A PROJECT

On

Judicial Precedent: Development for Uniform Civil Code

Jurisprudence

Supervised by Submitted by

Dr. Akhil kumar Mr. Amit Kumar

Faculty U.F.Y.L.C. Semester VI, Sec-A

Roll No. - 7

University Five Year Law College

University of Rajasthan, Jaipur

January, 2019
 DECLARATION

I, Amit Kumar, hereby declare that this project titled “Judicial Precedent, Development of
Uniform Civil Code” is based on the original research work carried out by me under the
guidance and supervision of “Dr. Akhil Kumar”.

The interpretations put forth are based on my reading and understanding of the original texts.
The books, articles, websites etc. which have been relied upon by me have been duly
acknowledged at the respective places in text.

For the present project which I am submitting to the university, no degree or diploma has
been conferred on me before, either in this or any other university.

Signature
Date:- 12/03/2019
Amit Kumar

Roll No.:- 07
Semester:- VI B
 ACKNOWLEDGEMENT

I have written this project “Judicial Precedent, Development of Uniform Civil Code”
under the supervision of Dr. AKHIL KUMAR. His valuable suggestions herein have not
only helped me immensely in making this project but also in developing an analytical
approach to this work. I would like to express my sense of gratitude to those who took
initiative to help me in making this project.

I am extremely grateful to the library staff and the librarian of the college for the support and
cooperation extended by them from time to time.

I am humbled by the support and cooperation I have got from my friends from time to time
and have enlightened me with their knowledge.

Amit Kumar

(iii)
Table of Contents

Page no.

Declration (ii)

Acknowledgement (iii)

Chapter – 1

An Introduction

1.1 Introduction

1.2 Research Methodology

Chapter – 2

Understanding the Project Topic

Chapter – 3

Conclusion

Bibliography
CHAPTER 1

An Introduction

1.1 Introduction

Judicial precedent is another important source of law. I t is a distinguishing feature of the

English legal system because most of the common law is unwritten and owes its origin to
judicial precedents. Precedents have a binding force on judicial tribunals for deciding similar
cases in future continental countries like Germany, France, and Italy, judicial precedent has
only instructive value and it is not authoritative. Its importance is no greater than that of a text
book of law. On the other hand, in English legal system it has authoritative importance, It is
in fact a legal source of law which the courts are bound to follow.1 The high quality of
English Judges, their working together in harmony and the power and prestige which they
enjoy as members of the Royal Court have contributed to the development of a single
homogenous system of common law in England where cases decided by the Judges command
great value and authoritative force. As rightly pointed out by JC Gray although the Courts do
not make laws but they fuel life into the dead words of statutes In According to Salmond, the
doctrine of precedent has two meanings namely, (1) in a loose sense precedent includes
merely reported case-law which may be cited and followed by the courts, (2) in its strict
sense, precedent means that case-law which not only has a great binding authority but must
also be followed. Holdsworth supports the doctrine in its loose sense. In recent years, the
value of the doctrine of precedent has become a debatable issue. There is no dissatisfaction
with the practice of citing cases and attaching weight to them, the difference of opinion is as
to the present practice of treating precedents as absolutely binding.

It is true that the common law countries new laws and law reforms have increasingly been
brought about through Acts of Parliament, usually inspired by the policies of the Government
of the day, but even then the development of case law still remains a potent source of law. A
statement of law made by a judge in a case can becomes the law for everyone to follow.
Whether or not a particular decision, i.e., precedent become binding depends on two main
factors namely-

(i) it must have been pronounced by court which is sufficiently senior; and
 (ii) It is only the ratio decidend, i.e., reasoning behind the decision which is binding.

1.2 Research Methodology

The researcher has used doctrinal method and relied only upon secondary sources of data to
prepare this project.

1.3 Objective

The objective to accomplish this project is:-

To understand the applicability of judicial precedent.

