The contention over having a Uniform Civil Code (UCC) is much older than our Constitution itself. Even before one can make basic sense of UCC, this ever-going contention lures in and floods one’s mind with arguments of apprehension, speculation, political assertion, supreme court observation, making one to forget along the way the very basic fact that there is not even a draft of UCC yet to discuss and debate over. It is the very idea of having a common civil code that is causing such commotion for so long.

To get through this commotion while making basic sense of the UCC and to take a first definitive step toward or away from it, it is imperative to learn why the Framers of the Constitution of India desired for a Uniform Civil Code, concerns and debates of the Constituent Assembly over it and the history of reluctance with regard to realisation of the desire in subsequent years.

THE NOBLE VISION

The concept of Uniform Civil Code is nothing new. Even when the discussion on it was going on in the constituent assembly, various countries in Europe were having common civil code in practice. In fact, this prompted Shri. K.M. Munshi to argue:

“If you will look at the countries in Europe which have a Civil Code, everyone who goes there from any part of the world and every minority, has to submit to the Civil Code. It is not felt to be tyrannical to the minority.”[1]

Even after so many years of independence, it is unfortunate to see that the objections raised against UCC have undergone no growth since the Constituent Assembly Debates. Objections to the provision of having a UCC in the Constituent Assembly[2] can be summarized as under:

• The right to follow personal law is part of the religion and culture of those following it.
• Having guaranteed the freedom of religion under Art. 25 (then Art. 19), the Art. 44 (then Art. 35) tries to undo what has been guaranteed under Art. 25.
• Various Civil Courts Acts in the various provinces have secured for each community the right to follow their personal laws. If the aspiration of the State should be to override all these provisions and impose a common civil code, which includes all branches of civil law such as the law of marriage, law of inheritance, law of divorce and other kindred matters, then it is a tyrannous provision which ought not to be tolerated.
• By uniform, what do the Framers of the Constitution mean? Which particular law of which community are they going to take as the standard? What is their real intention behind this introduction of Art.44 (then Art.35)? 
• Secular State does not mean that it is anti-religious State. It means that it is non-religious. Therefore, the secular State which we are trying to create should not interfere with the way of life and religion of the people.
• To secure harmony it is not necessary to regiment the civil law including the personal law. Such regimentation will only bring dissonance and discontent.
• In a democracy, it is the duty of the majority to secure the sacred rights of every minority. It is not democracy but a tyranny if the majority rides rough-shod over the rights of the minorities.
• India is too big a country with a large population so diversified that it is almost impossible to stamp them with one kind of anything.
• We have to deal with an unevenly developed country. Parts of the country are very backward. Can we have a uniform law for the North East tribes and the metropolitan people?
• We have ourselves provided for concurrent jurisdiction to the provinces as well as to the Centre in matters of succession, marriage, divorce and other things. How is it possible to have uniformity when there are multiple legislative bodies ready to legislate on a subject according to the requirements of their own people and their own circumstances?
• One of the reasons why the British were able to rule this country for so long was that they gave a guarantee of following their own personal laws to each of the various communities in the country. Besides, it was also the basis of the administration of justice on which the foreign rule was based.

Dr. B.R. Ambedkar contested the notion that Muslim Personal Law, so far as this country was concerned, was immutable and uniform through the whole of India.[3] His arguments can be summarized as under:

• Up to 1935 the North-West Frontier Province (now a region of Pakistan) was not subject to the Shariat Law. It followed the Hindu Law in various matters including that of succession. Only in 1939 the Central Legislature abrogated the application of the Hindu Law to the Muslims of the North-West Frontier Province and applied the Shariat Law to them.
• Up till 1937, Muslims of the United Provinces (now Uttar Pradesh and Uttarakhand), the Central Provinces (now Madhya Pradesh, Chhattisgarh and parts of Maharashtra) and Bombay were largely governed by the Hindu Law in the matter of succession.
• In North Malabar the Marumakkathayam Law applied not only to Hindus but also to Muslims. It was a Matriarchal form of law and not a Patriarchal form of law.
• In order to bring uniformity with regard to other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 to pass an enactment applying the Shariat Law to the rest of India.
• Therefore, making a categorical statement that the Muslim law had been an immutable and uniform law so far as this country was concerned was of no use. That law as such was not applicable in certain parts and it had been made applicable only ten years before i.e., in 1937.

