The Uniform Civil Code: Article 44 and Religious Pluralism

The tension, stated fairly

The case for personal law rests on Articles 25 and 26. Marriage, divorce, adoption, guardianship and succession are, on this view, part of the practice of a religion, and a State that legislates them away is not neutral between religions but hostile to them. Pluralism is not a defect to be cured; it is what a country of many faiths looks like.

The case for a uniform code rests on Articles 14 and 15. A woman's rights on divorce or on her father's death should not depend on which religion she was born into, and the differences between the personal laws fall most heavily on women. A State that leaves them alone is not neutral either; it is delegating its citizens' rights to their communities.

And the constitutional answer to both is in Article 25(2) itself. The freedom in clause (1) is expressly subject to the State's power to regulate secular activity associated with religious practice and to legislate for social welfare and reform. The whole question, on which the argument really turns, is which side of that line marriage and succession fall on.

There is a further and more technical question this book does not answer, and says so rather than guessing. Article 13(1) makes all laws in force immediately before the Constitution void so far as they are inconsistent with Part III, and Article 13(3)(a) defines "law" to include custom or usage having the force of law. Whether uncodified personal law is such a "law in force", and so testable against Articles 14 and 15, is a question on which there is authority in the High Courts and the Supreme Court. Those judgments were not read for this book, so no proposition is attributed to them here.

What the Constituent Assembly actually said

Draft Article 35, in the words that became Article 44 without a single change, was debated on 23 November 1948. The debate is worth knowing in outline because every argument made since was made then.

The two amendments moved against it

Mohammad Ismail Khan moved a proviso that "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". He pointed to similar clauses in European constitutions, and made the point that his amendment was not for minorities alone but for all people including the majority community. His argument was that uniformity was being sought in order to secure harmony, but that regimenting the civil law, including the personal law, would bring discontent, whereas leaving each section free to follow its own personal law would not.

Naziruddin Ahmad moved a proviso that "the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law". He put it on a broad ground, not the convenience of one community. His three points were that the draft article clashed with the freedom of religion in Draft Article 19, now Article 25; that the British in a hundred and seventy-five years had enacted the Registration Act, the Limitation Act, the Civil Procedure Code, the Criminal Procedure Code, the Penal Code, the Evidence Act and the Transfer of Property Act, and had never interfered with marriage and inheritance; and that interference should be gradual, so that a time would come when the civil law would be uniform, but that time had not yet come.

The three replies

K. M. Munshi answered the freedom of religion point out of the Article itself. The House had already accepted that the State may legislate on secular activity associated with religious practice and for social welfare and reform, so the principle was conceded. He added that without the Article, Parliament would still have power to enact a civil code, restricted only by the freedom of religion; the Article merely states the object. On the charge that a code would be tyrannical to minorities, he pointed to the Khojas and Cutchi Memons, who had followed certain Hindu customs since conversion and were made to conform to the Shariat by legislation they did not want, and asked where the rights of the minority had been then. He pressed the point about women hardest: if the personal law of inheritance and succession is treated as part of religion, "you can never give, for instance, equality to women", and the House had already enacted a fundamental right against discrimination on the ground of sex. And he pointed out that the difficulty is not confined to minorities at all: among Hindus the Mayukha applies in some parts, the Mitakshara in others and the Dayabhaga in Bengal, and provinces and States had begun making separate Hindu law for themselves.

Alladi Krishnaswami Ayyar made the point about what a civil code is. It "runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters". On the objection that communities cannot live in amity under a common code, he said the Article aims at amity, and that differing systems of inheritance are among the factors that keep the peoples of India apart. He also made the historical point that when the British introduced one criminal law applicable to Englishmen, Hindus and Muslims alike, and a common law of contracts, no exception was taken.

B. R. Ambedkar answered the question whether a uniform code was even possible in a country so vast, and his answer is the single most quotable passage in the debate. We already have one. A uniform and complete criminal code in the Penal Code and the Code of Criminal Procedure, the Transfer of Property Act, the Negotiable Instruments Acts and innumerable other enactments mean that the country has "practically a Civil Code, uniform in its content and applicable to the whole of the country". And then: "The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far."