To understand how to use judicial precedent as an instrument to introduce a new law.
To understand how the judicial precedent will help in future to save the precious time
of the court.

1.4 Hypothesis

Work in the best interest of all the religion.

Progressive and broadminded outlook of UCC.
Uniformity of laws and to achieve the goals given in article 44 of the constitution.
Chapter 2

Understanding The Project Topic

2.1 Concept of Judicial Activism

The concept of judicial activism is thus the polar opposite of judicial restraint. Judicial
activism and judicial restraint are the two terms used to describe the philosophy and
motivation behind some judicial decision

2.1.1 Judicial Activism and Judicial Restraint

The Judiciary has been assigned active role under the constitution. Judicial activism and
judicial restraint are facets of that uncourageous creativity and pragmatic wisdom.
The concept of Judicial activism is thus the polar opposite of Judicial restraint. Judicial
activism and Judicial restraint are the two terms used to describe the philosophy and
motivation behind some judicial decision. At most level, judicial activism refers to a theory
of judgment that takes into account the spirit of the law and the changing times, while judicial
restraint relies on a strict interpretation of the law and the importance of legal precedent.
Meaning and Definition of Judicial Restraint and Judicial Activism

2.1.2Judicial Restraint

Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the
exercise of their own power. It asserts that judges should hesitate to strike down laws unless
they are obviously unconstitutional. Judicially-restrained judges respect stare-decisis, the
principle of upholding established precedent handed down by past judges.
Judicial restraint, a procedural or substantive approach to the exercise of judicial review. As a
procedural doctrine, the principle of restraint urges judges to refrain from deciding legal
issues, and especially constitutional ones, unless the decision is necessary to the resolution of
a concrete dispute between adverse parties. As a substantive one, it urges judges considering
constitutional questions to grant substantial deference to the views of the elected branches
and invalidate their actions only when constitutional limits have clearly been violated.
Compare judicial activism.
The courts should hesitate to use judicial review to promote new ideas or policy preferences.
In short, the courts should interpret the law and not intervene in policy-making.

Judges should always try to decide cases on the basis of:

1. The original intent of those who wrote the constitution.
2. Precedent – past decisions in earlier cases.
3. The court should leave policy making to others.

They “restrain” themselves from setting new policies with their decisions.
They make decisions strictly based on what the Constitution says.
2.1.3 Judicial Activism

The expression `judicial activism’ is often used in contrast to another expression `judicial
restraint’. Judicial activism is a dynamic process of judicial outlook in a changing society.
Arthur Schlesinger Jr. introduced the term "judicial activism" in a January 1947 Fortune
magazine article titled "The Supreme Court: 1947".

According to Black's Law Dictionary judicial activism is a " judicial philosophy which
motivate judges to depart from the traditional precedents in favour of progressive and new
social policies”.

In recent years law making has assumed new dimensions through judicial activism of the
courts. The judiciary has adopted a healthy trend of interpreting law in social context.
Judicial activism describes judicial rulings suspected of being based on personal or political
considerations rather than on existing law.

Sometimes judges appear to exceed their power in deciding cases before the Court. They are
supposed to exercise judgment in interpreting the law, according to the Constitution. Judicial
activists, however, seem to exercise their will to make law in response to legal issues before
the Court.
The question of judicial activism is closely related to constitutional interpretation, statutory
construction and separation of powers. It is sometimes used as an antonym of judicial
restraint.
Judges should act more boldly when making decisions on cases
1. Law should be interpreted and applied based on on-going changes in conditions and
values.
2. As society changes and their beliefs and values change, courts should then make decisions
in cases that reflect those changes.
According to the idea of judicial activism, judges should use their powers to correct
injustices, especially when the other branches of government do not act to do so. In short, the
courts should play an active role in shaping social policy on such issues as civil rights,
protection of individual rights, political unfairness, and public morality.