He further argued[4] that:

• Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindu law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by Art. 35 (now Art. 44), it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community.
• Opponents of the UCC provision had read rather too much into Art. 35 (now Art. 44), which merely proposed that the State shall endeavour to secure a civil code for the citizens of the country. It did not say that after the Code was framed the State shall enforce it upon all citizens merely because they were citizens.
• It was perfectly possible that the future parliament might make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they were prepared to be bound by it, so that in the initial stage the application of the Code might be purely voluntary. This was not a novel method. In fact, it was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province.

Arguments of Shri. K.M. Munshi in defence of the UCC emphatically elucidate the Noble Vision the Framers of our Constitution had for our Nation[5], which can be summarized as under:

• Two major grounds put forward against UCCwere: firstly, it infringed the fundamental right guaranteed under Art. 25 (then Art. 19 – Freedom of conscience and the right freely to profess, practise and propagate religion); and secondly, it was tyrannous to the minority.
• As regards Art. 25, the House unanimously passed that – ‘Nothing in this article shall affect the operation of any existing law or preclude the State from making any law (a) regulating or restricting any economic, financial and political or other secular activity which may be associated with religious practices; (b) providing for social welfare and reform…’

Therefore, the House had already accepted the principle that if a religious practice followed so far covered a secular activity or fell within the field of social reform or social welfare, it would be open to the Parliament to make laws about it without infringing the above-mentioned fundamental right of a minority.

• Even if this clause were not put in Art. 25, it did not mean that the Parliament in future would have no right to enact a Civil Code.
• Would the enactment of a Civil Code be tyrannical to minorities? When the Shariat Act was passed in the Central Legislature, the Khojas and Cutchi Memons were highly dissatisfied. They were following certain Hindu customs for generations even after conversion. They did not want to conform to the Shariat. Yet by a legislation of the Central Legislature, certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minority then?
• Nowhere in advanced Muslim countries the personal law of each minority had been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Take for instance Turkey or Egypt. No minority in these countries were permitted to have such rights.
• This attitude of mind that the personal law was part of religion, had been fostered and perpetuated by the British and their courts. We as a Nation must, therefore, outgrow it.
• The framers of the Constitution wanted to divorce religion from personal law, from what might be called social relations or the rights of parties as regards inheritance or succession. What had these things got to do with religion?
• If, however, the religious practices in the past had been so construed as to cover the whole field of life, we as a Nation had reached a point where we must put our foot down and say that these matters were not religion, they were purely matters for secular legislation. This was what emphasised by Art. 35 (Now Art. 44).
• Many among Hindus did not like a Uniform Civil Code. They felt that the personal law of inheritance, succession etc. was really a part of their religion. If that were so, then equality to women could never be given. But a fundamental right to that effect which laid down that there should be no discrimination against sex had already been passed by this Assembly.Therefore, this provision of UCC not only concerned the minority but also the majority.
• The point is whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular.
• The sooner we forget this isolationist outlook on life, it will be better for the country. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible a strong and consolidated nation.

Shri. Alladi Krishnaswami Ayyar put it succinctly as under[6]:

“Our ancients did not think of a unified nation to be welded together into a democratic whole. There is no use clinging always to the past. We are departing from the past in regard to an important particular, namely, we want the whole of India to be welded and united together as a single nation.

Are we helping those factors which help the welding together into a single nation, or is this country to be kept up always as a series of competing communities? That is the question at issue.”

PLAGUE OF RELUCTANCE

The history of reluctance plaguing the UCC has its origin in the Constituent Assembly itself. In the draft Constitution prepared by the Constitutional Adviser, Sir B.N. Rau[7], Part III was entitled ‘Fundamental Rights including Directive Principles of State Policy’. In the end, the present form of Part III as Fundamental Rights and Part IV as Directive Principles of State Policy was adopted. This separation of fundamental rights and directive principles emphasizes the fact that they are in their nature and effect essentially different.[8]

It follows from Art. 37 that directive principles impose no legal obligation on Parliament or State Legislatures to make laws complying with directive principles, and confer no rights on any person which he can enforce in any court. Therefore, directive principles are not law at all, much less a part of the supreme law. Paradoxically, Part IV (directive principles) is in our constitution but not a part of it in the sense in which Parts I to III and V to XXI are parts of our Constitution. This is because Part IV of our Constitution is the only Part, the violation of which by a law does not render it pro tanto void.[9]

