m o d u l e – 3 (3.

4)
INTRODUCTION TO IMPORTANT CONSTITUTIONAL PROVISIONS

RESERVATION
• Reservation Policy in India is a process of reserving a certain percentage of seats (maximum
50%) for the weaker sections of the society in Government educational institutions, government
jobs, etc. The term weaker section includes the people of the country who are socially,
economically, and educationally backward due to lack of resources and the prevalent caste system
in Indian society.
• Also known as affirmative action, the reservation can also be seen as positive discrimination.
Reservation in India is a government policy, backed by the Indian Constitution (by means of
various amendments).
• Reservations were put in place in the Indian constitution, immediately after independence, as a
means to recognize the historical injustice meted out to the people belonging to backward groups
and to implement provisions by which they would have better access to resources and
opportunities.
• Reservations in India were introduced:
➢ To rectify the past and historical injustice against the backward classes in India.
➢ To ensure that equal representation can be seen from people belonging to all castes in the
services under the state and centre.
➢ To provide an equal platform for everyone irrespective of their caste.
➢ To promote and advance the backward classes.

RESERVATION POLICY IN ANCIENT AND MODERN CONTEXT

1. Ancient Context
• In ancient times, the Hindu society was divided on the basis of Varna, Jatis, or classes and they
were as follows in the descending order of their social hierarchy- the Brahmans, the Kshatriyas,
the Vaisyas, and the Shudras. There was another class of people or rather no class people known
as “untouchables” or “avarna” that is who has no class. These untouchables were considered to
be impure for society and were excluded from the social system. There were strict restrictions on
them for social gatherings and social life and if they violated any social norm, they were severely
punished and in some cases were even killed.
• The idea of giving reservations to a certain class of people originated because of the prevalent
atrocities being done on a certain class of people. To give them an equal opportunity, an equal
status in society, to uplift them socially, to bring them at par with other sections of society, and
moreover to bring development in the lower strata of society, were the reasons for the adoption
of the Reservation Policy in India.

2. Modern (today’s) Context

• Reservation is a predetermined number of seats in social and educational institutions to the
underrepresented communities.
• The basis of providing reservations is giving proportionate opportunities to the people of
Scheduled Castes, Schedule Tribes, and other backward classes.
• The main aim of reservation policy is equality of status and opportunities and to promote fraternity

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TIMELINE OF RESERVATION POLICY IN INDIA
• 1882
William Hunter and Jyotirao Phule in 1882 came up with the idea of a caste-based reservation
system. When the Hunter Commission was established in 1882, Mahatma Jyotirao Phule urged
that all citizens have free, mandatory education and government employment.

• 1902
The king of Kolhapur introduced reservation in education for non-Brahmin and backward castes
in 1902. This was India's first notification establishing a reservation for the benefit of the country's
underprivileged.

• 1908
Reservation was instituted in 1908 in support of the castes and communities that participated in
the administration under British rule.

• 1909
The Morley Minto Reforms, also known as the Government of India Act of 1909, contained
provisions made for Muslim reservations (gave the right of separate electorates to the Muslims)

• 1921
Mysore initiated reservations for backward castes after a decade long social justice movement
against the repression of non-Brahmin castes and reservations for backward classes in education.

• 1932
Communal Award by the British government granted separate electorates in India for Muslims,
Buddhists, Sikhs, Christians, Anglo-Indians, Europeans, and Depressed Classes (then
untouchables). Later, Poona Pact between M K Gandhi and B R Ambedkar reserved seats for
depressed castes within Hindu electorates.

• 1942
Viceroy's Executive Council recommended 8.5 percent reservation for Scheduled Castes in civil
services. B R Ambedkar was a member of the council.

• 1950
The constitution commits to provide adequate representation and reservation of seats to Schedule
Castes and Schedule Tribes in the legislature.

• 1951
First Amendment in the Constitution to legalize caste-based reservation in the face of court cases
against quota (Champakam Dorairajan case)

• 1990
Mandal Commission report recommending 27 percent reservation to OBCs was implemented by
Prime Minister V P Singh.

