated “the right of every citizen to freely profess propagate and practice any religion”.[9] This made apex court face various controversies as well as disputes with regards to the

ethics, morality and laws of society.[10]Conclusively, conflicts started arising when predominant ill-practices like Triple Talaq, Polygamy etc. lead to consistent miserable conditions of female in Muslim community being looked down on. This buoyed unscrupulous people belonging to other religions to convert into Islam to milk all its worth and practice polygamy with full impunity and establishing their dominance in the light of polarized law of Muslim Community favoring one gender as well as debauching the sacred notion of marriage[11], time and over amendments were made to the Muslim laws with landmark decisions of apex court such as in Mohd. Ahmed Khan v. Shah Bano Begum and Ors.[12]which extended the scope of Section 125 of CrPc i.e. granting maintenance rights to women to muslim women as well, Hon’ble Judges requested the government of India through Prime minister of the country to have a fresh look at Article 44 of the Constitution of India and ” endeavor to secure for the citizens a uniform civil code throughout the territory of India”.

• Historical Background

Since the making of Constitution, a huge debate took place post independence period with regards to Article 44 and finally to end the debate it was deliberately given the status of Directive Principles of State Policy. Over the years,  the apex court in plethora of judgements, exhorted the need of metamorphosing a nation with disintegrated population to unify into one. Hon’ble Justice Y.V. Chandrachud who observed that it is the time for the laying of very foundation of a common civil code which would help the nation to integrate and unite into ONE NATION, ONE LAW removing dispartate loyalities to law once stated that:-“It is a  matter of great regret that Article 44 of the constitution has remained nothing but, a mere dead letter” The first ever demand for a Uniform Civil Code was put forward by women activists in the beginning of 20^th Century which gained traction with abolition of triple talaq  On Aug. 22^nd, 2017 where honorable Supreme Court’s three judge bench with a 3:2 judgement, upheld it to be invalid.[13]After taking into consideration various judgements and cases in Anisa Khatoon case[14], Anwara Begum Case[15], Rukia Khatoon Case[16], Shamim Ara’s Case[17], Indian Express v. Union of India[18], Apex Court applied the Doctrine of Proportionality[19] and held that :-

  “On account of a Chapter on Fundamental Rights in Part III of our constitution right from 1950, Indian Courts did not suffer from the disability similar to the one experienced by English Courts for declaring as unconstitutional legislation on the principle of proportionality or reading them in a manner consistent with the charter of rights. Even since 1950, the principle of “proportionality” has indeed been applied vigorously to legislative ( and administrative) action in India.While dealing with the validity of legislation infringing fundamental provisions enumerated under Article 19 (1) of the Constitutiton of India such as Speech and expression, freedom to assemble peaceably, freedom to form associations and unions, freedom to move freely the territory of India, freedom to reside and settle in any part of India- this court has occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of choices. The onus probandi to show that reasonability was on state.”

The reasonable restrictions can be imposed by the legislature on freedoms if they are not arbitrary.[20] An eleven judge bench of honorable Supreme Court in 1970[21] held that Arbitrariness in legislation is very much a facet of unreasonableness in Article 19 (2) to (6), as has been laid down in several judgements of this court only. Therefore, one cannot be of a view or there can be no reason that why arbitrariness cannot be used in the aforesaid sense to strike down a legislation under Article 14 as well. In State of Punjab v. Khan Chand[22], apex court stated that:-

“It would be wrong to assume that there is an element of judicial arrogance in the act of the courts in striking down an enactment. The Constitution has assigned to courts the function of determining as to whether the laws made by legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the Courts discharge an obligation which has been imposed on them by the constitution. The Courts would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional.

Keeping in mind all the consequences and impact, Honorable Supreme Court finally decided to abolish the policy and practice of triple talaq; implementing the doctrine of Judicial Review[23] given to it for critically examining the laws making years long customary practice to be void even after strong opposition of All India Muslim Personal Law Board . Father of the Constitution Dr. B.R. Ambedkar once stated :- “at that time( during drafting of constitution), society was not prepared to adopt it but, later on, its necessity will arise when population will be stably organized in the nation and with the rise of literacy rate, people will understand its essence”. In  South Asia, till now only two UCC drafts have been prepared. First was made in 1951, in India by Dr. B.R. Ambedkar and second from Bangladesh in 1989 by Bangladesh Mahila Parishad.

