In the Constituent Assembly, Muslim members insisted that personal law was a part of their religion and that they would never submit to interference with their personal law (CAD) VII 541, 839. The suggestion to guarantee such inviolability was not, however, accepted. Even while Articles 25 and 26 in Part III of the Constitution guaranteed the fundamental right to freedom of religion, Article 44 was introduced in Part IV of the Constitution directing the state to establish a common civil code.

The Constitution gave no immunity to Muslim Personal Law as can be seen from the fact that the legislative power is conferred on Parliament to legislate on all matters in respect of which parties in judicial proceedings were immediately before the commencement of the Constitution subject to their personal law (Entry 5 of List III of 7th Schedule)

Is there a conflict between Articles 25 and 26 on the one hand and between the two and Article 44 on the other? Jurists and the courts agree that there is no conflict.

The question then is why even after 50 years, the Government has not been successful in enacting a uniform civil code. Even the Supreme Court had suggested such an enactment in several cases ... Following a protest by the majority community, the government (has) promised to introduce a uniform civil code in due course of time. It was also announced that such a code would be voluntary and not compulsory, making a mockery of Article 44.

It is unfortunate that the demand for a uniform civil code has been hijacked by the Hindu right to have a dig at the apparent contradictions in the Islamic Laws relating to marriage ...

In all the fiery debates on the need for enacting a Uniform Civil Code, the focus is always on the minority community. Will the majority community turn the search light inwards? There was a partial codification.of the Hindu law in the form of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1966, the Hindu Minority and Guardianship Act, 1966 and the Hindu Adoption and Maintenance Act, 1956.

Various schools of Hindu Law were sought to be unified and replaced with one uniform code for all Hindus of this country regardless of the school of scriptural law by which they would have otherwise been governed. While defending the presentation of the Hindu Code Bill, instead of a uniform civil code in Parliament in 1954, Jawaharlal Nehru said, "I do not think that at the present moment, the time is ripe in India for me to try to push it through".

The question why women are still discriminated against even under the Hindu Succession Act has not been answered. There is no uniformity with regard to succession and property right for women and their rights vary from State to State. Sections 29A, 29B and 29C of the Hindu Succession Act conferring rights on daughters in joint family property applied to the southern States and Maharashtra but not to the rest of India.

Kerala has abolished the concept of the Hindu Undivided Family. Jurists in tax laws have often to contend with various schemes for tax planning through the medium of HUF. Daughters enjoy better rights in the Southern School of Hindu Law even after partial codification of the Hindu law in 1956. The personal law is often invoked by all the communities in order to mitigate the rigours of taxation. It may be a good idea to start with a uniform tax code before attempting a uniform civil code.

The pluralist society comprising multi-ethnic lingual and religious communities will have to tolerate the different types of laws operating in respect of various segments. Before talking of a uniform civil code applicable to the whole of India, it will be nice to think of a uniform Hindu code applicable to the Hindus from Kashmir to Kanyakumari. Regimentation has its limits. A free society can trample on the customs and traditions of the minorities only at its own peril. (Source: The Hindu, 12 May, 1998)