After the Supreme Court verdict outlawing the practice of Triple Talaq among the Muslim community in India, the debate on uniform civil code has been sparked off once again. Should India do away with the concept of personal laws and bring-in a uniform civil code for all citizens? In this Business Standard Special, the author takes a look at the reasons the framers of our Constitution deferred the decision to a later stage and tries to answer whether we can make that call now.
In 2011, Hanna Lerner a Professor at Tel Aviv University, published a book called Making Constitutions in Deeply Divided Societies, which examined Constitution
making in three deeply divided societies Ireland, Israel and India. The book dealt with the problem of how divided societies, while yet grappling over defining common values and shared visions of their state, proceeded to draft a democratic constitution.
Many theorists think of constitution-making as set in the context of a moment of revolutionary change; like a Magna Carta procured by force from an unwilling monarch. However Lerner argued that a gradual, incrementalist approach to constitution-making had enabled societies riven by deep internal disagreements to either enact a written constitution
or function with an unwritten one.
makers of the three countries, adopted different incrementalist strategies. The avoidance of clear decisions in Israel, the use of ambivalent legal language in India and the inclusion of contrasting provisions in the constitution
in Ireland were all techniques that allowed the postponement of controversial choices, regarding the basic concepts of the polity, to future political institutions. Thus the newly drafted constitutions were able to reflect a divided identity that defied a forced consensus. In India’s case, Lerner examined how Constitution
makers grappled with the issue of a common national language and also the need for a common civil code.
The debate over Constitutionalising the requirement for a uniform civil code
began even before partition. Discussions began in the Sub-Committee on Fundamental Rights, which met between February and April 1947. Demands for a uniform civil code, came not come only from extreme Hindu nationalists, but from Modernists as well. Minoo Masani, a Parsi member of Congress from Bombay, and Amrit Kaur, a Christian member of Congress who represented CP and Behar, jointly demanded that the provision be included in the justiciable part of the constitution
so that it could be enforceable by court. They argued that “One of the factors that has 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.” However, the majority of subcommittee members opposed this demand, and the provision was recommended to be incorporated in the Directive Principles section of the constitution.
During discussions in the Constituent Assembly, the dispute over the fundamental question of the relationship between unity and uniformity was only one aspect of the debate. The second aspect related to the role of the constitution
in promoting social, religious and cultural reforms. On the one side, stood people, who wished to use the legal power and status of the constitution
to modify religious customs and advance secularization and legal uniformity among all religious groups. On the other side were those who believed that a constitution
should reflect the spirit of the nation as it currently was and should not impose deep social and cultural changes.
The Hindu viewpoint was probably best put forth by KM Munshi who said, “There is one important consideration which we have to bear in mind – and I want my Muslim friends to realize 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. Our first problem and most important problem is to produce national unity in this country … There is no use clinging always to the past. We are departing from the past … we want the whole India to be welded and united together as a single nation. Are we helping those factors which help the welding together into a single nation, or is this country to be kept up always as a series of competing communities?”
B. Pocker Sahib Bahadur, a Muslim League representative from Madras replied: “there are ever so many multitudes of communities following various customs for centuries or thousands of years. By one stroke of the pen you want to annul all that and make them uniform.”
Pocker Bahadur also attacked the uniform civil code
as representing the tyranny of the majority. The standards of which community, he asked, would be taken as the basis for the uniformity of the code?
Naziruddin Ahmad, a Muslim representative from West Bengal, warned against overly radical constitutional provisions: “I have no doubt that a stage would come when the civil law
would be uniform. But then that time has not yet come. We believe that the power that has been given to the state to make the Civil Code uniform is in advance of the time … What the British in 175 years failed to do or were afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the state to do all at once. I submit, sir that we should proceed not in haste but with caution, with experience, with statesmanship and with sympathy.” Ahmad stressed the importance of obtaining consent of the communities whose religious laws would be affected by the new code: “The goal should be towards a Uniform Civil Code
but it should be gradual and with the consent of the people concerned.” He therefore recommended that the decision regarding the application of a uniform civil code
should not be entrenched in the constitution
but should rather be left to Parliament, which could obtain the consent of the communities through their representatives.
Eventually, the framers agreed with the draftsmen and decided to include the reference to a uniform civil code
in the “Directive Principle of State Policy” as Article 44. It provides that “the State shall endeavour to secure for the citizens a Uniform Civil Code
throughout the territory of India.” Dr Ambedkar, the chairman of the Drafting Committee, explained that the provision merely required the state to “endeavor 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.” Ambedkar stressed that Parliament would retain the authority to implement this policy recommendation, and that it was “perfectly possible” that it would decide that “in the initial stage the application of the Code may be purely voluntary.”
Many critics see the UCC
debate, in the Constituent Assembly as a missed opportunity to provide a clear and unambiguous definition of India's identity as a Hindu or a secular nation. But the Assembly's decision regarding uniform civil code
may also be seen as deliberate decision to defer controversial choices between rival sets of beliefs and commitments. The assembly sought to assuage the fears of minority groups under conditions of deep mistrust between religious communities. The Assembly's decision also represents the drafters' acknowledgment in the moderate pace by which Indian national unity would emerge. The Assembly recognized the limitations of constitutional provisions in the face of the complicated societal reality which the constitution
is expected to reflect. For this reason, it preferred to follow an incrementalist rather than revolutionary constitutional approach. The Assembly transferred the decision regarding the secular identity of the state from the legal back to the political arena, leaving the decision on whether and how to implement its recommendation to future parliamentarians.
Seven decades after the Constituent Assembly, the questions raised in the debates have not withered away. The Constitution
makers, deferred some questions to the wisdom of a future day, when a consensus could emerge. I leave it to the reader to judge, whether we have indeed ceased to be a divided society. The reader needs to be certain that a consensus has indeed emerged, that would validate a common civil code, which would be welcomed by all. Any forcible imposition, is more likely to exacerbate those fissures, that our constitution
makers have so deftly, sewn together. Making mandatory, what has hitherto been merely obligatory, may seem to be the path of virtue, but is often the cause of many a schism.
Sanjay Hegde is a Senior Advocate of the Supreme Court. He tweets as @sanjayuvacha
Disclaimer: Views expressed are personal. They do not reflect the view/s of Business Standard.