Once again, the demand for enactment of legislation on the Uniform Civil Code (UCC) is intensely in debate now. The debate has arisen when very recently the Delhi High Court hearing a marriage petition had urged the Centre to take step to bring in a UCC reportedly saying that the modern Indian society has been 'gradually becoming homogenous and the traditional barriers of religions, communities and castes are slowly dissipating’. The court further observed that the youth belonging to various communities, tribes, castes or religions who solemnise their marriages 'ought not be forced to struggle with issues.' arising due to conflicts in various personal laws, especially in relation to marriage and divorce. The Centre was to fulfil the hope expressed in the Constitution of India, the Court urged.
Article 44 in the Directive Principles of State Policy of the Constitution says that the State shall endeavour to secure for the citizens a UCC throughout the territory of India. The objective of the article is to introduce a common personal law for the purpose of national consolidation. It stands for one nation, one law. It proceeds on the assumption that there is no necessary connection between religion and personal law in a civilised society. And therefore, it is to form a uniform law governing marriage, divorce, succession, inheritance just as it has been done in the Muslim countries like Turkey or Egypt or many countries in Europe.
There are different personal laws in India for different communities relating to marriage, divorce, adoption, inheritance and succession. All these laws are primarily based on the rites, customs and traditions prevalent in the respective communities. For Hindus including Sikhs Budhists and Jains there are Hindu Marriage Act, 1955, Hindu Succession Act and for the Muslims there are Shariat law, 1937 and the Triple Talak Act, 2019 to regulate their marriage and divorce. There is specific personal law for the Christians as well to govern their marriages and divorce.
But the question is why despite a provision in Constitution of India to make a common civil law, such a law has not been possible to be enacted so far. The reason is whenever there is any attempt to make this law, there surfaces a hue and cry in different communities that the law is aimed to encroach upon their religious liberties. Sometimes the debates on uniform personal law become extremely unpleasant.
The Constituent Assembly of India also had witnessed a similar debate on uniform civil code when the draft Article 35, now 44 in the Constitution of India was placed on November 23, 1948 for discussion and approval. As many as 12 members of the Assembly took part in the debate. The most prominent among them who spoke extensively about a common civil law were Mohamad Ismail, Naziruddin Ahmad, Mahboob Ali Baig, Hussain Imam, KM Munshi, Alladi Krishnaswamy Ayyar and Dr BR Ambedkar. While all Muslim speakers did not favour such a law, all the Hindu members defended the necessity of a UCC for national integration. Dr H C Mookharjee, the Vice President, was then in the Chair.
Moving an amendment, at the outset of the debate, Mohamad Ismail said, community of the people would not be obliged to give up its own personal law in case it had such a law. 'Why they follow their personal law,' he asked, adding, "right to follow personal law is a part of the way of life of these people. It is a part of their religion and part of their culture. If anything is done affecting the personal law, it will be tantamount to interference with the way of life of those people who have been observing these laws for generation and ages. Therefore, the secular State, we are trying to create, should not do anything to interfere with the way of life and religion of people."
Mohamad Ismail, interestingly, called the uniform civil law a regimentation of laws. "If idea of the common law is to maintain a secular harmony through uniformity, it is not necessary to regiment the civil laws of the people and such regimentation will bring discontent and disharmony," Ismail explained.
Members like Naziruddin Ahamad, Mahboob Ali Baig and Hussain Imam spoke their different viewpoints. During the last 175 years of the British rule when the British rulers enacted the common laws like Indian Penal Code, Civil Procedure Code, Criminal Procedure Code, Evidence Act and Registration Act, they did not interfere with certain fundamental personal laws possibly with the fear that it was difficult to ask the people to give up their ideas of marriage which are associated with religious institutions for years and it will be equally difficult to impose forcibly the tenets and practices of one community on another without societal backlash, they said.
Among all Hindu members who participated in the debate in the Constituent Assembly, K M Munshi was very forceful in presenting his opinion. "When you consolidate a community," Munshi retorted, "you have to take into consideration the benefits which may accrue to the whole community. Munshi concluded, "We have reached a point when we must put our foot down and say that these matters of personal practices like marriage and divorce etc are not religion ; they are instead, purely matters for secular legislation."
The debates in the Constituent Assembly on UCC were all intellectual and thought absorbing. Dr Ambedkar in the end softened the tone of the critics when he emphasised that a common civil law was a settled provision in the Constitution of India. And when it was to be legislated, it should be 'voluntary' at its initial stage like Shariat law of 1937.
But the Husain Imam speech received alround applaud when he said that it was desirable to have a uniform civil law. And for that matter, it should be wiser for us to wait till the whole of India got educated; mass illiteracy eradicated and economic conditions of the common people improved.
Meanwhile, the Delhi HC has asked, "Is it right time now to have a UCC as the Indian society has become homogenous and advanced?"
But the UCC, if framed, ought to be based on consensus and consent of the different communities to avoid further communal conflict and discontents
(The writer is Gandhian author and a lawyer, Puri, Ph: 9861469328)