UNIFORM CIVIL CODE - It is time to revisit this issue

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With  the recent Supreme Court Judgement that Fatwas are not legally  binding, the question of a uniform civil code is again being debated.

Recently,  the Press Council of India Chairperson Justice Markandey Katju said  in a write up and I quote- “I am fully in support of Uniform Civil  Code” and “one of the reasons for the backwardness of Muslims is  the lack of modernisation of their personal law”.

As  expected, the Muslim press as well the community leaders like All  India Muslim Personal Law Board (AIMPLB) spokesperson Qasim Rasul  Ilyas, All India Muslim Majlis-e-Mushawarat president Dr Zafarul  Islam Khan, another AIMPLB member Kamal Farooqui and others severely  criticised the observations of Justice Katju.

In  fact there was nothing new in the arguments of either of the two as  it was simply a repetition of the sense in the debate of the  Constituent Assembly. This debate is still continuing and would  continue to be debated in the absence of a strong political will of  successive ruling parties.

Factually,  the constitutional commitment for the enforcement of this Code was  pushed into the back burner since early fifties of the last century  by the first Congress party Government led by Jawaharlal Nehru and  continued. The reasons for such an attitude were not far to seek.  Many would call this as the politics of perverse secularism.

A.K.Antony,  the former Defence Minister may have beeen the first senior Congress  leader who dared to speak honestly when he said, “Some sections of  society have an impression that the party (Congress) is inclined to  certain communities and organisations. Congress’ policy is equal  justice to every one. But people have doubts whether that policy is  being implemented or not”. Although, the party has distanced itself  from this statement, those who are aware of the history of secular  India have reasons to believe what the Congress leader said is true.

Independent  India though inherited the legacy of violent partition on grounds of  religion had at the same time accepted a sizeable chunk of Muslims as  its minority.

Aware  of the pre-partition mental frame of the Muslims who opted to stay  back in India, our national leaders with a view to put a check on the  attitude of their communal cleavage and to assume national unity for  a perfect social and political democracy – decided to discuss the  issue of Uniform civil Code for the entire citizenry.

Accordingly,  as a first step in the direction of national unity which was not  possible without social union, the Constituent Assembly held a long  debate on November 23, 1948 in the Constitution Hall, New Delhi with  Vice President Dr. H.C.Mukherjee in chair. The members of the  Drafting Committee of the Constitution debated the motion on Article  35 of the Directive Principles of Draft Constitution which reads,  "The State shall endeavour to secure for citizens a uniform  civil code throughout the territory of India". The motion was  however, strongly contested by the Muslim representatives on the plea  that interference in Muslim Personal Laws amounts to infringement of  their fundamental rights guaranted in Constitution. One of them even  argued that the motion is tyrannous to the minority. (Vide page 540  to 552 of Volume VII of Constituent Assembly Debate).

The  members who were in support of the motion convincingly rebutted the  arguments of the Muslim members. The sense of the House was that the  Shariat (Islamic laws) was negotiable not only during British rule  but also during the first Sultanate of Allauddin Khilji in Delhi. Had  Shariat been not negotiable how did the Indian Muslims accept the  criminal laws enacted by the British?

Shariat  covers all the criminal and civil matters of Muslim society. But its  erosion started in India when the Muslim rulers lost their power to  East India Company which was subsequently transferred to the British  Empire. Superseding the Shariat the British Power codified the entire  criminal laws under Indian Penal Code of 1860 and the Criminal  Procedure Code. There was no opposition to this move of the British  by the Muslims. Similarly, the Muslims had no objection for Transfer  of Properties Act or Indian Evidence Act. These non-Shariat Acts are  still continuing even after the end of British rule. But there were  no objections then.

As  far as Muslim Personal Laws are concerned, the British played its  divisive politics and allowed all the communities to follow their  customary family laws like marriage, divorce, inheritance and  adoption. Muslims in several parts of India were also following the  local customs of Hindus but British on persuasion of the Muslim  leaders imposed restrictions on those Muslims who were following  non-Islamic practices by enacting the Shariat Act in 1937. This was a  calculated move of the colonial power to keep the Muslims and Hindus  communally divided for its self-centric political gain. With Shariat  Act the British not only won the loyalty of a section of Muslims but  also crystalised their movement for separatism which led to the  partition of the sub-continent.

