A Constitutional Promise

AMONG THE MANY PROVISIONS of the Indian Constitution that are rarely used or get any attention, one article retains a peculiar position. The framers of the Constitution, including BR Ambedkar, had hoped that a future Parliament would activate it but independent India’s pernicious politics effectively buried the article in question.

The mere mention of the Uniform Civil Code (UCC) raises the hackles of India’s guardians of secularism. It is a strange situation that a promise made in an article of the Constitution should be a threat to one of its basic features. It is an intellectual-constitutional quandary that India’s secularati have been unable to explain. Ar­ticle 44 lies in the chapter on Directive Principles that were origi­nally meant to be “non-justiciable”. It is another matter that in many instances the Supreme Court has repeatedly pleaded that a UCC ought to be enacted by the state. A number of judges and Chief Justices of India have made statements to that effect. But to no avail. Some of these divisions that prevented a forward movement on UCC were evident when a number of amendments were moved to modify and dilute the article dealing with UCC even when the matter was being debated in the Constituent Assembly (CA). Over time, those divisions have been hardened as Indian democracy has taken a peculiar path on this matter.

When the CA met on November 23, 1948, the debate on UCC was polarised. Ranged on one side were members of the erstwhile All-India Muslim League (AIML) who hailed from provinces that could not have become part of Pakistan in any way. These ‘stranded’ members of AIML made a last-ditch effort to exclude Muslim personal law from the ambit of UCC or, even more ambitiously, prevent the inclusion of UCC in the chapter on Directive Principles of State Policy.

The opening salvo was fired by Mohamed Ismail Sahib from Madras when he moved an amendment to the draft Article 35 (that later became Article 44 of the Constitution). The amend­ment sought to add a proviso to the draft article and 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.”

It is interesting to note that the language of the proviso was couched in very general, non-denominational terms but its mo­tivation became obvious from Ismail Sahib’s speech. His key example was the Yugoslav constitution that explicitly provided guarantees to minorities, in­cluding the right for Muslims as to their personal and family laws. He concluded by raising the spectre of “discontent” in case other communities were “regi­mented” to uniformity in such laws.

The same line of reasoning was fol­lowed by one speaker after another belonging to this faction of the CA. Naziruddin Ahmad, another Leaguer from Bengal—and one who was an im­portant member of the AK Fazlul Huq establishment—wanted the draft article to spell out that personal laws of any community guaranteed by law would not be changed except with the previous approval of the community in question. Again, the demand was made in general terms but the allusion to the Muslim Personal Law (Shariat) Application Act, 1937 was clear.

Speaker after speaker from the Mus­lim community rose to make the same claims even as there were changes in words here and there for the same de­mand. Other notable speakers included Mahboob Ali Baig Sahib Bahadur from Madras, B Pocker Sahib Bahadur (Ma­dras, later MP from Manjeri, Kerala) and Hussain Imam from Bihar.

Ranged against this group were con­stitutionalists like KM Munshi, Alladi Krishnaswamy Ayyar and Ambedkar. The contrast between the two groups was stark. On the one hand were speakers who spoke almost exclusively on grounds of religion and personal law and on the other were those who argued on secular grounds. In his speech, Munshi (from Bombay) rebutted the claims that a Civil Code would infringe on the religious rights of minorities and that it would be “tyrannical” to impose such a code on minorities.

Munshi asked a rhetorical question: “Is (draft Article 35) tyran­nical?” He then went on to rebut it with these words: “Nowhere in advanced Muslim countries the personal law of each minority has 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.”

Then there was the question of certain sections of the Muslim community within India, such as Khojas and Cutchi Memons, who had for long followed certain Hindu customs even after they had converted to Islam. They did not want to conform to Shariat. Yet, Munshi said, “[B]y a legislation of the Central Legisla­ture certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cut­chi Memons most unwillingly had to submit to it. Where were the rights of minority then?”

In his answer to the questions raised by Muslim members of the CA, Alladi Krishnaswamy Ayyar outlined the im­portance of having a unified Civil Code instead of a scattered body of laws and rulings across India. He also decried the notion that religion had any role to play in civil law. In this context he gave exam­ples from France and Germany where civil codes were applicable to everyone in those countries and religion did not enter the equation. Most importantly, he questioned the injection of religion in marriage in the case of Islam. He said, “The idea of a sacrament does not enter into the concept of marriage in Muslim jurisprudence though the incidence of the contract may be governed by what is laid down in the Kuran and by the later jurists. Therefore, there is no question of religion being in danger.”

These arguments were sufficient to deny any exclusive domain to Islam when it came to a Civil Code. But even on factual grounds the Muslim mem­bers of the Assembly were in error. In his comprehensive reply, Ambedkar pointed out that the idea of an “im­mutable” Muslim personal law was not based on fact. In the North West Frontier Province, the Hindu law of succession prevailed over the entire province and that included Muslims. This was the situ­ation until 1939, barely nine years before the CA met to deliberate a future Constitution. Ambedkar said that this was also the situ­ation in the United Provinces (the forerunner of modern Uttar Pradesh), Central Provinces and Bombay where Muslims were governed by Hindu law when it came to matters of succession.

In his speech Ambedkar also pointed out that in North Malabar Marumakkathayam law applied to both Hindus and Muslims. He noted that Marumakkathayam law was a matriar­chal law and not a patriarchal one.

AMBEDKAR WAS A reconciler even when he was a strict constitutionalist. He tried to assuage the fears of Muslim members of the CA that it was not neces­sary that a Civil Code framed by the state would be applicable to all citizens. It was quite 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.” He mentioned the 1937 Shariat Act in this context. That was made conditional upon a Muslim wanting to adhere to it. Section 3 of that Act makes a provision in this respect. As such it provided for voluntary adhesion to its features.

He concluded by saying, “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. I therefore submit that there is no substance in these amend­ments and I oppose them (amendments).” And so they were.

It is one thing for the idea of UCC to exist in the Constitution but an entirely different matter for the provision to see legislative existence. These defenders of the idea behind UCC had hoped that at some future date UCC would be a reality. Instead, the divisions seen in the Constituent Assembly took a malignant form in India’s democracy. The ‘official’ reason for the absence of UCC decades after the Constitution was adopted continued to be that of giving ‘confi­dence’ to minorities in India. It was a sham argument. The real rea­son was the discovery of minorities as a valuable vote bank when it came to electoral politics. It is a sad testimony to India’s political life that irrespective of their complexion, governments have been un­willing to enact a Uniform Civil Code. For the most part, one party was ideologically committed not to bring in UCC even as it was provided intellectual foil by the Left parties and their auxiliaries. Other governments, ones that were inclined in favour of UCC, were either handicapped by lack of numbers in Parliament or were at the mercy of recalcitrant coalition partners. As matters appear now, this may change, for the better. The state of Uttarakhand is in the process of carrying out a novel experiment. There, under the guidance of Justice Ranjana Prakash Desai, a committee is preparing a draft UCC. That draft may, one day, serve as a template for an India-wide UCC, fulfilling the dream of many Constitution-makers.

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