17. Polity Notes 18

Elaborate Notes

Uniform Civil Code

• Historical Context and Constituent Assembly Debates: The idea of a Uniform Civil Code (UCC) predates the Constitution. During British rule, a policy of legal unification was pursued, but it was largely confined to criminal and commercial law. The Indian Penal Code (IPC) of 1860 and the Criminal Procedure Code (CrPC) of 1861 were made applicable to all citizens, irrespective of their religion. However, the British deliberately followed a policy of non-interference in personal matters like marriage, divorce, inheritance, and adoption, which were governed by religious scriptures and customs. This was reinforced by the Queen’s Proclamation of 1858, which promised to abstain from all interference with the religious belief or worship of the subjects.

  • In the Constituent Assembly, the matter was intensely debated. Proponents like K.M. Munshi argued, “If you want to consolidate a secular state, we must be able to enact a civil code.” Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, strongly advocated for a UCC, stating that no country should allow its laws to be dictated by religion.
  • However, several members, particularly from the Muslim community like Mohammad Ismail Sahib and B. Pocker Sahib Bahadur, expressed strong reservations. They argued that a UCC would infringe upon the Fundamental Right to Freedom of Religion (Article 25) and that personal laws were an integral part of their religious identity.
  • The consensus reached was a compromise. The UCC was included as a non-justiciable directive in Article 44 of the Directive Principles of State Policy (DPSP). This made it an aspirational goal for the state to achieve in the future, once societal consensus was built, especially considering the sensitive post-Partition environment.

• Post-Independence Efforts and the Hindu Code Bills: The first major attempt at reforming personal laws came with the Hindu Code Bills, championed by Prime Minister Jawaharlal Nehru and Law Minister Dr. B.R. Ambedkar in the early 1950s.

  • The proposed bills aimed to codify and reform Hindu personal law, granting women rights of inheritance and divorce, and outlawing polygamy. The contents were considered radical at the time and faced fierce opposition from conservative sections within the Congress party and from religious leaders. Even the then President, Dr. Rajendra Prasad, expressed his reservations.
  • Due to this stiff opposition, Dr. Ambedkar resigned from the cabinet in September 1951, citing the government’s inability to pass the bill.
  • Jawaharlal Nehru made the reform of Hindu society a key issue in the 1st General Elections of 1951-52. After securing a massive mandate, his government strategically split the comprehensive bill into four separate pieces of legislation to ensure their passage:
    1. The Hindu Marriage Act, 1955
    2. The Hindu Succession Act, 1956
    3. The Hindu Minority and Guardianship Act, 1956
    4. The Hindu Adoptions and Maintenance Act, 1956
  • During these debates, Nehru assured the Parliament that this was the first step and that a UCC would eventually be enacted once a consensus was achieved among all communities.

• Judicial Intervention and Contemporary Debate: The debate on UCC has been periodically reignited by the Supreme Court.

  • The landmark case of Mohd. Ahmed Khan v. Shah Bano Begum (1985) is pivotal. The Supreme Court upheld the right to alimony for a divorced Muslim woman, applying Section 125 of the CrPC. The Court lamented the lack of a UCC and urged the government to implement Article 44. The judgment led to a massive political controversy, and the Rajiv Gandhi government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the Supreme Court’s secular judgment.
  • In the Sarla Mudgal v. Union of India (1995) case, the Court again highlighted the need for a UCC to prevent fraudulent conversions for the purpose of bigamy.
  • More recently, in the Shayara Bano v. Union of India (2017) case, the Supreme Court declared the practice of triple talaq (talaq-e-biddat) unconstitutional. While this was a significant step towards gender justice within Muslim personal law, the larger question of a UCC remains unresolved.
  • The debate has often been politicized and centered on religion, overshadowing the core issue of gender justice. The focus should be on ensuring that the personal laws of all communities align with the constitutional principles of equality (Article 14), non-discrimination (Article 15), and the right to life with dignity (Article 21).