Contrary  to the British enactment of Shariat Act, the Portuguese, another  colonial power successfully introduced Common Civil Code in the  matters of marriage, inheritance and so on in Goa. Even today the Goa  Civil Code, also known as Goa Family Law which is a set of civil laws  governs the entire population including Muslims of this Indian State.

Before  the concluding speech of Dr. B. R. Ambedkar, K. M. Munshi strongly  contested the theory that Muslim Personal Laws were part of religion.  He advised the Muslim members that “sooner we forget this  isolationist way of life, it will be better for the country”. He  reminded them saying, “This attitude of mind perpetuated under the  British rule, that personal law is part of religion, has been  fostered by the British and by British courts. We must, therefore,  outgrow it”. He further reminded them that “Allauddin Khilji made  several changes which went against the Shariat, though he was the  first ruler to establish Muslim Sultanate here. The Kazi of Delhi  objected to some of his reforms, and his reply was-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. If Allauddin could not, much less can a modern government  accept the proposition that religious rights cover personal law or  several other matters which we have been unfortunately trained to  consider as part of our religion. That is my submission.”. (Ibid.  Page 548).

Dr.  B. R. Ambedkar said, "I personally do not understand why  religion should be given this vast, expansive jurisdiction, so as to  cover the whole of life and to prevent the legislature from  encroaching upon that field. After all, what are we having this  liberty for? We are having this liberty in order to reform our social  system, which is so full of inequities, discriminations and other  things, which conflict with our fundamental rights"(Ibid). After  his long speech in favour of the Uniform Civil Code, the motion “that  article 35, stand part of the Constitution” was adopted and added  to the Constitution as Article 44. Giving final shape to this  Article, Dr. Ambedkar maintained that Directive Principles were  binding for the functioning of the democracy. The sense of the  argument was to achieve social democracy for a long lasting political  democracy.

When  the Fundamental Rights Sub Committee decided to make the uniform  civil code a directive principle, Amrit Kaur along with two other  members wrote, “One of the factors that have kept India back from  advancing to nationhood has been the existence of personal laws based  on religion which keep the nation divided into watertight  compartments in many aspects of life.”- Shiva Rao, The Framing of  India’s Constitution: Select Documents II).

Although,  the Constituent Assembly successfully pushed this Article through,  the problem for its enforcement remained uncertain due to the Article  37 of the Directive Principles that reads, “the provisions  contained in this part (dealing with UCC) shall not be enforceable by  any court but the principles therein laid down are nevertheless  fundamental in the governance of the country and it shall be the duty  of State to apply these Principles in making laws”. Some scholars  view this Article in contrast to the Fundamental Rights of the  Constitution which guarantees the judicial enforcement and therefore  gives a long rope to the State to keep its implementation pending for  any period of time they desire as the Constitution did not specify  any time limit for its enforcement. Notes of M. R. Masani, Hansa  Mehta and Rajkumari Amrit Kaur as cited in Framing of India’s  Constitution, Editor B. Shiva Rao, VOL. VII, Page 177 reads, “We  are of the view that a Uniform Civil Code should be guaranteed to the  Indian people within a period of five or ten years”  (http://blogs.timesofindia.indiatimes.com/satyam-bruyat/uniform-civil-code/).

The  question arises that despite being aware of the attitude of the  minority community when our leaders in Constituent Assembly pushed  through Article 44, why our successive ruling establishments didn’t  enforce it? The answer lies in the above quoted statement of the  Congress leader A. K. Antony.

The  delay tactics in enforcement of Uniform Civil Code is rooted to the  debate on Hindu Code Bill in the floor of the Parliament in early  fifties. Many members suggested that instead of a Bill exclusively  for one religious community, a Uniform Civil Code should be enacted  for the entire citizens of the country.

