When a Congress leader backed UCC: How Constituent Assembly debated code

State Interference/Tyranny:

Mohammad Ismail Khan, the United Provinces Member from the Muslim League, argued it was unnecessary “to compel people to give up their personal law” with the objective to “secure harmony through uniformity”.

“This secular State which we are trying to create should not do anything to interfere with the way of life and religion of the people,” he argued. Khan added that retaining personal law was nothing new, with precedents to this effect in European countries.

B Pocker, Madras Member from the Muslim League, said that “a guarantee” of the liberty to follow personal laws was available even during the British rule.

“…and let it not be taken that I am only voicing forth the feelings of the Mussalmans. In saying this, I am voicing forth the feelings of ever so many sections in this country who feel that it would be really tyrannous to interfere with the religious practices, and with the religious laws, by which they are governed now,” he said.

Against Article 19

Naziruddin Ahmad, Member from West Bengal representing the Muslim League, argued that interfering with personal laws clashed with Article 19 of the Draft Constitution, which provided for freedom of conscience and the right freely to profess, practise and propagate religion.

Certain aspects of the British Civil Procedure Code, Ahmad said, had already “interfered with our personal laws and very rightly so”, 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,” he also said.

What the British in 175 years, he said, “failed to do or was afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the State to do all at once,” he added.

Secular State/Diversity:

Mahboob Ali Baig, who represented Madras, said his view was that the words “Civil Code” do not cover the “strictly personal law of a citizen” and as far as the Muslim community was concerned, their laws of succession, inheritance, marriage and divorce “are completely dependent upon their religion.”

Syed Hussain Imam, Member from Bihar, said a Secular State does not mean that “it is anti-religious…not irreligious but non-religious and as such there is a world of difference between irreligious and non-religious.”

He also hoped that Ambedkar’s “ingenuity…will be able to find a solution for this”.

“…we should first await the coming of that event when the whole of India has got educated, when mass illiteracy has been removed, when people have advanced, when their economic conditions are better, when each man is able to stand on his own legs and fight his own battles. Then, you can have uniform laws,” he said.

Those who supported UCC:

On Article 19

KM Munshi, a Congress Member elected from Bombay, sought to clarify in regard to Article 19 that the House had already accepted the principle that if a religious practice covers a secular activity or falls within the field of social reform or social welfare, it would be open to Parliament to make laws about it without infringing this Fundamental Right of a minority.

On State ‘Tyranny’

Questioning the argument that the enactment of a Civil Code would be tyrannical towards minorities, Munshi said nowhere in advanced Muslim countries had the personal law of each minority 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…When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied…and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point,” he said.

“When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and not to the customs of a part of it. It is not therefore correct to say that such an act is tyranny of the majority,” he argued.

National Unity and Secularism

Munshi said the main question was whether the members of the Constituent Assembly were going to “consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular.”

“We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What have these things got to do with religion I really fail to understand…after all we are an advancing society,” Munshi said.

“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,” he argued.

Common Ground

Alladi Krishnaswami Ayyar from Madras sought to underline that a uniform civil code aimed at amity. “What it aims at is to try to arrive at a common measure of agreement… It is not as if one legal system is not influencing or being influenced by another legal system,” he said.

Questioning Pocker’s stance, Ayyar submitted that when the British occupied the country, they introduced one criminal law applicable to all citizens, be they Englishmen, Hindus or Muslims.

“Did the Muslim stake exception, and did they revolt against the British for introducing a single system of criminal law? Similarly, we have the law of contracts governing transactions between Muslims and Hindus, between Muslims and Muslims. They are governed not by the law of the Koran but by the Anglo-Indian jurisprudence, yet no exception was taken to that,” he said.

Women’s Upliftment

Munshi also sought to underline that a common code for the entire country was required to uplift the status of women in independent India.

“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. Therefore, there is no reason why there should not be a civil code throughout the territory of India,” he said.

Ambedkar’s Response to UCC debate

Responding to Hussain Imam, Ambedkar said India already had a uniform code of laws covering “almost every aspect of human relationship” in the form of a uniform and complete Criminal Code.

The only province the Civil Law had “not been able to invade so far”, he noted, was Marriage and Succession. “It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have Article 35 as part of the Constitution to bring about that change…” he said.

Challenging the argument that Muslim personal law was “immutable and uniform through the whole of India”, Ambedkar pointed out that up to 1935, the North-West Frontier Province was not subject to the Shariat Law and followed Hindu Law in the matter of succession among others.

So much so, Ambedkar added, that in 1939 the Central Legislature “had to come into the field”, abrogate the application of Hindu Law to the NWFP’s Muslims and replace it by Shariat Law.

“That is not all. My honourable friends have forgotten, that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession.”

Ambedkar’s Vision of UCC

There were, to Ambedkar, other possibilities, in which a future Parliament “may feel the ground” by making adherence to a common civil code “purely voluntary”.

“It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary…”