Religion, Reform and Khilji: Uniform Civil Code and the Constituent Assembly

Last week, a private member bill (‘UCC Bill’) was moved in the Parliament seeking the enactment of the Uniform Civil Code in furtherance of Article 44 of the Constitution. Article 44 is part of the non-enforceable Directive Principles of State Policy which obligate the state to enact a uniform civil code for the citizens of India. To that effect, the Bill seeks the constitution of a national inspection and investigation committee which shall prepare the Uniform Civil Code (‘UCC’) and implement it. The UCC in a nutshell will be a common code for citizens irrespective of religion inter alia on matters of marriage, divorce, inheritance and adoption.

Shortly after the introduction, the Bill ran into severe opposition. Some opposition MPs have argued that the Bill will result in severe polarisation. Others have termed it anti-secular, an attack on India’s diversity and an attempt by the government to impose its political agenda. The Bill has its defenders too. For instance, time and again the Supreme Court and the High Courts have called for its enactment. Recently, the Chairperson of the National Human Rights Commission Justice Arun Mishra called for the enactment of the UCC on the grounds that it would eradicate discrimination against women in matters of inheritance, property rights and parental rights.

The debate over UCC is not new and goes back to the Constituent Assembly tasked with creating our Constitution. Interestingly, even today this debate is witnessing the same arguments that were made in the Assembly. In this post, I recap those debates in the Assembly. The present Article 44 was numbered Article 35 in the draft Constitution but for the sake of convenience, I have used its current terminology i.e., Article 44 throughout this post.

A. Arguments in Opposition:

The opposition to Article 44 i.e., the directive principle concerning the UCC primarily came from the Assembly’s Muslim members. Three members moved respective amendments to keep personal law out of the UCC’s ambit. For instance, the amendment moved by Mohd. Ismail Khan read, “Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.”  Member Naziruddin Ahmed moved an amendment stating that the personal law of a community shall not be changed unless a previous approval of the said community has been approved.

Personal law here means the law that governs the personal sphere of a human being’s life i.e., marriage, divorce, succession etc.

The arguments opposing the provision were threefold. First, religion is sacred to the masses and must not be interfered with. Second, the provision violates the right to religion. Third, the provision is an act of tyranny.

First, member Mohd. Ismail Khan argued that personal laws are sacred to a person’s religion and culture and interference of any kind will go against the idea of a secular state. Member Mahboob Ali Baig took this argument further and argued that personal laws are very sacred to certain communities. He gave the example of Islam to argue that Muslims have followed certain practices for over 1300 years and if they are changed, the community will refuse to abide by it. He remarked, “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 was further argued that because of the above-mentioned reasons the Britishers never interfered with the personal laws. Naziruddin Ahmed argued, that even if the interference is important, it must happen gradually and not immediately.  He remarked, “But during the 175 years of British rule, they did not interfere with certain fundamental personal laws… I submit that the interference with these matters should be gradual and must progress with the advance of time. I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come.

Second, Mohd. Ismail Khan argued that the provision violates the fundamental right to religion. He remarked, “The right of a group or a community of people to follow and adhere to its own personal law is among the fundamental rights and this provision should really be made amongst the statutory and justiciable fundamental rights.” According to Khan, although the purpose behind the provision is to secure harmony through uniformity, however, its effect will be the opposite as its implementation will generate discontent and disharmony. Hence, personal laws should be exempted from its operation.

This argument was supported by Naziruddin Ahmed who argued that “having guaranteed, and very rightly guaranteed the freedom of religious practice and the freedom to propagate religion, I think the present article tries to undo what has been given in article 19. I submit, Sir, that we must try to prevent this anomaly.” However, Ahmed conceded that pernicious religious practices may be controlled using the restrictions present in the right to religion i.e., the grounds of public order, morality, health and other rights under Part III.

Third, Mahboob Ali Baig Bahadur termed the provision an act of tyranny whereby uniform laws would be imposed on the citizens in contravention of their religious practices. According to him he was speaking on behalf of the entire nation and not just Muslims. He remarked, “There are ever so many multitudes of communities following various customs for centuries or thousands of years. By one stroke of the pen you want to annul all that and make them uniform. What is the purpose served? What is the purpose served by this uniformity except to murder the consciences of the people and make them feel that they are being trampled upon as regards their religious rights and practices? Such a tyrannous measure ought not to find a place in our Constitution.”

He argued that hypothetically if the majority were to favour such an imposition it would be an act of tyranny of the majority. He remarked, “If the framers of this article say that even the majority community is uniform in support of this, I would challenge them to say so. It is not so. Even assuming that the majority community is of this view, I say, it has to be condemned and it ought not to be allowed, because, in a democracy, as I take it, it is the duty of the majority to secure the sacred rights of every minority. It is a misnomer to call it a democracy if the majority rides rough-shod over the rights of the minorities. It is not democracy at all; it is tyranny. Therefore, I would submit to you and all the Members of this House to take very serious notice of this article; it is not a light thing to be passed like this.”

Bahadur further questioned the parameter or standard of the uniformity of the code. In other words, he questioned which religious system would serve as the basis of the new code, would it be Mitakshara or Dayabagha system or any other. He remarked, “By uniform, I ask, what do you mean and which particular law, of which community are you going to take as the standard? What have you got in your mind in enacting a clause like this? There are the Mitakshara and Dayabaga systems; there are so many other systems followed by various other communities. What is it that you are making the basis? Is it open to us to do anything of this sort? By this one clause you are revolutionising the whole country and the whole setup. There is no need for it.”