Way Forward for UCC

• Consensus Building: A top-down imposition of UCC is politically unfeasible and socially undesirable. The government must engage in a wide-ranging dialogue with all stakeholders, including religious leaders, women’s organizations, legal experts, and civil society. The Law Commission of India has played a crucial role by releasing consultation papers (e.g., the 21st Law Commission in 2018) to solicit public opinion.
• Piecemeal or Staged Approach: Following the Nehruvian strategy for the Hindu Code Bills, a gradual, piecemeal approach might be more effective. Instead of a single, comprehensive code, the government could introduce separate legislation for secular and uniform laws on marriage, divorce, succession, and adoption, allowing for wider debate and acceptance on each issue.
• Focus on Gender Justice: The narrative must shift from religion to gender. The primary objective of a UCC should be to eliminate gender discrimination inherent in various personal laws and to uphold the fundamental rights of women. By framing it as a matter of constitutional morality and gender equality, it may be possible to build a broader coalition of support.
• Role of Media and Civil Society: The media and CSOs have a critical role in fostering an informed and rational public debate, dispelling misinformation, and highlighting the positive aspects of a UCC, particularly for empowering women and strengthening the secular fabric of the nation.

Fundamental Duties

• Origin and Context: The Fundamental Duties were not part of the original Constitution. They were added by the 42nd Constitutional Amendment Act, 1976, during the Internal Emergency (1975-77). Their inclusion was inspired by the Constitution of the former USSR. The rationale was that citizens should not only be conscious of their rights but also of their duties towards the nation.
• Swaran Singh Committee (1976): The Congress party set up this committee to make recommendations on constitutional amendments. The committee recommended the inclusion of a separate chapter on Fundamental Duties. It suggested eight duties, but the government incorporated ten in the amendment.
  • Notably, some recommendations of the committee were not accepted, such as making the non-performance of duties punishable by law and making any such law immune from judicial review. The duty to pay taxes was also a recommendation that was not included.
• Nature and Significance:
  • The Fundamental Duties are enshrined in Part IV-A under Article 51-A.
  • Scope: They are applicable only to citizens of India.
  • Nature: They are a mix of moral duties (e.g., cherishing noble ideals of the freedom struggle) and civic duties (e.g., respecting the Constitution, National Flag, and Anthem).
  • Non-Justiciable: Like the DPSPs, they are non-enforceable by courts directly. There is no legal sanction against their violation. However, Parliament is free to enforce them by suitable legislation. For example, the Prevention of Insults to National Honour Act, 1971, enforces the duty mentioned in Article 51-A(a).
  • Judicial Utility: The Supreme Court has held that they can be used as a tool to interpret statutes and test the constitutional validity of a law.
• List of Fundamental Duties (Article 51-A):
  1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
  2. To cherish and follow the noble ideals that inspired the national struggle for freedom;
  3. To uphold and protect the sovereignty, unity and integrity of India;
  4. To defend the country and render national service when called upon to do so;
  5. To promote harmony and the spirit of common brotherhood amongst all the people of India;
  6. To value and preserve the rich heritage of the country’s composite culture;
  7. To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;
  8. To develop scientific temper, humanism and the spirit of inquiry and reform;
  9. To safeguard public property and to abjure violence;
  10. To strive towards excellence in all spheres of individual and collective activity;
  11. To provide opportunities for education to his child or ward between the age of six and fourteen years. (This duty was added by the 86th Constitutional Amendment Act, 2002).

Prelims Pointers

• Uniform Civil Code (UCC) is mentioned in Article 44 of the Constitution.
• Article 44 is a part of Part IV: Directive Principles of State Policy (DPSP), which are non-justiciable.
• The Hindu Code Bills were passed as four separate Acts in 1955 and 1956.
• Mohd. Ahmed Khan v. Shah Bano Begum (1985): Supreme Court case that highlighted the need for a UCC.
• Sarla Mudgal v. Union of India (1995): Linked UCC to preventing bigamy through religious conversion.
• Shayara Bano v. Union of India (2017): Declared the practice of Triple Talaq unconstitutional.
• Fundamental Duties (FDs) were added by the 42nd Constitutional Amendment Act, 1976.
• The FDs are contained in Part IV-A of the Constitution, under Article 51-A.
• The FDs were added on the recommendation of the Swaran Singh Committee (1976).
• The concept of FDs was inspired by the Constitution of the former USSR.
• Originally, there were 10 FDs. The 11th FD was added by the 86th Constitutional Amendment Act, 2002.
• FDs are non-justiciable in nature.
• FDs are applicable only to citizens of India and do not extend to foreigners.
• The Verma Committee (1999) was constituted to identify the legal provisions for the implementation of some of the Fundamental Duties.

