Prime Minister Narendra Modi has publicly raised the issue of the Uniform Civil Code, and the Law Commission of India has sought a public response to the proposal. While these developments have triggered a positive response from citizens who feel that the time has come to bring about unity in civil laws, some, primarily those who claim to represent Muslims and those who adhere to Nehruvian pseudo-secular values, have opposed the move.
Irrespective of which side one is on, it is important to revisit the debate in the Constituent Assembly that took place on November 23, 1948, when Article 35 of the draft Constitution (now 44) was adopted, and consider the views of the opponents of the provision as well as those in favour, including Dr B R Ambedkar, the Chairman of the drafting committee.
Taking up the Article for discussion, some members moved amendments saying there must be a proviso against touching the personal laws of communities. These amendments, moved or endorsed by Muhammad Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Baig Sahib Bahadur, B Pocker Sahib Bahadur and Hussain Imam, virtually sought to negate the idea of a UCC. As can be seen from the list of speakers, all the five Muslim members of the Assembly opposed the UCC, some vehemently, just 15 months after the Muslims in India broke away to form an Islamic State, and the majority of Hindus in India chose to have a secular, democratic nation.
Cut to 2023, 75 years after this debate, and you will realise nothing has changed. Muslim opposition to the UCC remains the same. The All India Muslim Personal Law Board, Asaduddin Owaisi, head of the All India Majlis-e-Ittehadul Muslimeen (AIMIM), Maulana Arshad Madani, Vice-Chancellor of Darul Uloom, Deoband, and president of Jamiat Ulema-e-Hind, and Shafiqur Rahman Barq, Samajwadi Party MP, are some of the Muslim institutions and individuals who have vehemently opposed the UCC.
And, after all, what does Article 44 say? “The State shall endeavour to secure for its citizens a uniform civil code throughout the territory of India.” It was just an advisory to the State to work towards a common civil law.
Hussain Imam asked whether one could have uniformity in civil law in a country as diverse as India. Muhammad Ismail Sahib equated personal laws with religion and said the UCC would interfere with laws people have been observing for generations. Naziruddin Ahmad claimed that laws relating to marriage and inheritance were part of Islam and hence immutable. He said democratic India should not do what the British were afraid to do for 175 years. Mahboob Ali Baig Sahib Bahadur claimed that succession, inheritance, marriage and divorce laws were completely dependent on Islam and hence should not be touched. Pocker Sahib Bahadur went so far as to describe the Article on UCC as a “tyrannous provision which ought not to be tolerated” and that if it were to be passed, “it is not democracy at all; it is tyranny.”
Ambedkar’s reply to the criticism showed how vacuous the arguments of the Muslim members were. Responding to Hussain Imam’s query as to whether it is desirable to have a uniform code of laws in a country as vast and diverse as India, Ambedkar said he was very much surprised by that statement “for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship.” This included the complete Criminal Procedure Code, the Transfer of Property Act, the Negotiable Instruments Act, and a Civil Procedure Code practically covering the whole field, uniform in its content and applicable to the whole of India.
Only a “little corner”—marriage and succession—was left out. The idea was to enter this corner. He also pooh-poohed the Muslim member’s claim that Muslims were governed by the Shariat since times immemorial because, until 1937, when the Shariat Act was enacted, Hindu law in matters of succession governed Muslims in large parts of the country, including the United Provinces, Central Provinces, Bombay and Malabar. In Malabar, they followed the Marumakkathayam Law, a matriarchal law. Therefore “there was no use” in contending that Muslim Law is immutable and was followed from ancient times.
Further, the Shariat Act of 1937 incorporated elements from Hindu Law, excluded agricultural land and permitted Muslims to make wills and testaments (which goes against the Shariat Law).
As S Gurumurthy has explained, this was done to suit Muhammad Ali Jinnah and the wealthy land-owning Muslims. So, where is the question of the “immutability” of Shariat Law?
K M Munshi said the Article that provides all citizens with the right to profess and practice the religion of their choice permits Parliament to make laws about religious activity that falls within the sphere of secular activity, social reform or social welfare. Referring to changes in Hindu law, he said most provisions would run counter to Manu and Yajnavalkya. He said many things like inheritance or succession had nothing to do with religion, and “we want to divorce religion from personal law”.
Alladi Krishnaswami Ayyar said marriage is purely a civil contract under Muslim law. “The idea of a sacrament (as in Hindu law) does not enter into the concept of marriage in Muslim jurisprudence. … Therefore, there is no question of religion being in danger.” He made a very significant point after that when he said, “After all, the only community that is willing to adapt itself to changing times seems to be the majority community in the country.” He further said they are even willing to take lessons from the minority community as they seek to reform Hindu law.
Ayyar summed it up succinctly when he argued in favour of a UCC. He said, “We want the whole of India to be welded and united together as a single nation. Are we helping these factors … or is this country to be kept up always as a series of competing communities? This is the question at issue”. Munshi was even more assertive. He said, “We must put our foot down and say that these matters are not religion, they are purely matters for secular legislation.”
A Surya Prakash
Vice-Chairman, Executive Council, Nehru Memorial Museum & Library, New Delhi
(suryamedia@gmail.com)