The Supreme Court has held the view that there is no necessary connection between religion and personal law in a civilized society
The Constituent Assembly appointed the Drafting Committee on August 29, 1947. The Committee was chaired by Dr BR Ambedkar. Draft Constitution was submitted on 21.2.1948 to the Constituent Assembly. The Draft Constitution contains 315 Articles and 8 Schedules. Article 35 in the Draft Constitution was the direction to the State to legislate Uniform Civil Code (in short “UCC”) i.e. “35. Uniform Civil Code for the citizen.- The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
HISTORICAL BACKGROUND
Article 35 of the Draft Constitution was debated in the Constituent Assembly on 23 November 1948. Mohamad Ismail Sahib moved a motion to add a proviso i.e. “Provided that any group, section or community or people shall not be obliged to give up its own personal law in case it has such a law.” Muslim Members namely Ismail Sahab, Pocker Sahib Bahadur, Naziruddin Ahmed, and Mahboob Ali Baig Saheb Bahadur supported the Motion. It was their stand that (1) Law of succession, inheritance, marriage and divorce of Musalmans are completely dependent on their religion., (2) Britishers carried out the administrations of this country for the last 150 years and over, for the reason that they have given a guarantee of following own personal laws to each of the various communities in the country. (3) Mr Hussain Imam argued that our country is so diverse that it is not possible to have uniformity of Civil Law. On these arguments, Muslim members wanted a proviso in Article 35 ‘that, it may not affect their personal laws’. Mr Naziruddin Ahmed submitted that Article 35 would undo what had been given in Article 19 as it will encourage the State to break the guarantee given in Article 19. However, he expressed the view that the stage would come when the civil law would be uniform. Mohammed Ismile Sahib submitted that for creating harmony it is not necessary to compel people to give up their law.
The motion was opposed by Dr Bhim Rao Ambedkar, K.M. Munshi, Suresh Chandra Majumdar, Ananathasayanam Ayyngar etc. Sri Suresh Chandra Majumdar argued that submissions of Muslim Members are in direct negation of Article 35 and cannot be taken as an amendment. Mr Ananthasayanam Ayyngar said that marriage in Muslim is a contract. Mr KM Munshi submitted that nowhere in the advanced Muslim country the personal law of each minority has been recognized as so sacrosanct to prevent the enactment of the Civil Code.
Mr Munshi argued, when Shariat Act was passed by the Central Legislature, certain Muslim members, Khoja and Cutchi Memon were unwilling, but had to surrender.
Where were the rights of minorities then? He argued that if the personal law of inheritance succession etc. is a part of religion, then there cannot be equality for women. It was argued that the attitude of mind perpetuated under the British rule that personal law is a part of religion. Mr. Alladi Krishnaswamy Iyer argued in European countries there are Muslims, Hindus, Catholics, Christians and Jews. In France, Germany, Italy in all the continental countries of Europe, they have not perpetuated personal laws. It was argued that Article 35 not invading the domain of religion. On the above logic, it was asserted that the motion may be negated. Babasaheb argued that we have Uniform Criminal Code. Civil Code in its contents applies to the whole of the country. Up to 1935 North-West Frontier Province was not subject to Shariat law, Hindu law in the matter of succession and other matters were being followed. North Malabar following Marumakkathyam law. Dr Ambedkar opposed the motion contending that Muslim law was not immutable. Dr. Ambedkar opposed the Motion.
Present scenario
In John Vallamattam Vs. UOI reported in (2003) 6 SCC 611 Supreme Court held that “it is a matter of regret that Article 44 of the Constitution has not given effect to. Common code will help the cause of nation national integration.”
The Hindus along with Sikh, Buddhists and Jains have forsaken their sentiments in the cause of national unity and integration, some other community would not, though the Constitution enjoins the establishment of a common civil code for the whole of India.’ Article 14 is the guaranteed fundamental right to equality. Article 13 provides all the laws that include custom or usage to the extent of inconsistency shall be void. The right of religion is guaranteed subject to public order and morality. The Supreme Court time and again regretted ‘why the Parliament had not given effect to the Article 44 of the Constitution despite having the direction by the Constitution maker’. There is no justification whatsoever for delaying indefinitely with the introduction of uniform personal law in the country.
(The writer is Advocate Supreme Court of India)