In March,2018, I was called upon by the Law Commission of India to comment upon the impact of the decisions of the Supreme Court on Mitakshara Coparcenary upon the probable future drafting and implementation of a Common Civil Code. Those were the decisions in Uttam v. Saubhag Singh , AIR 2016 SC 1169, as also Ramesh Verma v. Lajesh Saxena AIR 2017 SC 494(following Uttam v. Saubhag Singh)where the Court in Uttam v. Saubhag Singh , which is the decision which I had been called upon to comment upon in context of a Uniform Civil Code, held , interpreting the old (unamended) section 6 of the Hindu Succession Act, that upon the death of a coparcener of a Mitakshara Coparcenary, there would be an actual partition and that the joint family would cease to exist as a result of such a partition. The perception of the then Law Commission was that since ,as per that decision, the Mitakshara Coparcenary came to an end as the fictional partition had to be acted upon, and an actual partition took place, it could possibly recommend that the joint Hindu family system could be abolished. I had disagreed with that decision in my commentary as revising author of Sir Dinshaw Mulla’s Hindu Law. In its later larger bench decision in Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1, which clarified the position that daughters would be coparceners whenever they were born, the court also held in conclusion that the statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted, did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I. Thus, the decision in Uttam v. Saubhag Singh has obviously and apparently been impliedly overruled by the larger Bench.
In my communication to the Law Commission, re: Uttam v Saubhag Singh,and in the context of a probable future Common Civil Code, I had pointed out that in Prafull Goradia v. Union of India AIR 2011 SC(Supp) 601,the Court said;
“23. Before parting with this case we would like to mention that India is a country of tremendous diversity, which is due to the fact that it is broadly a country of immigrants (like North America) as explained in detail by us in Kailas and Others v. State of Maharashtra, JT 2011 (1) 19 : (AIR 2011 SC 598). As observed in paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamaat, AIR 2008 SC 1892 : (2008 AIR SCW 2117) vide paragraphs 41 to 60). It is due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.
24. It may be mentioned that when India became independent in 1947 there were partition riots in many parts of the sub-continent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that …they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic State and hence there must have been tremendous pressure …to declare a Hindu State. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular State.
25. This is why despite all its tremendous diversity India is still united. In this sub-continent, with all its tremendous diversity (because 92 per cent of the people living in the sub continent are descendants of immigrants) the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc.”
In T.M.A Pai v. State of Karnataka AIR 2003 SC 355, the Supreme Court stated thus-
“Per B. N. Kirpal, CJI (for himself and on behalf of G. B. Pattanaik, S. Rajendra Babu, K. G. Balakrishnan, P.V. Reddi and Arijit Pasayat, JJ.) – The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.”
THE KESAVANANDA BHARTI CASE
In September,2020, upon the demise of His Holiness Kesavananda Bharti , I was invited to write an article in this newspaper , being a retrospect on the iconic and historic Kesavananda Bharti case, which dealt with the Basic Structure Doctrine. In the course of that article, I segued into the issue of the Common Civil Code. Some of that is reproduced as part of this article.
WHAT IS THE BASIC STRUCTURE?
The concept of basic structure is difficult to encapsulate. But what emerges from a perusal of the judgments of the Supreme Court is that some features of the Constitution lie at its core and are therefore sacrosanct. In the course of the hearing of Kesavananda’s case, and as emerges from the judgment, some concepts as set out by the judges are what the basic structure refers to. I refer to some of them here. Supremacy of the Constitution, secular character of the Constitution, separation of powers between the legislature, executive and the judiciary, essential features of the individual freedoms secured to the citizens, secularism and freedom of conscience and religion.
The arguments advanced by Mr.Palkiwala in the Minerva Mills case are worth reproducing in an encapsulated form. He argued that giving primacy to the Directive Principles over Fundamental rights, had the effect of demolishing the basic structure. According to him, principles stated in the Directive Principles could only be achieved through permissible means, without infringing the provisions of Part III of the Constitution.
The Court stated that to destroy the guarantees given by Part III (Fundamental Rights) in order to purportedly achieve the goals of Part IV (Directive Principles) is to plainly subvert the Constitution by destroying its basic structure. And so holding, the Court held that Sections 4 and 55 of the 42nd Amendment Act, 1976 to be ultra vires the Constitution of India.