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• 1992
Supreme Court orders a 50 percent cap on caste-based reservation. Also strikes down the
Narasimha Rao government’s move to reserve 10% of government jobs for the poor among Upper
Castes. "Economic condition not a criterion for reservation."

• 2019
Parliament passes Article 15 amendment bill allowing a 10 percent quota for the poor in higher
education and jobs.

• Following independence, the Constituent Assembly, presided over by Dr. BR Ambedkar,

established the system of reservations. It was first made available for ten years. After ten years,
Indian legislators recognized the necessity to retain the system of reservations in place to address
decades of racial and cultural prejudice against particular groups in society.

RESERVATION WITH RESPECT TO THE CONSTITUTION OF INDIA

The Constitution of India ensures the right to equality and prohibits discrimination on the grounds of
religion, race, caste, sex, or place of birth. With this, it also guarantees special protection for the
weaker section of society.
• Article 14 (Fundamental Right)
Article 14 of the Constitution of India provides that The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex, or place of birth.

• Article 15 (4) (Fundamental Right)

Article 15 (4) provides that, “Nothing shall prevent the State from making any special provision
for the advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.”
This enables the state to form special policies to ensure adequate representation of backward
classes like SCs, STs, and OBCs in educational institutions, public employment, and legislature.

• Article 46 (Directive Principles of State Policy)

Article 46 provides that, "The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."

"Equality may be a fiction but nonetheless one must accept it as a governing principle"- Dr.
Bhimrao Ramji Ambedkar

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• STATE OF MADRAS V. SRIMATHI CHAMPAKAM DORAIRAJAN (1951)
➢ Facts of the case: In the State of Madras, seats in the Medical and Engineering Colleges
(maintained by the State) used to be filled based on a Communal Government Order (“G.O.”).
The Government had allotted a specific number of seats to Brahmins, Non-Brahmins (Hindus),
Backward Hindus, Harijans, Anglo Indians & Indian Christians, and Muslims, through the
aforesaid G.O. This G.O. was challenged through two separate writ petitions (before the High
Court), where the petitioners claimed that the Communal G.O. breached their fundamental right
to get admission in the Educational Institutions maintained by the State. The petitions were
allowed. So, the State of Madras went into an appeal to the Supreme Court of India, challenging
the judgment of the High Court.
➢ Issues raised: i. Whether the communal G.O. is constitutionally valid or not?
ii. Can the State make a reservation of seats in educational institutions based on
caste and religion?
➢ Argument of the Appellant: The State of Madras claimed that they were allowed to keep and
enforce the Communal Government Order because it was established under Article 46 of the
Directive Principles of State Policy to promote the educational interests of Scheduled Castes,
Scheduled Tribes, and other weaker sections of society.
➢ Argument of the Respondent: The G.O. under Article 46 is in clear violation of the Fundamental
Right to get admission in the educational Institutions maintained by the State.
➢ Judgment: It stuck down the G.O. as violative of Fundamental Rights. Supreme Court and High
Court had a similar stance. They stated that Fundamental Rights will necessarily override the
Directive Principles of State Policy because DPSP are only certain guidelines and are not
enforceable in a court of law.
➢ Impact of the case:
The Constitution (First Amendment) Act 1951: To nullify the effect of the Champakam
Dorairajan Judgment, an amendment was introduced into the Constitution, and clause (4) was
added to Article 15. So, to authorize the state to create any specific provisions for the enhancement
of backward classes.

• M.R. BALAJI AND OTHERS V. STATE OF MYSORE (1963)

In the case mentioned, the State of Mysore issued an order reserving 75 percent of seats in
educational institutions for socially and educationally backward communities, excluding the
Brahmin community. However, the order was challenged in the Supreme Court, which struck it
down. The court ruled that backwardness should be determined by considering both social and
educational factors, and caste alone cannot be the sole criterion. While acknowledging the
importance of uplifting weaker sections through reservation, the court emphasized that it should
not be done at the expense of other sections of society. The powers granted to the state for
reservation under Articles 15 (4) and 16 (4) aim to promote the educational and economic interests
of the weaker sections and protect them from social injustice. However, providing unreasonable
reservations can result in injustice to other sections, undermining the principle of social equality.
The court suggested that reservations should be defined in a broad manner and be limited to less
than 50 percent, although there is no fixed benchmark for granting reservations.

