What framers of our Constitution said about UCC and why they didn’t implement it

By Ramesh Sharma: “If a house has one law for one member and another law for another member, can the house run? How will the country run with a dual system? We should remember that the Constitution of India also talks about equal rights of citizens. The Supreme Court has also asked on many occasions to implement the Common Civil Code (Uniform Civil Code).”

This remark by Prime Minister Narendra Modi, while addressing BJP workers in Bhopal on June 27, has reignited the debate on the contentious issue of a common civil law. Speculation is rife that the UCC bill could come up in Parliament as early as the Monsoon Session starting July 20. There is also intense chatter about its likely contours; its impact on religious practices, diversity, tribal customs, the Hindu Undivided Family under the Income-Tax Act, etc.

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Notably, Prime Minister Modi’s push for a UCC came less than a fortnight after the 22nd Law Commission on June 14 had asked the general public and recognised religious organisations to give their opinion on UCC within a month. Even the Supreme Court had recommended the implementation of UCC on several occasions. But it is the timing of PM Modi’s statement that has sparked a pitched debate on the UCC.

The opposition alleges that PM Modi’s party, the BJP, is trying to polarise voters ahead of the 2024 elections. On the other hand, political analysts say the BJP has set the agenda for the 2024 Lok Sabha elections. So, the battle lines are drawn between the ruling BJP and the opposition Congress; the debate is divided; different stakeholders are voicing their interests; the fronts are open.

However, as Prime Minister Modi cited the Constitution and the Supreme Court in his statement, it is imperative to first know what the Constitution says about a UCC.

UCC IN THE CONSTITUTION

In Part 4 of the Constitution, the Directive Principles of State Policy (DPSP) figure from Articles 36 to 51. And Article 44 is the one that talks about a Uniform Civil Code. According to this, a uniform civil law should be made for all the citizens of the country. Here it is important to know that the Directive Principles are ideal principles – while governments and citizens can be encouraged to follow them, they are not mandatory.

Also, Directive Principles are not “enforceable” in a court of law. Considered as an ideal state of political governance, it is believed that if the state policy follows the Directive Principles, then public welfare and social harmony will increase. To make the Directive Principles “enforceable” in a court of law, the government needs to legislate on the DPSP articles separately. Sometimes Directive Principles can also clash with the Fundamental Rights.

DIRECTIVE PRINCIPLES VS FUNDAMENTAL RIGHTS

A section of legal experts believes that a Uniform Civil Code will go against the fundamental rights of religious freedom (Articles 25-28). In Part 3 of the Constitution, there is a provision of fundamental rights from Articles 12 to 35. In an ideal situation, Fundamental Rights and Directive Principles are said to complement each other. But many times a situation of conflict and dispute has arisen between them. In reality, these are two sides of a scale, and it is the job of the governments to strike a balance between the two.

Disputes between Fundamental Rights and Directive Principles are understood and settled on the basis of parliamentary debates and judicial decisions. There have been some landmark judgments on the clash between Directive Principles and Fundamental Rights. Two of the judgments are in the Golaknath vs State of Punjab (1967) and the Kesavananda Bharti vs State of Kerala (1973) cases.

On the basis of these decisions, it can be said that the Parliament can amend the fundamental rights of the citizens, but this amendment should not affect the “basic structure” of the Constitution.

Now, as the UCC bowling ball gathers steam, let us rewind to the black-and-white era of the Constituent Assembly that debated, discussed and thrashed out hundreds of laws before giving us the Constitution of India.

UCC IN CONSTITUENT ASSEMBLY

The issue of a Uniform Civil Code was debated vigorously in the Constituent Assembly after Independence.

The country was witnessing the tragedy of Partition at that time. The largescale communal violence had created an atmosphere of mistrust. Implementing a Uniform Civil Code in the country was a challenge.

Mohammad Ali Jinnah and the Muslim League had already said that the “Congress government of Hindus” would not allow Muslims to live according to Islam. For them there will be discrimination on the basis of religion in India. In such a situation, the Uniform Civil Code was put in the Directive Principles of State Policy in the hope that sometime in the future, a law could be made and implemented.

After that, UCC has figured in political debates and electoral politics from time to time.

On November 23, 1948, the issue of UCC was raised for the first time in the Constituent Assembly.

It was proposed by Congress’s Meenu Masani, a member of the Constituent Assembly from Bombay (now Mumbai), leading to a vigorous and expansive debate on the subject. At that time, UCC figured under Article 35.

LEADERS WHO SUPPORTED UCC

The Uniform Civil Code first got support from women members.

There were 15 women members in the Constituent Assembly. Hansa Mehta was among these 15, and she lobbied for a UCC as a member of the Fundamental Rights Sub-Committee.

Apart from them, Rajkumari Amrit Kaur, Dr Bhimrao Ambedkar, Meenu Masani, Kanhaiyalal Maniklal Munshi, Alladi Krishnaswami Iyer vociferously supported the implementation of a UCC and argued strongly in its favour.

