LLM Group 1 Constitutional and Administrative Law Constitutionalism Pluralism and Federalism 2016 Question Paper with Solutions

For full marks, cover: what Article 44 provides and where it sits; the field a civil code would occupy and what is already uniform; the leading decisions decade by decade, each with its facts and its legislative aftermath; the obstacle created by Narasu Appa Mali; the arguments on both sides including the Law Commission's; and the State legislation of 2024 to 2026 which has turned this from a question of theory into one of practice.

The provision, and the field

Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It is a Directive Principle, so Article 37 makes it unenforceable in any court while declaring it fundamental in the governance of the country and a duty of the State to apply in making laws. The verb is "endeavour", which is weaker than the language of several neighbouring articles, and the object is the civil code.

Ambedkar's answer in the Constituent Assembly on 23 November 1948 anticipated most of the modern argument. He pointed out that India already had a uniform code in every field but marriage and succession, so the objection was one of degree; and he added, in a passage usually left out, that Article 44 is only an enabling provision and Parliament might well begin by making a code purely voluntary in its application. The Special Marriage Act is exactly that beginning.

The 1980s: the Court demands a code

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556. Shah Bano was divorced by her advocate husband after forty three years of marriage and sought maintenance under section 125 of the Code of Criminal Procedure. The defence was that Muslim personal law discharged the husband on payment of mahr and maintenance for the iddat period. A Constitution Bench held that section 125 is a secular provision which cuts across personal law and applies to a divorced Muslim woman unable to maintain herself, and that the obligation is consistent with the Quran. Chandrachud CJ added that Article 44 had remained a dead letter and that a common civil code would help national integration by removing disparate loyalties to laws with conflicting ideologies.

The 1990s: the Court repeats itself

Sarla Mudgal v. Union of India, (1995) 3 SCC 635. Four petitions concerned Hindu husbands who had converted to Islam for the sole purpose of contracting a second marriage while the first subsisted. The Court held that conversion does not dissolve the first marriage, that the second marriage is void, and that the husband is liable for bigamy under section 494 of the Indian Penal Code. Kuldip Singh J. asked the Government to take a fresh look at Article 44. In Lily Thomas v. Union of India, (2000) 6 SCC 224, the Court affirmed that holding on review and clarified that it had issued no direction to enact a code, a point candidates frequently misstate.

Against those exhortations two decisions of the same decade should be set, because a balanced answer needs both. In Pannalal Bansilal Pitti v. State of Andhra Pradesh, (1996) 2 SCC 498, the Court held that a uniform law, though highly desirable, may be counter-productive to the unity and integrity of the nation, and that gradual progressive change is the constitutional method. In Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573, petitions asking the Court to declare provisions of Hindu, Muslim and Christian personal law unconstitutional were dismissed as raising issues of State policy for the legislature.

Mohd. Abdul Samad v. State of Telangana, decided 10 July 2024, is the most recent decision in the Shah Bano line and must appear in a current answer. The Court held that a divorced Muslim woman may maintain an application under section 125 of the Code of Criminal Procedure, now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and that the 1986 Act is an additional remedy, not a substitute.

Taken together these decisions show a pattern worth naming. Where a secular statute existed which could be applied to do justice, the Court applied it, in Shah Bano, Danial Latifi, Sarla Mudgal, John Vallamattom and Abdul Samad. Where it was asked to strike down personal law directly or to direct enactment, it declined, in Ahmedabad Women Action Group and Lily Thomas. The Court has been a reformer of statutes and an exhorter of Parliament, never a legislator of a code.

Against: Article 25 protects religious freedom and communities treat personal law as part of it; imposed uniformity in a plural society may be experienced as assimilation, which is what Pannalal Bansilal Pitti warned of; Hindu law itself was reformed gradually and by consent; tribal customary law raises the same objection independently of religion and is protected by the Sixth Schedule; and piecemeal reform has in fact delivered results.

The Law Commission has spoken twice and differently. The Twenty-first Law Commission's Consultation Paper of 31 August 2018 concluded that a uniform civil code is neither necessary nor desirable at this stage, recommending instead the amendment of discriminatory provisions within each personal law. The Twenty-second Law Commission issued a fresh public notice on 14 June 2023 inviting views again.

Conclusion. The uniform civil code is the only Directive Principle that has produced a forty year judicial conversation without producing a statute. The Supreme Court's contribution has been consistent and limited: it has applied secular statutes to defeat unjust results in individual cases, from Shah Bano to Abdul Samad; it has struck down discriminatory provisions where a statute gave it a foothold, in John Vallamattom and Shayara Bano; and it has repeatedly said that Article 44 has been ignored, in Shah Bano, Sarla Mudgal and Jose Paulo Coutinho. What it has never done is order a code, because Article 44 addresses the State and not the courts, and because Narasu Appa Mali still blocks the direct route. The initiative has now passed to State legislatures, with Uttarakhand in force since January 2025 and Gujarat legislating in March 2026. Whether that route can deliver a code which is uniform throughout India, and whether it survives Articles 21 and 25, are the live questions.