The decision of the All India Muslim Personal Law Board (AIMPLB) to establish Sharia courts in all districts across the country has stirred up a controversy and brought us back to the debate on the fundamentals of a secular state, which began in the Constituent Assembly over seven decades ago. It now appears the concerns expressed by some eminent lawmakers in that Assembly, including Dr
B R Ambedkar, over objections to a common civil code, have come to haunt us all over again. Political developments in recent years and the appeasement policies of several parties including the Congress are the consequences of the congenital maladies that the Nehruvian establishment injected into India’s polity at the time of the nation’s independence.
The Constituent Assembly began its sessions on 9 December 1946. Eight months hence India gained independence and the Muslims of India succeeded in dividing the country and creating a separate Islamic State: Pakistan. Even two years after Partition, Muslim members of this Assembly, who represented the Muslims who preferred to stay back in secular India, raised demands such as for a separate electorate and successfully stalled the proposal for a common civil code. The vehemence with which they protested the constitutional provision to enable the drafting of a common civil code shocked many members of the Assembly including Dr Ambedkar.
Here are some excerpts of the debate in the Constituent Assembly on 23 November 1948. Now that the AIMPLB is planning to have a separate legal and judicial network across the country to deal with matters pertaining to civil law, readers will realise the price the country is paying today for Jawaharlal Nehru’s pusillanimity at the time of independence and the shadow that this has cast on the secular aspirations of a majority of Indians.
When the issue came up for discussion in the Constituent Assembly, Mohammed Ismail Sahib, Nazirudin Ahmad, Mahboob Ali Baig Sahib Bahdur, Pocker Sahib Bahdur and Hussain Imam vehemently opposed the Article which said “The state shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” Baig Sahib Bahdur claimed that as far as Muslims were concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion. Other Muslim members echoed this sentiment.
Mohammed Ismail Sahib claimed a uniform civil code will generate disharmony whereas “if people are allowed to follow their own personal law, there will be no discontent”. Pocker Sahib Bahdur claimed that the Article was “a tyrannous provision which ought not to be tolerated”. Baig Sahib Bahdur put forth a convoluted interpretation of secularism. He said that in a secular state, citizens belonging to different communities must have the freedom to observe their own life and their own personal laws. Pocker Sahib Bahdur claimed that it was the duty of the majority to secure the sacred rights of every minority.
K M Munshi challenged both of them: “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.” He said that most Muslims showed no such consideration to the Khojas and Cutchi Memons, who wanted to have their own personal laws. Therefore, he pooh-poohed their claim that the personal laws of minorities were always respected in other parts of the world.
Alladi Krishnaswami Ayyar also challenged the contentions of the Muslim members. He asked whether these arguments would promote “the welding together [of] a single nation, or is this country to be kept up always as a series of competing communities?” Further, when the British introduced one criminal law for the entire country, the Muslims had no objection. Nor did they object to a common law on contracts and such other laws. He felt that “the only community that is willing to adapt itself to changing times seems to be the majority community in the country”—the point often reiterated by Hindus today.
Dr Ambedkar said he was surprised to hear Muslims had always followed their own personal laws because there was a uniform criminal code, a common transfer of property act, a Negotiable Instruments Act, etc in existence. In other words, there is already a uniform civil code and the idea is to extend it to marriage and succession. Dr Ambedkar challenged the claim of Muslim members that many of the practices came from the Koran and so, for 1,350 years, it has been practiced by Muslims. He said, for example, the North-West Frontier Province followed Hindu Law in regard to succession and other matters until 1935. In the Malabar region, Marumakkathayam—a matriarchal law—applied not only to the Hindus but to the Muslims as well.
So it is incorrect to say that “the Muslim Law has been an immutable law … from ancient times”. Therefore, “I am certain that 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.”In order to put off the discussion on the common civil code, Nazirudin Ahmad claimed that the Constituent Assembly was ahead of its time. He said he had no doubt that one day, the civil code would be uniform. This was wishful thinking indeed, as the recent decision of the AIMPLB shows. This is one of Nehru’s monstrous follies. His pursuit of a fake brand of secularism encouraged the Muslim minority to retain its separateness and thus impede national integration. Future generations of Indians will pay the price.