E.g.- of judicial activism are the decisions by the Indian Supreme Court in Maneka Gandhi’s
case as well as its decisions relating to Article 21 of the Indian Constitution, etc.

2.1.4 Trends in Judicial Restraint

There is broad (though not absolute) separation of powers in the Indian Constitution vide
Divisional Manager, Aravali Golf Course vs. Chander Haas, 2008. The Constitution of India
did not provide for the judiciary to be a super legislature or a substitute for the failure of the
1
othe2r two organs. Thus, the need arises for the judiciary to lay down its own limitations.

1. Aravali Golf Course vs. Chander Haas, 2008., 2. State of Rajasthan v Union of India.
3. S.R. Bommai v Union of India. , 4.Almitra H. Patel Vs. Union of India.
One of the examples of judicial restraint is the case of State of Rajasthan v Union of India, in
which the court rejected the petition on the ground that it involved a political question and
therefore the court would not go into the matter.

In S.R. Bommai v Union of India The judges said that there are certain situations where the
political element dominates and no judicial review is possible.
The exercise of power under Art.356 was a political question and therefore the judiciary
should not interfere. Ahmadi J. said that it was difficult to evolve judicially manageable
norms to scrutinize the political decisions and if the courts do it then it would be entering the
political thicket and questioning the political wisdom, which the court must avoid.

In Almitra H. Patel Vs. Union of India, where the issue was whether directions should be
issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that
it was not for the Supreme Court to direct them as to how to carry out their most basic
functions and resolve their difficulties, and that the Court could only direct the authorities to
carry out their duties in accordance with what has been assigned to them by law.

Justice A.S. Anand former Chief Justice of India, in a public lecture cautioned that with a
view to see that judicial activism does not become “judicial adventurism”, judges need to be
circumspect and self- disciplined in the discharge of their judicial functions. The worst result
of judicial activism is unpredictability. Unless judges exercise self-restraint, each judge can
become a law unto him and issue directions according to his personal fancies, which will
create chaos. Reservations have been expressed in many quarters about some very recent
decisions of the Supreme Court.

The Indian Supreme Court, while conservative in the initial years, had later a burst of judicial
activism through the social philosophies of Justice Gajendragadkar, Krishna Iyer, P.N.
Bhagwati, etc. who in the garb of interpretation of Articles 14, 19 and 21 of the Indian
Constitution created a host of legal norms by judicial verdicts.
Part III of the Indian Constitution enumerates certain Fundamental Rights which are
enforceable e.g. freedom of speech, liberty, equality, freedom of religion, etc.

On the other hand Part IV called the Directive Principles of State Policy contain certain
socio-economic ideals e.g. right to work, to education, to a living wage, to health etc. which
though unenforceable are ideals which the State is directed to strive for. Though Article 37
states that these Directive Principles are unenforceable, the Indian Supreme Court has
enforced many of them often by reading them into certain Fundamental Rights e.g. in
Unnikrishan’s case the right to education was read into Article 21.

2.1.5 Judicial activism in Indian scenario

The Indian Constitution, promulgated in 1950, largely borrowed its principles from Western
models – parliamentary democracy and an independent judiciary from England, the
Fundamental Rights from the Bill of Rights, and federalism from the federal structure in the
U.S. Constitution, and the Directive Principles from the Irish Constitution. These modern
principles and institutions were borrowed from the West and then imposed from above on a
semi-feudal, semi-backward society in India.
The Indian judiciary, being a wing of the State, has thus played a more activist role than its
U.S. counterpart in seeking to transform Indian society into a modern one, by enforcing the
modern principles and ideas in the Constitution through Court verdicts.
In the early period of its creation the Indian Supreme Court was largely conservative and not
activist. In that period, which can broadly be said to be up to the time Justice Gajendragadkar
became Chief Justice of India in 1964, the Indian Supreme Court followed the traditional
British approach of Judges being passive and not activist. There were very few law creating
judgments in that period.

