The lament about the failure to “secure for the citizens a UCC throughout the territories of India” as envisaged under Article 44 of the Constitution came as part of an important judgment delivered by a bench of Justices Deepak Gupta and Aniruddha Bose which held that the Portuguese Civil Code of 1867 would govern succession and inheritance of properties of Goans even if situated outside the state.
Writing the judgment for the bench, Justice Gupta said, “Goa is a shining example of an Indian state which has a uniform civil code applicable to all regardless of religion … Muslim men whose marriages are registered in Goa cannot practise polygamy. Further, even for followers of Islam, there is no provision for verbal divorce (triple talaq).”
Accepting senior advocate Devadatt Kamat’s arguments for petitioner Jose Paulo Coutinho, the bench ruled, “It will be the Portuguese Civil Code, 1867, as applicable to the state of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.” The SC ordered that properties of one Joaquim Mariano Pereira outside Goa be made part of the inventory being prepared for the purpose of succession and inheritance among his legal heirs.
In addition to deciding the main issue argued by Kamat, the bench delved into UCC and said, “It is interesting to note that whereas the founder of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the state shall endeavour to secure for the citizens a uniform civil code throughout the territories of India, till date no action has been taken in this regard.”
“Though Hindu laws were codified in the year 1956, there has been no attempt to frame a uniform civil code applicable to all citizens of the country despite exhortations of the Supreme Court in the cases of Shah Bano and Sarla Mudgal.”
The observation can provide an impetus to an already strong thinking in BJP that it was time the Modi government moved to frame a UCC. BJP has used apex court verdicts favouring a single civil code to sharpen its pitch for UCC, one of its core themes, and to attribute the political resistance to the “vote-bank politics” of its opponents.
The SC’s observation on Friday follows the success of BJP in criminalising triple talaq and extinguishing the special status for J&K, accomplishments which have whetted the Sangh Parivar’s appetite for more ideological triumphs.
Nearly 35 years ago, in the Shah Bano case, the SC had said, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.” In the Sarla Mudgal case, it had said, “When more than 80% of citizens have already been brought under codified personal law, there is no justification whatsoever to keep in abeyance anymore the introduction of a uniform civil code for all citizens.” In 2003, in the John Vallamattom case, the SC had again highlighted the desirability of achieving the goal set by Article 44 of the Constitution.
Article 44 is part of the Directive Principles, which, unlike fundamental rights, are not justiciable. However, BJP has invoked concerns about national integration and, increasingly lately, gender justice to demand that the issue can no longer be treated as a pious intent.