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• STATE OF KERALA V. N.M. THOMAS & OTHERS (1976)
The case involved a challenge to Rule 13-AA of the Kerala State and Subordinate Service Rules,
1958, which allowed the exemption of Scheduled Caste/Scheduled Tribe candidates from special
and departmental tests required for promotion. The petitioner argued that this relaxation policy
violated Article 16(1) of the Constitution. The Supreme Court upheld the validity of Rule 13-AA
and the two government orders issued under it, stating that classifying employees into SCs and
STs for providing exemptions in promotion tests is fair and rational. The court emphasized that
Article 16(4) is not merely an exception to Article 16(1) but has its independent significance.

Article 16 (1): There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
Article 16 (4): Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.

• MANDAL COMMISSION
➢ The First Backwards Class Commission, also known as the Kaka Kalelkar Commission, was
formed way back in 1953 vide Article 340 (appointment of a commission to investigate the
conditions of backward classes) of the Indian Constitution, but its report (1955) was effectively
rejected in 1961.
➢ The Mandal Commission, officially known as the Socially and Educationally Backward Classes
Commission (SEBC), was set up on 1st January 1979 by the Indian Government under the then
Prime Minister Morarji Desai (Janta Dal Party) The Commission was chaired by an MP, B P
Mandal.
➢ The chief mandate of the Mandal Commission was to identify the socially or educationally
backward classes of India and to consider reservations as a means to address caste inequality and
discrimination. The Commission submitted its report to the President on 31st December 1980.
➢ The commission developed 11 criteria to identify the backward classes who were called “Other
Backward Classes” or OBCs. The criteria are classified as social, economic, and educational. All
the indicators were given different weightage points. The social indicators were given 3 points
each, educational indicators were given 2 points each and the economic indicators were given 1
point each. The 11 indicators were applied to all castes covered by the survey in a state. All castes
which had a score of 11 points were declared as socially and educationally backward. The
commission highlighted that socially and educationally backward classes are economically
backward as well (according to the surveys)
➢ Mandal Commission Recommendations:
1. Reservation of 27% of public sector and government jobs for OBCs for those who do not
qualify on merit.
2. Reservation of 27% for promotions at all levels for OBCs in public service.
3. The reserved quota, if unfilled, should be carried forward for a period of 3 years and deserved
after that.
4. Age relaxation for OBCs to be the same as that for SCs and STs.
5. Reservations to be made in PSUs, banks, private sector undertakings receiving government
grants, colleges, and universities.
6. The government to make the necessary legal provisions to implement these recommendations.

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• INDRA SAWHNEY AND OTHERS V. UNION OF INDIA AND OTHERS
(MANDAL CASE) (1992)
➢ In 1979, then Prime Minister Morarji Desai appointed the second backward classes commission
headed by B.P Mandal. It recommended 27% reservation for backward classes. Reservation of
the economically weaker sections of the upper castes was also stated. However, most governments
resisted implementing these recommendations.
➢ During the 1992 elections, VP Singh heading the national front stated that implementing the
recommendations of the Mandal commission was one of the major parts of their election
manifesto. Hence, when the National Front formed the government, these recommendations were
implemented. However, there were large scale protests against this order, Indra Sawhney’s
petition being the most popular of them
➢ Issues raised:
1. Whether caste is a distinct class on its own, and whether economic criteria may be used to
classify people?
2. Whether Article 16(4) is a stand-alone exception to Article 16(1) and covers all reserve rights?
3. Is it permissible to classify ‘Backward Classes' into Backward Classes and Most Backward
Classes under Article 16(4), or to classify them among themselves based on economic or other
considerations?
4. Would reservation of appointments or posts "in favour of any Backward Class" be restricted
to the initial appointment to the post or would it extend to promotions as well?
5. Can the extent of reservation of posts in the services exceed more than 50%?
➢ Contentions of the Petitioners: The petitioners primarily argued that the application of the
Mandal Commission report would increase the caste divide in society. It was argued that Article
16 (1) of the Constitution of India prohibits the State from unreasonable discrimination in favour
of a particular class of people.
➢ Contentions of the Respondents: The respondent State said that the report merely gives the
backward classes a means to fulfill their just claims. They argued that the report was a
continuation of the first minorities commission which also recommended affirmative action to
right the wrongs that backward classes have faced for centuries together.
➢ Judgment:
1. The Supreme Court's nine-judge panel decided the Indra Sawhney Case with a 6:3 majority on
November 16, 1992
2. The caste system, not merely the economy, can be linked to the Backward class of citizens
described in Article 16(4). Social, educational, and economic all these criteria are interrelated.
3. Backward classes under Article 16(4) cannot be identified on the basis of economic criteria but
the caste system also needs to be considered.
4. Article 16(4) is not an exception to clause 1 but an extension to clause 1.
5. Article 16(4) does allow the classification of backward classes into backward and more
backward.
6. The promotion does not include any reservations.
7. Reservation shall not exceed 50 percent it can only be exceeded under extraordinary
circumstances.
8. The concept of a creamy layer was laid down and it was directed that such a creamy layer be
excluded while identifying backward classes.

