Sk. Amer Arafath
It is a part of DPSP (Directive principles of State Policy).DPSPs are the set of rules how a govt should function, mentioned in Part IV of the Indian Constitution from Articles (36-51). These are for socio-economic and political rights of a democratic state.
The Fundamental Rights are defined as basic civil liberties, mentioned in Part III of the Indian Constitution from Articles (12-35). It says that every Indian citizen has the right to enjoy for a proper and harmonious development of personality including Right to Religion (Article 25). These rights universally apply to all citizens, irrespective of race, place,caste,sex,Creed, etc.
Ever Since the Constitution came into force (26th January 1950) there was conflict between DPSPs and Fundamental rights of citizens. In Champakam Dorairajan vs State of Madras (AIR 1951, SC 226), the honorable Supreme Court of India held that DPSPs are subordinate to Fundamental rights and if there any conflicts arises between them,the latter prevails over the former. Moreover, after the (Mumbai Kamgar sabha,Bombay vs Abdul bhai Faizulla & others, AIR 1975 SC 1455), the honorable Supreme Court propounded the Theory of Harmonisation. The essence of this theory is that if a law passed by a state giving effect to one or more DPSP capable of giving one or more interpretation which leads to DPSP being in harmony with Fundamental rights and other interpretation leads to a conflict between them, then the Court should prefer the first interpretation(harmony) and validate the law.
In Golaknath Case 1967, SC said Fundamental rights are sacrosanct in nature and can’t be taken away by any law. Finally after Kesavananda Bharti vs State of Kerala case(1973), the larger bench of Supreme Court (13 jurists) laid certain principles of Indian Constitution are inviolable and can’t be taken away by the Parliament (any law) and is commonly termed as the basic structure. The Secularism is very part of the basic structure.
After many rulings, finally the present situation is that Fundamental rights have upper hand with DPSPs slightly with an exception that Article 14 & Article 19 can be neglected for DPSPs (Article 39-b and Article 39-c) to some extent.I hope the hon’ble SC gives upper hand to the Article 25 over Article 44 in its decision.
Moreover, it is not acceptable to get into the personal laws of any religion because we are a secular state. We can’t compare other nations with India because India is a world within itself and home to many religions, tribes, races, ethnicity, etc. All of us practises different religious customs and traditions..By making UCC,we can’t infringe on the internal matters of any religion & it is better for India to do away with the UCC.
Example:
We can’t force anyone to apply tilak on forehead.Similarly, we can’t force anyone to wear skullcap. UCC indirectly is like imposing one law which will be chauvinist to majority and anti-chauvinist to the minorities & Dalits which leads to communal,ethnic & regional outcries.Further,we have to give special rights to Nagas and other North-eastern tribes.How come we confer them special rights if we implement uniform civil code and that areas come under 6th schedule. If you are about to change any part in 6th schedule,there should be amendment done to the Constitution with special majority of 75% of both houses and ratification of half of the states.It is a very complicated process.
Finally, if AIMPLB is really concerned about Muslim community then it must come forward and work against mal practises in Marriage, Divorce and Inheritance of property as per Quranic teachings. It shouldn’t encourage dowry and triple talaq .In rarest of rare case, divorce should be done.Since 1986 (Shah Bano Case) this issue have been the bone of contention between successive govts and Muslim Personal Law Board .!! The BJP is making this issue only to win forthcoming UP elections.