In 1950 Article 44 in Part IV of the Constitution of Independent India containing many Directive Principles of State Policy – all non-justiciable as per Article 37 – had laid down that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

During 1954-55 Parliament enacted a Special Marriage Act for civil marriages among all communities and a Hindu Marriage Act for religious marriages among the Hindus, Buddhists, Jains and Sikhs. This amounted to adoption of an undeclared policy that the hybrid system of family law prevailing in the country for a long time would be retained in force.

Since then, till date, a number of new family laws, both general and community wise have been enacted. Yet in a number of cases the Supreme Court has reminded rulers of the day of Article 44 of the Constitution which, in its opinion, demands a new comprehensive civil code to replace all personal laws by one legislative stroke.

The first notable case in which a reminder was issued for this purpose was Shah Bano (1985) relating to Muslims. Chief Justice VY Chandrachud had said in his judgment: “There is no evidence of any official activity for framing a common civil code for the country. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform but a beginning has to be made if the Constitution is to have any meaning.”

The same year was decided the Jordan Diengdeh case relating to Christians in which Justice O. Chinappa Reddy, said: “The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case.”

In the famous Sarla Mudgal case of 1995 (on bigamy among Hindus by fake conversion to Islam) Justice Kuldip Singh, held: “We further direct the Government of India to file an affidavit indicating the steps taken and efforts made” towards securing a uniform civil code.”

Five years later another Division Bench of the Supreme Court consisting of Justice R. Sethi and Justice Syed Saghir Ahamd, however, asserted that what was said in Sarla Mudgal was not a direction but a reminder (Lily Thomas, 2000). This was done to protect and maintain the non-justiciable character of the constitutional provision on uniform civil code.

In another case relating to Christians decided later Justice VN Khare of the apex court observed that Article 44 rested “on the premise that there is no necessary connection between religious and personal law in a civilized society” (John Vallamottam, 2003).

In 1995 another judge on the Sarla Mudgal Bench Bench, RM Sahay, had observed that “The desirability of uniform civil code can hardly be doubted but it can be concretized only when social climate is properly built up by the elite of the society. Statesmen amongst leaders, instead of gaining personal mileage, must rise above and awaken the masses to accept the change.” His feeling that the uniform civil code provision was being politically misused was evident from these words.

Two decades later, deciding a Muslim social activist’s PIL seeking a a direction to the central government to enact a general law of adoption for all communities, Justice Ranjan Gagoi, spoke of the constitutional provision for a a uniform civil code and said “The same can only happen by the collective decision of the generations to come to sink conflicting faiths and beliefs that are still active as on date.” (Shabnam Hashmi, 2014). In the former case the court took cognizance of the susceptibility of the uniform civil code issue to misuse, and in the latter recognized its inherent complexities.

In the Jose Paulo case of 2019 Justice Deepak Gupta, of the Supreme Court repeated the concern about official inaction in this regard, saying: “It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a uniform civil code throughout the territories of India, till date no action has been taken in this regard.”

In all these cases the learned judges focused their attention on the diversities between various personal laws, ignoring regional diversities prevailing in the sphere of family law. The Constitution itself specifically protects religious laws and customs of Nagaland and Mizoram.

Further, none of the central family laws of general application have been extended to certain regions of western India where some ancient laws prevailing since ages remain protected by Parliamentary legislation. No court has ever spoken of these conflict-of-law situations adversely affecting the feasibility of a truly uniform civil code.

Certain family laws of general application enacted before independence have been amended in the light of the constitutional assurance for gender and juvenile justice. Among these are the Majority Act 1875, Guardians and Wards Act 1890, Maintenance Orders Enforcement Act 1921 and Indian Succession Act 1925.

Among the new family-law Acts meant for all communities enacted after Independence are the Special Marriage Act 1954, Dowry Prohibition Act 1961, Foreign Marriage Act 1969, Family Courts Act 1984, Protection of Women from Domestic Violence Act 2005, Prohibition of Child Marriages Act 2006, Maintenance and Welfare of Parents and Senior Citizens Act 2007 and Transgender Persons (Protection of Rights) Act 2019.

In the Shah Bano case of 1985 referred to above, the apex court had complained of “no evidence of any official activity for framing a common civil code for the country.” Thirty-four years later in the Jose Paul case of 2019 the court said again that “till date no action has been taken in this regard.” In judicial opinion thus gradual enactment of separate Acts in the sphere of family law, though equally applicable to all communities, does not answer the call of Article 44 of the Constitution, nor does non-application of these Acts in certain parts of the country go against its goal.

Does this judicial trend really go well with the words “endeavour to secure” and “throughout the territory of India” in Article 44? Who has an answer?

Tahir Mahmood is a Professor of Law and a former Member, Law Commission of India

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