New Delhi: The idea of a uniform law governing matters pertaining to marriages, divorce, inheritance and succession for all religious denominations in India has not been an easy one. And now, the Uniform Civil Code (UCC) law passed by the Uttrakhand Assembly recently has once again opened up the debate around the idea.
Leaders of the Muslim community are opposing the law on the grounds that the law interferes with their religion and religious rights guaranteed under the Constitution. The argument is that the system of personal laws in the country has worked well and there is no need to tinker with it.
UCC issue has been hotly debated since the time of drafting of Constitution
The issue of a Uniform civil Code has been a contentious and a hotly debated issue since the time of drafting of the Constitution of modern India. In the last 75 years, the need for a Uniform Civil Code has been debated and discussed by the judiciary and even politicians at various points of time.
The first occasion arose during the Shah Bano case, where the Supreme Court recognised the right of maintenance for Muslim divorced women.
The Court ruling was met with strong opposition by the Muslim community and giving into the political and electoral compulsions of the time, the Congress government of the time passed a law diluting the Supreme Court judgment, allowing Muslim women maintenance only for a period of 90 days, the period of iddat.
A few years back, the debate was ignited again in the Shayra Bano case, when again the Supreme court struck down the practice of ‘talaq-e-biddat’ – or instant triple talaq. The court held what is bad in theology is bad in law also.
In this Legal Throw Back series, we take a look at how the issue of Uniform Civil Code was debated by our constitution makers and how it came to be a part of the directive principles of state policy.
The debate and discussion on the issue of Uniform Civil Code first started among the constitution framers when there was a discussion on the issue of fundamental rights by a sub committee of the draft constitution.
At that point, it was proposed that fundamental rights be divided in two parts – justiciable rights and non-justiciable rights. Justiciable rights would be ones that could be enforced by the courts. While non-justiciable rights remained advisory in nature and draft article 35 which said that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India and shall remain a non-justiciable fundamental right.
Dr BR Ambedkar presented the Draft Constitution on November 4, 1948
On November 4, 1948, Dr BR Ambedkar presented the Draft Constitution to the Constituent Assembly for discussion and vote.
And when discussion on the matter happened, draft Article 35 – which is a precursor of present article 44 of the Constitution- amendments were proposed to Article 35, notably by members- Mohamed Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Beg, Sahib Bahadur and Pocker Sahib Bahadur.
The crux of the amendments was first that personal laws were to be kept out of the uniform Civil Code and second that Uniform civil Code should be implemented with the prior assent of the community in question.
UCC not according to our religion: Muslim leaders said in discussion
Mahboob Ali Beg said, “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. It is not according to the code that is laid down for us for all times in this matter.”
Mohamed Ismail Sahib argued that “the right to follow 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. 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 create should not do anything to interfere with the way of life and religion of the people.”
KM Munshi, Alladi Krishnswamy and Ambedkar defended UCC in debate
On the other hand, KM Munshi, Alladi Krishnswamy and Ambedkar who took part in the debate, defended the Uniform Civil Code.
Dr KM Munshi, during the debate on the issue, made a strong plea for separating religion and personal laws. He said, “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 fail to understand?”
He further argued that time had come when there was a need to unify and consolidate the country. He said, “We have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. 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 Krishnswamy representing Madras presidency made an argument, “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, be they Englishmen, be they Hindus, be they Muslims. 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. Again, there are various principles in the law of transfer which have been borrowed from the English jurisprudence. Therefore, when there is impact between two civilizations or between two cultures, each culture must be influenced and influence the other culture. If there is a determined opposition, or if there is strong opposition by any section of the community, it would be unwise on the part of the legislators of this country to attempt to ignore it. 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.”
What did BR Ambedkar say?
Dr Ambedkar said, “We have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the civil law has not been able to invade so far is marriage and succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.”
And when amendment to article 35 provided that any group, section or community or people shall not be obliged to give up its own personal law in case it has such a law, it was defeated when it was put to vote.