Justice Gajendragadkar, who became Chief Justice in 1964, was known to be very pro-labour.
Much of the Labour Law which he developed was judge made law e.g. that if a worker in an
industry was sought to be dismissed for a misconduct there must be an enquiry held in which
he must be given an opportunity to defend himself.

In 1967 the Supreme Court in Golakh Nath v. State of Punjab, held that the fundamental
rights in Part III of the Indian Constitution could not be amended, even though there was no
such restriction in Article 368 which only required a resolution of two third majorities in
both Houses of Parliament. Subsequently, in Keshavanand Bharti v. State of Kerala, a 13
Judge Bench of the Supreme Court overruled the Golakh Nath decision but held that the
basic structure of the Constitution could not be amended. As to what precisely is meant by
`basic structure’ is still not clear, though some later verdicts have tried to explain it. The point
to note, however, is that Article 368 nowhere mentions that the basic structure could not be
amended. The decision has therefore practically amended Article 368.A large number of
decisions of the Indian Supreme Court where it has played an activist role relates to Article
21 of the Indian Constitution, and hence we are dealing with it separately.

2.1.5.1 Article 21 and Judicial Activism

Article 21 states: “No person shall be deprived of his life or personal liberty except according
to procedure established by law.”

In A.K. Gopalan v. State of Madras, the Indian Supreme Court rejected the argument that to
deprive a person of his life or liberty not only the procedure prescribed by law for doing so
must be followed but also that such procedure must be fair, reasonable and just. To hold
otherwise would be to introduce the due process clause in Article 21 which had been
deliberately omitted when the Indian Constitution was being framed.
3

However, subsequently in Maneka Gandhi v. Union of India, this requirement of substantive

due process was introduced into Article 21 by judicial interpretation. Thus, the due process
clause, which was consciously and deliberately avoided by the Constitution makers, was
introduced by judicial activism of the Indian Supreme Court.

5.Golakh Nath v. State of Punjab, 6.Keshavanand Bharti v. State of Kerala, 7.A.K. Gopalan v. State of Madras
8.Maneka Gandhi v. Union of India, 9.Francis Coralie vs. Union Territory of Delhi,

10.R. Rajagopal Vs. State of Tamil Nadu, 11.Kapila Hingorani Vs. Union of India, 12.Asiatic Lions vide Centre
for Environmental Law V. Union of India,13.Ajay Bansal vs Union of India
Another great arena of judicial activism was begun by the Indian Supreme Court when it
interpreted the word `life’ in Article 21 to mean not mere survival but a life of dignity as a
human being.

Thus the Supreme Court in Francis Coralie vs. Union Territory of Delhi held that the right to
live is not restricted to mere animal existence. It means something more than just physical
survival. The Court held that:“… the right to life includes the right to live with human dignity
and all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in
diverse forms, freely moving about and mixing and comingling with fellow human beings.”

The ‘right to privacy’ which is a new right was read into Article 21 in R. Rajagopal Vs. State
of Tamil Nadu. The Court held that a citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child bearing and education, among other
matters.

The Supreme Court also ruled that the right to life guaranteed under Article 21 includes the
right to livelihood as well. The right to food as a part of right to life was also recognised in
Kapila Hingorani Vs. Union of India whereby it was clearly stated that it is the duty of the
State to provide adequate means of livelihood in the situations where people are unable to
afford food. The Court has also held that the right to safe drinking water is one of the
Fundamental Rights that flow from the right to life. Right to a fair trial, right to health and
medical care, protection of tanks, ponds, forests etc. which give a quality life, right to Family
Pension, right to legal aid and counsel, right against sexual harassment, right to medical
assistance in case of accidents, right against solitary confinement, right against handcuffing
and bar fetters, right to speedy trial, right against police atrocities, torture and custodial
violence, right to legal aid and be defended by an efficient lawyer of his choice, right to
interview and visitors according to the Prison Rules, right to minimum wages etc. have been
ruled to be included in the expression of ‘right to life’ in Article 21.

