In Conversation with Mr. Vijay Nair – IBC, Financial Reforms and Foreign Law FirmsNovember 11, 2018
TRADE DRESS- AN EVOLVING CONCEPT UNDER THE AMBIT OF INTELLECTUAL PROPERTY RIGHTSNovember 11, 2018
India is a predominant territory of diverse religions and assorted communities that have been established in the course of accounted history. There are numerous Personal Laws like Christians Marriage Act 1872, the Indian Divorce Act, 1869, Indian Succession Act, 1925 and Parsi Marriage and Divorce Act, 1936 amongst others which govern people subject to different religions. The Uniform Civil Code proposes a universal set of rules and regulations mentoring every citizen irrespective of their religion and established personal laws. Article 44 of the Indian Constitution clearly specifies that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. In accordance with the same, Article 37 not only iterates that the Directive Principles shall be “fundamental in the governance of the country” but also determines that the State shall accordingly attempt and pertain to such principles while enacting any laws under its ambit.
Though implementation of such a uniform code is ideal, the need for it at present times is scrutinized by many, mainly after the stand of the Law Commission on the issue stating it to be “neither necessary nor desirable at this stage”.
The primary reason for initiation of this very code lies in the innate nature of personal laws. Strictly examined, the personal laws have been inherently discriminatory, gender-biased and morally distant. The personal laws must constantly be regulated to be consistent with the constitutional framework. The inclusion Article 44 in our Constitution absolutely makes the intention and ambition of our framers very clear.
In view of the fact that this topic was debated in the Constituent assembly, there have been various polarizing opinions about its implementation and consequences. The establishment of Uniform Civil Code will not only provide equal status to all citizens in its true sense but also promotes national integration and gender parity. Further, it will also lessen the burden of the courts by regulating litigation due to personal law. Personal laws, by legislative intervention have been amended from time to time to fulfill the constitutional intent. The formation of Uniform Civil Code would be one such solicited step.
There have been many speculations concerning the inclusion and interference of Uniform Civil Code in the cascade of religious practices and worship and consequently is perceived as a threat to secularism by a few groups. It has also been contended that the perception of Uniform Code is an encroachment on religious freedom. The All India Muslim Personal Law Board eminently also raised the same contentions opposing the embarkation of Uniform Civil Code.
This however is not what is being aspired.
A sphere of religious practices and rituals, like the mode of worship, religious beliefs, marriage rituals, and crematory procedures among others will not be regulated by the Uniform Civil Code and will be left to legitimate religious discretion. Broadly speaking, what will be regulated by the Uniform Civil Code are the rights of the individual, like the rights of inheritance, succession, marital rights and adoption among various others. This will neither interfere with any religious sentiments nor violate the right to practice religion guaranteed under Article 25 of the Constitution.
The Supreme Court historically determined in the case of Mohammad Ahmed Khan v. Shah Bano Begum that the muslim women do encompass a right to receive maintenance from her husband under Section 125 of Criminal Procedure Code. The Court also held that Article 44 of the Constitution has remained a “dead letter”. The then Chief Justice of India Y. V. Chandrachud also pointed out that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”. Though there seemed a little hope of implementation of Article 44, this nation-wide agitation was short lived. Consequently, Rajiv Gandhi led Congress Government overturned the Shah Bano case decision through mode of Muslim Women (Right to Protection on Divorce) Act, 1986 which truncated the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. This perhaps played as one of the major negative catalyst to national integration.
Subsequently in the cases of Sarla Mudgal v. Union of India, Lily Thomas v. Union of India and John Vallamatton v Union of India, the Supreme Court has consistently reminded the government of its constitutional obligations of enacting a Uniform Civil Code.
The practice of subjecting an individual to definite rights by the virtue of their birth into certain religion and its governance causes prejudice and detriment to human dignity as a whole. The personal laws can indeed dictate upon the religious rituals, however, it has no solicited right to dictate over the rights of the individual based on religion.
It has been a conscious effort of the legislature and judiciary to propagate unity and ultimately implement the constitutional intent. The integration of Article 44 in the Indian Constitution initially in 1947 was an embankment to the fact that the framers sought Uniform Civil Code as the prospective development of the country. Labeling such move as communal will only prove to be detrimental to the constitutional credibility and intent. 70 monumental years after independence, the Uniform Civil Code still remains a long overdue endeavor.
 1985 AIR 945, 1985 SCR (3) 844 referred at https://indiankanoon.org/doc/823221/
 1995 AIR 1531, 1995 SCC (3) 635 referred at https://indiankanoon.org/doc/733037/
ABOUT THE AUTHOR:
Sneha Goud is currently a 4th-year BA. LLB (Hons.) student at Alliance School of law, Alliance University, Bangalore. She has a keen interest in the field of International law and is pursuing it as her Honours subject. Her other areas of interest are International Arbitration, Human Rights and International Trade Law.