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➢ Obiter Dicta:
1. Earn promotion on your own.
2. For women and children special laws/ reservations can be made.
3. Creamy-layer people should be removed from reservation criteria.
4. Reservation is not a static principle.
5. No section will remain underprivileged and no more reservations would be required.
6. It also overruled the concept of carry-forward of reserved seats as decided in Devadasan v.
Union of India (1964)
➢ Impact of Indra Sawhney’s Case
Lots of subsequent cases have taken place and constitutional amendments to counter judicial
pragmatism have been brought in – all of them bearing more or less direct connections with this
precedent case law.
1. The 77th Constitutional (Amendment) Act, 1995: This Amendment was passed to nullify the
reservation ban of the Indra Sawhney judgment on promotions of reserved category people.
By this Amendment, Article 16(4A) was inserted, which gave the government constitutional
sanction to give reservation in promotions to SCs/STs as long as the SCs/STs, in the opinion
of the state, are insufficiently represented in the services of the state.
2. The 81st Constitutional (Amendment) Act, 2000: It introduced Article 16(4B), which says
unfilled SC/ST quota of a particular year, when carried forward to the next year, will be treated
separately and not clubbed with the regular vacancies of that year.

➢ Merits of Mandal Commission:

1. Increased Representation: The Mandal Commission helped in increasing the representation
of SEBCs in government jobs and educational institutions.
2. Access to Education: The reservation policy enabled many OBC students to gain access to
higher education. This resulted in a significant increase in the number of OBC students in
universities and colleges.
3. Social Justice: The Mandal Commission's recommendations were based on the principles of
social justice and aimed at providing equal opportunities to all sections of society, especially
those who have been historically disadvantaged.
➢ Demerits of Mandal Commission:
1. Limited Impact on Upliftment: The impact has been limited to very few communities.
2. Politicisation: The politicians have often used the Reservation as their vote bank politics.
Even today, it is used as a political tool. Recently, a politician while campaigning in Karnataka
has demanded to lift 50% limit on SC/ST/OBC reservation.
3. Negative Impact on Merit: The reservation policy led to a negative impact on merit as many
deserving candidates were left out, and the seats were filled by candidates with lesser merit.

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• M. NAGARAJ AND OTHERS V. UNION OF INDIA AND OTHERS (2006)
The case involved a challenge to the Constitution (85th Amendment) Act, which provided
reservation in promotions with consequential seniority, and the Constitution (77th Amendment)
Act. The petitioners argued that these amendments violated their rights under Articles 14 and
16(1) of the Constitution. They contended that the policy would lead to reverse discrimination
against employees from unreserved classes and went against the Supreme Court's judgment in the
Mandal case. The respondents argued that the amendments were necessary due to changes in
social circumstances and that the Mandal case judgment was limited to Other Backward Classes
(OBCs), not SCs/STs. The Supreme Court upheld the constitutional validity of the 77th, 81st, and
85th Amendments. It stated that the state must demonstrate compelling reasons like
backwardness, inadequate representation, and administrative efficiency to justify the extent of
reservation. The state needs to collect quantifiable data and comply with Article 335 to establish
the backwardness and underrepresentation of SCs and STs in services.