Recently the Supreme Court has directed providing a second home for Asiatic Lions vide
Centre for Environmental Law V. Union of India (writ petition 337/1995 decided on
15.4.2013) on the ground that protecting the environment is part of Article 21. The right to
sleep was held to be part of Article 21 vide In re Ramlila Maidan (2012) S.C.I.1.

In Ajay Bansal vs Union of India , Writ Petition 18351/2013 vide order dated 20.6.2013 the
Supreme Court directed that helicopters be provided for stranded persons in Uttarakhand.

Thus we see that a plethora of rights have been held to be emanating from Article 21 because
of the judicial activism shown by the Supreme Court of India. However there can be grave
reservations about some of these orders. One wonders whether there will be any limit to the
number of such rights created by court orders.

In a subsequent decision, Bhagwan Dass Vs. State (NCT) of Delhi, 2011(5) Scale 498, again
authored by the writer, the Supreme Court mandated death sentence for `honour killing’ i.e.
killing of young men and women who married outside their caste or religion, or in their same
village, thereby `dishonouring’ the parents or their caste.
The most recent case on judicial activism was the case of Aruna Ramchandra Shanbaug Vs.
Union of India and Others,Aruna Shanbaug, a nurse in 1973, while working at a Hospital at
Mumbai, was sexually assaulted and has been in a permanent vegetative state since the
assault. In 2011, after she had been in this status for 37 years, the Supreme Court of India
heard the petition to the plea for euthanasia filed by a social activist claiming to be Aruna’s
friend. The Court turned down the petition, but in its landmark judgment (authored by the
writer) it allowed passive euthanasia i.e. withdrawal of life support to a person in
permanently vegetative state, subject to approval by the High Court.

2.1.6 Judicial Activism vs. Judicial Restraint

The difference between judicial activism (“loose constructionist”) and “judicial restraint
(“strict constructionist”). These are ways of interpreting the Constitution. A judge who is a
strict constructionist might rule in cases in a way that reads the Constitution very literally or
relies on the original intent of the framers. A judge that is a judicial activist might rule in a
very broad manner that takes into account how times have changed since 1787.

Judicial Activism and Judicial Restraint are two opposite approaches. Judicial activism and
judicial restraint, which are very relevant in the United States, are related to the judicial
system of a country, and they are a check against the fraudulent use of powers of the
government or any constitutional body.

1. Judicial activism is the interpretation of the constitution to advocate contemporary values

and conditions.

On the other hand, judicial restraint is limiting the powers of the judges to strike down a law.

2. In the judicial restraint, the court should upload all acts of the congress and the state
legislatures unless they are violating the constitution of the country.

In judicial restraint, the courts generally defer to interpretations of the constitution by the
congress or any other constitutional body.

3. In the matter of judicial restraint and judicial activism, the judges are required to use their
power to correct any injustice especially when the other constitutional bodies are not acting.
This means that Judicial activism has a great role in formulating social policies on issues like
protection of rights of an individual, civil rights, public morality, and political unfairness.

4. Judicial activism and judicial restraint have different goals.

4

Judicial restraint helps in preserving a balance among the three branches of government,
judiciary, executive, and legislative. In this case, the judges and the court encourage
reviewing an existing law rather than modifying the existing law.

4
14.Bhagwan Dass Vs. State (NCT) of Delhi, 2011, 15.Aruna Ramchandra Shanbaug Vs. Union of India and
Others,Aruna Shanbaug,
5. When talking about the goals of judicial activism, it gives the power to overrule certain
acts or judgments.

e.g., the Supreme Court or an appellate court can reverse some previous decisions if they
were faulty. This judicial system also acts as checks and balances and prevents the three
branches of government, judiciary, executive and legislative from becoming powerful.

6. Judicial activism is the interpretation of the constitution to advocate contemporary values

and conditions.