Mains Insights

Uniform Civil Code (UCC)

• National Integration vs. Cultural Pluralism: This is the core debate. Proponents argue that a UCC is essential for national integration, secularism, and reducing communal politics by creating a common identity. Opponents argue that it threatens India’s rich cultural diversity and the rights of minorities to follow their own personal laws, which they consider an essential part of their identity.
• Secularism and UCC: There are two views on this relationship. One view holds that a common law for all citizens, irrespective of religion, is the hallmark of a truly secular state. The other view argues that secularism in the Indian context means protecting the practices of all religions, and hence imposing a uniform code would be anti-secular.
• Gender Justice as the Primary Lens: Framing the UCC debate purely from a gender justice perspective can be a constructive way forward. Almost all personal laws, in their traditional interpretation, contain provisions that are discriminatory towards women regarding marriage, divorce, and inheritance. A UCC, or even reforms within personal laws, must be evaluated on the touchstone of gender equality as guaranteed by the Constitution.
• Feasibility and the Goa Model: The Goa Civil Code, a legacy of Portuguese rule, is often cited as an example of a UCC in India. However, it is not entirely uniform and has its own issues. A “one nation, one law” approach must consider the vast regional and cultural diversity of India, which Goa’s small and relatively homogenous society does not represent. A potential UCC for India must be modern, progressive, and gender-just, rather than simply an extension of one community’s laws over others.

Fundamental Duties

• Relationship between Rights and Duties: The inclusion of Fundamental Duties serves as a constitutional reminder that rights and duties are correlative. The enjoyment of rights is contingent upon the performance of duties. This helps in creating a responsible citizenry that is actively involved in the process of nation-building.
• Symbolic vs. Practical Value: Critics argue that because they are non-justiciable, the FDs are merely a set of moral platitudes with little practical utility. However, their value lies in their educational and psychological impact. They are meant to guide the conduct of citizens and inspire them to rise above narrow self-interest.
• Judicial Relevance: Although non-enforceable, the Supreme Court has held that FDs can be used to interpret ambiguous statutes. For instance, in environmental cases, Article 51-A(g) (to protect the environment) is often invoked to give more weight to environmental protection laws. They act as a reference point for the courts.
• Need for Awareness: The biggest challenge regarding FDs is the lack of public awareness. For them to be effective, there is a need for a concerted effort by the state and civil society to popularize their meaning and significance, integrating them into the educational curriculum and public campaigns.

Previous Year Questions

Prelims

1. Which one of the following is not a Fundamental Duty under Article 51A of the Constitution of India? (UPSC CSE 2017) (a) To respect the National Flag and the National Anthem (b) To safeguard public property (c) To protect the sovereignty, unity and integrity of India (d) To render compulsory military service

   Answer: (d) Explanation: Article 51-A(d) says “to defend the country and render national service when called upon to do so”. It is not a duty to render compulsory military service.

2. In India, which one of the following constitutional amendments was widely believed to be enacted to overcome the judicial interpretations of the Fundamental Rights? (UPSC CSE 2023) (a) 1st Amendment (b) 42nd Amendment (c) 44th Amendment (d) 86th Amendment

   Answer: (b) Explanation: The 42nd Amendment, 1976, enacted during the Emergency, made wide-ranging changes, including giving supremacy to Directive Principles over certain Fundamental Rights and adding Fundamental Duties. It was seen as an attempt to curtail judicial power and assert parliamentary supremacy.

3. Which part of the Constitution of India declares the ideal of a Welfare State? (UPSC CSE 2020) (a) Directive Principles of State Policy (b) Fundamental Rights (c) Preamble (d) Seventh Schedule

   Answer: (a) Explanation: The Directive Principles of State Policy in Part IV of the Constitution lay down the social and economic goals that the state should strive for, embodying the concept of a welfare state. Article 44 (UCC) is a part of this vision.

