Ambedkar backed a UCC, in future Code may be "purely voluntary" to begin with

Why the Uniform Civil Code (UCC) needs robust debate of the kind seen in the Constituent Assembly in November 1948. Here are excerpts from a few arguments of those in favour of the UCC and those against it

By Brian Carvalho Editor, Forbes India

Published: Jul 5, 2023 01:07:12 PM IST

Updated: Jul 5, 2023 01:41:12 PM IST

Full Bio

A general view of the Indian Constituent Assembly Meeting on December 9, 1946. Image: Getty Images

The debate around securing a Uniform Civil Code (UCC) throughout the country was intense during the Constituent Assembly (CA) Debates of November 1948 (the CA debates began in December 1946 and concluded in January 1950). Article 35 of the Draft Constitution of India 1948 stated that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” In the final version of the Constitution of India 1950, it became Article 44 in Part IV, which has the Directive Principles of State Policy (DPSP). DPSPs are guidelines that are not enforceable by courts but are yet fundamental to the country’s governance. Article 37 says: “…and it shall be the duty of the State to apply these principles in making laws.”

Remember that this was a particularly volatile period in the wake of Independence—the riots of Partition resulted in a large-scale bloodbath, and Mahatma Gandhi had just been assassinated. And, as legal scholar Tarunabh Khaitan stated in his 2018 article in the International Journal of Constitutional Law titled ‘Directive Principles and the Expressive Accommodation of Ideological Dissenters’, “the DC (Draft Constitution) got an extremely hostile reception from three powerful groups in the assembly: Socialists, Gandhians and the cultural nationalists.”

When debating the DPSP in the Constituent Assembly, BR Ambedkar, who headed the committee drafting the Constitution, said: “It is the intention of this Assembly that in future both the legislature and the executive should not merely pay lip service to these principles enacted in this part, but that they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of the governance of the country.”

A few DPSPs that were implemented in subsequent decades were Article 45 (“The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”); and Article 40 (“The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.”) A 2002 amendment resulted in Article 21-A, which seeks to provide free and compulsory education to children between 6 and 14 years. And Panchayati Raj is present in almost all states and Union territories.

A few guidelines, including one that prohibited cow slaughter and another to spread the Hindi language, elicited forceful debate in the Constituent Assembly. Also fiercely contested was the UCC, as documented in Volume VII of the proceedings of the debates on November 23, 1948. Below are excerpts from some astute observations from those in favour of the UCC and those against it:

FOR UCC

KM Munshi, Bombay: “A further argument has been advanced that the enactment of a Civil Code would be tyrannical to minorities. Is it tyrannical? 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…

“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. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. 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.

“There is one important consideration which we have to bear in mind—and I want my Muslim friends to realise this—that the sooner we forget this isolationist outlook on life, it will be better for the country. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible a strong and consolidated nation.”

Also read: India @75: Iconic Moments of India in Business & Economy After Independence (1947-2022)

AGAINST UCC

Mahboob Ali Baig Sahib Bahadur, Madras: “Sir, I move that the following proviso be added to article 35: ‘Provided that nothing in this article shall affect the personal law of the citizen.’

"My view of article 35 is that the words ‘Civil Code’ do not cover the strictly personal law of a citizen. The Civil Code covers laws of this kind: Laws of property, transfer of property, law of contract, law of evidence etc. The law as observed by a particular religious community is not covered by article 35. That is my view. Anyhow, in order to clarify the position that article 35 does not affect the personal law of the citizen, I have given notice of this amendment. Now, Sir, if for any reason the framers of this article have got in their minds that the personal law of the citizen is also covered by the expression ‘Civil Code’, I wish to submit that they are overlooking the very important fact of the personal law being so much dear and near to certain religious communities. As far as the Mussalmans are concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion.”

(The motion to add to Article 35 the proviso that citizens will not be obliged to give up their own personal law was negatived.)

FOR UCC

Alladi Krishanaswami Ayyar, Madras: “A Civil Code, as has been pointed out, runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters. How can there be any objection to the general statement here that the States shall endeavour to secure a uniform civil code throughout the territory of India?

“The second objection was that religion was in danger, that communities cannot live in amity if there is to be a uniform civil code. The article actually aims at amity. It does not destroy amity. The idea is that differential systems of inheritance and other matters are some of the factors which contribute to the differences among the different peoples of India. What it aims at is to try to arrive at a common measure of agreement in regard to these matters.”

AGAINST UCC

Naziruddin Ahmad, Madras: “…each community, each religious community has certain religious laws, certain civil laws inseparably connected with religious beliefs and practices. I believe that in framing a uniform draft code these religious laws or semi-religious laws should be kept out of its way. There are several reasons which underlie this amendment. One of them is that perhaps it clashes with article 19 of the Draft Constitution. In article 19 it is provided that ‘subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.’ In fact, this is so fundamental that the Drafting Committee has very rightly introduced this in this place. Then in clause (2) of the same article it has been further provided by way of limitation of the right that ‘Nothing in this article shall affect the operation of any existing law or preclude the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice’. I can quite see that there may be many pernicious practices which may accompany religious practices and they may be controlled. But there are certain religious practices, certain religious laws which do not come within the exception in clause (2), viz. financial, political or other secular activity which may be associated with religious practices. Having guaranteed, and very rightly guaranteed the freedom of religious practice and the freedom to propagate religion, I think the present article tries to undo what has been given in article 19.”

Hussain Imam, Bihar: “Sir, I feel that it is all right and a very desirable thing to have a uniform law, but at a very distant date. For that, 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.”

Dr BR Ambedkar. Image: Getty Images

AMBEDKAR’S SUPPORT FOR A UCC…

“My friend, Mr Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: And I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession.

…AND AN ASSURANCE

“My second observation is to give them (the Muslim community) an assurance. I quite realise their feelings in the matter, but I think 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.”