Uniform Civil Code - A Constitutional Mandate

(T.P. Diaz, Advocate -Trichur)

There has been a multiplicity of complicated personal laws in India; broadly categorised as Hindu system, Muslim system, X 'an, Parsis etc. Some have its origin in the Vedic period, some others in the medieval period; but the origin of these into a legal system in its present form is ascribable to the 19th century, under the British rule. 'Divide and Rule' was the motive behind all these legislations, to cement the bed-rock of the superstructure of their colonial empire. To keep up the tempo of communal discord, they exploited every tiling within their command and legislation was also not spared.

The protagonists of secularism and the founding fathers of our constitution had to wade through a pool of problems to enact and incorporate Art.44, in the constitution, because of the onslaught unleashed by the vested interests and communal forces. They could withstand the mounting pressures and refused to bow. Their successors in office also should be able to uphold the same tradition courageously to solve the problem, the best way, facing it.

Article 44 of the Constitution has been a mandatory provision, reads as follows:—"The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". Why should a government which claim secularism as its goal, a government which always resort to Constitutional provisions for various purposes, fight shy to give legislative expression to this mandate, enacting a uniform civil code?

Legislative competence and constitutional mandate have been there in abundance, but what is lacking, has been the political will and courage, and the same weakness was manifested by the enactment of "The Muslim Women (Protection of Rights and Divorce) Act, 1986-17/86, which action of the Central Government reminded the proverbial mother-in-law caressing, oiling and stroking the hairlock of the proverbial daughter-in-law to appease her and to pre-empt her jolting and kicking, while the daughter-in-law sits in a relaxed, pleased and victorious mood of taming the mother-in-law, as her maid-servant. The golden principle laid down by the Supreme Court in Shah Bano's case (1985 2.S.C.C.556), was nullified or neutralised by the said enactment, Shah Bano's preference for Criminal Procedure Code, over her personal laws, brought encomium, laurels and bouquets to her; but brickbats to the Government. The defence of her husband (a lawyer by profession), banging on his personal laws and Talaq, was rejected by the court and then the 'mile-stone Judgment'. "S.125, is truly secular in character. It was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions which are prophylactic nature, cut across the barriers of religion. They may not supplant the personal law of the parties, but equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws, unless within (lie frame work of the constitution, their application is restricted to a defined category of religious group or classes. The liability imposed by S.125 to maintain close relatives who are indigent upon the individuals' obligation to the society to prevent vagrancy and destitution. The moral edict of the law and morality cannot be clubbed to religion".

The court further expressed its regret that Art. 44 of our Constitution, has remained a dead letter. By enacting a uniform civil code, the cause of national integration will be accelerated. It will culminate in the narrowing down or bridging the gap of divergence of divorse competing religion-based laws. And the chance to enhance the national outlook and to engender a 'mother-India' feeling and thereby reducing the sectarian, fundamentalistic and divisive attitude of the various communities. The Court held further, "No community is likely to bell the cat by making gratuitous concessions on this  issue. It is the State which charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably it has the legislative competence to do so".

In a democratic country like India, where secularism has been a declared goal, sectional, communal and religion-based laws should be scrapped or replaced by National laws. Any delay or failure to lake follow-up action as mandated by Art.44, will amount to dereliction of duty and miscarriage of justice, which will expose a weak, pusillanimous government. Skyrocketed to the skyline in the advancement of technical, technological know-how almost in all the branches of science and technology, we enjoy today an enviable, exalted position among powerful nations. Our stridency to the top rung or row of great powers, is looked upon by other Nations with dismay and envy. But our personal legal system, that threads the Warp and Weft of the social fabric, remains rotten and stinking, reeling under the Vedic, Paleolithic or Medieval, irrational customs and conventions which leave our homogenous unity truncated.

