Constitution came in force in 1950, since then Article 44 has always been the matter of debate. Under Article 44 "the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India”, lies the idea of fundamentalism over communalism, the idea of uniformity to equality , the idea of providing a juristic solution.
BESIDE THE POINT OR TO THE POINT ?
The applicability of Uniform Civil Code is the need of the day , as the Indian society has been communally-surcharged since forever.
Communalism was embedded in the roots of our country centuries ago and unfortunately still prevails. Fundamentalism is the root cause of communal discard and because of this, the idea of having uniform civil code in India is resented by fundamentalists. However to fight communalism , the relevance of Uniform Civil Code cannot be disputed.
There are very obvious characteristics/features/objectives of Uniform Civil Code listed by everyone in today's context of our country. However the original importance of the same still remains contested. Let's debunk the concept of uniform civil code .
The most common explanation for the implementation of the code is the so called National Integration , India has been governed by various uniform laws for over a century now , but then we have our Personal laws and diverse social practices which are out of the league of our uniform laws. so the question arises that if the uniformity will not lead to national integration , why should we have a Uniform Civil Code? The issue of National Integration was never about uniformity , it goes beyond , national integration would be best served if equality becomes the basis.
There are of course two views on the aspect , it was and still is belief that Uniform civil code is not just an instrumentality to achieve national integration or national unity , as every country holds many distressful forces and especially in a country like India the forces that splinter the nation are mostly , religion, language, cultural diversities and political ideologies, on top of that there are many problems that are embedded in the history too . Hence in such a situation overpowering the personal laws will conflict the religious diversities of the country.
Another common explanations are Women's Status and Gender Justice . As the personal laws remain untouched and free from amendments , the struggle for a recognized status for women in various social institutions still remains a problem unsolved , it's very undisputed that personal are pro male and anti female . Men has always been superior in almost every social institution, be it marriage or be it divorce or be it inheritance or adoption. Muslim law for instance suggests guardian to be rightful for contracting his minor ward into marriage , Hindu law on the other hand is to the fact of attainment of consent by fraud or force. Polygamy is a contentious issue in today's world , where monogamy,fidelity and family welfare are the norm. The Indian Penal Code makes it an offence but the Muslim Personal Law permits the same.
ARE WE READY FOR A UNIFORM CODE OR A COMMON CODE ?
How equipped are we to implement Uniform Civil Code ? What constraints are likely to follow?
We are likely to face the following during the implementation:
Lack of information
No public opinion
No draft bill
No basic thinking on the concept being optional or compulsory.
The main Argument that prevails is of the infringement of Article 25 "all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health."
The resistance to Uniform Civil Code has mainly come from the Muslims and is super headed by Muslim Personal Law Board , Muslim orthodoxy being up in arms whenever there is a reference to Article 44. surprisingly there is no exclamation when there is a secular benefit.
Unfortunately, the debate on Uniform Civil Code is extremely surcharged and there has been no discussion on what the code actually is.
No government or political party has come forward with a prepared debate that could be circulated in a widest possible debate.
The debate on Article 25 and Article 26 talks about the fundamental rights to freedom of "religion" and to manage "religious" affairs, the correct interpretation stands here is "religious" because constitution nowhere permits discrimination in the application of laws. On the other hand , Article 14 "equality before law and equal protection of laws" , if read with Article 44 would provide for the framing of the Uniform Civil Code , and not only the framing but also the compulsion for the state to frame such a code.
If Criminal and Civil Laws are accepted by every community , then why is there a matter of dispute? The dispute arises from Muslims being rigid about their matrimonial matters, divorce, inheritance , adoption , maintenance and succession. On the other hand , Hindus , Christians and Sikhs to indulge in courts to settle these disputes acting under Uniform Civil Code.
THE JUDICIAL APPROACH
Political History of India shows that the justice was administered by Quazis , who obviously applied Muslim scripted laws to Muslims, but there was no similar assurance for the same when it comes to Hindus. The same system continued during the period of East India Company as well till the time there were regulations made for the native population to administer civil justice without any discrimination. with the Criminal justice also, Britishers superseded Muslim law.
Even The Supreme Court's call for Uniform Civil Code strengthens the rule of law . It is right to say that dispensation of justice to all through the enactment of a Uniform Civil Code would indeed be far more satisfactory way of doing justice than doing justice from case to case.
The Indian judiciary has always favoured the idea of Uniform Civil code and has done a great deal in molding various personal laws under the common umbrella of constitution , a great example of the same is the Shah Bano case .
The supportive attitude of Judiciary must be followed by the state in fulfilling the dream of achieving Uniform Civil Code contained in Article 44 of the Constitution.