Judicial restraint is limiting the powers of the judges to strike down a law. In judicial
restraint, the court should upload all acts of the congress and the state legislature unless they
are violating the constitution of the country.

7. In Judicial activism, the judges are required to use their power to correct any injustice
especially when the other constitutional bodies are not acting. Judicial activism has a great
role in formulating social policies on issues like protection of rights of an individual, civil
rights, public morality, and the political unfairness.

8. Judicial restraint Judges should look to the original intent of the writers of the Constitution.

Judicial activism judges should look beyond the original intent of the framers (after all they
were mere humans too and not infallible to making mistakes).

9. Judicial restraint Judges should look at the intent of the legislatures that wrote the law and
the text of the law in making decisions any changes to the original Constitution language can
only be made by constitutional amendments.

2.2 Development of Uniform civil Code

As all we know that in the biggest democracy of this world is under developing process,
which actually means not only the economical, technological and other things but also in
implementing and developing new laws for the betterment of the society. But the decades
have been passed but the UCC has not been implemented in this largest democracy of this
world. The UCC has not implemented in this country does not means that there is no
existence of UCC.

2.2.1 Understanding the Uniform Civil Code

Article 44 of The Constitution of India, provides that ‘The State shall endeavor to secure for
the citizens a Uniform Civil Code throughout the territory of India’. After over six decades,
this anticipated code has not been developed or implemented. This book provides a blueprint
for alternative frameworks and courses of action, drawing on lessons from comparative
context to develop a Uniform Civil Code for India. It explores the interplay between issues of
law, culture, and religion in light of various intra-community and inter-community disputes.
The book proposes a series of guidelines and considerations to inform this process. The
proposed blueprint derives guidance from the experience of other nations and the many ways
in which they have faced the challenge of introducing a civil code and maintaining respect for
local community laws and social customs. The blueprint also focuses on the relationships
between religion and the state. This set of proposals should alleviate the suspicion of the
Muslim community or the Hindu majority community. A Uniform Civil Code can be
developed to achieve two simultaneous objectives: to maximize the sustainability of
traditions and community values while also reinforcing constitutional values that prevent
discrimination and, in particular, unfair practices to girls and women in a democratic country.

2.2.2 Hurdles for UCC

As all we know that this country has heterogeneous society and because of this heterogeneous
society there are heterogeneous personal laws and these personal laws are the hurdles for the
implementation of the UFC. If there is non-existence of such heterogeneity of law and
societies then only the complete implementation of the UFC is possible.

2.2.3 Aim and Merits of the UCC

If a Common Civil Code is enacted and enforced:

 It world help and accelerate national integration;

 Overlapping provisions of law could be avoided;
 Litigation due to personal law world decrease;
 Sense of oneness and the national spirit would be roused, and
 The country would emerge with new force and power to face any odds finally
defeating the communal and the diversionist forces.

Israel, Japan, France and Russia are strong today because of their sense of oneness which we
have yet to develop and propagate.

India has set before itself the ideal of a secular society and in that context achievement of a
uniform civil code becomes all the more desirable such a code will do away with diversity in
matrimonial laws, simplify the Indian legal system and make Indian society more
homogeneous. It will de-link law from religion which is a very desirable objective to achieve
in a secular and socialist pattern of society. It will create a national identity and will help in
containing fissiparous tendencies in the country .The uniform civil code will contain uniform
provisions applicable to everyone and based on social justice and gender equality in family
matters.

