Article 44 - A Secular Perspective
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Category: General Law
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ARTICLE 44: A SECULAR PERSPECTIVE
Rasmita Behera, LLM, BBA LLB (H), (Independent Researcher)
ABSTRACT
The Indian Constitution, enacted in 1950, comprises 395 Articles that shape the country's governance and democracy. Amidst these provisions, Article
44 stands out as a unique and theoretically grounded clause that has largely
remained unimplemented, except in the state of Uttarakhand. This article is pivotal in upholding India's secular character, as enshrined in the Constitution's preamble, which declares the country a Sovereign Socialist Secular Democratic Republic. This paper delves into the significance of Article 44, examining its role in shaping India's secular identity and exploring the reasons behind its limited implementation. By analyzing the article's historical context, judicial interpretations, and precedents, this study aims to provide a comprehensive understanding of Article 44's relevance in contemporary India, highlighting its importance in promoting a secular ethos and informing policy initiatives that align with the Constitution's founding principles.
INTRODUCTION
The Republic of India is governed by the Constitution of India, 1950. The Constitution of India contains 395 Articles after 106th Constitutional Amendment Act. Each of these Articles is unique in their own way as per their implementation and importance that they carry. Although the contents of these Articles interpreted in accordance with the meaning of its incorporation but with the span of time the meaning evolves as a process of judicial actions called precedents. Fundamental rights, directives, and other constitutional are granted by the Indian constitution, which also specifies the processes that the government must adhere to. Of these, Article 44 is the only one that is still wholly theoretical and has not yet been put into practice except for the state of Uttarakhand.
However, the Constitution's preamble states that India is a Sovereign Socialist Secular Democratic Republic, and Article 44 plays a crucial part in characterizing India as a secular state. The state should secure for the citizens a uniform civil code across India's territory. Article 44 stands as a part of Directive Principle of State Policy (DPSP) under Part IV of the Indian Constitution. SECULARISM A state that does not acknowledge any religion as its official religion is said to be "secular. "
Every faith is treated equally by it. The Constitution's "liberty of.......... belief, faith and worship" already included secularism. Every individual is guaranteed the freedom of conscience and the right to profess, practice, and spread religion by Articles 25 to 28 of the Constitution. Articles 25 to 28 have been added to the Constitution as a result of the Supreme Court's ruling in St. Xavier College v. State of Gujarat1, which stated that "even though the word 'secular State' are not explicitly mentioned in the Constitution, there can be no doubt that Constitution-makers wanted to establish such a State. " It is true that neither Article 25 nor Article 26 nor any other articles in the Constitution's Preamble contains the word "secular" for the first time. The preamble was modified by the 42nd Constitution Amendment Act, 1976.
Since then, India has developed into a democratic, secular, socialist, and independent nation. According to the Constitution, India will not have a
1 AIR 1974 SC 1389
"state religion." The state will neither create a new religion of its own nor give any one religion preferential treatment. This implies that: Ø “The state will not compel any citizen to pay any taxes for the promotion or maintenance of any particular religion or religious institution.”2 Ø “No religious instruction shall be provided in any educational institution wholly provided by state funds.”3 Judicial Interpretation:
1. Kesavananda Bharti v. State of Kerela4
The Supreme Court formally established the basic structure concept in this seminal
1973 judgment, ruling that the term "secular" and any other legislation that interferes
with the fundamental framework of our Indian Constitution cannot be changed. The court further underlined that the term "secular" fosters cohesion while capturing India's pluralistic and diverse character. India's fundamental characteristics include its secularism, socialism, and democracy. Secularism and sovereignty were thus shielded from any legislative changes or alterations by this ruling.
2. S.R. Bommai v. Union of India5
The Supreme Court of India upheld in this landmark judgment that secularism is a fundamental component of the basic structure theory and is necessary for a democratic system. India maintains its diverse characteristics while adhering to secularism. The court also decided that all religions must be treated equally and with respect, and that state governments would be fired for breaking the law under Article 356 if they showed preference or discrimination against any one religion. The secularistic notion of inclusive ethics was reinforced by this ruling.
2 Article 27
3 Article 28(1)
4 AIR 1973 SC 1461
5 (1994) SCC 1
3. Aruna Roy v. Union of India6
The Supreme Court addressed the need for a balance between religion and secularism in this landmark case. Secularism is the ability to identify, value, and treat religion fairly rather than hostility or hostility. The court stressed that religious teachings that were impartial and neutral and brought values to society were not in violation of any constitutional laws and should be supported because the role of religious teachings in educational institutions and circulars was questioned in this case. This case reaffirmed how special it is to combine secularism with religion moral principles in a way that promotes tolerance for all denominations. ARTICLE 44: THE UNIFORM CIVIL CODE Article 44 is the part of DPSP under the Indian Constitution.
