[Bar Speaks] Dr. Ambedkar's 'little corner': the Uniform Civil Code

  • s.n.thyagarajann
  • 06:43 PM, 30 Apr 2022

What is the Uniform Civil Code?

The Uniform Civil Code (UCC) is contemplated to be a legislation which will ensure that a set of common personal laws will apply to all citizens equally, regardless of their religion, sex, gender and sexual orientation. The Code, if introduced, is expected to repeal all the codified personal laws such as laws pertaining to marriage, inheritance and adoption. 

A glimpse of the Constituent Assembly's views on UCC:

The Constituent Assembly of India was founded before the nation attained independence in 1947, a few months shy of the tragedy and riots that engulfed the nation during partition. The debate on the Uniform Civil Code began taking form in 1948. 

The endeavour to adopt a Uniform Civil Code was inserted in the Constitution of India as a Directive Principle in Article 44 throughout the territory of India.

Dr. BR Ambedkar defended the UCC by stating there were uniform laws for every aspect of human relationship in India. He argued that it is only in the aspects of marriage and succession that a common civil law had not yet been passed. Ambedkar called this a “little corner’ that the legislation has not been able to invade and it was the intention of those who desire to have this article as part of the Constitution which would bring about that change.

He said “It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.”

At the Constituent Assembly debate, Mohamad Ismail Sahib moved a motion to add the words - “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" to Article 44. 

Nazirudin Ahmed, while proposing a slightly different addition, argued that certain aspects of the Civil Procedure Code had already interfered with personal laws. He said that during the period of colonisation, the British did not interfere with certain fundamental personal laws and that the legislations such as the Registration Act, the Limitation Act, the Civil Procedure Code, the Criminal Procedure Code, the Penal Code, the Evidence Act, the Transfer of Property Act among others were gradually imposed as occasion arose and they were intended to make the laws uniform, although they clash with the personal laws of a particular community. He contended that aspects such as practices of marriage and the laws of inheritance have never interfered with them.  

“It will be difficult at this stage of our society to ask the people to give up their ideas of marriage, which are associated with religious institutions in many communities. The laws of inheritance are also supposed to be the result of religious injunctions. I submit that the interference with these matters should be gradual and must progress with the advance of time," Ahmed said.

K.M. Munshi argued that many among Hindus did not like a uniform Civil Code, because they took the same view as the Honourable Muslim Members who spoke last and that they felt that the personal law of inheritance, succession etc. were really a part of their religion.

“If that were so, you can never give, for instance, equality to women.” He argued that an article has already been put in place which provides for a Fundamental Right to that effect that there should be no discrimination against sex. He said “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.," Munshi said

Alladi Krishnaswamy Ayyar argued that the Uniform Civil Code actually aimed at amity and that it did not destroy it. He argued that it was not as if one legal system was not influencing or being influenced by another legal system.

“In very many matters today the sponsors of the Hindu Code have taken a lead not from Hindu Law alone, but from other systems also.” Ayyar argued that  the Succession Act has drawn upon both the Roman and the English systems and that no system can be self-contained, if it is to have in it the elements of growth. He pointed out that, “Our ancients did not think of a unified nation to be welded together into a democratic whole.” 

Ayyar while speaking in favour of the code noted that the country is departing from the past in order to ensure that  whole of India to be welded and united together as a single nation.

While answering B. Pocker who had criticised the drafting committee, Ayyar defended the Uniform Civil Code by speaking of how Muslim law covers the contracts, criminal law, the divorce law and marriage and yet, when a common code was introduced, there was not opposition to it.

He said “When the British occupied this country, they said, we are going to introduce one criminal law in this country which will be applicable to all citizens, be they Englishmen, be they Hindus, be they Muslims. Did the Muslim stake exception, and did they revolt against the British for introducing a single system of criminal law? Similarly we have the law of contracts governing transactions between Muslims and Hindus, between Muslims and Muslims. They are governed not by the law of the Koran but by the Anglo-Indian jurisprudence, yet no exception was taken to that. Again, there are various principles in the law of transfer which have been borrowed from the English jurisprudence.”

Despite the framers of the constitution opining that India should have a uniform civil code for personal laws, the country is yet to see a move in that direction. It is to be noted that a need for UCC was felt back when the country had just emerged from a terrible phase of communal violence.

The codification of Hindu personal laws:

After India attained independence in 1947, the Indian National Congress government led by Prime Minister Jawaharlal Nehru codified the Hindu Laws, it was an endeavour that the British had started. The Congress government felt the need for codification in order to ‘unify’ the largely diverse  Hindu community.

This action of codification was starkly different to the British policy of non-interference. There was a lot of opposition for this code from various groups. Many persons from the Hindu community held the view that only the Hindu's were being singled out in the name of reform. The main bone of contention was that the Hindu community was largely non-homogenous, in the sense that what could be a tradition in one part of the country would have no significance in another part of the country. The parliament passed legislations to cover marriage, adoption and inheritance. These legislations continue to remain controversial.