But  defending the Hindu Code Bill, Jawahar Lal Nehru, the first Prime  Minister of the country said, “Well, I should like a Civil Code  which applies to every body but wisdom hinders. If the member or  anybody else brings forward a Civil Code Bill, it will have my  extreme sympathy. But I confess I do not think that at the present  moment time is “ripe” in India for me to try to push it through.  I want to prepare the ground for it”. (Uniform Civil Code and  Gender justice by Dinanath Raina, page 1-2). This statement of Nehru  was perhaps the first blunder which made the Uniform Civil Code the  victim of perverse secularism and emboldened the perverted  Communalists to ensure that this constitutional commitment is not  enforced. Surely he was aware that it was the strong political will  of the leaders like K.M.Munshi and B.R.Ambedkar that Article 44 was  pushed through.

Just  after two years of Nehru’s death, a noted Muslim scholar Syed Abid  Husain in his book (The Destiny of Indian Muslims, 1965, page 195)  observed: “The trend of thought among the various groups of Indian  Muslims today, is the same as those before partition and they want to  proceed almost on the same lines”.

Nehru’s  statement was not in conformity with the decision of the Constituent  Assembly and therefore people gradually developed an impression what  Antony referred to while addressing the leaders of Kerala Congress  Committee.

It  is unfortunate part of the post-British Indian history that even  after over six decades of Independence, successive Governments and  the political parties have not yet prepared the ground to push this  Code through. Ironically, even the disciples of Dr. B.R.Ambedkar  became a part of the perverse secular brigade on this issue.

It  is a fact that the Muslim leaders will never agree for the  enforcement of the Uniform Civil Code but the problem lies with the  successive ruling establishments of the country that always give  priority to the politics than governance. Due to lack of a strong  political will, they failed to take any effective initiative to push  this Code through. Even after the opposition to the Hindu Code Bill  by many senior Congress leaders like Dr. Rajendra Prasad and Sardar  Vallab Bhai Patel, it was passed as Nehru had a strong political  will. He and his supporters succeeded in replacement of the  traditional Hindu Personal Laws but ignored to have a Uniform Civil  Code which was necessary for achieving the social unity and  solidarity of the nation as envisaged by the very Preamble of the  Constitution.

Mention  should be made that many Muslim scholars had also favoured reform in  Muslim Personal Laws. Dr. Tahir Mahmood in his book Muslim Personal  Laws 1977 edition made a powerful plea for framing Common Civil Code  for all citizens of India and argued that many Muslim countries have  outlawed polygamy.

After  the legislation of Hindu Code Bills, Asaf Ashar Ali Fyzee, a noted  Islamic scholar “suggested to the Government of India that the  personal laws relating to the Muslim community may be examined by a  special committee in the light of modern condition .... as done in  case of Hindus (Uniform Civil Code and Gender Justice by Dina Nath  Raina, page 13). Similarly, the women parliamentarians of 35 Islamic  countries in a conference held in Islamabad, Pakistan in 1995  resolved to make “special efforts to abrogate discretionary laws as  well cultural and customary practices” (Ibid. Page 19).

Contrary  to the war cry against the Supreme Court verdict in Shahbano case,  Muslim delegates from Pakistan and Bangladesh in a workshop on Family  Laws and Human Rights held in Lahore in August 1995 whole heartedly  praised and endorsed the verdict. The workshop was also in favour of  reform and women delegates suggested that “all polygamous marriages  shall be banned and made punishable”.

The  Muslim leaders who stayed back in India were fully aware that the  Constituent Assembly adopted a motion in favour of Uniform Civil Code  and therefore, they are constitutionally bound to support the common  code for all the citizens of the country.

The  Supreme Court made repeated observations in Shahbano case in 1985,  Sarala Mudgal case in 1995 and another case in 2003 saying it would  forge national integration and remove dissimilarities.

It  may be tough to predict the future of this code but the time has come  to revisit this important but long delayed issue now for the sake of  national unity. One should not be surprised if there is an  overwhelming support for a uniform code from the minority community  and particularly from the women.

First published in http://www.southasiaanalysis.org

Also read
  1. Why Secularism is not an Indian Concept?