Almost the entire Congress, including then Prime Minister Jawaharlal Nehru, was also in support of a UCC.

LEADERS WHO OPPOSED IT

Mohammad Ismail, a member from Madras (now Chennai), was the first to oppose a UCC in the Constituent Assembly.

Ismail was part of a group of five Muslim members, which included Naziruddin Ahmed, Mehboob Ali Baig, B Pokar Saheb, and Ahmed Ibrahim, that brought an amendment against the UCC. Apart from this, Urdu poet Maulana Hasrat Mohani, who gave the slogan of ‘Inquilab Zindabad’, also took part in the debate and opposed the UCC.

The contours of the debates and arguments from both sides of the divide give an idea of the hopes and fears of the political and social class of the time, as also the framers and pioneers who set out to draft a new Constitution of India.

KEY HIGHLIGHTS OF CONSTITUENT ASSEMBLY DEBATE ON UCC

Arguments put forth in favour of a Uniform Civil Code

1. Promoting Gender Equality:

– Implementing a Uniform Civil Code (UCC) would eliminate discriminatory practices prevalent in personal laws and establish equality between men and women.

– Personal laws often discriminate against women regarding inheritance, marriage, divorce, and maintenance rights. A UCC would ensure equal rights for women in these matters.

2. National Unity and Integration:

– A UCC would foster national unity by transcending religious and community divisions, promoting a sense of common citizenship.

– Personal laws, based on religion or community, tend to perpetuate differences and divisions among citizens, hindering the nation’s cohesive fabric.

3. Secularism and Individual Rights:

– Implementing a UCC would uphold the principles of a secular state, where religious beliefs do not dictate civil matters.

– It would safeguard individual rights and freedom of choice, allowing citizens to opt for a civil law system, instead of being bound by religious laws.

4. Modernizing Legal System:

– A UCC would bring India’s legal system in line with global standards and contemporary values, reflecting the needs of a modern society.

– Personal laws, rooted in traditional practices, often conflict with evolving social norms, necessitating a comprehensive and inclusive legal framework.

5. Harmonizing Diverse Traditions:

– A UCC would strive to harmonise diverse cultural, regional, and religious practices, fostering social cohesion and national integration.

– By creating a common set of laws applicable to all citizens, a UCC would minimise conflicts arising from differences in personal laws.

Arguments put forth to oppose a Uniform Civil Code

1. Preserving Religious and Cultural Autonomy:

– Opponents argued that implementing a UCC would infringe upon religious and cultural autonomy, diluting the diversity of India’s society.

– Personal laws are deeply rooted in religious and cultural traditions, and their preservation was essential to protect minority communities’ distinct identities.

2. Violation of Fundamental Rights:

– Critics claim that enforcing a UCC would violate the fundamental right to freedom of religion, as citizens would be compelled to follow a common civil law.

– It was argued that personal laws provide individuals with the freedom to practice their religion without interference from the state.

3. Complexity and Practicality:

– Skeptics argued that formulating a single comprehensive civil law that caters to the diverse needs of a vast country like India is a complex task.

– Implementing and enforcing a UCC would require significant administrative, legislative, and judicial efforts, raising concerns about its practicality.

4. Potential Social Unrest:

– Opponents feared that imposing a UCC could trigger social unrest and resentment among religious communities, leading to societal divisions.

– Personal laws have long been ingrained in people’s lives, and any sudden change could disrupt social harmony and communal relations.

5. Respect for Diversity and Pluralism:

– Critics emphasised the importance of respecting and acknowledging India’s diverse cultural and religious pluralism.

– Personal laws allow different communities to maintain their distinct identities and practices, fostering a multicultural society.

WHO SAID WHAT ON UNIFORM CIVIL CODE

1. Dr BR Ambedkar (Chairman of the Drafting Committee):

– Supported the UCC as a means to promote gender equality and eliminate discrimination based on personal laws.

– Advocated for a comprehensive civil code that would ensure equal rights for women in matters of marriage, divorce, and inheritance.

2. Jawaharlal Nehru (First Prime Minister of India):

– Emphasised the need for social reform and modernisation, favoring a UCC to replace personal laws based on religion.

– Stressed the importance of secularism and individual rights, highlighting the UCC’s potential to foster a unified and progressive nation.

3. Sardar Vallabhbhai Patel (Deputy Prime Minister and Minister of Home Affairs):

– Advocated for a UCC to promote national integration and eliminate divisions based on religious or community-based laws.

– Stressed the significance of creating a common set of laws applicable to all citizens, irrespective of their religious backgrounds.

4. Maulana Abul Kalam Azad (Senior Congress Leader):

– Expressed concerns about the potential erosion of religious autonomy and minority rights with the implementation of a UCC.

– Emphasised the need to respect the cultural and religious diversity of India, suggesting that personal laws should be protected.