• Why One Nation One Law?

Today when the world in 2020 is altogether standing out in favor of lockdown suspending the rights of citizens to fight Corona due to Tablighi Jamaat event that took place in propagation of their customary religious practice, lives of entire nation was put to stake when the country was gifted as many as approx. 1000 Corona cases just in two days which was achieved earlier within 15 days to 1 month. The most fine example of collapse of the legal system and disintegration which the nation has faced in a deadly situation . Secularism is a notion which has been extended to its most wrongful notions till today. It is imperative that rights of a mother must also be given equal stand. Recently in Abc v. State ( Nct of Delhi)[24], it was held that due to personalized laws, Christian unwed mothers in India are disadvantaged as compared to their Hindu Counterpart and hence, apex court also feels that it is time for India to stand united for the change with a view to make out ONE NATION ONE LAW to be portrayed into reality. The future of our country moving a step ahead towards this code will definitely be bright on the stake that educated youth will be able to support it and make the difference, feel the difference, realize the difference between a disintegrated nation and need of one nation.

• UNIFORM CIVIL CODE TO BE A FUNDAMENTAL RIGHT : NEED OF THE HOUR

 Need of a Uniform Civil Code in the present era has been identified by the Supreme Court[25]in Jorden Case where it was held that:-

   “The law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely, the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste……We suggest that the time for legislature has come for the intervention in these matters to provide for a uniform civil code of marriage and divorce….”

Same has been reaffirmed time and over.[26]

Goa is the only state in India which has set a model example of beautifully evolving the notion of a Uniform Civil Code whereby Portuguese civil code of 1867 became the part of its civil code in Goa Daman and Diu Administration Act 1962.

 Article 25 of the constitution which is still subject to certain restrictions cannot deviate from other fundamental rights embedded in part III of Indian Constitution.[27] One’s fundamental rights end from where the fundamental rights of others begin, hence, restricting an absolute enjoyment of these rights[28]. All the fundamental rights guaranteed under the constitution have to be interpreted in utmost careful manner where one cannot use his/ her freedom to encroach upon other’s freedoms.[29]Article 25, 26 and 29 cannot be used to infringe the rights that have been governed under Article 14, Article 15, Article 19, Article 21 read along with Article 44 of the constitution. In Suchitra Srivastava v. Chandigarh Administration[30], apex court held that “There is no doubt that a women’s right is also a part of her personal liberty”. The express provisions have even been made in Universal Declaration of Human Rights[31] that equal protection of law is the right of everyone irrespective of their gender. Due to such practices, a need of Uniform Civil code has been emphasized to reform all the marital and divorce laws applicable to people.[32]

It is duty of nation to bind with the treaties, covenants and conventions it has ratified. In absence of all these, customary international law prevails.[33]Subsequently, reference can be made to the ratified covenants which promote the agenda of promoting equality among men and women.[34]One of the most prominent conventions in the lieu of this is the CEDAW convention.[35]Even one can refer the Human Rights convention[36], where equality and prohibition of gender discrimination are part of human rights as well in the eyes of International Laws and Humanitarian Law apart from the fundamental rights, to promote the real sense of belongingness between man and man to build a strong nation of humanity has been seen .

Hence, to achieve all these objectives, Uniform Civil Code  is seen as need of hour by the author to be conceived as a fundamental right.

• CONCLUSION

When it comes to professing religious affairs, one must not forget the thin line of marginal difference between right and wrong. It is a need for real development that anytime we must be ready to de-link our rights and obligations because freedom never comes with absolute enjoyment. Law and Order must not be dealt like the manipulative puppets of  our hands and with the evolution of time, one must accept the change. Abrogation of triple talaq has made nation proud as India has moved its one step further towards real development and upliftment. Now, since India has fought against one of its battles with a huge bang of victory, author emphasizes the need of victory of Article 44 of constitution as well as to ameliorate the lot of women facing indignity nullifying all the atrocious practices going on.

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[1] Reference to be made to Part III of The Constitution of India, M.P. Jain,1949, 6^th ed., 2010, Volume 1.

[2] Supra Note 1.

[3] Timesnownews.com.2019. Uniform Civil Code by 2020? Modi govt likely to table UCC Bill in Parliament in December 2019, October 9

[https://www.timesnownews.com/india/article/uniform-civil-code-by-2020-modi-govt-likely-to-table-ucc-bill-in-parliament-in-dec/501855]

[4] Keshvanand Bharati and Ors. V. State of Kerala and Anr. (1973) 4 SCC 225.