According to the Committee on the Status of Women in India: “The continuance of various
personal laws which accept discrimination between men and women violate the fundamental
rights and the Preamble to the Constitution which promises to secure to all citizens “equality
of status, and is against the spirit of natural integration”? The Committee recommended
expeditious implementation of the constitutional directive in Art 44 by adopting a Uniform
Civil Code.
Approach of the Judiciary:

The Supreme Court for the first time, directed the Parliament to frame a UCC in the year
1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum , popularly known as the
Shah Bano case, In this case, a penurious Muslim women claimed for maintenance from her
husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq
from him. The Supreme Court held that the Muslim woman have a right to get maintenance
from her husband under Section 125. The Court also held that Article 44 of the Constitution
has remained a dead letter. The then Chief Justice of India Y. V. Chandrachud observed that,

( Shah Bano Case in detail : The Shah Bano case of 1985 was a test case of all the above
principles. In this case Shah Bano, a Muslim women and wife of Mohammad Ahmad Khan
filed a petition at a local court in Indore, against her husband under section 125 of the Code
of Criminal Procedure, asking him for a maintenance amount for herself and her children.

Husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic
law and took up the defence that since Shah Bano had ceased to be his wife and therefore he
was under no obligation to provide maintenance for her as except prescribed under the
Islamic law which was in total Rs. 5400. The issue was finally taken up by Supreme Court
and it decided it in favour of Shah Bano using secular Criminal Procedure Code regardless of
religion.

Shah Bano case was landmark case for many reasons:

• It showed the aspirational and progressive character of Muslim women and other
sections of Muslim society, who were ready to challenge the religious orthodoxy.

• It brought into focus the plight of the Muslim women, the discrimination they has to face
in matters related to marriage.

• It showed that the laws of the land which are secular in character will take precedence
over the religiously ordained customs and personal laws.

• It was triumph of the principle of social justice.

• It was a step in the direction of implementation of UCC and

• Most important of all it raised a debate about the rights of women, application of
principle of equality. The debate engulfed civil society, religious groups, legislature and
common man and nothing can be more fruitful in a democracy than a debate.

In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of
Rights on Divorce) Act, 1986, that nullified the Supreme Court's judgment in the Shah Bano
judgment. Diluting the Supreme Court judgment, the act allowed maintenance to a divorced
woman only during the period of iddat, or till 90 days after the divorce, according to the
provisions of Islamic law. When the judgment was overturned by Parliament it showed:
• That political populism still dominates over rational principles based on equality, human
rights and social justice. It showed that it was not only the sentiments of religious minorities
but the absence of political will also that prevents the implementation of UCC.

• The judgment has left a bitter legacy, which prevents further reforms on UCC because of
fear of political backlash.

Conflict between secularism, UCC and freedom of religion

The case brought into focus issue of conflict between secularism, UCC and freedom of
religion. During the proceedings of case the Islamic groups sighted the judgment as an
instance of attack on their religious freedom and their right to their own personal religious
laws. Secularism as a principle with western interpretation -'non-interference by the state in
religious matters' - was used to mobilize support against the judgment.

It raised the question whether secularism, freedom of religion are in conflict with UCC?

When the Preamble of Indian Constitution declares India a 'secular' state it means that state is
only concerned with the relation of man with fellow man, man with state and not of man with
God. He is free to choose his own God, practice the principles of the religion. The Indian
doctrine of secularism does not mean absolute non-interference but principled distance from
the religion. Thus implementation of Article 44 is under the provision of secularism.

Article 44 is based on the concept that there is no necessary connection between religion and
personal law in a civilized society. Marriage, succession and like matters are of secular nature
and, therefore, law can regulate them.

The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said,

"Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even
the slightest of deviation shakes the social fiber. But religious practices, violate of human
rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not
autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the
oppressed and for promotion of national unity and solidarity."

Importance of Uniform civil Code

· Uniform Civil Code will in the long run ensure Equality. Also, UCC will help to
promote Gender equality.

· It will lead to national integration and draw minorities into the mainstream.

· It will encourage communal harmony. )

“A common civil code will help the cause of national integration by removing disparate
loyalties to law which have conflicting ideologies”?

After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv
Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women
(Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for
maintenance under Section 125 of the Code of criminal Procedure. The explanation given for
implementing this Act was that the Supreme Court had merely made an observation for
enacting the UCC; not binding on the government or the Parliament and that there should be
no interference with the personal laws unless the demand comes from within.

