Introduction

The Supreme Court of India has yet again asked the Union government to file an affidavit and state whether it intended to bring Uniform Civil Code (UCC for brevity). It observed “It is a matter of regret that Article 44 of the Constitution has remained a dead letter”.

Article 44 is included in Part IV of the Constitution, which is about Directive Principles of State Policy. Provisions of Part IV are merely guiding principles and cannot be enforced by courts. The Supreme Court has ignored other provisions of Part IV, which include that the state shall strive to secure a social order in which justice — social, economic and political — shall inform all the institutions of national life; that the state shall strive to minimize inequalities in income; that operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; etc. These guiding principles are far more important today as the government of the day is ignoring these provisions. One wishes that the Supreme Court had made the government file an affidavit and asked what laws and policies did the state want to bring in to give effect to objectives ofjustice and equality in Part IV of the Constitution.

The Supreme Court wants to do away in one stroke the practices of centuries. Till the passage of The Muslim Personal Law (Shariat) Application Act, 1937, (hereinafter, “The Shariat Act” for brevity), Muslims in India were governed by diverse customary and religious laws.

In NWFP, Hindu customary law in succession and other matters were in vogue till 1939 when Central Legislature abrogated application of Hindu Laws to Muslims of NWFP and applied Shari’a Law to them. Till 1937, in United Provinces, Central Provinces and Bombay, Muslims to a large extent were gov­erned by Hindu Law in matter of succession. Marumakkathayam Law applied not only to Hindus but also to Muslims in the North Malabar. Marumakkathayam Law is matrilineal practice.

Customary practices were too varied to comprehend for the colonial state and therefore more reliance was placed on scriptures. Manusmriti was translated in 1776. Charles Hamilton, under directions of Hastings, translated the Hedaya (The Guide) from Arabic into English in 1791 but it was abandoned halfway. However, after the 1857 rebellion, the Crown declared, that all those in authority under it would “abstain from all interference with the religious belief or worship of any of our subjects”. Thus the Colonial state unified the criminal laws, taxation and commercial law, but by and large refrained from interfering in family laws unless thought politically expedient.

Women leaders of the nationalist movement demanded comprehensive code regulating marriage, divorce and inheritance. Kamaladevi Chattopadhyay, Sarojini Naidu, Muthulaxmi Reddy, and Begum Shah Nawaz of All Indian Women’s Conference supported uniform code during their convention in 1933.² With the Government of India Act, 1935, Hindu and Muslim leaders pressed for law reforms to elevate the position of women. While introducing the bill — Hindu Women’s Right to Property Act, 1937 — Dr G V Deshmukh said that it was necessary to set right the colonial interpretation of “limited estate” and “reversion” to widows. M H M Abdullah, who introduced The Application of Shariat Act, 1937, said, “[t]he bill aims at securing uniformity of laws among Muslims in all their social and personal relations.... It also recognizes and does justice to the claims of women for inheriting family property who under custom­ary law are debarred from succeeding to the same”.

II.