Article 335 directs the government to take special measures to ensure the advancement of
Scheduled Castes and Scheduled Tribes, such as reservations in government services and posts.
It also allows for relaxation in qualifying marks or lowering of standards of evaluation for these
communities in certain situations.

• JANHIT ABHIYAN V. UNION OF INDIA (2022)

Janhit Abhiyan v. Union of India is a landmark case in Indian constitutional law that deals with
the reservation of seats in educational institutions and employment opportunities for
economically weaker sections of society. The case was brought before the Supreme Court after
the Constitution (One Hundred and Third Amendment) Act, 2019 was passed by the Indian
Parliament. The amendment introduced Articles 15(6) and 16(6) in the Constitution of India,
which provide for a 10% reservation in educational institutions and employment opportunities
for economically weaker sections of the society. Several petitions were filed challenging the
constitutional validity of the amendment and the reservation for economically weaker sections.
The case raised several important legal and constitutional questions, including whether the
reservation for economically weaker sections violates the 50% ceiling limit on reservations set
by the Supreme Court in the Indra Sawhney case and whether the reservation violates the basic
structure of the Constitution.

➢ Judgment:
1. The Supreme Court upheld the constitutional validity of the Constitution (One Hundred and
Third Amendment) Act, 2019 and the reservation for economically weaker sections (EWS)
2. The 10% reservation for economically weaker sections does not violate the 50% ceiling limit
on reservations set by the Supreme Court in the Indra Sawhney case. The court held that the
reservation for economically weaker sections is based on economic criteria and not on social
or educational backwardness, which are the criteria for the existing reservations. Therefore,
the reservation for economically weaker sections does not affect the existing reservations and
does not exceed the 50% ceiling limit.
3. The reservation for economically weaker sections does not violate the basic structure of the
Constitution. The court held that the reservation is a legitimate exercise of the state’s power
to promote social and economic equality and does not affect the basic structure of the
Constitution.

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CONCLUSION
The reservation policy in India was initially framed by Dr. B.R. Ambedkar and other members of
the Constitutional Drafting Committee to provide affirmative action for disadvantaged groups, with
the aim of promoting their inclusion in mainstream society. Although the policy was initially
intended for a period of 10 years, it has been extended due to the unfinished goals of achieving
equality.
The Constitution of India allows for adaptability through legislative intervention to address the
complex and diverse nature of Indian society. The reservation policy has evolved over time, with
the legislature and courts playing a role in shaping its implementation and interpretation.
Currently, there is a need to revise the reservation policy to ensure that it benefits the marginalized
and deprived sections of society. The revision should consider social, educational, and economic
criteria to determine backward classes. Excluding the relatively forward sections and the creamy
layer from the reservation benefits can make the policy more effective. It is important to ensure that
reservation is not provided indefinitely but reaches those who genuinely deserve affirmative action
for adequate representation.

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UNIFORM CIVIL CODE
• Uniform Civil Code essentially refers to a common set of laws governing personal matters such
as marriage, divorce, adoption, inheritance and succession for all citizens of the country,
irrespective of religion. Currently, different laws regulate these aspects for adherents of different
religions and a UCC is meant to freeze these inconsistent personal laws. Overall, the Hindu
personal laws are codified under four Acts the Hindu Marriage Act, Hindu Succession Act,
Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. In the case
of Muslims, the personal laws are derived from their religious texts including the Quran and the
Sharia. Among the various legislations concerning the Muslim community are the Shariat
Application Act and Dissolution of Muslim Marriages Act. For Christians, the personal laws
applicable include the Indian Christian Marriages Act and the Indian Divorce Act.