The Bar Speaks:

Sriram Panchu, Senior Advocate, says

“If you had the Uniform Civil Code, would the Karnataka High Court say why are we spending even two minutes on the Hijab matter? If yes, then there lies your answer. If it threatens the minorities, then it is the wrong time and the wrong way. Uniform Civil Code is fine when we are uniformly one. It is good because we have commonality and harmony amongst is. If it aids the harmony, it is good. If it threatens it, its not good. In order to bring it in, the government must create an atmosphere of trust. There are some aspects of religious practices in religions other than Hinduism which even adherents of those religions feel were not to be there. The Hindu Marriage Act is a very progressive piece of legislation, so is the Special Marriage Act. Its not that the code is bad by itself. The code must ride hand in hand with harmony, it must not be a methodology for disharmony.”

S.S. Naganand, Senior Advocate, says

"Any legislation can be tested on the touchstone of Constitutional parameters. The first question is whether the lawmaking authority, namely parliament or the state legislature has the capacity to make the law in terms of the Seventh Schedule. The second question is whether the provision violates any part of the constitution, particularly Part III which guarantees  fundamental rights to citizens. Often lawyers challenge the laws promulgated on many grounds but most of them are not relevant for testing their constitutionality. A uniform civil code which classifies all citizens into one category for the purpose of making provisions for them, can be tested on the constitutional parameter of Article 14 and Article 31, which provide certain freedoms to all and to minorities. The fact that some citizens are practicing a particular religion does not make them immune from the applicability of the laws which are uniformly made."

He adds, "In recent times the question arose before the Karnataka High Court as to whether a rule prescribed by colleges prohibiting the wearing of a hijab by any student would be legally valid. The rule was challenged  unsuccessfully on many grounds and is presently in Appeal before the Supreme Court. The making of a uniform civil code is a highly political decision which parliament has to make. The right and the power to amend the constitution is well settled by the Supreme Court of India in the case of Keshavananda Bharathi, which laid down that the power to amend the constitution is wide, except in so far as the basic structure of the constitution. Therefore if a uniform civil code is made, its implementation will not be difficult, but its sociological impact would be widespread. We may even see orchestrated protests by certain orthodox sections of one or more minority religions which may give rise to some social unrest. In the case of Hindus, the traditional Hindu law which governed them before independence was revisited and the Hindu Succession act of 1956 codified the law and did away with many religious practices which were prevalent at the time, when it came to the application of secular law. In the same manner, the  Uniform civil code if introduced would have to be tested in judicial review before the High Court and the Supreme Court. Courts today are well equipped to deal with such challenges and I don’t see any difficulty for the judiciary to examine the challenge on constitutional parameters."

On the aspect of whether the Act requires careful examination, Mr. Naganand says, "The question as to what is the uniformity that is sought to be achieved needs careful examination. There are some practices which are perceived to be religious but really are not religious, they are more social or cultural in nature. The full bench decision of the Karnataka High Court has touched upon this issue but the uniform Civil Code has nothing to do with secularism. Secularism means the state will not make any distinction on the basis of religion and the state itself does not profess any religion. In India we have special laws relating to the practice of religious rights by all sections of society. For Muslims, Christians and Hindus there are separate legislations."

"The state supports many institutions which are based on religion. For example subsidising the cost of travel for Mohammedans to make a pilgrimage to Mecca. Maintenance of temples which are ancient and revered by Hindus. Supporting Christian institutions and churches. Therefore the state can be secular and take all steps necessary to enable the citizens to enjoy the right of worship. Secularism is not a western concept, it is the ancient Indian idea of ‘Dharma Nirapekshata.’ We have sterling examples of this in Indian history. The introduction of a uniform civil code has nothing to do with the adoption of western secularism," he says.

"The introduction of a civil code may not interfere with the practice of religion by any section of the society as that is the right to freely profess and propagate their religion. For example whether a person should be permitted to have more than one spouse is a question which the  uniform civil code can address. Surprisingly as many of you may not know prior to the enactment of the Hindu Marriage Act in 1955 there was no restriction on a Hindu having more than one spouse at the same time,

This, if it is construed as a religious right, then the Hindu marriage act restricted that right and limited the number of spouses to one. Does this mean that today if a uniform civil code prescribes that a Mohammedan can have only one wife, is his right to practice religion is  taken away? Such uniform civil code has been in operation in many democratic republics of the world who have been free and independent for hundreds of years. If India decides to introduce a uniform civil code it does not affect secularism. It is a progressive step which will enable all citizens to enjoy their personal freedoms while all of them fall in line when it comes to secular living. Similar protests as those that occurred when it came to the  abolition of Article 370 can be expected if a uniform civil code is introduced. But the benefits of the repeal of Article 370 will be felt by all citizens irrespective of their religion. That is the object of a modern secular democratic republic."