[5]  1978 SCR (2) 621.

[6]  Reference to be made to a passage from Lord Westbury’s speech in Shaw v. Gould (1868 L.R., 3 H.L., 55).

[7]  Reference to be made to Dr. Raadhakrishnan in Secularism in India (ed. V.K. Sinha) 127 (1968).

                     On Secs. B and C, see generally, I.L.I., Minorities and the Law (1972); Smith, India as a Secular State (1963); Srivastava, Religious Freedom in India; ILI ( ed. G.S. Sharma), Secularism: Its Implications for Law and Life in India (1996); P.B. Gajendragadkar, Indian Parliament and Fundamental Rights (TLL); N.A. Subramaniam, Freedom of Religion, 3 JILI 323 (1961).

[8]  S.R. Bommai v. Union of India, AIR 1994 SC 1918.

[9]  Reference to be made to Article 25 (1) of The Constitution of India.

[10] Reference to be made to Article 25 (2) (a) & (b) of The Constitution of India.

[11] Lily Thomas v. Union of India (2000) 6 SCC 224.

Also Reference to be made to 227^th Report by Law Commission of India- “Preventing Bigamy via Conversion to Islam- A Statutory Proposal for giving Statutory effect to Supreme Court Rulings”( August 2009).

[12] 1985 SCR (3) 844.

[13]  Reference to be made to Shayra Bano v. Union of India and others along with five more petititoners vis-à-vis:- In Re: Muslim Women’s quest for equality v. Jamiat Ulma-I-Hind; Aafreen Rehman v. Union of India and Ors.; Gulshan Parveen v. Union of India and Ors.; Ishrat Jahan v. Union of India and Ors. And Atiya Sabri v. Union of India and Ors.

[14]  Rashid Ahmed v. Anisa Khatoon AIR 1932 PC 25.

[15]  Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau.L.R. 358.

[16] Must. Rukia Khatoon v. Abdul Khalique Lashkar(1981) 1 Gau.L.R. 375.

[17] Shamim Ara v. State of U.P.(2002) 7 SCC 518.

[18] (1985) 1 SCC 641

[19] Doctrine of Proportionality emerged out as a constitutional doctrine in Om Kumar v. Union of India (2001) 2 SCC 386.

[20] Chintamanrao v. State of Madhya Pradesh AIR 1951 SC 118.

[21] Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248.

[22] (1974) 1 SCC 549.

[23] Reference to be made to Article 13 read along with Article 32 and 136 of the Constitution of India, 1950.

[24] 2015 SCC online SC 609.

[25] Reference to be made to Ms. Jorden Diengdeh v. S.S. Chopra AIR 1985 SC 934.

[26] Madhu Kishwar v. State of Bihar AIR 1996 SC 1870; Sarla Mudgal v. Union of India AIR 1995 SC 1531; Lily Thomas v. Union of India AIR 2000 SC 1650 ;Danial Latifi v. Union of India AIR 2001 SC 3958.

[27]  Jhon Vallamatom v. Union of India, (2003) 6 SCC 611.

[28] Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujrat, AIR 1974 SC 2098.

[29]  Lily Thomas v. Union of India, AIR 2000 SC 1650.

[30]  (2009) 9 SCC 1.

[31] Reference to be made to Article 7 of Universal Declaration of Human Rights.

[32]  Jorden Diengdeh v. S.S. Chopra, A.I.R. 1985 SC 935.

[33]  Refrence to be made to United Nations Commission on Women, First Session ( E/281/Rev.1, Feb. 25^th, 1947).

[34]  Universal Declaration of Human Rights,1948, The International Covenant of Economic, Social and Cultural Rights, 1966, International Covenant of Social and Political Rights, 1966, The Convention on Political Rights of Women, 1952, Declaration on the Protection of Women and Children in Emergency and Armed Conflict,1974, Inter-American Convention for the Prevention, Punishment and Elimination of Violence Against Women, 1955, Universal Declaration on democracy, 1997, The Optional Protocol to the Convention on Elimination of All Forms of Discrimination against Women, 1999.

[35]  Reference to be made to Article 1 and 2 (b) of Vienna Declaration and Convention on the Elimination of All Forms of Discrimination among Women.

[36] Protection of Human Rights Act, 2006.