• Uniform Civil Code resonates with one country one rule, to be applied to all religious
communities. The term, ‘Uniform Civil Code’ is explicitly mentioned in Part IV, Article 44 of
the Indian Constitution. Article 44 says, “The State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India.”
However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable
by any court”. Nevertheless, they are “fundamental in the governance of the country”. This
indicates that although our constitution itself believes that a Uniform Civil Code should be
implemented in some manner, it does not make this implementation mandatory.

• The 42nd Constitutional Amendment Act inserted the word ‘secularism’ in the preamble. In the
S.R. Bommai vs Union of India case, the Supreme Court held secularism as a basic feature of
the constitution. Secularism means there is no difference in religion and the State has no
religion. All citizens of India are allowed to profess, practice, and propagate their religions. A
Uniform Civil Code means that all sections of the society irrespective of their religion, caste,
and gender shall be treated equally according to a national civil code, which shall be applicable
to all uniformly. They cover areas like- Marriage, divorce, maintenance, inheritance, adoption,
and succession of the property. It is based on the premise that there is no connection between
religion and law in modern civilization.

• HISTORICAL PERSPECTIVE
The debate for a uniform civil code dates back to the colonial period in India.

1. Pre-Independence (colonial era)

➢ The Lex Loci Report of October 1840: It stressed the importance and necessity of uniformity in
the codification of Indian law, relating to crimes, evidence, and contract. But it also
recommended that the personal laws of Hindus and Muslims should be kept outside such
codification.
➢ The Queen’s 1859 Proclamation: It promised absolute non-interference in religious matters.
➢ So, while criminal laws were codified and became common for the whole country, personal
laws continue to be governed by separate codes for different communities.

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 2. Post-Colonial era (1947-1985)
➢ During the drafting of the constitution, prominent leaders like Jawaharlal Nehru and Dr B.R
Ambedkar pushed for a uniform civil code. However, they included the UCC in the Directive
Principles of State Policy (DPSP, Article 44) mainly due to opposition from religious
fundamentalists and a lack of awareness among the masses during the time. K.M. Munshi
rejected the notion of UCC as it would violate Article 25 of the Constitution. It was then
believed UCC would come in the way of Article 19 and Article 25-29 of the Indian Constitution.
➢ Some of the reforms of this period were:
The Hindu code bill: In 1941, the colonial government appointed a four-member Hindu Law
Committee, known as the Rau Committee after its chairman B. N. Rau. The bill was drafted by
Dr. B R Ambedkar to reform Hindu laws, which legalized divorce, opposed polygamy, and gave
rights of inheritance to daughters. Amidst intense opposition to the code, a diluted version was
passed via four different laws.
1) The Hindu Succession Act: The Hindu Succession Act, 1956, originally did not give
daughters inheritance rights in ancestral property. They could only ask for a right to
sustenance from a joint Hindu family. But this disparity was removed by an amendment to
the Act on September 9, 2005.
2) The Hindu Marriage Act,1955.
3) The Hindu Minority and Guardianship Act, 1956.
4) The Hindu Adoptions and Maintenance Act, 1956.

• SPECIAL MARRIAGE ACT

It was enacted in 1954 which provided for civil marriages outside of any religious personal law.
The main reason behind passing the Special Marriage Act, 1954 was to provide a special form
of marriage for the people of India and all Indian nationals in foreign countries, irrespective of
the religion or faith followed by either party.

• Time and again the judiciary has given a loud and clear call for the implementation of UCC in
India.

• MOHAMMED AHMED KHAN V SHAH BANO BEGUM (1985)

Facts about the case: A 73-year-old woman called Shah Bano was divorced by her husband
using triple talaq and was denied maintenance. She approached the courts and the District Court
and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court
saying that he had fulfilled all his obligations under Islamic law. Under Muslim personal law,
maintenance was to be paid only till the period of iddat. (three lunar months-roughly 90 days).
Judgement: The Supreme Court ruled in her favour in 1985 under the “maintenance of wives,
children and parents” provision Section 125 of the CrPC, which applied to all citizens
irrespective of religion. Further, It recommended that a uniform civil code be set up.
Impact: After this historic decision, nationwide discussions, meetings, and agitations were held.
The then government under pressure passed The Muslim Women’s (Right to Protection on
Divorce) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code
inapplicable to Muslim women.
The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986
was challenged before the Supreme Court in Danial Latifi & Anr v. Union Of India by Daniel
Latifi in 2001, who was the lawyer of Shah Bano in the Shah Bano case.
The Court also regretted that article 44 of the Constitution of India in relation to bringing of
Uniform Civil Code in India remained a dead letter.

