Uniform Civil Code – The Constituent Assembly

PART IV
DIRECTIVE PRINCIPLES OF STATE POLICY
44. Uniform civil code for the citizens.-
The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

A Civil law is a body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and Family Law; different from criminal or public law. In India, we already have a set of civil laws. But personal laws are not included in this civil laws. Personal laws are parts of civil laws. Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. In India, we have had different personal laws for different communities according to the customs and practices mandated by their religion and our Constitution makers wanted to change this.

The British, especially after 1857 was afraid of opposition from community leaders and refrained from interfering with the domestic sphere, though they had framed some personal laws for Hindus and Muslims. The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women’s rights, equality and secularism. The conditions of divorce, marriage and inheritance in all communities had its patriarchal design with more say for the men.

There was a demand for Uniform Civil Code from Prime Minister Nehru and women’s activists at the time of independence itself. But it was met with strong opposition in the constituent assembly. Mr Mohamad Ismail Sahib said, “Now the right to follow the personal law is part of the way of life of those people who are following such laws; it is part of their religion and part of their culture.” and he opposed any restriction on it except by choice of the individuals concerned. Mahboob Ali Baig Sahib Bahadur even said that the article should be for civil laws except for personal laws and from his speech in the constituent assembly he thought the framing committee made this article only for civil laws except for personal laws.

The article in DPSP was opposed not only by Muslims but also by other religious leaders including the Hindus. Some organisations even questioned the right of constituent assembly to regulate such matters. In the words of B. Pocker Sahib Bahadur, “Sir, just like many of you, I have received ever so many pamphlets which voice forth the feelings of the people in these matters. I am referring to many pamphlets which I have received from organisations other than Mussalmans, from organisations of the Hindus, who characterise such interference as most tyrannous. They even question, Sir, the right and the authority of this body to interfere with their rights from the constitutional point of view. They ask: Who are the members of this ConstituentAssembly who are contemplating to interfere with the religious rights and practices? Were they returned there on the issue as to whether they have got this right or not?Have they been returned by the various legislatures, the elections to which were fought out on these issues?”

But K M Munshi gave a balanced reply to these apprehensions presented in Constituent Assembly, “As regards Article 19(Current Article 25) the House accepted it and made it quite clear 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”-I am omitting the unnecessary words-” or other secular activity which may be associated with religious practices; (b) for social welfare and reforms”. Therefore the House has already accepted the principle that if a religious practice followed so far covers a secular activity or falls within the field of social reform or social welfare, it would be open toParliament to make laws about it without infringing thisFundamental Right of a minority.
It must also be remembered that if this clause is not put in, it does not mean that the Parliament in future would have no right to enact a Civil Code. The only restriction to such a right would be article 19 and I have already pointed out that article 19, accepted by the House unanimously, permits legislation covering secular activities. The whole object of this article is that as and when the Parliament thinks proper or rather when the majority in the Parliament thinks proper an attempt may be made to unify the personal law of the country.”

He also said “I know there are many among Hindus who do not like a uniform Civil Code because they take the same view as the honourable Muslim Members who spoke last. They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory ofIndia.”

Mr K M Munshi also pointed out the presence of different personal laws in Hindus. “Take for instance the Hindus. We have the law of Mayukha applying in some parts of India; we have Mithakshara in others, and we have the law-Dayabagha inBengal. In this way, even the Hindus themselves have separate laws and most of our Provinces and States have started making separate Hindu law for themselves. Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is therefore not merely a question of minorities but it also affects the majority.”

Ambedkar categorically rejected all the amendments because the amendments will dilute the essence of the article. He quoted examples to show that there is no uniform religious personal law among Muslims of India as claimed. ” My honourable friends have forgotten, that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. In order to bring them on the plane of uniformity with regard to the other Muslims who observed theShariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest ofIndia.
I am also informed by my friend, Shri Karunakara Menon, that in North Malabar the Marumakkathayam Law applied to all not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarchalform of law and not a Patriarchal form of law.”

He also stated that the article is read in too much depth than wanted, as it is only a directive principle and not legally binding. The arguments were accepted by the constituent assembly of India.

So what I want to say is that 1)all possibilities were discussed in the constituent assembly, 2) not only Muslims but others including Hindus had oppositions to it, 3) but constituent assembly after due deliberations accepted it and most importantly, 4) there was no uniform personal laws among any of the communities in India be it Hindus or Muslims and the prospect of UCC affected all, minorities and majorities alike.

Also, read Uniform Civil Code – Outside the Constitution – A brief history of attempts to implement Uniform Civil Code and why it is opposed.

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