B. Rebutting the Opposition:

The arguments raised in opposition of the provision were rebutted by KM Munshi, Sir Alladi Krishnaswamy Ayyar and Dr. Ambedkar himself.

First, Ambedkar argued that even though religion is sacred to citizens, there have been legislative interference in matters of religion in the past. Ambedkar was indirectly responding to the argument of Mohd. Ismail Khan. Ambedkar gave the example of the Muslim Personal Law (Shariat) Application Act, 1937 which was passed to apply the Shariat Law to Muslims in all regions. This was passed because at the time the Muslims in United Provinces, the Central Provinces and Bombay were governed by Hindu Law on matters of succession. Similarly, in North Malabar the Marumakkathayam Law (a matriarchal form of law) applied to both Hindus and Muslims.

Ambedkar remarked, “The Mussulmans, therefore, in North Malabar were up to now following the Marumakkathyam law. It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in certain parts and it has been made applicable ten years ago.”

Ambedkar further argued that if certain provisions of Hindu law were found suitable and hence, incorporated in the UCC, it would not be an act that should upset the sentiments of the Muslim community. He remarked, “Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus, law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35, I am quite 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.”

Second, Munshi argued that the allegation of violating the right to freedom of religion is incorrect as the very article allows the state to make laws for regulating secular activities associated with religious practices and for social welfare/reforms. Hence, the parliament is empowered to make laws in furtherance of the provision so long as it falls within these exceptions.

Munshi also rebutted the argument that since the British had not touched personal laws, neither should the Constituent Assembly. He argued that we must outgrow the attitudes perpetuated under the British rule. He recounted an incident from the life of emperor Allauddin Khilji. Khilji had made several changes to the Shariat laws at the time, which upset the Qazi of Delhi (religious officer). Replying to the Qazi’s objection Khilji had famously remarked,  “I am an ignorant man and I am ruling this country in its best interests. I am sure, looking at my ignorance and my good intentions, the Almighty will forgive me, when he finds that I have not acted according to the Shariat.”

Citing this incident Munshi argued that a modern government cannot accept that religious rights cover personal law.

Alladi Krishnaswamy Ayyar supported Munshi’s argument and remarked that our Muslim brothers should trust the national government and not pose greater faith in the foreign British government. He remarked, “We only go a step further than the British who ruled in this country. Why should you distrust much more a national indigenous Government than a foreign Government which has been ruling? Why should our Muslim friends have greater confidence, greater faith in the British rule than in a democratic rule which will certainly have regard to the religious tenets and beliefs of all people?”

Third, Munshi argued that Article 44 was not tyrannical as none of the advanced Muslim countries (he named Turkey and Egypt) prevent the enactment of a civil code on grounds of protecting minority religious practices. This argument was elaborated by Dr. Ambedkar (and supported by Alladi Krishnaswamy Ayyar) who argued that countries in Europe have a Civil Code in place and everyone including the minorities have to submit to the Code, an act which is not considered tyrannical to the minority.

Munshi further called for divorcing religion from personal law. He gave the example of the Hindu Law Draft pending before the interim parliament to argue that although the provisions of the draft ran counter to the laws of Manu and Yagnyavalkya they were still incorporated because it was the need of the advancing society.  

He remarked,

But after all we are an advancing society. We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If however the religious practices in the past have been so construed as to cover the whole field of life, 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. This is what is emphasised by this article.”

Ambedkar further argued that unification is not a novel idea in the country, since we already have a uniform Criminal Code (Penal Code and Criminal Procedure Code) and Civil Code (Law of Transfer of Property, Negotiable Instruments Acts and Code of Civil Procedure). According to Ambedkar, the only little area of civil law that was not covered in the civil code was marriage and succession and Article 44 aimed to change that.

C. Need for Gender Equality:

The main argument behind the Article 44 was the need for reforming personal laws. For instance, Munshi argued that if we consider personal law as part of religion, we will never be able to afford equality to women. He gave the example of discriminatory practices in Hinduism to argue that there is a need to elevate the position of Hindu women to that of men, and Article 44 will allow that, not just for Hindus but for all religions.

Munshi remarked,

I know there are many among Hindus who do not like a uniform Civil Code, because they take the same view as the honourable Muslim Members who spoke last. They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men.”

This argument was supported by women members of the Constituent Assembly as well. For instance, Hansa Mehta and Rajkumari Amrit Kaur (two of the fifteen women members of the Assembly) wrote to Sardar Patel (head of the Advisory Committee in the Assembly) arguing in favour of making the UCC an enforceable fundamental right.

Concluding Remarks:

The debate over the UCC is not new and has rekindled time and again. If the debates in the Constituent Assembly are to be relied upon, the new UCC Bill is a step that should be welcomed, provided it does what the Assembly hoped i.e., correctly reform personal laws and remove discriminatory practices.

Unfortunately, whenever a government has tried to reform religion by removing discriminatory practices, there has been stiff opposition from traditionalists. For instance, when Pt. Nehru’s government introduced the ‘Hindu Code Bill’ before the provisional parliament which sought to liberalise Hindu personal law by elevating the rights and status of women, it was heavily opposed by traditional Hindus who cited Hindu texts to justify discrimination against women. I hope that the UCC Bill breaks this unfortunate norm and receives requisite support from all quarters provided it truly attempts to bring reform and end discriminatory practices.

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