The Uniform Civil Code: Article 44 and Religious Pluralism

In one line

Article 44 directs the State to endeavour to secure a uniform civil code, and the whole argument is about what a civil code is, what religion is, and who decides.

The text, and what a Directive Principle is

Article 44. Uniform civil code for the citizens. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

That is the whole Article. Notice three things in it.

"Shall endeavour", not "shall secure". The duty is to try.

"For the citizens", not for a community. The code is addressed to citizens as citizens, which is the whole of the constitutional idea behind it.

"Throughout the territory of India", so a State code, such as the one Goa has, is not what Article 44 asks for; it is a step towards it.

Article 37 governs the whole of Part IV: the provisions contained in this Part 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.

Both halves are load-bearing. Not enforceable, so no writ lies to compel a code. Fundamental in the governance of the country, and a duty of the State in making laws, so Article 44 is not decorative either: it is a standard against which legislation is measured and an aid to construction when a statute is ambiguous.

Where personal law sits in the Constitution

The difficulty is genuine, and MU's own word for it, religious pluralism, is the right one. Four Articles pull in two directions.

Article 25(1). Subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

Article 25(2). Nothing in the Article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Article 26. Subject to public order, morality and health, every religious denomination has the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire property and to administer it in accordance with law.

Articles 14 and 15. Equality before the law and the equal protection of the laws, and a prohibition of discrimination on grounds only of religion, race, caste, sex, place of birth or any of them.