The Constitution Makers said that independent India has to face many challenges. The biggest challenge was to provide equality and welfare for all the citizens. According to them, some policy directions were necessary to solve these problems. But the constitution also did not want to make these policies binding on future governments. As a result some Directive Principles were included in the constitution but no provision was made to implement them though the court. This means that if the government does not enforce any direction, then we cannot go to the court and request that the court should order the government for its enforcement.
This means that it is a part of the constitution which cannot be enforced by the judiciary. The framers of the constitution believed that the moral force behind these directive principles would compel the government to take the directive principles seriously. Apart from this, they also accept that the public would put the liability of enforcing them on the later government. Therefore, a directive list of such policies has been kept in the constitution. The same list of instructions is called the Directive Principle of state Policy.
The Directive Principles of State Policy contained in Part Ⅳ of the Constitution, which defines the aims and objects to be pursued by the states in the country’s government. This unique aspect of the Constitution is derived from the Irish constitution, which was based on the Spanish Constitution.
One of such vital and paramount Directive Principles is the Uniform Civil Code. The basic meaning of the Uniform Civil Code is “one nation, one law and order”. In the order word it means the same and similar statutes should be applied to all the citizens of India.
ARTICLE 44 OF THE INDIAN CONSTITUTION
Article 44 of the constitution explains the establishment of a Uniform Civil Code. The article requires the State to secure for the citizens a Uniform Civil Code throughout the territory of India. There is a requirement to determine “one nation, one law and order’’ within the country. This is necessary to bring uniformity in marriage, divorce, and land dispute. Uniform Civil Code will help in achieving our constitutional objective and eliminate legal complications.
Article 44 is predicated on the concept that there’s no necessary connection between religion and private law during a civilised society. Marriage, Succession and like matters are of a secular character and thus, they will be regulated by law. No religion supports conscious distortions, the judges declared.
Since 1950 a number of Governments had come and gone but they had failed to make any efforts towards implementing the constitutional direction under Article 44 of the Constitution. Goa is the only state in India which features a uniform civil code. The Goa Family Law, is that the set of civil laws, originally the portuguese civil code, continued to be implemented after its appropriation in 1961. The Uniform Civil Code is a good topic for debates and arguments but it is very serious as well. Countries like India where there are a variety of cultures, religions and faiths and also we love to work according to our basic customs and beliefs in our daily life. The Indian society is so much connected with their social and religious laws more than legislative rules and regulations.
That is why it is very hard to implement the Uniform Civil Code in the general society of India. But on the other side, because of these personal laws and rules we are not uniting and accepting each other as a normal human being. Most of the time we trace someone’s identity from their caste and community. The concept of Uniform Civil Code is a result of all those objectives which are mentioned under the preamble of our constitution. The object of Indian Constitution is to secure Justice, Liberty, Equality andFraternity among all the people in the territory of India and the Uniform Civil Code is the path by which we can secure all these objectives. In all the proceedings of the Uniform Civil Code we find that the arguments are both in favour and in against.
Those people who are in favour of Uniform Civil Code say that there is a need to move forward in the direction of Uniform Civil Code. India is a secular country. In such a situation, the law should have nothing to do with religion. There should be a common law for all citizens. There will be a change in politics also due to the implementation of Uniform law on every Indian.
Those people who are against the Uniform Civil Code say that the people of all religions live in our country. It is like a stipulation in the constitution of a bouquet. Different flowers are smelling in the bouquet. Emphasizes them like this. Let it smell too. Uniform Civil Code should not be implemented in the country. It will disturb the society from the roots.
InSarla Mudgal v. Union of India, the Supreme Court has directed the Prime Minister to require a fresh check out Art.44 of the Constitution which enjoins the State to secure a consistent Civil Code which, according to the court, is imperative for both protection of the oppressed and promotion of national unity and integrity. The Court directed the Central Government through the Secretary to the Ministry of Law and Justice, to file an affidavit by August 1995 indicating the moves taken and efforts made, by the Government, towards securing a common civil code for the citizens of India.
On the facts of the cases, the Court held – A hindu marriage continues to exist even after one of the spouse has converted to Islam. There is no automatic dissolution of Hindu Marriage. It can only be dissolved by a decree of divorce on any of the grounds mentioned in section 13 of the Hindu Marriage Act. The The second marriage of Hindu after his conversion to Islam is void in terms of section 494 IPC and the husband is liable to be prosecuted for bigamy.