He then challenged the premise that Muslim personal law had been immutable and uniform throughout India. Until 1935 the North-West Frontier Province was not subject to the Shariat and followed Hindu law in matters of succession, so much so that the Central Legislature had to legislate in 1939 to apply the Shariat there. Until 1937, in the United Provinces, the Central Provinces and Bombay, Muslims were to a large extent governed by Hindu law in the matter of succession, and the Legislature had to intervene in 1937 to apply the Shariat to the rest of India. And in North Malabar the Marumakkathayam law, a matriarchal system, applied to Muslims as well as Hindus.

And then he gave an assurance that is the origin of MU's own topic 4.5.4. He said the members had read too much into the Article, which proposes only that the State shall endeavour to secure a civil code. It does not say the State shall enforce it upon all citizens merely because they are citizens. "It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary." He pointed out that this was not a novel method: the Shariat Act of 1937 itself worked by declaration in the territories other than the North-West Frontier Province. That idea, an optional code, is taken up in [Impediments to a Uniform Civil Code, and the Optional Code].

The result

Both provisos were negatived, an amendment to delete the whole of Part IV was negatived, and Draft Article 35 was adopted the same day, without amendment.

What the Supreme Court has said since

Article 44 cannot be enforced, so what the Court has done is observe. Three judgments carry the observations MU expects.

Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945

Facts. The husband, an advocate, married the respondent in 1932 and five children were born. In 1975 he drove her out. In April 1978 she applied to the Magistrate at Indore under section 125 of the Code of Criminal Procedure 1973 for maintenance of Rs 500 a month, his professional income being about Rs 60,000 a year. In November 1978 he divorced her by an irrevocable talaq and defended the application on the ground that she had ceased to be his wife, that he had paid Rs 200 a month for about two years, and that he had deposited Rs 3,000 as dower or mahr during the iddat. The Magistrate awarded Rs 25 a month; the High Court of Madhya Pradesh raised it to Rs 179.20. He appealed by special leave.

Held. The appeal was dismissed. A divorced Muslim wife may apply for maintenance under section 125, and mahr is not a sum which under Muslim personal law is payable on divorce, so the provision about a customary sum payable on divorce did not defeat her claim. On Article 44 the Court said that it is a matter of deep regret that Article 44 has remained a dead letter, that there was no evidence of any official activity for framing a common civil code, that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies, and that it is the State which is charged with the duty and unquestionably has the legislative competence to do so. It added that piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. The judgment was delivered by Chandrachud CJ for a Constitution Bench on 23 April 1985.

Danial Latifi v. Union of India, AIR 2001 SC 3958

Facts. A batch of writ petitions under Article 32 challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986, which Parliament passed in response to Shah Bano.

Held. The Act was upheld, but read so as to preserve the substance of the earlier position. The Court's four conclusions were that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which must be made within the iddat period; that his liability under section 3(1)(a) is not confined to the iddat period; that a divorced woman who has not remarried and cannot maintain herself after iddat may proceed under section 4 against the relatives who would inherit her property, in proportion to what they would inherit, and where a relative cannot pay, the Magistrate may direct the State Wakf Board to pay; and that the Act does not offend Articles 14, 15 and 21. It was decided by a Constitution Bench on 28 September 2001.

The pair matters more than either alone. Shah Bano is the judgment; the 1986 Act is the legislative answer to it; and Danial Latifi is the judicial answer to the Act. An examination answer that stops in 1985 stops in the middle of the story.

Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, AIRONLINE 2019 SC 1035

Facts. A Goan, Joaquim Mariano Pereira, lived in Bombay and bought property there in 1955. In 1957 he bequeathed it to his youngest daughter and left Rs 3,000 each to his two other daughters. He died in 1967, and probate was granted in 1980. The question was whether succession to the property of a Goan domicile situated outside Goa is governed by the Portuguese Civil Code 1867 as applicable in Goa or by the Indian Succession Act 1925.

Held. The Portuguese Civil Code as applicable in Goa governs succession even to property of a Goan domicile situated anywhere in India. The Code continues in Goa only because of the Goa, Daman and Diu (Administration) Act 1962, so it is an Indian law of foreign origin and no rule of private international law applies. On Article 44 the Court observed that the founders had hoped and expected the State to endeavour to secure a uniform civil code, that till date no action has been taken, and that although Hindu law was codified in 1956 no attempt has been made to frame a code applicable to all citizens despite the exhortations of the Court in Shah Bano and Sarla Mudgal.