PERSPECTIVE
To put this in perspective. the Basic Structure is the base upon which the edifice of our Constitution stands. The structure is seen in the form of Fundamental Rights. If laws are made which have the effect of altering or altogether doing away with the Basic Structure Doctrine, then it would be perceived as an attack upon the Basic Structure and would not stand judicial scrutiny.
To further comprehend this. Article 44 of the Constitution speaks of the State endeavouring to have a Common civil Code. It is a Directive Principle. Why does it appear as a Directive Principle? The framers of the Constitution and the Constituent Assembly were aware of the plurality of religions in the country. They were aware of the various uncodified laws that existed. They were aware of public sentiment and the possible impact of foisting upon the citizens such a code. Thus it was placed as a Directive Principle with the words..The state shall endeavour. If the observations of the Court over the decades on a possible Common Civil Code are read, it becomes abundantly clear that though desirable as per Article 44, a code may not be practicable in view of public sentiment. In Lily Thomas v. Union of India the Court stated that-” In another decision, namely, Pannalal Bansilal Pitti v. State of A.P. “, this Court had indicated that enactment of a uniform law, though desirable, may be counter-productive.
Dr. B. R. Ambedkar in the Constituent Assembly on 2nd December, 1948 at the time of making of the Constitution. While discussing the position of Common Civil Code, Dr. Ambedkar, inter alia, had stated in his speech that “. . . . . . . . . . . . .I should also like to point out that all that the State as claiming in this matter is a power to legislate. There is no obligation under the State to do away with personal laws. It is only giving a power. He further stated in his speech as under :”We must all remember …that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities’
The Constitution of our country gives us religious freedom. Our personal laws are woven around our diverse religions. That is a fundamental right. Thus even though the Common Civil Code is perceived in the Constitution, its practicability must be measured against public sentiment. It must also be looked at by the powers that be that we already have statutory personal laws in existence for many religions. If not in existence, they can be brought in by legislation for the religious denomination . In fact, the Law Commission of India itself in its report on the Common Civil Code stated that it was not desirable to do so.
The Law Commission came out with its report where it came out with some recommendations but did not recommend a Common Civil Code, having failed to gather consensus on it. My criticism of the report is available on https://www.barandbench.com/columns/law-commission-recommendations-changes-personal-laws-critique.
Dr. Upendra Baxi, in his recent article entitled ‘UCC: How do we fabricate uniformity in such diversity?’ stated that A compulsory UCC confronts complexities of great magnitude. Several other well known advocates and jurists have time and again expressed their reservations about a common code due to the complexities involved.
These complexities that have been adverted to above, are, according to me, well known. India is a country of many religions which enjoy the protection of the Basic Structure Doctrine as was expounded in the Kesavananda Bharti case. To deprive the various diverse religions of their religious and secular rights in not only a humongous task but also a daunting one coupled with the fact that secularism and religious freedom are protected by our Constitution. To do so would change the basic structure of the Constitution, as something that is impermissible , and thus probably mitigates against a Uniform Civil Code. In attempting to bring in a Uniform Civil Code, the powers that be will also be confronted with the second part of Article 13 of the Constitution, amongst others, which states that “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”.
In fact, in a recent petition before the Supreme Court, where the petitioner had prayed for a common law for all public trusts, to manage trusts, charitable institutions and religious endowments of all the communities, which the court refused to entertain, the bench said it could not ask Parliament to make a uniform law.
Passion to bring in a Common Civil Code cannot form the basis of uprooting the Basic Structure of the Constitution just because an unquestioning majority of the people do not question it, or are unconcerned or ignorant due to penurious circumstances , not perhaps realising the effects of such a step in a country like India, where our religious beliefs and by extension, also personal laws based upon religion enjoy the protection of the Constitution, which are ingrained in our very ethos, and which the High Courts, and especially the Supreme Court has very rightly, zealously protected .
The Constitution of our country gives us religious freedom. Our personal laws are woven around our diverse religions. That is a fundamental right. Thus even though the Common Civil Code is perceived in the Constitution, its practicability must be measured against public sentiment. It must also be looked at by the powers that be that we already have statutory personal laws in existence for many religions. If not in existence, they can be brought in by legislation for the religious denomination . In fact, the Law Commission of India itself in its report on the Common Civil Code stated that it was not desirable to do so.