5. Dr Rajendra Prasad (President of the Constituent Assembly):

– Supported the idea of a UCC as a means to ensure equal rights for women and promote gender justice.

– Acknowledged the challenges in implementing a UCC but stressed the importance of modernising India’s legal system.

6. Alladi Krishnaswami Ayyar (Senior Advocate and Member, Constituent Assembly):

– Argued for the UCC, highlighting the need to eliminate discrimination against women and establish a uniform civil law for all citizens.

– Stressed the importance of promoting gender equality and social justice through a comprehensive civil code.

7. KT Shah (Socialist Leader and Member, Constituent Assembly):

– Raised concerns about the potential violation of religious freedom and minority rights with the imposition of a UCC.

– Proposed a more gradual approach to social reform, advocating for reforms within personal laws rather than a complete overhaul.

8. HV Kamath (Member, Constituent Assembly):

– Supported the UCC, emphasising the need to establish a unified legal system that transcends religious divisions.

– Stressed that a UCC would contribute to national integration and ensure equal rights for all citizens.

9. Frank Anthony (Member, Constituent Assembly):

– Expressed reservations about imposing a UCC, emphasising the need to respect the cultural diversity and pluralism of India.

– Highlighted the importance of safeguarding minority rights and allowing communities to maintain their distinct identities.

10. Begum Aizaz Rasul (Member, Constituent Assembly):

– Raised concerns about the potential impact of a UCC on Muslim personal laws, advocating for the protection of religious practices.

– Argued that a UCC should accommodate the religious beliefs and traditions of all communities to ensure harmony and social cohesion.

11. KM Munshi (Member, Constituent Assembly):

– Strongly supported the UCC, emphasising the need to move away from religious-based laws and establish a modern and egalitarian legal framework.

– Stressed the importance of women’s rights and social progress in the context of a UCC.

12. Mahavir Tyagi (Member, Constituent Assembly):

– Opposed the UCC, citing concerns about potential unrest and clashes between religious communities if their personal laws were abolished.

– Argued that personal laws should be preserved to protect the unique cultural and religious identities of different communities.

13. Acharya JB Kripalani (Senior Congress Leader and Member, Constituent Assembly):

– Raised concerns about the practicality and implementation challenges of a UCC, suggesting that reforms should be introduced gradually.

– Advocated for a more consultative approach to address the complexities and sensitivities associated with personal laws.

14. TT Krishnamachari (Senior Congress Leader and Member, Constituent Assembly):

– Supported the UCC, highlighting the importance of gender equality and the need for a unified legal system in a diverse nation.

– Emphasised that a UCC would promote social justice, eliminate discrimination, and foster a more harmonious society.

15. N Gopalaswami Ayyangar (Senior Congress Leader and Member, Constituent Assembly):

– Advocated for a UCC, citing the need to eliminate discrimination against women and establish a uniform legal framework for all citizens.

– Argued that a UCC would contribute to national unity and social cohesion by transcending religious differences.

16. Maulana Hasrat Mohani (Prominent Muslim Leader and Member, Constituent Assembly):

– Supported the UCC, emphasising the importance of gender justice and equal rights for women in Muslim personal laws.

– Argued for reforms within personal laws to align them with the principles of justice and equality.

17. Hansa Mehta (Social Activist and Member, Constituent Assembly):

– Strongly supported the UCC, stressing the need to eliminate gender-based discrimination and ensure equal rights for women.

– Argued that a UCC would align with the principles of the Indian Constitution and promote social progress.

18. T Prakasam (Senior Congress Leader and Member, Constituent Assembly):

– Expressed concerns about the potential violation of minority rights with the imposition of a UCC, emphasising the need for religious autonomy.

– Suggested that personal laws should be reformed to address gender disparities while respecting cultural and religious diversity.

19. Damodar Das Mavlankar (Member, Constituent Assembly):

– Supported the UCC, emphasising the importance of gender equality and the need for a unified legal framework in a modern democratic nation.

– Argued that personal laws should not perpetuate discrimination, and a UCC would promote social justice and equal rights for all.

20. Kamalapati Tripathi (Senior Congress Leader and Member, Constituent Assembly):

– Expressed reservations about imposing a UCC, highlighting the potential disruption and conflicts that could arise from abolishing personal laws.

– Advocated for reforms within personal laws to address gender inequalities and promote social harmony.

WHAT WAS DERIVED FROM THE DEBATES

The Constituent Assembly debates on the Uniform Civil Code reflect a range of perspectives and considerations. While proponents emphasized the need for gender equality, national unity, and modernisation of the legal system, opponents stressed the importance of religious autonomy, minority rights, and cultural diversity. The discussions surrounding the UCC in the Constituent Assembly were crucial in shaping the future trajectory of India’s legal framework, demonstrating the complexities inherent in addressing personal laws in a diverse and pluralistic society.

(With additional inputs from Anurag Anant, The Lallantop)