It then said that Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion, except while protecting certain limited rights, and described what is in it: a married couple jointly owns all assets held before or acquired after marriage, so on divorce each takes half, subject to a permitted pre-nuptial agreement; at least half the property must pass to the legal heirs as legitime, which applies even to self-acquired property; Muslim men whose marriages are registered in Goa cannot practise polygamy; and there is no provision for verbal divorce even for followers of Islam. It also noted that parts of the Portuguese Code were replaced with effect from 22 December 2016 by the Goa Succession, Special Notaries and Inventory Proceedings Act 2012. It was decided on 13 September 2019.

This is the most useful of the three for an examination, because it is not an exhortation. It describes a uniform civil code that actually operates in an Indian State, and says what is in it. Note also what the case was really about, which was succession to property outside Goa; the Article 44 passage is an observation on the way to that answer.

And Sarla Mudgal

The conversion and bigamy case, treated in full in [Bigamy and the Punishments the Act Imposes], belongs in this list because both judges went on to urge the Government to move towards a uniform civil code, and because Jose Paulo Coutinho names it alongside Shah Bano as one of the Court's two great exhortations.

What has already been unified, and what has not

Ambedkar's point in 1948 is still the clearest way to see the scale of the question, and it can be brought up to date.

Setting it out this way is the best possible answer to a question about the need for a uniform civil code, because it shows how narrow the remaining ground is and how much of the objection is about that ground rather than about uniformity as such.

The short note MU sets: the need for a uniform civil code

February 2023 Q2.2 asks for exactly this. Five arguments, and each should be given a sentence or two.

Equality between citizens. Articles 14 and 15 promise that rights do not depend on religion, and personal law makes a citizen's rights on marriage, divorce and inheritance depend on precisely that.

Equality between the sexes. This was Munshi's argument in the Assembly and it is still the strongest one: if inheritance and succession are treated as religion, equality for women cannot be legislated at all. It is also why the reforms that have actually happened, from the Hindu Succession (Amendment) Act 2005 to the substitution of section 8 of the Hindu Adoptions and Maintenance Act in 2010, have all been about women.

National integration. Shah Bano's phrase, that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.

Certainty and the end of forum shopping. Sarla Mudgal is the illustration: a man who converts in order to take a second wife is exploiting the difference between two personal laws, and a common code removes the incentive.

And it is a constitutional promise. Article 44 is a duty of the State in making laws under Article 37, and Jose Paulo Coutinho records that till date no action has been taken on it.

A good answer does not stop there. It says what the objections are, which is the next chapter, and it says what Ambedkar himself said in reply to them: that the Code may begin as a voluntary one, binding only those who declare that they will be bound.

A worked example

An examiner sets: "Article 44 has remained a dead letter. Discuss with relevant case law." Here is how the material in this chapter is put to work.

Start with the text and its status. Article 44 directs the State to endeavour to secure a uniform civil code for the citizens throughout the territory of India. By Article 37 it is not enforceable by any court, but it is fundamental in the governance of the country and a duty of the State in making laws. So no writ lies, and the question is one of legislative choice.

Then the constitutional setting. Articles 25 and 26 protect the freedom to profess, practise and propagate religion and a denomination's right to manage its own affairs in matters of religion; but Article 25(2) expressly preserves the State's power to regulate secular activity associated with religious practice and to legislate for social welfare and reform. Articles 14 and 15 pull the other way. The whole argument is which side of the line in Article 25(2) marriage and succession fall on.

Then the phrase itself, from Shah Bano. It is a matter of deep regret that Article 44 has remained a dead letter; there is no evidence of any official activity for framing a common civil code; a common code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies; and it is the State which is charged with the duty and unquestionably has the legislative competence.

Then what happened next, which is the half most answers miss. Parliament passed the Muslim Women (Protection of Rights on Divorce) Act 1986, and in Danial Latifi the Court upheld it while holding that the husband's liability under section 3(1)(a) is not confined to the iddat period and that the Act does not offend Articles 14, 15 and 21.

Then that the Court repeated itself. Sarla Mudgal urged a code; and in Jose Paulo Coutinho the Court recorded that till date no action has been taken despite those exhortations.