Even Dr. B.R. Ambedkar himself conceded that “If it is said that the Directive Principles have no legal force… I am prepared to admit it.”[10]

Moreover, provisions such as Articles 244 (2), 371 A (a) and 371 G (a) and entry 3 of the Sixth Schedule of the Constitution of India which provide for protection to the customary laws of some North East Tribes also pose challenge to the realisation of UCC. Saving the customary laws of the Tribes, for instance, from the greater stride of the UCC would be defeating the very purpose of having a common civil code.

Even after the Supreme Court of India emphasized the need for a common civil code at various instances, there seems to be nothing more than sheer reluctance on the part of the ruling dispensation since Independence.

In Shah Bano case[11] judgement, the apex court observed:

“A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” “A beginning has to be made if the Constitution is to have any meaning.”

In Smt. Sarla Mudgal v. UOI[12], the SC observed:

“Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one nation – Indian nation – and no community could claim to remain a separate entity on the basis of religion.

It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc., only under the Regulations of 1781 framed by Warren Hastings.

The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter, no community can oppose the introduction of uniform civil code for all the citizens in the territory of India.”

Even after 71 years of Independence and so-called social progression, the 21^st Law Commission in 2018 in its Consultation Paper on Reform of Family Law[13] said:

• “This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.”
• “While framing a law it has to be borne in mind and cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.”
• “Many also argue that a uniform code may advance the cause of national integration, however, this may not necessarily be the case when cultural difference informs people’s identity and its preservation guarantee the territorial integrity of the nation.”

ON A LOOP

On 20 July 2023, in a written reply, the Union Law Minister Arjun Ram Meghwal noted that the 21st Law Commission had issued a consultation paper on ‘Reform of Family Law’ on 31 August 2018, but did not submit any report on the subject.

“Since more than four years have lapsed from the date of issuance of the said consultation paper, the 22nd Law Commission [the present panel] decided to solicit views and ideas of the public at large and religious organisations on June 14, 2023, bearing in mind the relevance and importance of the subject matter and also various court orders on the subject of uniform civil code,” he said.[14]

Responding to another question on the modalities of the UCC, Mr. Meghwal said that as the law panel was still in the process of holding consultations, “the question of modalities does not accrue at this stage.”[15]

INCORRIGIBLE POPULACE

That the Noble Vision, though commendable, is incapable of winning the reluctance or rather incorrigibility of our populace to go beyond the shackles of religion, caste, parochial attitude, hypocrisy and intellectual dishonesty is a home truth. Furthermore, the identity and vote bank politics of our country renders the future of the Uniform Civil Code bleak.

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[1] Constituent Assembly of India Debates, Volume 7, dated 23.11.1948

[2] Constituent Assembly of India Debates, Volume 7, dated 23.11.1948

[3] Constituent Assembly of India Debates, Volume 7, dated 23.11.1948

[4] Constituent Assembly of India Debates, Volume 7, dated 23.11.1948

[5] Constituent Assembly of India Debates, Volume 7, dated 23.11.1948

[6] Constituent Assembly of India Debates, Volume 7, dated 23.11.1948

[7] H.M. Seervai’s Constitutional Law of India, vol 2, 4 ed. pg. 1924, Shiva Rao, op. cit. Vol 2 pp. 1 to 234.

[8] H.M. Seervai’s Constitutional Law of India, vol 2, 4 ed. pg. 1926

[9] H.M. Seervai’s Constitutional Law of India, vol 2, 4 ed. pg. 1923

[10] Constituent Assembly Debates, Volume 7, pg.41

[11] Mohd. Ahmed Khan vs. Shah Bano Begum, AIR 1985 SC 945

[12] Smt. Sarla Mudgal, President, Kalyani & Ors. Vs. Union of India & Ors., 1995 AIR 1531

[13] Consultation Paper on Reform of Family Law by the 21st Law Commission of India, dated 31.08.2018

[14] As reported online in The Hindu, dated 20.07.2023

[15] As reported online in The Hindu, dated 20.07.2023

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Author: Shriram S

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