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• DANIAL LATIFI & ANR V. UNION OF INDIA (2001)
Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to
equality under Articles 14 & 15 as well as the right to life under Article 21. The Supreme Court
while holding the law as constitutional, harmonized it with section 125 of CrPC and held that
the amount received by a wife during iddat period should be large enough to maintain her
during iddat as well as provide for her future or until she is remarried.

• SARLA MUDGAL V. UNION OF INDIA (1995)

In this case, the question was whether a Hindu husband married under the Hindu law, by
embracing Islam, can solemnize a second marriage. The court held that the Hindu marriage
solemnized under Hindu law can only be dissolved on any of the grounds specified under the
Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve
the Hindu marriage under the act and thus, a second marriage solemnized after converting to
Islam would be an offence under section 494 of the Indian Penal Code (IPC).
The Sarla Mudgal judgment has issued no directions for the implementation of the Uniform
Civil Code, though Justice Kuldeep Singh has requested the government to look at the Article
44 of the Constitution.

• JOHN VALLAMATTOM AND ANR V UNION OF INDIA (2003)

The Priest from Kerala, John Vallamattom filed a writ petition in the year 1997 stating that
Section 118 of the Indian Succession Act was discriminatory against the Christians as it imposes
unreasonable restrictions on their donation of property for the religious or charitable purpose by
will. The bench struck down the Section declaring it to be unconstitutional. Further, stated that;
Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code
throughout the territory of India. It is a matter of great regrets that Article 44 of the Constitution
has not been given effect to. A Common Civil Code will help the cause of national integration
by removing the contradictions based on ideologies.

• JORDAN DIENGDEH V S.S. CHOPRA (1985)

The marriage between the parties was solemnized under the Christian Marriage Act, 1872. The
wife professes the Christian religion. She filed a prayer to declare her marriage with the
respondent a nullity on the ground of impotency of the respondent which was declined by the
learned single judge. She was, however, granted a decree of judicial separation on the ground of
cruelty. A petition was file under S. 18, S.19 and S.22 of the Indian Divorce Act, 1869. In the
case of Ms Jorden Diengdeh v S.S. Chopra, the question of uniformity in personal marriage
laws was raised. The Apex Court observed that the laws that are related to marriage such as
judicial separation or divorce are not uniform at all.
It also emphasized the need for the uniform provisions like an irretrievable breakdown of
marriage and mutual consent for divorce to be applied in all cases irrespective of religion.

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• LILY THOMAS V UNION OF INDIA (1995)
In India, the case of Lily Thomas vs. Union of India is regarded as a watershed moment. If a
Hindu spouse converts their religion in order to convene a second marriage with no intention of
truly professing such religion but only to achieve an ulterior motive, the second marriage is null
and void. Article 21 of the Constitution is violated. The first is not dissolved simply because
either party converts. To avoid solemnizing second marriages without a proper and legal
dissolution of the first marriage, the Supreme Court of India took a preventive measure. Thus,
following this decision, it was held that if a marriage is formed without first obtaining a proper
and legal divorce from the first marriage, the second marriage will be considered void under
law, and if a man is found doing so, the husband will be held liable under sections 494 and 495
of the Indian Penal Code (IPC), 1860 for the offence of bigamy. This landmark judgment was
delivered by a division bench of the Supreme Court, consisting of Justice RP Sethi and SS
Ahmad.