In Mary Roy v. State of Kerala, the question argued before the Supreme Court was that
certain provisions of the Travancore Christian Succession Act, 1916, were unconstitutional
under Art. 14 Under these provisions, on the death of an intestate, his widow was entitled to
have only a life interest terminable at her death or remarriage and his daughter. It was also
argued that the Travancore Act had been superseded by the Indian Succession Act, 1925. The
Supreme Court avoided examining the question whether gender inequality in matters of
succession and inheritance violated Art.14, but , nevertheless, ruled that the Travancore Act
had been superseded by the Indian Succession Act Mary Roy has been characterized as a
“˜momentous’ decision in the direction of ensuring gender equality in the matter of
succession.

Finally, the Supreme Court has issued a directive to the Union of India in Sarla Mudgal v.
Union of India to” endeavour”? Framing a Uniform Civil Code and report to it by August,
1996 the steps taken. The Supreme Court opined that: “Those who preferred to remain in
India after the partition fully knew that the Indian leaders did not believe in two- nation or
three “nation theory and that in the Indian Republic there was to be only one nation- and no
community could claim to remain a separate entity on the basis of religion”?.

It is, however, to be noted what the Supreme Court expressed in Lily Thomas case. The Court
said that the directives as detailed in Part IV of the Constitution are not enforceable in courts
as they do not create any justiciable rights in favour of any person. The Supreme Court has no
power to give directions for enforcement of the Directive Principles. Therefore to allay all
apprehensions, it is reiterated that the Supreme Court had not issued any directions for the
codification of a Common Civil Code.

The Supreme Court’s latest reminder to the government of its Constitutional obligations to
enact a UCC came in July 2003 , when a Christian priest knocked the doors of the Court
challenging the Constitutional validity of Section 118 of the Indian Succession Act. The
priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating the Section
118 of the said Act was discriminatory against the Christians as it imposes unreasonable
restrictions on their donation of property for religious or charitable purpose by will. The
bench comprising of Chief justice of India V.N.Khare, Justice S.B. Sinha and Justice A.R.
Lakshamanan struck down the Section declaring it to be unconstitutional. Chief justice Khare
stated that,

“We would like to State that Article 44 provides that the State shall endeavour to secure for
all citizens a uniform civil code throughout the territory of India it is a matter of great regrets
that Article 44 of the Constitution has been given effect to. Parliament is still to step in for
framing a common civil code in the country. A common civil code will help the cause of
national integration by removing the contradictions based on ideologies”?.

Thus, as seen above, the apex court has on several instances directed the government of
realize the Directive Principle enshrined in our Constitution and the urgency to do so can be
inferred from the same

Conclusion

 The hypothesis of the researcher is correct by studying and analyzing from various
sources.

 That UCC`s aim is in order to promote the spirit of uniformity of laws and accomplish
the objectives enshrined in Art.44 of the Constitution.
 A progressive and broadminded outlook is needed among the people to understand the
spirit of such code. For this, education, awareness and sensitization programmes must
be taken up.
 The Uniform Civil Code should act in the best interest of all the religions
 Bibliography

Pandey Dr. J.N, Constitutional Law of India, 50th edition

http://en.wikipedia.org/wiki/judicialrestraint
Paranjapee “ Jurisprudence And Legal Theory”.. Page No-438

Dias R.W.M.,Jurisprudence,Fifthe Edition,..126

Lighthouse.mhs-la.org/…/19
AIR 1978 SC 593
AIR 1977 SC 1361
(1994) SCC 1
(1993 ) SCC 645
AIR 1967 SC 1643
AIR 1973 SC 1461
AIR 1950 SC 27
AIR 1978 SC 597
AIR 1978 SC 597
(1994) 6 SCC 632
AIR 2011 SC 1290