Should India have a Uniform Civil Code (hereinafter referred to as UCC in short), a set of religion and gender neutral common family laws on marriage, separation, adoption, inheritance and so on?

This poser was keenly debated by the Constituent Assembly of India in the twilight of nascent republic.

Article 35 of the draft Constitution of India provided that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The Constituent Assembly took up Draft Article 35 for debate on 23rd November, 1948.

Progressive as well as conservative views were expressed as on the floor of the Constituent Assembly. The debate on this Draft Article triggered conflict in the Constituent Assembly. Muslim members opposed the Draft Article and proposed amendments to keep personal laws out of Draft Article’s scope.

Mr Mohamad Ismail Sahib (Madras) proposed a proviso as an amendment to the following effect:
“Provided that any group, section or community of peo ple shall not be obliged to give up its own personal law in case it has such a low.“

Mr Naziruddin Ahmad proposed that the following proviso be added to draft Article 35:
“Provided that the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community as certained in such manner as the Union Legislature may determine by law.“

Mahbood Ali Baig Sahib Bahadur moved that the following proviso be added to article 35:
“Provided that nothing in this articleshall affect the per- sonal law of the citizen.”

B Pocker Sahib Bahadur (Madras) supported the motion moved by Mr. Mohamed Ismail Sahib to the effect that the following proviso be added to article 35:
“Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.“

Hussain Imam (Bihar) felt that “it would be all right and a very desirable thing to have a uniform law, but at a very distant date. For that, the country should first await the coming of that event when the whole of India has got edu cated…..when their economic conditions are better, when each man is able to stand on his own legs….“

All Muslim members pleaded that the Draft Article be enforced only with the prior assent of their community. Their arguments were
a) that UCC violated freedom of religion;

b) The draft Article would create disharmony and

c) it was wrong to interfere with personal laws without the approval of religious communities.

It was argued that the right to adhere to one’s own personal laws was one of the fundamental rights and that personal laws were part and parcel of religion and culture. They emphasized that UCC should not include family law and inheritance.

KM Munshi expressed that “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.”
He felt that article guaranteeing religious freedom gave state the power to regulate secular activities associated with religion.
He further expressed that certain communities amongst Muslims, for example, Khojas and Cutchi Memons, did not want to follow the Shariat, but they were forced to do so under the Shariat Act, 1937.
He further propounded that European countries had uniform laws applied even to minorities and that religion should be divorced from personal laws.
He said for Hindus, too, personal laws were not uniform, there was the law of Mayukha applied in some parts of India, Mithakshara in others; and the law of Dayabhaga in Bengal.

He further said –
“there is one important consideration which we have to bear in mind and I want my Muslim friends to realise this that 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.“

Alladi Krishnaswam Ayyar expressed that “the objection was that religion was in danger, that communities can not live in amity if there is to be a uniform civil code. The article actually aims at amity.“

Concluding the debate, Dr. BR Ambedkar did not accept the amendments and defended the right of the state to interfere in the personal laws of different communities. He mentioned that many civil laws, such as IPC, CrPC, CPC, transfer of property, negotiable instruments, law of contracts, etc., had already been made uniformly applicable to all. Besides, Muslims in North- West Frontier followed Hindu law of succession till 1937.

He cited example of Muslims of North Malabar following Marumakkathyam Hindu matriarchal law to stress that Muslim personal laws were not immutable. He concluded by saying that “it is perfectly possible that the future Parliament may make a provision …………that the Code shall apply only to those who make a declaration that they are prepared to be bound by it.“

Despite opposition, the Draft Article 35 (now Article 44) found support of the majority of members who argued that the UCC was important to bolster the unity and integrity of the country. The argument that UCC would violate religious freedom was rejected and the Constituent Assembly paved the way for this social reform legislation to strengthen secularist and nationalist fabric of the country.

By: Shrawan Sawhney (IAS Retd.)

The Views expressed by the author are personal.