Empowerment of all citizens and gender justice, are one of the dominant Statement of objects and reasons behind the Uniform Civil Code in India.The desirability of the Uniform Civil Code (UCC) can hardly be doubted. It can concretise only when social climate is built up by the elite of the society and statesmen amongst leaders, who can awaken the masses to accept change. The Narendra Modi Government has always demanded that there should be such debate and inclusion of stakeholders and beneficiaries in the decision-making process.
The UCC, once enacted, will be more of a secular legislation,non-religious and beneficial. The ‘personal law’ affects not merely the minorities but also the majority. All persons must trust democratic rule, which will have regards to the religious tenets and beliefs of all people. The laws are fully and consistently enforced to provide adequate protection for the members of religious minorities in India. All communities must be willing to adapt themselves to the changing times.
The UCC, if implemented, will override all personal laws with a common set of rules governing every citizen. The concept of UCC is enshrined in Part IV of the Constitution, which deals with the Directive Principles of the State Policy under Article 44. The language of Article 44 states that “The State shall endeavour to secure for the Citizens a Uniform Civil Code throughout the territory of India”.
It is necessary to note that, during the Constituent Assembly debates, the present Article 44 was numbered as draft Article 35. During the course of the Constituent Assembly debates, amendments to draft Article 35 were proposed by Mohamed Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Beg, Sahib Bahadur and Pocker Sahib Bahadur.
Relevant extract of the proposed amendments and their explanations thereto are reproduced below:
[Sic].Mr. Mohamad Ismail Sahib (Madras: Muslim): “Sir, I move 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 lawin case it has such a law.”… If anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages. This secular State which we are trying to createshould not do anything to interfere with theway of life and religion of the people. The matter ofretaining personal law is nothing new; we have precedents inEuropean countries.…”
“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”
Dr Br Ambedkar
Mr Naziruddin Ahmad: “Sir, I beg to move: “That to Article 35, the following proviso be added, namely: Provided that the personal law of any community which has been guaranteed by the statue shall not be changedexcept with the previous approval of the community ascertained in such manner as the Union Legislature maydetermine by law.”… As I have already submitted, the goal should be towards a uniform civil code but it should be gradual and with the consent of the people concerned…”
Mahbood Ali Baig Sahib Bahadur:“Sir, I move that the following proviso be added to article 35: “Provided that nothing in this article shall affect the personal law of the citizen.” My view of article 35 is that the words “Civil Code” do not cover the strictly personal law of a citizen. The Civil Code covers laws of this kind: laws of property, transfer of property, law of contract, law of evidence etc.”
“The law as observed by a particular religious community is not covered by article 35. That is my view. Anyhow, in order to clarify the position that article 35 does not affect the personal law of the citizen, I have given notice of this amendment. Now, Sir, if for any reason the framers of this article have got in their minds that the personal law of the citizen is also covered by the expression “Civil Code”, I wish to submit that they are overlooking the very important fact of the personal law being so much dear and near to certain religious communities. As far as the Mussalmans are concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion.
Shri M Ananthasayanam Ayyangar: It is a matter of contract.
Mahboob Ali Baig Sahib Bahadur: I know that Mr.Ananthasayanam Ayyangar has always very queer ideas about the laws of other communities. It is interpreted as contract, while the marriage amongst the Hindus is a Samskara and that among Europeans it is a matter of status. I know that very well, but this contract is enjoined on the Mussalmans by the Quran and if it is not followed, marriage is not a legal marriage at all. For 1350 years this law has been practised by Muslims and recognised by all authorities in all states. If today Mr. Ananthasayanam Ayyangar is going to say that some other method of proving the marriage is going to be introduced, we refuse to abide by it because it is not according to our religion…”
B Pocker Sahib Bahadur (Madras: Muslim):“Mr Vice-President, Sir, I support the motion which has already been moved by Mr. Mohamed Ismail Sahib to the effect that the following proviso be added to article 35: “Provide that any group, section or community of people shall not be obliged to give up its own personal law in caseit has such a law…”
The above stated amendments proposed to draft Article 35 were opposed byK.M. Munshi and Alladi Krishnaswami Ayyar. Relevant extracts of theirresponses are reproduced below:
Shri KM Munshi (Bombay: General): “Mr Vice-President, I beg to submit a few considerations. This particular clause which is now before the House is not brought for discussion for the first time… The ground that is now put forward against it is, firstly that it infringes the Fundamental Right mentioned in Article 19; and secondly, it is tyrannous to the minority. As regards Article 19 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… or other secular activity which maybe 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 to Parliamentto make laws about it without infringing this Fundamental 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 touches 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. A further argument has been advanced that the enactment of a Civil Code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries the personal law of each minority has 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 is permitted to have such rights. But I go further. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts, they had done so. They did not want to conform to the Shariat; and yet by 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? When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and motto the customs of a part of it. It is not therefore correct to say that such an act is tyranny of the majority. 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. The point however is this, 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. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What have these things got to do with religion I really fail to understand… after all we are an advancing society. We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. … It is therefore not merely a question for minorities but it also affects the majority…”
CPM invites Muslim League to join anti-UCC agitation
CPM state secretary MV Govindan stated that his party is ready to involve all non-communal organisations to join protests against Uniform Civil Code (UCC) and the Manipur issue. But, his party would not invite Congress to this struggle. The Samastha Kerala Jem-Iyyathul Ulama and similar organisations will be involved. Indian Union Muslim League (IUML) is not particularly invited, because political parties are not invited. But, CPM believes that IUML is a democratic party; it is active among the minorities. It is to be remembered, Govindan had stated, in December 2022, that IUML is not communal. CPM appears to be all set to ignore the IUML-led united agitation. On the other hand, the party tries to keep Samastha and other like-minded groups together. Govindan said, the party state committee reached a conclusion that UCC is meant to implement the Hindutwa agenda.