In Pragati Varghese v. Cyril George Varghese, the complete bench of the Bombay High Court has as struck down section 10 of the Indian Divorce Act under which a Christian wife possesses to prove adultery along side cruelty or desertion while seeking a divorce on the bottom that it violates the elemental right of a Christian woman to measure with human dignity under Article 21 of the Constitution.
In John Vallamattom v. The Union of India, a three Judge Bench of the Supreme Court again expressed regret for the non enactment of the Common Civil Code. In the instant case the petitioners have challenged the validity of Section 118 of the Indian Succession Act on the grounds that it had been discriminatory under Article 14 as well as violative of Article 25 and 26 of the Constitution. The Chief Justice of India in view of the facts of the instant case forcefully reiterated the view that the Common Civil Code be enacted as it would solve such problems. He said, “Article 44 is predicated on the premise that there’s no necessary connection between religion and private law during a civilized society”. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of faith. The aforesaid two provisions viz.,Article 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is a matter of doubt that marriage,succession and thus the likes of matters of a secular character cannot be brought within the guarantee enshrined under Article 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect to. A Common Civil Code will enhance the reason for national integration by removing the contradictions supported by ideologies.
The object of getting a standard Civil Code as most the issues concerning it are thanks to the non-registration of marriages. The advantages of this ruling are as follows:-
It will –
- Prevent child marriage;
- Check bigamy and polygamy
- Help women to exercise their rights under marriage-maintenance-custody of children;
- Enable windows to say inheritance; and
- Deter husbands from deserting their wives.
Some people believe that the constitution is made up of only laws and law is one thing and values and morals are totally different, so only legal approach can be adopted towards constitution and not moral or political philosophy. This claim has been refused by the Uniform Civil Code, it is true not every law has a moral element, but there are many such laws which are deeply related to our values and ideals. For example, a law may forbid discrimination between individuals on the basis of language or religion. Such a law is linked to the idea of equality. This law has been made because we people value equality. It is clear from this example that there is a close relationship between law and moral values.
This is why it is necessary to see the constitution as a document behind which a moral vision is working. There is a need to adopt a Uniform Civil Code.
The Indian Constitution lays down what is called parliamentary government. It means that there is equality before the law and the constitution is the supreme law of the land. the reason why we have established in the constitution a concept of uniform civil code is because we do not want to install by any means whatsoever a perpetual dictatorship of any particular body of the people. While the constitution establishes political democracy, it’s also the will that it should lay down as our ideal economic democracy. We don’t want merely to get down a mechanism to enable people to return and capture power. The constitution also wishes to get down a perfect before those that would be forming the government.
We have considered the constitution as a living document. Almost like a living being, this document works according to the circumstances that arise from time to time. Like a living being, it learns from experience. In fact, it is the answer to the riddle that we mentioned earlier about the sustainability of the constitution. Even after so many changes in the society, our constitution is functioning effectively because of its mobility, openness of interpretations and the characteristics of variability according to the changing circumstances. This is the real criterion of a democratic constitution.
In a democracy, practicalities and ideas evolve from time to time and experiments continue in society accordingly. Any constitution which enables democracy and opens the way for the development of new experiments is not only durable but also deserves respect among its citizens.
The core features of the constitution make it alive. The legal provisions and institutional arrangements depend on the need of the society and the philosophy adopted by the society. This view has the consensus of all. This vision historically arose during the independent struggle. The Constituent Assembly refined this vision and gave it a legal institutional form. This is how this vision was formulated in the Constitution.
This constitution was not provided by a group of great people. It was composed and adopted by ‘We the people of India’. In this way the people themselves are the makers of their own destiny and democracy is a tool by which people shape their present and future. Today it has been more than fifty years since this proclamation of the Preamble. We have fought on many issues. We have seen that there is disagreement between the courts and governments on several interpretations. We must always remember that debate and differences are an essential part of democratic politics. At the same time, our political parties and leadership have also shown maturity in these debates. He has taken special care that the debate and argument related to political questions should not go beyond the limits. Politics does not work without agreements and exchanges. While adopting an extreme approach may be okay in principle, doing so on an ideological level is also quite attractive. But, in politics all the parties have to develop a minimum common understanding except their extreme views and attitudes. Without it, democratic politics cannot progress.