It directs the State to have a Uniform Civil Code throughout the territory of India exclusively for all the citizens, which means that the religions of the citizens will not have any impact for determining the cases including marriage, divorce, maintenance and inheritance regardless of their community beliefs. Since the insertion of this Article there was no implication of this until the state of Uttarakhand exclusively implemented until November, 2024. Significance of UCC: By outlawing discriminatory practices based on religion or community under personal laws, the UCC aims to create equality and justice. The framers of the Directive Principles envisioned a contemporary, forward-thinking, and cohesive legal framework for personal laws in India, which is reflected in Article 44.
It highlights how important it is to reconcile disparate personal laws in order to guarantee social justice and gender equality. Nonetheless, the framers acknowledged the intricacy of the matter and the significance of honoring many religious and cultural customs. SECULARISM AND UCC Certainly a Constitution which embodies the concept of Secularism which means that it does not promote any religion or community beliefs must cherish the concept of UCC. The UCC as
6 AIR 2003 SC 3176
discussed above is a concept which Article 44 has stated that the citizens should be governed under a single roof of laws which should not discriminate each other in terms of its religious beliefs. This would imply that the citizens are equals in the eyes of law. Although the Constitution does not promote any religion but under Article 25 it provides for “Freedom of Religion, which implies that everybody throughout the territory of India are free to profess the religion it beliefs. In modern India, the UCC controversy is still a hot topic. Discussions over the necessity and viability of a UCC have been rekindled by a number of court cases, including the Triple Talaq case and arguments concerning women's rights in many religious communities. These historical turning points and occurrences show how the UCC discussion in India has changed over time.
It is an issue that is closely related to issues of gender equality, social justice, and religious freedom. The historical background draws attention to the benefits and difficulties of implementing a UCC in a heterogeneous and diverse nation such as India. Personal rules were mostly regulated by community-specific religious texts and customs in ancient and medieval India. Muslim personal laws were based on the Quran and Hadith, whilst Hindu personal laws were influenced by works such as the Manusmriti. Every community has its own unique set of norms and customs. The origins of the UCC controversy can be found in the colonial era, when personal law reforms were implemented by British colonial rulers.
As part of its "divide and rule" policy, the British government allowed various religious communities to control their own personal affairs by maintaining a somewhat detached stance toward religious and personal legislation, sometimes known as "non-interference" or "non-regulation. " This established the framework for India's heterogeneous legal system. According to Article 44, the state ought to strive for a UCC in order to advance social fairness and uniformity. The religious and cultural diversity of India as well as the federalist ideals should be carefully taken into account in any attempt to enact a UCC, while also honoring the independence of religious organizations. Maintaining the individual's right to freedom of religion while taking into account the more general objectives of equality, gender justice, and social cohesiveness is a delicate balancing.
While opponents stress the value of maintaining religious and cultural variety, supporters contend that a UCC would advance social harmony and gender equality. Comprehensive legal reforms that take into account the needs and rights of every individual are necessary to achieve this balance. The UCC controversy is still a complicated, multidimensional topic in India's legal and social environment. Highlights on the intricacies of UCC on the part of Judicial Interpretations There are several cases wherein the Indian Supreme Court tried its best to showcase India as a Secular State by addressing issues relating to gender equality, religious practices, and the need for uniformity in personal laws. Some of the notable cases are: Ø Mohd. Ahemad Khan v. Shah Bano Begum7 Following a divorce under the Islamic custom of Triple Talaq, Shah Bano, a Muslim lady asked her husband for support.
Regardless of her religion, the Supreme Court decided in her favor and acknowledged her entitlement to maintenance under Section
125 of the Criminal Procedure Code. The Muslim Women (Protection of Rights on
Divorce) Act, which restricted the use of Section 125 in Muslim divorce proceedings, was passed in 1986 as a result of the case, which generated a national discussion. The necessity for changes to Muslim personal rules was brought to light by this case. Ø Sarla Mudgal v. Union of India8 Here the Supreme Court directed the then Prime Minister of India to take a fresh look on article 44 which enjoins the State to secure a UCC which according to the court would protect the oppressed and promote national unity and integrity. The case came up to determine the validity of marriage solemnised after converting from Hindu to Muslim without properly dissolving the prior marriage as a married Hindu male. Ø Pragati Varghese v.
Cyril George Varghese9 The Supreme Court in this case upheld the right of a Christian wife to live a dignified life as per the fundamental right provided under Article 21 of the Indian Constitution
7 1985 AIR 945
8 (1995) 3 SC 635; also refer to Lily Thomas v. Union of India, AIR 2000 SC 1650
9 AIR 1997 Bom. 349
where the lower court denied dissolving an irretrievable breakdown of marriage on the bare provisions of Indian Divorce Act. Ø Danial Latif v Union of India10 The Constitution Bench of Supreme Court held that Muslim husband is under the obligation to provide maintenance to unmarried chaste woman after the period of iddat under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Ø John Vallamatton v. Union of India11 The question raised was whether section 118 of Indian Succession Act 1925 led to discriminatory treatment of Christians in comparison to the followers of other religions. The bench of Supreme Court consisting of CJ VN Khare and Dr. AR Lakshamanan, JJ, has expressed regrets for not having a unified common code while clarifying the above issue.