"Honey on the tongue and sting in the tail"— attitude of the Government has been amply exemplified by the peroration, in the glorification of secularism on one hand, and the contra-legislation, on the other. The same had been the attitude of the Government, when they codified Hindu personal laws, which had been fading or vanishing out. in 1962,1 wrote an Article and published in Kerala Law Times (1962 KLT Journal Page 57), Titled, "Communalism thrives on legal loop-holes". I take liberty to quote a few lines, from that Article of mine, - "But those who are at tire helm of affairs --------- do not care to see that the main source of this foul stream of communalism, is --------- the legal system of the land".------------------" They make distinctions Mid discriminations on the basis of class and community, in the field of legislation. And if the Government itself does not view the people of India as a whole, why should the citizens view?" "So, we find that within the four boundaries of India certain emotional boundaries are visible". "Why can't the Government contemplate upon 'Indian Acts' applicable to all the citizens of India? Why did they codify the conventional laws of Hindus, which were really fading out?" "It is high time for the government to put a stop to these kinds of legislations and orders which seek to discriminate people of a community from the other".

The letter and spirit of the Constitution make it imperative on the part of the Government, only to enact National Laws, uniform codes and not religion-based communal laws, which drive a wedge in the national unity, which make a dent on Indian polity, and it will be a bountiful harvest for communal politics. Though belated, the time is ripe for the Government to indulge in these matters, on a priority basis and to enact a uniform Civil Code, applicable to all citizens, irrespective of their religion or community.

All along hitherto, Muslim community has been the stumbling block, opposing the introduction and enactment of a Uniform Civil Code. Eminent jurists and top-ranking leaders have pointed out that their apprehension, seems to be baseless and irrational, in view of the well-known protective guarantees, couched in Art. 25, regarding freedom of conscience and the right to profess, practise or propagate the religion of one's choice, and Art.29, regarding the right to conserve its language, script or culture. They should join the main stream of national unity, unhesitatingly and wholeheartedly. Conveniently they should not shut their eyes towards the vast and dynamic changes brought out in almost all the Muslim countries of the world, Mr. Justice, Tulzapurkar, in his famous Article on Uniform Civil Code, says, "for instance, polygamy has been completely prohibited in Tunisia (S.18 of Tunisian law of Personal Status) and Turkey (Art. 74 of Turkish Civil Code, 1926) while it has been curbed in Syria, Morocco, Egypt, Jordan, Iran and Pakistan permissible subject to certain conditions such as obtaining of permission from a third agency like the Court or Arbitration Council before taking a second wife. Similarly, the right of a Muslim-husband to give a unilateral Talaq has also been curbed in all these countries".

To combat the fissiparous tendencies, to anchor the pulls to different directions, by casteism, communalism and fundamentalism, Uniform Civil Code has been the only juristic solution; the only known panacea for putting an end to the various, diverse, unfair, inequitable and in certain cases, humiliating personal laws, applicable to various communities; and nauseating practices, eating into the vitals of the National unity.

In conclusion, I quote the following from Mr. Justice Chagla, "That Art. 44 is a mandatory provision binding the Government, and it is incumbent upon it to give effect to this provision. The Constitution was enacted for the whole country and it is binding on the whole country and every section and community must accept its provision and its directives".

A Comment on 1995 (2) KLT 659 - Poulose v. State of Kerala

(Crl. R.P. No. 524 of 1992 Decided on 21st September 1995)

(A.K. Radhakrishnan Librarian, Advocate General's Office,  Ernakulam)

It is seen from the above judgment of the Hon'ble High Court of Kerala that the petitioner in the Crl. R.P. (Accused) was acquitted by the Hon'ble High Court for the offence u/S.279 I.P.C. for the only reason that the prosecution did not examine any doctor to prove the nature of the injuries sustained by the injured in the accident. This is clear from the last sentence in Para.7 of the judgment which reads thus "As the prosecution did not examine any doctor to prove the nature of injuries sustained by the injured the petitioner is entitled for an acquittal u/S.279 I.P.C. also."