Then the answer to "dead letter". It is not wholly dead. Goa has had a uniform civil code all along, which that judgment calls a shining example, and it describes what is in it. The Special Marriage Act 1954 has offered an optional one since 1954. And Uttarakhand enacted one in 2024.

Close on Ambedkar. He told the Assembly that India already had a practically uniform civil code and that only marriage and succession remained, and he offered a Code that in its initial stage might be purely voluntary.

What it does NOT mean

Article 44 is not enforceable. Article 37 says the provisions of Part IV shall not be enforceable by any court. No citizen may sue for a code.

It is not therefore decorative. The same Article makes the principles fundamental in governance and a duty of the State in making laws.

A uniform civil code is not a uniform criminal law. The criminal law has been uniform since long before the Constitution, which was Ambedkar's point.

It does not mean one religion's law for everybody. Munshi's answer was that even Hindus are divided between Mayukha, Mitakshara and Dayabhaga, and Ambedkar's that Muslim personal law itself was never uniform in India.

Article 25 does not put personal law beyond legislation. Clause (2) preserves the power to regulate secular activity associated with religious practice and to legislate for social welfare and reform.

Shah Bano is not the last word on a divorced Muslim woman's maintenance. The 1986 Act answered it and Danial Latifi construed that Act.

Danial Latifi did not strike the 1986 Act down. It upheld it and read it so that liability extends beyond the iddat period.

Goa's code is not an exception granted to Goa. The Portuguese Civil Code applies there because of an Act of the Indian Parliament, which is why the Supreme Court called it an Indian law.

Quick revision

• Article 44: the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Article 37: Part IV is not enforceable, but is fundamental in governance and a duty of the State in making laws.
• The tension: Articles 25 and 26 against Articles 14 and 15, resolved textually by Article 25(2), which saves laws regulating secular activity associated with religion and laws for social welfare and reform.
• The Constituent Assembly, 23 November 1948, Draft Article 35. Two provisos moved, by Mohammad Ismail Khan (no community obliged to give up its personal law) and Naziruddin Ahmad (no change without the community's previous approval); both negatived; the Article adopted the same day without amendment.
• Munshi: the House had already accepted legislation on secular activity and social reform; equality for women is impossible if inheritance is treated as religion; Hindus themselves follow Mayukha, Mitakshara and Dayabhaga.
• Alladi: a civil code runs into contract, property, succession and marriage; a uniform criminal law had already been accepted without objection.
• Ambedkar: India already has a practically uniform civil code; "the only province the Civil Law has not been able to invade so far is Marriage and Succession"; Muslim personal law was not uniform in India before 1937; and the Code might begin as purely voluntary.
• Shah Bano, AIR 1985 SC 945: Article 44 a dead letter; a common code aids national integration; the State has the competence.
• Danial Latifi, AIR 2001 SC 3958: the 1986 Act upheld; liability beyond iddat; no violation of Articles 14, 15 and 21.
• Jose Paulo Coutinho, 2019: no action to date; Goa is a shining example of an Indian State with a uniform civil code.

Test yourself

1. What is the status of Article 44, and what follows from it? It is a Directive Principle in Part IV. By Article 37 it is not enforceable by any court, so no writ lies to compel a uniform civil code; but the principles in Part IV are fundamental in the governance of the country and it is the duty of the State to apply them in making laws.

2. Name two judgments in which the Supreme Court has emphasised the need for a uniform civil code, and say what each said. Mohd. Ahmed Khan v. Shah Bano Begum, where the Court said it is a matter of deep regret that Article 44 has remained a dead letter, that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies, and that the State is charged with the duty and has the legislative competence. And Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, where the Court recorded that till date no action has been taken despite its exhortations in Shah Bano and Sarla Mudgal, and called Goa a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion.

3. How does the Constitution accommodate legislation on personal law with the freedom of religion? Article 25(1) is expressly subject to the other provisions of Part III, and Article 25(2) provides that nothing in the article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.

4. What did Ambedkar say about the scope of the proposed code? That the country already had, as a matter of fact, a practically uniform civil code applicable throughout, in the Penal Code, the Criminal Procedure Code, the Transfer of Property Act, the Negotiable Instruments Acts and many other enactments, and that the only province the civil law had not been able to invade was marriage and succession.