Uniform Civil Code: Is It Desirable?

I Mallikarjuna Sharma

Indian Constitution does not deal with the concept of Uniform Civil Code in any detail but the desire/wish to secure it is expressed laconically in a short directive principle of state policy–Article 44 just says: “44. Uniform civil code for the citizens.–The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” And for all these 75 years or more post-independence years nothing much in that direction has been attempted but today suddenly the rightwing Government of India proposes to rush through things in that regard confounding all lovers of democracy and human rights about what dangerous consequences could ensue from this effort. As such there is an imperative need to go into the ‘maahoul’ (climate) of the late 1940s and into the Constituent Assembly Debates to try to learn the responses and comments of the constitution makers in that regard which led to the framing of this particular directive principle.

This is briefly explained in the Constitution of India website as follows:

Article 35, Draft Constitution of India 1948 laid down: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” And after intense and somewhat heated debates in the Constituent Assembly the same was approved and numbered as Article 44 in the Constitution of India, 1950, without even a single comma or full stop being altered. A summary in the Constitution net website informs people:

“Draft Article 35 (Article 44) was debated on 23 November 1948. As the text of the Draft Article suggests, it directed the State to bring about a uniform civil code across India.

“...Debate around the Draft Article triggered conflict in the Assembly. Most of the opposition to the Draft Article came from Muslim members [Mohammed Ismail Khan, Naziruddin Ahmad, Mahboob Ali Baig, et al] who moved amendments to keep personal laws out of its scope. One member proposed a proviso that would have operationalised the Draft Article only with the prior assent of the community.

“The arguments mobilised to attack the Draft Article included— first, that uniform civil code violated freedom of religion; second, that it would create disharmony within the Muslim community; and third, that it was incorrect to interfere with personal law without the approval of the specific religious communities involved.

“The Draft Article did find support from other quarters. A Drafting Committee member [Sri Alladi Krishnaswami Ayyar] argued that a uniform civil code was important to uphold the unity of the country, and the Constitution’s secular credentials. He reminded Muslims members that this was not a provision that would affect the Muslim community alone–even the Hindu community had to deal with it. It was further added that women’s rights could never be secured without a uniform civil code. Also, the argument that it would violate religious freedom under the Constitution was rejected–the Constitution gave space for social reform legislation.
“At the end of the debate, it was clarified that there was nothing new about the Uniform civil code, there was already a common civil code in India. The only difference with the new code was that it would cover marriage and inheritance–which were not under the scope of the existing code. It was also pointed out that this was a Directive Principle, the State was not obliged to bring the provision into effect immediately and there was space for the consent of communities to be obtained.”

“Finally, the Draft article was adopted on the same day, without any amendments.” [Source: https://www.constitutionofindia.net/debates/23-nov-1948/.]

It’s true that the Supreme Court also, on more than one occasion, questioned the Government of India as to why the Uniform Civil Code has not been formulated yet. It cannot be arbitrarily rushed in. In truth the very wisdom of the Constituent Assembly in passing such a directive principle is open to question–since ages even notorious invaders of the countries did not meddle with the personal laws of various communities in India. Any such measures in this regard, mainly as a measure of vote bank politics in the context of the forthcoming 2024 general elections will only ensue in hazardous negative consequences and seriously violate the golden principle of ‘unity in diversity’ which sustained the country since ages and is essential for the continued existence, reputation and identity of the country too. People need more self-determination, short of secession, to constituent states, units and even diverse communities, and not any damage to or curtailing of such rights and autonomous systems already in existence. Indians have waited for more than 75 years and so no harm in waiting for another long period–now say for another 25 years even. For one thing “Uniformity cannot be and should not be commanded. Rather room and time should be given for liberal reforms in the personal laws of all communities and when they gradually go on converging then uniformity can be, if wisdom still demands so, sought and tried to be achieved.”

[Advocate and Editor, Law Animated World; a socio-political activist too. Emphases in bold is by the author]

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Frontier
Vol 56, No. 3, Jul 16 - 22, 2023