Professor Vivekanand Tiwari
In order to promote constitutional values and uphold social justice, the Ministry of Social Justice and Empowerment decided on November 19, 2015, to observe November 26 as Constitution Day. The idea is to ensure that every citizen of the country is aware of constitutional values, hence the celebration of this day.
The mention of the Uniform Civil Code (UCC) is made in Article 44 of the Indian Constitution, which is an integral part of the directive principles of state policy. Article 44 states, “The State shall endeavor to secure for the citizens throughout the territory of India a uniform civil code.”
These directive principles are not enforceable by law but guide the state in policy-making. The implementation of the UCC is seen by some as a way to promote national unity and gender justice, while others oppose it, citing threats to religious freedom and diversity.
Implemented in Goa:
In India, Goa is the only state where the Uniform Civil Code is in force. UCC was introduced in Goa nearly 150 years ago. The roots of this code can be traced back to the Portuguese Civil Code of 1867, applied by the Portuguese and later modified with a new version in 1966. In Goa, laws regarding marriage, divorce, inheritance, etc., are the same for people of all religions.
After gaining independence from Portuguese rule in 1961, Goa retained its general family laws, known as the Goa Civil Code. In the rest of India, various personal laws based on religious or community identity are followed.
The British Administration:
In 1772, Warren Hastings issued orders to deal with matters of inheritance, marriage, and other religious issues, stating that laws related to the Quran for Muslims and those related to scriptures for Hindus should be followed.
The genesis of the Uniform Civil Code occurred in colonial India when the British government presented a report in 1835, emphasizing the need for uniformity in codifying Indian laws related to crimes, evidence, and contracts. It also recommended keeping personal laws of Hindus and Muslims outside the scope of such codification.
Formation of the Rao Committee:
Recognizing the increase in personal laws dealing with individual issues, the British government formed the B.N. Rao Committee in 1941 to codify Hindu law. The committee’s task was to investigate the need for codifying Hindu laws. Based on scriptural recommendations, the committee proposed a codified Hindu law that would provide equal rights to women.
The committee reviewed the 1937 Act and demanded a civil code for marriage and inheritance for Hindus. The draft of the Rao Committee’s report was presented to a selection committee chaired by B.R. Ambedkar. In 1952, the Hindu Code Bill was reintroduced. The bill was adopted in 1956 as the Hindu Succession Act.
The Ineffectiveness of Fatwas
In 1817, British judges rendered fatwas ineffective by passing a proposal that eliminated the binding nature of fatwas. While the Muslim Personal Law of 1937 introduced some personal laws for Muslims under the Sharia law, the British did not impose these laws on Muslims. According to Section 3, it applied only to those Muslims who voluntarily accepted its jurisdiction in writing.
On November 23, 1948, proposed amendments presented by some Muslim members in the Constitutional Assembly were rejected. Members of the Constitutional Assembly heavily voted in favor of being part of the Constitution’s equal citizenship provisions.
On November 23, 1948, there was a detailed discussion on this issue in the Constitutional Assembly. Muslim members initially spoke, proposing several amendments related to Article 35, which included provisions concerning equal citizenship in the country. The proposers included Mohammad Ismail, Naziruddin Ahmed, Mahboob Ali Beg Sahib Bahadur, and Hussein Imam.
Naziruddin Ahmed proposed an amendment, stating that the following provision should be added to Article 35:
“Provided that any personal law of any community, guaranteed by law, shall not be changed without the prior approval of that community. Legal provisions shall be relied upon to obtain this approval.”
Ahmed, participating in the debate, said, “I do not want to limit my comments to the inconvenience faced by the Muslim community alone. I will base it on broad grounds. In reality, every community has some legal laws for followers of every faith, some civic laws that are inseparably linked to religious beliefs and practices. I believe that a common citizenship law should keep these legal and semi-legal laws away.”
Opposition and Response
Presenting another amendment, Mohammad Ismail, a Muslim member who came from Madras to the Constitutional Assembly, said, “Sir, I propose that the following provision be added to Article 35: Provided that no group, class, or community of people shall be compelled to abandon its private law in a situation where it has a legal right to have such a law.”
Ismail opposed the Uniform Civil Code, saying, “The right of a group or community to follow its private law is among fundamental rights and this provision should be included in the legal and just fundamental rights. Therefore, I have proposed amendments to some other articles prior to this with other friends, which I will present at the appropriate time. The right to follow personal law is part of the way of life of those who have been following these laws for generations and centuries. If anything is done to affect personal laws, it will be a kind of interference in the way of life of those who have been following these laws for generations and centuries. The secular state we are trying to create should not do anything to interfere with people’s beliefs and practices.”
