What was the debate in the Constituent Assembly?

The Constituent Assembly witnessed a lengthy discussion on a common civil code while adopting it as a directive principle.

When the said Article was being discussed on November 23, 1948, several Muslim members suggested adopting a common civil code with a caveat that it would apply to citizens with prior consent. However, BR Ambedkar was strongly opposed to the amendments.

Mohamad Ismail, a member from Madras, proposed a proviso be added to it, stating that “the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law.”

Ismail also said that a group or community’s right to follow its personal law was a fundamental one and that any tinkering with it would be “tantamount to interference with the way of life of those people who have been observing these laws for generations”.

After this, Naziruddin Ahmad from West Bengal said that it’s not just Muslims who will be inconvenienced by the UCC, as each religious community has its own religious beliefs and practices.

Adding to this, Madras-based B Pocker Sahib Bahadur said, “By uniform, I ask, what do you mean, and which particular law, of which community are you going to take as a standard?” Making a reference to the differing Mitakshara and Dayabhaga systems within the Hindu law, he said, “There are so many other systems followed by various other communities. What is it that you are making the basis?”

Similarly, lawyer and educator KM Munshi, who founded Bharatiya Vidya Bhavan, said that Hindus themselves have their separate laws and asked, “Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is therefore not just a question for minorities but also affects the majority.”

Finally, Ambedkar, the then Chairman of the Drafting Committee, pointed out that barring the North-West Frontier Province, Muslims in different parts of India like Bombay and the United Provinces were governed by Hindu law in matters of succession until 1937. However, he assured that the UCC would not be enforced upon the people as Article 44 “merely proposes that the State shall endeavour to secure a civil code”.

Ambedkar also underlined the possibility that a future Parliament could make provisions for applying the UCC in a “purely voluntary” manner.

What have the previous Law Commissions said about UCC?

In 2016, a reference was sent by the Ministry of Law and Justice to the Law Commission for examining all matters relating to the UCC’s implementation.

First came the 21st Law Commission of India, which, after taking in the views of various stakeholders, issued a consultation paper instead of a final report on the issue. The paper, titled Reforms of Family Law, was published on August 31, 2018, and argued for reforming family laws across religions through amendments and codification of personal laws to limit “ambiguity in interpretation” and application.

Citing sati, devadasi, triple talaq, and child marriage as examples of ‘social evils’ under the garb of religious customs, the Commission observed that these “practices do not conform with basic tenets of human rights and nor are they essential to religion”.

Relying on the Constitution’s Sixth Schedule, which provides certain protections to some states, the paper said that while framing laws, it must be remembered that “cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.”

Since over three years had lapsed since the paper’s publication, the 22nd Law Commission of India considered it “expedient to deliberate afresh over the subject”, in light of its importance, relevance, and also “various court orders on the subject.”

However, even before the UCC was taken up by the Law Commissions, it was extensively deliberated by the judiciary, from as far back as 1952.

What has the Supreme Court said about Uniform Civil Code?

In a number of rulings, the SC has supported the introduction of UCC. Notable among the rulings is the landmark 1985 Shah Bano ruling in which the SC upheld the right of a Muslim woman to seek alimony. The judgment set off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law and the decision was undone by Parliament.

“A common Civil Code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies,” the Court had said.

In Sarla Mudgal v Union of India (1995), the SC while prohibiting conversion to Islam to benefit from laws that allow polygamy said that the need for a UCC “can hardly be doubted”. However, it added that this can happen only when the social climate is “properly built up by elite of the society” and “statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.”

In October 2022, the Centre, while responding to a plea filed before the top court for uniformity in laws of divorce, succession, inheritance, adoption and guardianship, said that the Constitution obligated the State to have a UCC for its citizens and that the matter would be placed before the 22nd Law Commission.