Our legal system has mainly been derived from Hindu Principles,Islamic law and British System(Common law system).Hindu principles were mainly derived from Vedas and Puranas though Manu Smriti is considered to be first law book. And Kings (Sovereign )usually did not interfere in personal laws of people. Local customs and traditions were part of legal system.
During Muslim rule , Islamic laws were enacted but Hindus were allowed to practice their own customs,practices and traditions and as a matter of fact Muslim personal laws were never imposed on others, though forceable conversions did happen at large scale.Although Muslims were bound by Quran and Islamic law , in practice Muslim rulers did not strictly enforced Islamic law.
During British period also the Britishers did not interfere into the personal laws of citizens.Since they had initially to trade and exploit Natural resources of India gradually they consolidated their power and subsequently changed criminal law and injected their own system in civil laws.
An attempt was made codify the personal laws by Britishers during their last years. Although, First Law Commission was appointed in 1834 but some legislative enactments could be made around 1860s such as Marriage Dissolution Act, 1866 and Indian Divorce Act 1869. For Muslims, on the suggestion of Sir Syed Ahmad Khan, Britishers enacted Kazis Act 1881 for appointing Kazis. Several others laws were also enforced.
The whole history of personal laws proves that they were influenced by change of time to some extents and Britishers introduced their system gradually but left personal laws untouched.
Post framing and adoption of the Constitution of India Art 44 was introduced which state “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Dictionary meaning of word Endeavour: try to do something…clearly indicates it is not mandatory but should try to bring forth a concensus.Otherwise also the only way to bring forth a new law in this case code is to get it through legislation ; thus concensus becomes important .
The object of this article is to introduce a uniform personal law for purpose of national consolidation. It proceeds on the assumption that there is no necessary connection between religion and personal law in a civilized society . While the Constitution guarantees freedom of conscience and of religion (Art25),it seeks to divest religion from personal law and social relations and from laws governing inheritance ,succession and marriage.
What is a civil code?
In thie present context it refers to what is known by the expression civil law,which means the law substantive as well as procedural relating to private rights of citizens in relation to each other .Though art 44 does not define the meaning of the expression civil code it is to be deduced from other provisions.
Dr Ambedkar explained in the constituent assembly ” in fact the bulk of items of civil law have already been codified during the British rule and the only items remaining for s uniform code are marriage and divorce and inheritance , succession.”
What is personal law?
Personal law means the law that governs a person’s family matter .
It is very important to examine the rights of minorities , which figured prominently in the constituent assembly . Framers of Constitution were deeply concerned to ensure full and meaningful protection to members of minority communities individually and collectively . The minority communities particularly Muslims , Sikhs and Christians were apprehensive that there civil and political rights maybe ridden roughshod by the majority community despite the secular pretensions of independent India.In the initial stages the minorities insisted that the system of seperate electorates should be continued as in past but most of the leaders opposed this demand because separate electorates were incompatible with goal of secular India.At the same time some method had to be found by which minorities were not ignored and swamped. A popular legislature swayed by passion and prejudice may well trample upon the rights of the minorities and was unlikely to bet in mind what according to Jefferson was the sacred principle that
A)though the will of majority is in all cases to prevail that will, to be rightful , must be reasonable;and
B) the minorities possess their equal rights which equally the law must protect and to violate which would be oppression.
Accordingly safeguards were guaranteed to the minorities and were incorporated in chapter of fundamental rights with a view to instilling in them a sense of confidence and security.
The minorities accepted the pledge of Sardar Patel that “our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction .”The result was that the minorities gave up their claims for separate electorates.
It is in this background that Art 25 to Art 30 were enacted in our constitution. In the words of Justice Khanna ‘ These provisions enshrined a befitting pledge to the minorities in the constitution of the country shoes greatest son had laid down his life for the protection of the minorities. As long as the Constitution stands as it is today , no tampering with those rights can be countenanced. Any Attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible .”
Now let us now examine obligations of state in accordance to the inInternational law:
The historic UN Declaration on the Rights of persons belonging tob National or ethnic religious and linguistic minorities was accepted by General assembly without any member voting against it in 1992.
Art 4(1) of the declaration of 1992 requires the signatory states to take measures which reqd to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before law. Art 4(2) further obliges the states to take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture , language , , religion , traditions and customs.
It is clarified by Art 8(3) that these measures shall not prima facie bee considered contrary to the principle of equality.
Neither the History nor the Constitution or tenets of international laws bind us to impose UCC unless all concerned parties agree upon