CJ Khare pointed that Article 44 is based on the premise that there is no necessary connection between the religion and personal law in a civilized society. Further the court said that that it is no matter of doubt that marriage, succession and the like matters of secular character cannot be brought within the guarantee enshrined U/A 25 and 26 of the Constitution. Further stated that UCC shall promote national integration by removing the contradiction based on ideologies. Ø Seema v Ashwani Kumar12 The Supreme Court held that all marriages irrespective of its religion must be registered compulsorily. It also directed the government to make rules stating the consequences for non-registration of marriages. This was the first step towards UCC taken by the judiciary. Ø Shabnam Hashmi v. Union Of India13 Regardless of caste, creed, or religion, the Honorable Supreme Court upheld adoption
10 AIR 2001 SC 3262
11 AIR 2003 SC 2902
12 AIR 2006 SC 1158
13 (2014) 4 SCC 1
as a basic right for all individuals. The court ruled that adoption is permitted under the Juvenile Justice Act of 2000, regardless of caste or religion. The court accepted the petitioner's request despite the lack of substantial evidence, acknowledging that the right to adopt is protected by Part III of the Constitution, which protects fundamental rights. The court emphasized that everyone, regardless of gender, caste, religion, or creed, has an equal right to adopt a child. According to the court, adoption under the Juvenile Justice Act of 2000 is legal regardless of personal laws, which no longer prohibit adoption on the grounds of religious conviction. Ø Shayara Bano v. Union of India14 Triple talaq was ruled to be unconstitutional by the Honorable Supreme Court.
According to the Muslim Personal Law (Shariat) Application Act, 1937, talaq-ul-biddat was deemed illegal by Justices Rohinton Nariman and UU Lalit since it was arbitrary. "What is bad in the Holy Quran cannot be good in Shariat, and what is bad in theology is also bad in law," said Justice Kurian Joseph, who contended that triple talaq is incompatible with the Holy Quran and has no legal basis. Both justices came to the conclusion that the widespread practice of instantaneous triple talaq cannot be supported since it is incompatible with both legal and theological norms. The above stated cases have highlighted the need of UCC since time immemorial. The formation of a unified code shall operate as sunshine in the dark wood forest where persons have been justifying their deeds in the name of their religious belief and community ideology.
These ideologies or beliefs have been destroying the identity of humans in terms of gender equality and basic human rights. Therefore, the Parliament had attempted to bring to effect the Uniform Civil Code by introducing a Bill in 2019, which later could not fulfil the need of the hour. This is because the opposition continues stating it as the bar to Article 25 of the Indian Constitution. There are instances in the history of India where UCC has been implemented. The smallest State, i. e. , Goa which is one of the Union Territory of India after 1961, authorized the application of Portuguese Civil Code, 1867 by enacting The Goa, Daman and Diu Administration Act,1962 which regulates matters of marriage, maintenance, inheritance and all
14 AIR 2017 SC 4609
other subjects irrespective of the religious beliefs of Hindu, Muslims and Christians in the State. Notably, the State of Uttarakhand has implemented the UCC from 27 January, 2024 marking it as the first state in the independent India where religious beliefs are set at par for all. This has made an history in the largest democratic country, where the longing need has been fulfilled through a part of it. The UCC of Uttarakhand Act, 2024 consist of 4 parts, they contains rules for governance in the following sequence:
1. Marriage and divorce
2. Succession (Intestate and Testamentory)
3. Live-in-relationship
4. Repeals.
Further the Act stated that the code applies to the resident throughout the territory of the State of Uttarakhand as well as to those living beyond the state.
CONCLUSION
It is of no doubt that Article 44 as added to the Constitution of India was pre-supposed to be meant for the equality before law irrespective of the religion one profess. Being a part of the DPSP it is difficult to question as to why the implementation of the Article is still a bar. Therefore, the 42nd Amendment to the Constitution by adding the word “Secular” has provided a path to pave on and the judiciary have through notable cases as discussed above have brought to notice the need of UCC in a democracy like India where we strive to bring equality irrespective of caste, creed, sex and religion. Therefore, by removing competing legal systems founded on disparate ideologies, the Uniform Civil Code's universal implementation would encourage national cohesion. The State has the legislative power to guarantee that all citizens are subject to the same Civil Code, which is its duty.
Realizing the purpose of the Constitution requires a significant effort.
Bibliography • Dr. J.N. Pandey, Constitutional Law of India • Durga Das Basu, Introduction to The Constitution of India • Article 44: Uniform civil code for the citizens - Constitution of India • https://indianexpress.com/article/explained/how-the-uniform-civil-code-came-to-beincluded-in-the-indian-constitution-9147625/ • https://www.ijlsi.com/wp-content/uploads/A-Never-Ending-Tussle-between-Equalityand-Faith-Uniform-Civil-Code-V.-Article-25.pdf • https://www.tscld.com/uniform-civil-code-a-critical-analysis • https://www.jstor.org/stable/41856241