WHO WILL BELL THE CAT ??? THE REALITY OF UNIFORM CIVIL CODE…

With special thanks to Moosa Raza I.A.S. (Retd)

Hustle between the Supreme Court and the Government: 

Recently, the chaos of implementation of uniform Civil Code once again turned up its head in a systematic and planned manner with an object to heat up main stream media and harassing the minorities. It is extremely surprising on the part of learned scholars, legislators and Judicial officers that everyone is accelerating the wheel to move the controversial issue forward but none has any clue of structure or rough draft to put on the table. Nonetheless, it is right at the bottom in the hierarchy of work of good conscience. 

On the one hand, the Supreme Court of India from time and again poked the Government to take initiative to bring Uniform Civil Code besides admonishing on many occasions. However, the Governments till now always maintained its viewpoint based on the comments of Dr. Ambedkar in the Constituent Assembly.

Dr. B.R. Ambedkar and Uniform Civil Code:

 Dr. Ambedkar delivered golden words while concluding the debate on Uniform Civil Code.

“Sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of power must reconcile itself to the sentiments of different communities. No government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad government if it did so. But that is a matter which relates to exercise of power and not the power itself”

Besides the above observation, Dr. Ambedkar persuaded the Muslim members “Not to read too much into Article 44”. He affirmed even if the uniform Civil Code was implemented it would be applicable to those who would consent to be governed by it.”

Winding up the debate on the issue of Uniform Civil Code, Dr. Ambedkar said, “All that the State is claiming in this matter is a power to legislate. There is no obligation upon the State to do away with personal laws.”

The above historic statements of the master of Constituent Assembly highlight the crux of the debate besides establishing the spirit and ideology of the framers of the Constitution. 

Sowing the Seed:

It is pertinent to note that the suggestion to include a provision for Common Civil Code in the list of Fundamental Rights was made by M.R. Masani for the first time at the meeting of the Fundamental Rights Sub-Committee of the Constituent Assembly on 28 March 1947. However, the proposal was not considered. The idea was pressed further and his forceful advocacy carried the matter and few other members also supported the move. The Sub-committee this time recommended that it may be placed in the Directive Principles which are non-justifiable and non-enforceable section. Finally in its interim Report of 19 April 1947, it was observed that the article be re-drafted and it was made clear that while a uniform Civil Code for all citizens was eminently desirable, its application should be made on an entirely voluntary basis.

At its very first instance, the Supreme Court urged the government to frame a Uniform Civil Code to help in the cause of national integration in the famous Shah Bano case. With consistent reminders to the government while pronouncing judgments, the Apex Court once again, after almost 30 years, urged and enquired the government about the progress with serious instinct. 

The Supreme Court has advised that to promote greater national integration, the State should move towards enacting a UCC as articulated in Article 44 of the Directive Principles of the Constitution. Surprisingly all efforts from the Apex court and the government are advancing in the presence of guidelines of implementation of Directive Principles which states that these principles are not enforceable by the Court. 

When the Supreme Court, the highest judiciary in the land, advises the legislature to adopt a particular code of law for achieving ends which the judiciary perceives to be necessary, it is infringing on the constitutional authority. 

Nani Palkhiwala is relevant to state here:” If today the duty of governing the country can be shifted from the government to the Supreme Court, tomorrow it may be shifted from elected representatives to nominated individuals. For example the people may accept the decision of the army or any other dictator as they are accepting the decisions of the Supreme Court today without asking the question whether they are in the realm of the governance of the country.” 

The J&K high Court has recently washed its hands off on the issue of beef ban stating that the making of laws is the job of the legislature, not of the courts. Thus, it is clearly the case of legislation by the elected members from the constituencies who represent people and not at the instinct of group of fewer individuals.

How many Directive Principles are there and what importance do they hold?

The scrutiny of Directive Principles reveals that the Constitution to read the contents of the 16 Directive Principles. But suffice it to say here that these articles enjoins upon the State to promote the welfare of the people in a social order in which social, economic and political justice shall inform all institutions of national life, to secure for all citizens adequate means of livelihood, to ensure that citizens are not forced to enter unsuitable vocations such as prostitution, begging, drug peddling, to provide for universal legal to those who cannot represent themselves because of economic disabilities, to provide for unemployment benefits, to provide for humane conditions of work, to ensure participation of workers in the management of undertakings etc.

The great publicity given to the Supreme Court through its recent conduct along with the law commission of India has given rise to an impression that the Constitution has only one Directive Principle viz. Article 44. While article 37 clearly states that the provisions contained in this part shall not be enforceable by any court, the Supreme Court judgment has highlighted one article viz.44 for special attention. This impression gets reinforced in the public mind every time the Supreme Court makes passing reference to the Uniform Civil Code. It is therefore time to draw attention to the fact that there is not one but 16 articles covering many more Directive Principles of the Constitution. Many of them are of great concern to the general public.

Above all, two of the Directive Principles are especially emphasized by the Constitution.

Article 45 reads as, “The State shall endeavor to provide within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years”

This is the only article in the Directive Principles wherein a time limit has been prescribed. But it took 50 years instead of 10 for the Government of India to convert this most desirable universally appreciated and eminently necessary Directive Principle into the 93rd Constitutional Amendment. 

Article 47 enjoins enactment of a law to bring about universal prohibition something which was close to the heart of Mahatma Gandhi, the father of the nation. 

India is the third largest market in the world for alcoholic drinks. 18% of this in the form of hard liquor which is concentrated poison. The age of initiation into alcohol has decreased from 23 years to 19 years in these past 50 years. The decrease in the age limit reveals the sympathetic business supporting minds of legislators.

Statistics:

Suicide Attempt ratio by Alcoholic Addicts                                              34%

Accidents at workplace due to Alcohol Consumption                              40%

Men abusing their wives who are daily users of Alcohol                             85%

Death toll due to Alcohol Abuse in India Increased by                              20%

Road Accidents in India (Drunk and Drive)                                              70%

Currently more than 100 Million consumers of liquor are estimated in India. 

The Supreme Court is aware of the thousands of deaths that take place in India as a result of the consumption of spurious liquor. It is fully aware of the multitudinous diseases engendered by the heavy consumption of alcohol. It knows of how many families have been ruined and are being ruined year after year as a result of the sole earning member consuming all his earning in liquor. It knows what the national and international medical associations have to say about evil effects of consuming liquor. It fully knows what the religious leaders of every faith Hindu, Muslim, Christian, Buddhist, and Sikh etc. have to say about it.

Yet, the Supreme Court has not said a word about the need to implement this Directive Principle. No Supreme Court judge has made even a passing reference or an obiter dictum to the desirability of enforcing this directive principle.

So far as one is aware, there is no statistics quoted about the deaths, diseases or social evils that have been engendered in the absence of a Uniform Civil Code. Yet the Supreme Court appears deeply concerned by its absence, with no concern for the Article 47 which is of far more relevance and of much greater concern to the general population than article 44 which is of relevance to a small section of a minority.

Opinions of eminent Chief Judges:

Chief Justice of the Supreme Court Mr. Bhardwaj quoted Justice Gajendragadkar as saying,” The personal laws prevailing in the country owe their origin to scriptural texts. In several respects their provisions are based on considerations of religions and culture; so the task of evolving a Uniform Civil Code applicable to the different communities of this country is not very easy”.

Chief Justice M.C. Chagla had opined,” One community might be prepared to accept and work social reforms, another may not yet be prepared for it; and Article 44 does not lay down that any legislation that the State may embark upon must necessarily be of an all embracing character. The State may rightly decide to bring about social reforms by stages and the stages may be territorial or may be community wise”.