4. Consider the following statements:

   1. The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
   2. The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of the judiciary. Which of the statements given above is/are correct? (UPSC CSE 2017) (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2

   Answer: (b) Explanation: Statement 1 is incorrect. It was the 39th Amendment (1975) that placed the election of the Prime Minister beyond judicial review, which was later struck down. The 44th Amendment (1978) was enacted to reverse many of the distortions introduced by the 42nd Amendment. Statement 2 is correct; the Supreme Court struck down the 99th Amendment and the NJAC Act in 2015.

5. With reference to the provisions contained in Part IV of the Constitution of India, which of the following statements is/are correct?

   1. They shall be enforceable by courts.
   2. They shall not be enforceable by any court.
   3. The principles laid down in this part are to influence the making of laws by the State. Select the correct answer using the code given below: (UPSC CSE 2020) (a) 1 only (b) 2 only (c) 1 and 3 only (d) 2 and 3 only

   Answer: (d) Explanation: Article 37 clearly states that the Directive Principles (Part IV) shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Mains

1. Discuss the possible factors that inhibit India from enacting a Uniform Civil Code (UCC) for its citizens as provided for in the Directive Principles of State Policy. (UPSC CSE 2015, GS Paper I)

   Answer Framework:

   • Introduction: Briefly introduce Article 44 of the Constitution, which directs the state to secure a UCC. Mention that despite being a constitutional goal, its implementation has been a contentious issue since independence.
   • Body (Factors inhibiting UCC):
     • Political Factors: Lack of political will due to the sensitivity of the issue and fears of losing vote banks. Parties often use the issue for political polarization rather than genuine reform.
     • Social and Cultural Diversity: India’s vast diversity of customs and traditions makes it difficult to arrive at a common code that is acceptable to all. Fear that a UCC might lead to the homogenization of cultures and impose the majority’s practices on minorities.
     • Religious Freedom Concerns: Strong opposition from minority communities, particularly Muslims, who view it as an interference in their religious affairs and a violation of their rights under Article 25. Personal laws are considered an integral part of their religious identity.
     • Lack of Consensus and Misinformation: Absence of a broad consensus on what a UCC should contain. The debate is often shrouded in misinformation, leading to fear and suspicion among communities.
     • Practical Difficulties: The task of drafting a UCC that synthesizes the progressive elements from all personal laws while being fair and equitable to all is a complex and monumental legislative challenge.
   • Conclusion: Conclude by suggesting a way forward, such as a gradual, piecemeal approach focusing on gender justice, extensive consultations, and building trust among communities, rather than a top-down imposition.

2. What is meant by the term ‘constitutional morality’? How does one uphold constitutional morality? (UPSC CSE 2019, GS Paper IV)

   Answer Framework:

   • Introduction: Define constitutional morality as an allegiance to the core principles and values of the Constitution, such as democracy, liberty, equality, fraternity, and secularism. It means upholding the spirit of the Constitution, not just the letter. Quote Dr. B.R. Ambedkar who emphasized its importance.
   • Body (How to uphold constitutional morality):
     • By Institutions: The legislature must enact laws that are in consonance with constitutional values. The executive must act with fairness and without discrimination. The judiciary must interpret the Constitution in a way that promotes its foundational values (e.g., striking down Section 377, the Triple Talaq verdict).
     • By Citizens: By internalizing and practicing constitutional values in daily life. This includes respecting diversity, practicing tolerance, upholding the rule of law, and performing Fundamental Duties. Abjuring violence and promoting a scientific temper are direct ways citizens uphold constitutional morality.
     • By Civil Society and Media: By holding the government accountable, promoting constitutional literacy, and fostering a culture of public discourse based on reason and constitutional principles.
   • Conclusion: Conclude by stating that constitutional morality is the lifeblood of a democracy. It requires a continuous commitment from all stakeholders—the state, citizens, and institutions—to ensure the Constitution remains a living document that guides the nation’s path.