It may be recalled that in order to prove an offence u/S.279 I.P.C. the prosecution is not bound to prove the injury sustained by the injured. As a matter of fact the offence u/S.279 IPC is not for causing any injury but for rash or negligent driving on a public way. This is evident from Section 279 I.P.C. which reads thus "Rash driving or riding on a public way:- whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both". On a reading of the section it cannot be stated that hurt or injury is to be caused in order to attract the offence. Nowhere In the section it is stated so. To constitute an offence u/S.279 IPC it must be established that the accused was driving a vehicle on a public way in a rash or negligent manner to endanger human life or to be likely to cause hurt or injury to any other person. So, mere rash or negligent driving or riding likely to cause hurt or injury is sufficient. Bare negligence involving risk of injury need be established. In other words, bare negligence involving risk of injury is punishable criminally u/S.279 IPC eventhough nobody is actually hurt by it. What is made punishable u/S.279 IPC is the manner of riding or driving of any vehicle on public way. In order to attract the offence u/S.279 IPC it is not at all necessary that the rash or negligent act should result in injury to life and property. It is also not even necessary that any person was on the road at the time. The court may take into consideration the probability of person using it being placed in danger. If that so, there cannot be any acquittal for the offence u/S 279 I.P.C merely for the failure of the prosecution to prove the nature of the injuries sustained to the injured. The question of causing hurt or injury does not arise at all. In order to prove an offence the prosecution need only prove that the accused drove the vehicle on a public way in a rash or negligent manner as to endanger human life or to likely to cause hurt to any other person. It may be recalled that the Hon'ble High Court has not stated in the judgment that the prosecution failed to prove that. On the other hand it was only for non examination of the doctor to prove the nature of the injuries sustained by the injured the accused was acquitted.

In this context it is relevant to note that for causing hurt to any person by doing an act so rashly or negligently as to endanger human life one is punishable u/S.337 IPC. There is also provision for punishing the offender for causing grievous hurt in the manner stated above. The same is punishable u/S.338 IPC. In these circumstances it is respectfully submitted that one is not entitled for acquittal for an offence u/S.279 I.P.C. merely for failure of the prosecution to examine any doctor to prove the nature of the injuries sustained by the injured.

Can the Supreme Court Issue a Writ of Mandamus

to the Legislature or to its Delegate

(K. Balakrishnan, Advocate, Kochi)

It is settled law that the Courts cannot issue a writ of mandamus against the Legislature to enact any legislation or to amend any legislation in any particular manner. The same principle will apply in issuing directions to the Government, while it is acting as a delegate of the Legislature. This submission is supported by the decision of the Hon'ble Supreme Court reported in AIR 1971 SC 2399 (Narindar v. Lt. Governor, U. T. of Himachal Pradesh). The relevant portion of the judgment reads as follows:—

"The power to impose a tax is undoubtedly a legislative power. That power can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority. But the exercise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact"             (para.7)

No one can have any dispute that the service conditions of subordinate judicial officers should be improved and they must be free from wants so that they can be truely independent. No man can be independent, unless he is free. Therefore, the directions issued by the Supreme Court to improve the service conditions of judicial officers in All India Judges Association's Cases ((1992) 1 SCC 119 and (1993) 4 SCC 288) are the need of the hour. But can the Supreme Court go to the extent of saying that the Rules governing service conditions including that of age of retirement should be suitably amended to give effect to those directions. Rejecting the arguments on behalf of the State Governments, the Supreme Court has reiterated that it can issue directions to the Governments and the Legislatures to amend the Rules relating to service conditions of judicial officers.

It is most respectfully submitted that the said proposition laid down by the Supreme Court does not appear to be correct. The legislature does not owe to any one any duty to frame any law in any particular manner and no one can claim any right to the performance of such a duty by the Legislature. Therefore, the pre-requisites for the issue of a mandamus are absent. Further, courts do not issue futile writs. In the light of the privileges contained in Arts.105(2) and 194(2) of the Constitution of India, the members of the legislature are not answerable to any court for voting in any particular manner inside the House. So, a mandamus issued against a Legislature can in no way be enforced as no contempt proceedings can be initiated against a member of the Legislature for voting or for not voting in any particular manner inside the House.

The same principle will apply to subordinate legislation also. Suppose the Supreme Court directs our State Government to amend Rule 60 of Part 1 KSR by making a provision that the age of retirement of Judicial Officers shall be 60 and the Government framed a Rule to that effect and placed it before the Legislative assembly as mandated under S.2(2) of the Kerala Public Service Act, 1968. If the Legislature passes a resolution disapproving the said amendment, the court will be helpless to enforce its writ against the members of the House who disapproved the proposed amendment.

The Apex Court may make a declaration that the Rule regarding the existing age of retirement of Judicial Officers is unconstitutional on the ground that it is treating unequals equally and thereby violating Arts.14 & 16 oftheConstitutionofIndia.lt may also make a declaration that, since the Constitution has respectively provided the age of 65 and 62 for retirement, for the Supreme Court Judges and High Court Judges, a retirement age comparable to them alone will satisfy the requirement of Arts.14& 16. It may even declare that the prescription of age limit below 60 will be clearly unreasonable. But the direct issuance of a mandamus against the Legislature or its delegate will amount to transgressing the constitutional limits demarcating the respective fields for the different organs of the State.