IUML state president Sadiq Ali Thangal said that anti-UCC agitation should not be decided by a single party. He was reacting to the CPM state secretary’s statement that IUML may cooperate with its (CPM’s) agitation. Govindan is not for inviting Congress as it does not have a clear idea about UCC on the national level. Even Rahul Gandhi does not have any stand.
Samastha, it would take the initiative for anti-UCC agitation. The Samastha Kerala Jem-Iyyathul Ulama president Jifri Muthukkoya Thangal said that Muslims can not compromise on UCC. Muslim marriage, divorce and inheritance come under religious rules. Muslims would not agree to change it. He said that his organisation agrees with the idea of Sunni Unity put forward by All India Sunni Jem-Iyyathul Ulama General Secretary Kanthapuram AP Abubaker Musliar.
In other words, Muslim community organisations are joining hands for anti-UCC agitation. And, significantly, CPM is trying to bring all of them under its umbrella. Even though IUML leader Sadiq Ali Thangal has not expressed his pleasure to join hands with CPM, he has stated that his party would be at the forefront of discussing the Sunni unity. — T Satisan
Shri Alladi Krishanaswami Ayyar (Madras: General): “Mr. Vice-President, after the very full exposition of my friend the Honourable Mr. Munshi, it is not necessary to cover the whole ground. But it is as well to understand whether there can be any real objection to the article as it runs. “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
“Now, my friend Mr. Pocker levelled an attack against the Drafting Committee on the ground that they did not know their business. I should like to know whether he has carefully read what happened even in the British regime. You must know that the Muslim law covers the field of contracts, the field of criminal law, the field of divorce law, the field of marriage and every part of law as contained in the Muslim law. When the British occupied this country, they said, we are going to introduce one criminal law in this country which will be applicable to all citizens… Did the Muslims take exception, and did they revolt against the British for introducing a single system of criminal law? Similarly we have the law of contracts governing transactions between Muslims and Hindus, between Muslims and Muslims. They are governed not by the law of the Koran but by the Anglo-Indian jurisprudence, yet no exception was taken to that…. Today, even without Article 35, there is nothing to prevent the future Parliament of India from passing such laws. Therefore, the idea is to have a uniform civil code… Under the Moslem law, unlike under Hindu law, marriage is purely a civil contract. The idea of a sacrament does not enter into the concept of marriage in Muslim jurisprudence though the incidence of the contract may be governed by what is laid down in the Koran and by their jurists. Therefore, there is no question of religion being in danger… Therefore, there is no force to the objection that is put forward to article 35. The future Legislatures may attempt a uniform Civil Code or they may not. The Uniform Civil Code will run into every aspect of Civil Law… Why should you distrust much more a national indigenous Government than a foreign Government which has been ruling? Why should our Muslim friends have greater confidence, greater faith in the British rule than in a democratic rule which will certainly have regard to the religious tenets and beliefs of all people? Therefore, for those reasons, I submit that the House may unanimously pass this article which has been placed before the Members after due consideration.”
Before the amendments were put to vote, Dr BR Ambedker made thefollowing observations:
The Honourable Dr BR Ambedkar: “Sir, I am afraid I cannot accept the amendments which have been moved to this article. In dealing with this matter, I do not propose to touch on the merits of the question as to whether this country should have a Civil Code or it should not. That is a matter which I think has been dealt with sufficiently for the occasion by my friend, Mr Munshi, as well as by Shri Alladi Krishnaswami Ayyar… My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship.… Coming to the amendments, there are only two observations which I would like to make. My first observation would be to state that members who put forth these amendments say that the Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India. Now I wish to challenge that statement. I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shariat Law to them. That is not all. 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 the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India. 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 Matriarchal form of law and not a Patriarchal form of law. The Mussulmans, therefore, in North Malabar were up to now following the Marumakkathyam law. It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times…My second observation is to give them an assurance. I quite realise their feelings in the matter, but I think they have read rather too much into article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future Parliament may make a provision by the way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method.”
The UCC once enacted will be a secular and beneficial legislation, that will bridge the gap between law and society
Based on the Constituent Assembly debates with reference to draft Article 35, which was incorporated in the Constitution as Article 44 (extracted above) and as expressed in Article 25(2)(b), so also the debates of Article 44, the intent of the Constituent Assembly was to protect ‘personal laws’ of different communities by elevating their stature to that of other fundamental Rights, however with the rider, that the legislature wascompetent to amend the same. Article 25(2)(b) vested the power with the legislature, to interfere with ‘personal law’ on the ground of social welfare and reform.
It is a settled proposition that progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision. The law should be interpreted in terms of the changing needs of the times. The UCC definitely touches upon the matrix of religion. However, the main objective, reason and intent is clear – to empower all citizens of India. All provisions of the Constitution must be harmoniously construed so that there remains no conflict between them whilst drafting the Uniform Civil Code. It would be pertinent to mention, that the constitutional protection to tenets of ‘personal law’ cannot be interfered with, as long as the same do not infringe ‘Public order, morality and health’, and/or the ‘provisions of Part III of the Constitution’. This is a clear position expressed in Article 25 (1).
To conclude, the UCC once enacted will be a secular and beneficial legislation, that will bridge the gap between law and society. It must be embraced by all communities. The UCC must be self-speaking, so as not to frustrate the very objective of the Statute.Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law.