3. What are the Fundamental Duties mentioned in the Indian Constitution? How can they be made effective? (Not a direct PYQ in last 5 years but a highly relevant potential question)

   Answer Framework:

   • Introduction: Briefly explain the origin of Fundamental Duties (42nd Amendment, Swaran Singh Committee) and their location in the Constitution (Part IV-A, Article 51-A). State their non-justiciable nature.
   • Body Part 1 (Listing Duties): List a few key Fundamental Duties to demonstrate knowledge, such as upholding sovereignty, promoting harmony, protecting the environment, developing a scientific temper, and safeguarding public property. Mention the 11th duty added by the 86th Amendment.
   • Body Part 2 (Making them effective):
     • Legal Measures: While they are non-justiciable, Parliament can and has enacted laws to enforce some of them (e.g., Prevention of Insults to National Honour Act). This can be done for other duties as well.
     • Awareness and Education: Incorporate the study of Fundamental Duties into school and college curricula. Use mass media for public awareness campaigns to sensitize citizens.
     • Judicial Use: Encourage courts to continue using FDs as a tool for interpreting laws and upholding the constitutional validity of statutes that promote these duties.
     • Leading by Example: Public officials and leaders should set an example by adhering to these duties in their conduct.
     • Linking with Rights: Foster a public discourse that emphasizes the correlation between rights and duties.
   • Conclusion: Conclude that while legal enforcement has a role, the true effectiveness of Fundamental Duties lies in creating a social and educational environment where citizens voluntarily internalize them as essential for responsible citizenship and nation-building.

4. ‘The most significant achievement of the Modern Law in India is the constitutionalization of the environmental problems by the Supreme Court.’ Discuss this statement with the help of relevant case laws. (UPSC CSE 2022, GS Paper III)

   Answer Framework:

   • Introduction: Agree with the statement, explaining that the Supreme Court has expanded the interpretation of the Constitution, particularly Article 21 (Right to Life), to include the right to a clean and healthy environment, thereby ‘constitutionalizing’ environmental protection.
   • Body (Evolution through Case Laws):
     • Early Phase: Mention the Rural Litigation and Entitlement Kendra v. State of U.P. (Dehradun Quarrying Case, 1985), where the SC balanced development and environmental protection, favouring the latter.
     • Expansion of Article 21: Discuss the M.C. Mehta v. Union of India cases (Oleum Gas Leak, Ganga Pollution, etc.), where the SC firmly established the right to a clean environment as part of the right to life.
     • Introduction of Principles: Explain how the SC introduced principles like Polluter Pays, Precautionary Principle, and Public Trust Doctrine into Indian environmental jurisprudence, citing cases like Vellore Citizens’ Welfare Forum v. Union of India (1996).
     • Role of DPSP and Fundamental Duties: Mention how the Court has used Article 48A (DPSP - state’s duty to protect the environment) and Article 51-A(g) (FD - citizen’s duty to protect the environment) to reinforce its judgments and create a comprehensive constitutional framework for environmental protection.
   • Conclusion: Conclude that by creatively interpreting the Constitution, the Supreme Court has transformed environmental protection from a mere statutory concern to a fundamental, constitutional right and duty, making it a significant achievement of modern Indian law.

5. Discuss the desirability of greater representation for women in the higher judiciary to ensure diversity, equity and inclusiveness. (UPSC CSE 2021, GS Paper II)

   Answer Framework:

   • Introduction: Start with data on the low representation of women in the Supreme Court and High Courts. State that enhancing this representation is not just a matter of statistics but is crucial for ensuring diversity, equity, and inclusiveness in the justice delivery system.
   • Body (Desirability of Greater Representation):
     • Ensuring Equity and Fairness: A more diverse bench, reflecting the composition of society, is better equipped to understand the specific experiences of different sections, leading to more empathetic and just outcomes, especially in cases related to gender violence, family law, and discrimination.
     • Enhancing Public Trust: A judiciary that is representative of the population it serves inspires greater public confidence and legitimacy.
     • Promoting Inclusiveness: The presence of women judges creates a more welcoming and less intimidating environment for women litigants, lawyers, and staff within the court system.
     • Bringing a Different Perspective: Women judges can bring different life experiences and perspectives to the judicial process, enriching deliberations and the quality of jurisprudence. This is not to say they judge differently, but that their presence broadens the range of judicial thought.
     • Role Models: Senior women judges act as powerful role models, encouraging more women to join the legal profession and aspire for judicial office.
   • Conclusion: Conclude by stating that achieving greater representation for women in the higher judiciary is a constitutional imperative for realizing the goals of equality and justice. Suggest measures like transparent and inclusive collegium recommendations and creating a supportive ecosystem to address systemic barriers.