N.L. Rajah, Senior Advocate, says

"We need a uniform civil code, there is no doubt about it at all. How do we go about this is the issue? The 'right time' for this will be never, one will never know when the right time is. We will have to start working on it. They can ask all the minority communities to take a look at their religious laws and how it should be aligned with the mainstream legislations. It should be done in a way that the majority communities are trying to impose something. If there is no co-operation from any community, the parliamentarians will have to take a call. We should explain to all the stake holders as to what the UCC will do and ask them to reconcile it with the religious laws."

Balbir Singh, Additional Solicitor General, Supreme Court of India, says

“Any kind of a universal personal law for the citizens of the country is good. It can bring in a lot of understanding in terms of individual rights. It should be done through a consultative mechanism.”

Dr. Birendra Saraf, Senior Advocate, says

"The introduction of a UCC is an extremely sensitive issue. However, right from the framing of the constitution it has been a desire of the framers that the State should secure for its citizens a UCC. Despite being an extremely complex exercise considering the diversity and religious sentiments, if UCC is framed and implemented in a balanced and fair manner, I feel that both the citizens are mature enough and the judiciary strong and robust enough to handle it. Of course, despite the overflowing dockets of the court, the issues arising out of the UCC will have to dealt with on priority and expeditiously.  Any delay in decision will have a far reaching effect on the society as a whole. Also some mechanism will have to be worked out to avoid conflicting decisions of different courts".

Gopal Shankaranarayan, Senior Advocate, says

“I believe that with the swell of recent judicial opinion including the triple talaaq and privacy judgements, the path towards a uniform civil code has opened up significantly. I am hopeful that we will remove the vagaries of religion from civil affairs as that is long overdue because it is unjust, particularly towards women and transgenders.”

Gladys Rosette Daniel, Advocate, says

“While we do need a Uniform Civil Code, this is not the right time to implement it. At a time when minorities feel threatened and discriminated, this is the last thing we need. There are more important things for the present."

Meghna Sankhla, Advocate, says:

"India has been a mix of caste, colour and creed. Britishers consolidated various customary, local and personal laws. There have been separate laws for each religion called personal laws governing the citizens of one united India. Different religions are governed by different personal laws however it is seen that personal laws have not benefitted citizens of India uniformly. Personal laws have constituted an alternate judicial system that still operates and runs on decades of old values.

Courts have been attempting to provide benefits to the underprivileged, to give justice those who have been wronged due to unjust, unreasonable personal laws and an attempt to have a Uniform Civil Code is a step towards unification of the laws that govern the citizens of India. India as a nation would be benefitted by the Uniform Civil Code which would bring uniformity and sense of equality amongst all citizens thus fortifying the Fundamental Rights as enshrined in the Constitution of India as well.  It would integrate people of all religions, caste and creed.

The code will further simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all.  The same civil law will then be applicable to all citizens irrespective of their faith. It will benefit the minorities and bring about the much wanted upliftment of the Indian Society as a whole.

It is thus important and high time that when the Courts have now taken important steps towards changes in inheritance laws of Hindus, Divorce laws of Muslims and is striving towards betterment of the society by changing and altering archaic laws, it is important that the step towards Unification be taken with utmost priority and diligence to help benefit all sections of the society alike. After all Laws that stagnate and suffocate would only end up rotting the society and should under eery circumstance be changed by laws which benefit the Society and endeavour towards fairness, justice and equality."

Conclusions:

Despite such assurances in the Constitution, one is left wondering why a law has not been implemented as yet. As Dr. Ambedkar remarked, many aspects of human relations in India have already been codified, the UCC is just a “little corner” which is left. There has been opposition to it over the years but the rhetoric of the current opposition has changed very little over the past seven decades. The present government has brought up the discourse around the uniform civil code multiple times, however the end result is yet to take a stronghold.

Amidst all this, it is important to understand that the legislation is capable of bringing about change in personal laws to a large extent. There can never be a “right time” to implement welfare legislations, there has been enough time accorded to members of all religious communities in the country to ponder over this and the government should ideally start holding consultations and formulate a law at the earliest possible time.

The Chief Justice of India, Justice NV Ramana while speaking at the joint conference of Chief Justices and Chief Ministers remarked that, “The legislature is expected to solicit the views of the public and debate the bills, clause by clause, threadbare, before enacting a law.” Only if the consultation for the the Uniform Civil Code begin now, can a complete legislation be enacted in a few years from now. A legislation cannot be enacted without due consultation, given the case one fails to understand the necessity to oppose a legislation even before the process begins.

Alas! The vibrant bar!

Edits by Sanya Talwar