Ambedkar’s Cautious Support for the Uniform Civil Code
Ambedkar supported the inclusion of a Uniform Civil Code (UCC) in the Draft Constitution, but he was mindful of the serious concerns raised by several Muslim members of the Constituent Assembly. Ambedkar hoped that no government would misuse its power to implement a uniform code in a way that would “provoke the Muslim community to rebellion.”
On November 23, 1948, during a discussion on the UCC in the Constituent Assembly, Ambedkar attempted to reassure minority members. He stated, “This [Article 35] does not say that after the preparation of the constitution, the state will apply it only to its citizens because they are citizens.” He also expressed the possibility that in the future, Parliament might enact a provision stating that the code would only apply to those who declare they are “willing to be bound by it.” In other words, initially, the application of the code could be entirely voluntary.
On December 2, 1948, during an extensive discussion on Article 13 of the Draft Constitution, which dealt with fundamental rights regarding the freedom of religion, Ambedkar argued that “it is inconceivable that personal law will be kept outside the jurisdiction of the state.” His point was that religious beliefs in India are so pervasive that they permeate every aspect of life from birth to death. Ambedkar asserted that the state should not intervene excessively in matters of personal law but emphasized that individuals, even those affiliated with a particular community, should have the freedom to change their personal laws.
Therefore, Ambedkar believed that the state could claim the power to legislate on matters related to personal laws. However, there would be no obligation on the state to abolish personal laws; it would merely empower the state. He assured that there was no need to fear that the state, possessing such power, would immediately enforce it against Muslims, Christians, or any other community in India. Ambedkar also mentioned the need for reform in Sharia law, particularly to make divorce easier for women.
In conclusion, in the context of the Uniform Civil Code and religious freedom, Ambedkar appreciated the sentiments of all members, particularly Muslim leaders, who expressed concern. Instead of imposing drastic changes, he emphasized that the state’s role in personal laws should be seen as “voluntary” rather than coercive, recognizing the unique challenges and sensitivities within Indian society.
Current Prime Minister’s Support.
While advocating for a Uniform Civil Code (UCC) in the country, the Prime Minister remarked, “In one family, there cannot be different rules for two individuals. How can a household function with such dual systems?” PM Modi emphasized that the Supreme Court has repeatedly advocated for a Common Civil Code, but some hungry for votes are resisting it. He highlighted that the Bharatiya Janata Party (BJP) is working with the spirit of “Sabka Saath, Sabka Vikas” (Together with All, Development for All).
The Prime Minister expressed concern about those who advocate for ‘triple talaq,’ stating that they are hungry for votes from the vote bank and perpetrating severe injustices against Muslim daughters. He underscored that ‘triple talaq’ is not just a concern for women but also shatters entire families.
PM Modi criticized the practice of divorcing a woman, whose marriage was solemnized with many hopes, by uttering ‘triple talaq.’ He remarked that some people want to keep the specter of ‘triple talaq’ hanging over Muslim daughters’ heads to freely exploit and oppress them.
Inclusion in the Jan Sangh’s Manifesto
In the general elections of 1967, the Bharatiya Jan Sangh explicitly mentioned the ‘Uniform Civil Code’ in its electoral manifesto for the first time. The manifesto promised that if Jan Sangh came to power, a ‘Uniform Civil Code’ would be implemented in the country. Even after the transformation of Jan Sangh into the Bharatiya Janata Party (BJP) in 1980, this commitment was reiterated in its election manifestos, including the one in 2019.
Introduction of the Private Member Bill Amid Opposition
On December 7, 2022, BJP’s Rajya Sabha MP Kirori Lal Meena introduced a Private Member Bill containing provisions for implementing the Uniform Civil Code in India. Amid opposition from the opposition members, the government supported Meena’s right to introduce the bill. When the opposition demanded the withdrawal of the bill, Rajya Sabha Chairman Jagdeep Dhankhar allowed a vote. The bill received 63 votes in favor and 23 against, as several members, especially from the opposition Congress, TMC, and Aam Aadmi Party, were absent during the voting.
Opposition’s Protest Against UCC
Opposition parties, including the Trinamool Congress, Marumalarchi Dravida Munnetra Kazhagam (MDMK), Nationalist Congress Party (NCP), Samajwadi Party, Communist Party of India (CPI), CPI (Marxist), and Nationalist Congress Party, opposed the introduction of the bill. They argued that if passed, it would ‘destroy’ the social fabric and diversity prevailing in the country. For the opposition parties, national unity and integrity are greater than appeasing the vote bank through the means of polarization.
(Writer is Chairman of Ambedkar Chair,Himachal Pradesh University, Shimla)