Uniform Civil Code debate is not new, divided Constituent Assembly as wellhttps://indianexpress.com/article/explained/in-fact-uniform-civil-code-debate-is-not-new-divided-constituent-assembly-as-well-3086583/

Uniform Civil Code debate is not new, divided Constituent Assembly as well

Uniform Civil Code: Among other Directive Principles is Article 44, which asks the State to “endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”.

Members of the Constituent Assembly at its first meeting in Constitution Hall, now known as Central Hall, of Parliament, on December 9, 1946. Sardar Vallabhbhai Patel is in the middle, to his left is B G Kher, the Premier of Bombay state, and behind (and in between) them is lawyer and scholar-educationist K M Munshi, the founder of Bharatiya Vidya Bhavan. The Constituent Assembly took 2 years, 11 months and 17 days to complete its historic task of drafting the Constitution. During this period, it held 11 sessions over 165 days, 114 of which were spent on the consideration of the Draft Constitution. Source: Parliament of India, Picture credit: Wikipedia/Public Domain
Members of the Constituent Assembly at its first meeting in Constitution Hall, now known as Central Hall, of Parliament, on December 9, 1946. Source: Parliament of India, Picture credit: Wikipedia/Public Domain

Part IV of the Constitution of India deals with the Directive Principles of State Policy, which aren’t enforceable by any court, but which are supposed to play a fundamental role in the governance of the country, with the government duty-bound to apply these principles in making laws.

Among other Directive Principles is Article 44, which asks the State to “endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”.The Uniform Civil Code is currently at the centre of heated public debate, with the All India Muslim Personal Law Board accusing the government of attempting to sneak it in under the garb of promoting gender equality through its opposition to triple talaq in the Supreme Court.

The Uniform Civil Code is currently at the centre of heated public debate, with the All India Muslim Personal Law Board accusing the government of attempting to sneak it in under the garb of promoting gender equality through its opposition to triple talaq in the Supreme Court.

In fact, Article 44 has always been contentious — as Article 35 of the draft Constitution, it was one of the most debated clauses in the Constituent Assembly as it set about the task of drafting a new Constitution for the recently-independent sovereign nation of India. The Constituent Assembly saw a division along communal lines among members, and the clause was adopted only after B R Ambedkar, Chairman of the Constitution Drafting Committee, assured the minorities that the Article would not be thrust upon them.

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On November 23, 1948, when the Article was being discussed, Mohamad Ismail, a Member of the Constituent Assembly from Madras, proposed that a proviso be added to Article 35, which, if adopted, would have allowed “any group, section or community of people” to decide against giving up its own personal laws in case it had such a law.

Ismail asserted that the right of a group or community to follow its own personal law was among the fundamental rights, since 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 and ages”.He was followed by Naziruddin Ahmad of West Bengal, who argued that it was not just Muslims — “each religious community has certain religious laws, certain civil laws inseparably connected with religious beliefs and practices”.

He was followed by Naziruddin Ahmad of West Bengal, who argued that it was not just Muslims — “each religious community has certain religious laws, certain civil laws inseparably connected with religious beliefs and practices”.

When Mahboob Ali Baig Sahib Bahadur of Madras asserted that as far as the Muslims were concerned, “their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion”, M Ananthasayanam Ayyangar, who went on to become the second Speaker of Lok Sabha, said marriages among Muslims are a “matter of contract”.

To this, Baig responded that this contract “is enjoined on the Mussalmans by the Quran and if it is not followed, a marriage is not a legal marriage at all”.Backing the motion moved by Mohamad Ismail, B Pocker Sahib Bahadur (Madras) referred to the questions being raised by some Hindu Members to the proposed Article.

Backing the motion moved by Mohamad Ismail, B Pocker Sahib Bahadur (Madras) referred to the questions being raised by some Hindu Members to the proposed Article.

“I know there are great differences in the law of inheritance and various other matters between the various sections of the Hindu community. Is this Assembly going to set aside all these differences and make them uniform? By uniform, I ask, what do you mean and which particular law, of which community are you going to take as the standard?” he asked.“What have you got in your mind in enacting a clause like this? There are the Mitakshara and Dayabhaga systems; there are so many other systems followed by various other communities. What is it that you are making the basis?”

“What have you got in your mind in enacting a clause like this? There are the Mitakshara and Dayabhaga systems; there are so many other systems followed by various other communities. What is it that you are making the basis?”The lawyer-educationist K M Munshi (Bombay) opposed any move to amend the Article, saying the law would affect members of all religions. He received support from several other Hindu Members.

The lawyer-educationist K M Munshi (Bombay) opposed any move to amend the Article, saying the law would affect members of all religions. He received support from several other Hindu Members.

“Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is, therefore, not merely a question for minorities but it also affects the majority. 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,” Munshi said.Ambedkar too opposed the amendments, pointing out that in North Malabar (Kerala), “the Marumakkathayam Law applied to all — not only to Hindus, but also to Muslims”. And, “it is to be remembered that the Marumakkathayam Law is a matriarchal form of law and not a patriarchal form of law.”

Ambedkar too opposed the amendments, pointing out that in North Malabar (Kerala), “the Marumakkathayam Law applied to all — not only to Hindus, but also to Muslims”. And, “it is to be remembered that the Marumakkathayam Law is a matriarchal form of law and not a patriarchal form of law.”

Babasaheb then went on to reassure Muslims, saying that “they have read rather too much into Article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country.

“It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. 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. Parliament may feel the ground by some such method.“This”, Ambedkar said, “is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussulmans who wanted that he should be bound by the Shariat Act should go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors. It would be perfectly possible for Parliament to introduce a provision of that sort; so that the fear which my friends have expressed here will be altogether nullified.

“This”, Ambedkar said, “is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussulmans who wanted that he should be bound by the Shariat Act should go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors. It would be perfectly possible for Parliament to introduce a provision of that sort; so that the fear which my friends have expressed here will be altogether nullified.

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“I, therefore, submit that there is no substance in these amendments and I oppose them,” Ambedkar said.