Advocates and Doctors -- Profession and Business

(S. Ananthasubrahmanian, Advocate, Ernakulam)

In S Mohan Lal v. R. Kondiah (1979 (3) SCR 12 = AIR 1979 SC 1132) the Supreme Court held that the expression "business" in S.10(3)(a)(iii) of the Andra Pradesh Buildings (Lease, Rent and Eviction) Control Act is used in a wide sense so as to include the practice of profession of an Advocate.

The Supreme Court has in Civil Appeal No. 1066 of 1987 - Dr. Jess Raphael v. Mrs. K.L. Regina Joseph, (Reported in 1994(1) KLT 852 (SC)) adopting the reasoning and dictum in 5. Mohan Lal's case said: "If this is the law with reference to an Advocate, the case on hand is a fortiorari" and set aside the judgment of the learned District Judge and the High Court allowing the Doctor-tenant's appeal.

Civil Appeal No.1066 of 1987 originated from R.C.P.115 of 1977 of the Rent Control (Principal Munsiff s) Court, Ernakulam and is with reference to the second proviso to S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act. It was decided on 18-1-1994.

The decision of the High Court of Kerala to the contrary in Hassan v. Mohammed - 1994 (1) KLT 502 rendered on 25-1-1994, one week later and reported in the issue of KLT dated 21-3-1994 would have been otherwise if the decision of the Supreme Court was noticed.

Here is the need for the computer.

Judicial System

(M. Stanley Fernandez, B.Com., D.S.S., B.L., Advocate, Kochi)

The collapse of the Judicial System under the load of pending cases is a fear expressed by many in your country today. However the present Supreme Court: Chief Justice Mr. M.N. Venkatachaliah has expressed the view that the fear of the collapse of the Judicial System is totally baseless. And the Supreme Court has successfully brought down the number of pending cases by thirty percent last year.

The official view is that with certain improvements, the Judicial System could work well. According to Chief Justice M.N. Venkitachaliah the pendency of cases is only a management problem and steps are being taken to tackle this problem in Supreme Court in a professional manner with the assistance of the Indian Institute of Management. And computers and automation has been already introduced in the administration now. Further the court automation divisions in the various High Courts of our country can benefit subordinate courts too. These steps would certainly help to speed up the wheels of justice in our Country.

Out of the eight hundred and fourty cases decided by the Supreme Court in the year 1993, one hundred and fourty related to service matters, which is equivalent to 16% (Sixteen percent). This burden is the creation of the Central and State Governments. Acting with fairness the Central and State Administration could have easily redressed the grievanes of their employees out of court. Incidentally one of the cases decided by the apex court related to class IV employees of the Supreme Court seeking parity with pay-scales obtaining in Delhi High Court. Though the Supreme Court accepted the prayers of the employees/petitioners as early as on March 16, 1993, the decision of the Central Government (in this regard) is still awaited.

At least four per cent of cases in the various High Courts of our country and the Supreme Court is about official misfeasance by public authorities and statutory bodies. Improper application of taxation laws is another area which generates much litigation, followed by land acquisition cases. One thing is certain that at least fourty per cent of the Court's time in our country is consumed in correcting the mistakes of the Government.

Preventive detention is another area where the Government alone can reduce the burden of the Supreme Court, the State being the major litigant in our country can certainly help the courts in speedy disposal of cases. The services of the large contingent of workless lawyers sitting idle in the bar library and the junior lawyers in the Bar Association Halls can be well-utilised by asking the senior lawyers to part with some of their briefs in favour of these less fortunate class of lawyers. And the senior advocates can also be asked to help to contain long winded litigation.

Another important reason for the long pendency of cases is the fact that both the Central and State Governments often fail to file statements and counter affidavits on time in courts and many are the occasions when government advocates fail to appear (when their cases are taken up) in the various courts of our country. If the senior lawyers, Central and State Governments and the Government advocates make a joint effort this crucial problem of 'justice delayed is justice denied' can easily be solved.