• SHAYARA BANO V UNION OF INDIA (2017)

Shayara Bano vs. Union of India, better known as the ‘Triple Talaq Case’ gave India a historical
judgement that declared the practice of Triple Talaq to be unconstitutional. For 15 years,
Shayara Bano had been married to Rizwan Ahmed. In 2016, through oral triple talaq, Rizwan
divorced Shayara. A Writ Petition was then filed by her in the Apex Court saying, as a violation
of Articles 14, 15, 21 and 25 of the constitution, the performance of the practices of talaq-e-
biddat, polygamy, nikah-halala – should be held unconstitutional.
Talaq-e-biddat is a process of divorce under the “Sharia Law”, where a Muslim man can
instantly divorce his wife by pronouncing the word “Talaq” three times, without any state
intervention. Nikah Halala also termed as tahleel marriage, in which a woman, through triple
talaq was divorced, married another man, consummating the marriage, in order to remarry her
former husband, she is getting divorced again. On 30th March 2017, the Supreme Court formed
a 5-judge constitutional bench and accepted Shayara Bano’s Petition. On 30th July 2019, the
parliament of India, passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019,
which declared the practice of triple talaq as illegal, and unconstitutional, and also made it a
punishable act from 1st August 2019. Then on 22nd August 2017, by a 3:2 majority, the 5-judge
constitutional bench held that the instantaneous practice of triple talaq is unconstitutional.

• JOSEPH SHINE V UNION OF INDIA (2018)

A writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality of
Section 497 of IPC read with Section 198 of Cr. P.C., being violative of Article 14, 15 and 21.
This was at first a PIL filed against adultery. The petitioner claimed the provision for adultery to
be arbitrary and discriminatory on the basis of gender. The petitioner claimed that such a law
demolishes the dignity of a woman. The constitutional bench of 5 judges was set up to hear the
petition.
The Supreme Court struck down Section 497 of the IPC on the grounds that it violated Articles
14, 15 and 21 of the Constitution. The five Judge Bench unanimously, in four concurring
judgments, held that the law was archaic, arbitrary, and paternalistic, and infringed upon a
woman’s autonomy, dignity, and privacy. Section 198(2) of the CrPC which allowed only a
husband to bring a prosecution under Section 497 of the IPC was also struck down as
unconstitutional. This decision overruled the Court’s previous decisions in Yusuf Abdul Aziz vs.
State of Bombay (1954), Sowmithri Vishnu vs. Union of India (1985) and Vishnu Revathi vs.
Union of India (1988) where the constitutional validity of Section 497 was upheld.

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• SHILPA SAILESH V VARUN SREENIVASAN (2023)
On May 1st, 2023 a Constitution Bench delivered a unanimous judgment in the Shilpa Sailesh v
Varun Sreenivasan case. The Bench held that the Supreme Court can directly grant a divorce on
grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution.

• GOA CIVIL CODE

Goa is the only Indian state to have a UCC in the form of common family law. The Portuguese
Civil Code that remains in force even today was introduced in the 19th century in Goa and was
not replaced after its liberation. However, the code has certain drawbacks and is not strictly a
uniform code.

• CONCLUSION
The concept of a Uniform Civil Code (UCC) in India involves the idea of having a common set
of laws that govern personal matters for all citizens, irrespective of their religion or community.
Proponents of a UCC argue that it would promote equality and social justice by providing a
standardized legal framework, ensuring gender equality and uniform rights for all individuals.
They believe that a UCC would contribute to national integration, as it would eliminate
disparities and foster a sense of common identity and shared values.
However, the implementation of a UCC faces challenges and criticisms. One of the main
concerns is the protection of minority rights and religious freedom. Critics argue that imposing a
common civil code might infringe upon the right of individuals and communities to follow their
religious practices and customs. There are also concerns about cultural diversity and sensitivity.
India is a country with a rich tapestry of religions, cultures, and traditions. Some argue that a
UCC might homogenize these diverse practices and erode the cultural fabric of the nation. The
task of actually devising a set of rules that will govern all communities is a very formidable and
tedious one considering the vast range of interests and sentiments to be accounted for.
A uniform civil code does not mean that it will limit the freedom of people to follow their
religion, it just means that every person will be treated the same and all citizens of India have to
follow the same laws regardless of any religion. Article 25 and Article 26 guarantee the freedom
of religion and UCC is not opposed to secularism.

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