Open Access Research Article
“CONSTITUENT ASSEMBLY DEBATE UNIFORM CIVIL CODE: ONE COUNTRY, ONE LAW” (By-Ananya Eliza Varghese)
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Article Details
“CONSTITUENT ASSEMBLY DEBATE
UNIFORM CIVIL CODE: ONE COUNTRY, ONE LAW”
Authored By-Ananya Eliza Varghese
3rd Year, 1st Semester
NALSAR University of law, Hyderabad
CONTENTS
Abstract
This paper talks about the origin of uniform
civil code in India. We look at the idea from the lens of the founding fathers
of our constitution. After India was released from the clutches of the Britishers
the first important step ahead was to frame a constitution that would hold the
new found spirit of nationality in India. During this process, the constituent
assembly had been debating on various provisions that they think should be part
of the constitution of India and those that should not. One such issue was the
uniform civil code; this project specifically deals with the various debates
surrounding the uniform civil code by the constituent assembly. This paper will
give an insight on what does uniform civil code mean, why it comes under the
ambit of directive principle of state policy and not the fundamental rights and
if India is now ready to implement the UCC (Uniform Civil Code). The paper also
consists of the recent developments leading to the implementation of UCC. Just
like how the society is changing by the moment it is important that the laws
governing the society also keep changing along, there is a reason why law is
considered dynamic and not static. Even
though India was not ready back then to implement the uniform civil code, is
she ready now?
What Is Uniform Civil
Code?
The uniform civil was laid down by the
founding fathers of our constitution under article 44 under the directive
principles of state policy. Article 44 under the Directive Principles of State
Policy states that: The State shall endeavour to secure for the citizens a
uniform Civil Code throughout the territory of India[1]
The uniform civil code is one that would provide one law for the entire
country, applicable to all religious communities in their personal issues like
marriage , divorce, adoption etc.[2] in
the present all personal laws are governed by the personal laws of each
religion for example the Hindu Marriage Act governs all marriage related issues
among Hindus, dissolution of Muslim marriages act,1939.[3]
Talks about different ways through which divorce can be obtained by Muslims and
similarly there all laws for Christians as well. If the Uniform civil code is
implemented then every citizen would be considered equal and similar laws will
govern all irrespective of their religion. The issue of whether or not to
implement the Uniform Civil Code has been a widely debated topic since 2019
when the first ever petition was filed for framing the uniform civil code to
promote equality, dignity of women and also to promote national
integration.
Constituent Assembly
Debate On Uniform Civil Code
The beginning of the debate around the uniform
civil code began during the framing of the constitution of India. There was a
subcommittee on the fundamental rights where they had to come up with relevant
fundamental rights that they think should be incorporated in the constitution
of India. Everybody in the committee was encouraged to submit their individual
draft of fundamental rights. Drafts submitted by Ambedkar, Munshi and Minoo
Masani came up with the idea to adopt uniform civil code. Many other members
came up with the idea of splitting the fundamental rights into two headers that
is justiciable and non-justiciable fundamental rights where the justiciable
rights would be enforceable by the courts and the non-justiciable would not.
After a few deliberations the report was
submitted to the advisory committee which was the parent committee where the
uniform civil code was submitted under the non-justiciable rights.[4]by
this we can understand that not many within the subcommittee gave consent to
the uniform civil code.
On 23rd November 1948 the
constituent assembly began with the drafting of article 35 of constitution the
draft stated “The State shall endeavour to secure for the citizens a uniform
civil code throughout the territory of India”[5] .
this draft triggered huge conflicts within the committee most of the opposition
were from the Muslim members and they moved amendments to not include personal
laws in the draft. Towards the end of the debate the committee reached a
consensus that uniform civil code would be a provision under the directive
principle, which means that the state is not obliged to bring it immediately
and that if implemented, consent from all communities had to be taken.
Reasons For Opposing
Uniform Civil Code
The matter of whether or not the uniform civil
court should come within the ambit of fundamental rights was made by a vote. By
a majority of 5: 4 the subcommittee headed by sardar Vallabhbhai Patel stated
that the UCC was not within the scope of fundamental rights hence we can see
that the fundamental right of freedom of religion is superior to the directive
principle of uniform civil code.[6]
A reason why the UCC was opposed was that
member like Kazi Syed Karim Uddin and Maulana Hasrat Mohani believed that the
constitution should not force a deep change in social and cultural aspect of
the society and that the main focus should be to maintain the spirit of the
nation as it was at that time. [7]
Another argument was that the UCC will violate
the fundamental right of Freedom of religion
The Muslim members like Mohammed Ismail’s
sahib stated that uniform civil code will create chaos in the society and that
if people could follow their own personal laws, then there would not be any
feeling of discontent. Pocker sahib claimed that sacred rights of the minority
community must be protected and this must be done by the majority community
this would help them feel heard. To this argument K M Munshi said that there
are many advanced Muslim majority countries where they do not recognise the
personal laws of the minority there for example Egypt and turkey where no
minority community are allowed to have their own personal laws.[8]
Another major argument was the Muslim personal
law has been immutable law from ancient times.to this argument Ambedkar stated
that there has been a uniform criminal law, a uniform transfer of property act
etc in existence and the Muslims have been following these so what is the
problem in extending this to the matters of marriage, divorce, succession etc.
Benefits Of
Implementing Uniform Civil Code
The first and obvious benefit of implementing
UCC is that it would promote equality in the society since all religious
communities would have to follow a same set of laws in all civil matters
including marriage, divorce, adoption, inheritance etc.
Having a uniform set of laws will bring people
closer and will increase the feeling of nationality and would integrate the
country into a unit.
At the present what we have is selective
secularism where there are some laws that are same across all religions and
some where they are different like the laws on marriage etc so implementing the
UCC would make India secular in the true sense[9]
If we look at it from a gender perspective in
the constituent assembly there were no women members in the committee that
decided upon the uniform civil code so their concerns were never heard on this
issue at that time. Now implementing the uniform civil code would also improve
the status of women in the society since many personal laws on marriage,
divorce, adoption etc are discriminatory to women.[10]
The next important benefit will be to reduce
the burden on the courts. Since different religion has different set of law it
leads to a lot of confusion while delivering justice which leads to delayed
justice delivery.[11]
“In the Indian constitution the fundamental
rights (part III) and directive principles of state policy (part IV) have found
a bedrock of balance, if we were to give absolute supremacy of one over the
other then the harmony of the constitution will be disturbed. Balance and
harmony are important features of the basic structure of the Indian
constitution.”[12]said
by PN Bhagwati in the Minerva mills case.[13]
As mentioned earlier in this paper the
division of rights into justiciable and non-justiciable recommended by B.N Rao.
According to him rights were classified into, the fundamental rights and the
directive principles of state policy. The nature of the rights was observed by
him. He stated that some rights require positive action by the state and some
that only can be guaranteed as far the action is predictable.[14]we
can see that these both are interlacing and intimate part of the constitution.
In the issue of Kerala education bill the
supreme court stated that even though the directive principles cannot supersede
the fundamental rights, the court must not ignore the directive principles of
state policy. The harmonious principle should be adopted and the state should
strive to give effect to both as much as possible. The supreme court also
remarked that the fundamental rights and directive principles are both
complementary and supplementary to each other.[15]
The directive principle acts as a steering
wheel of the society and the state has a moral duty to frame laws in line with
the directive principles. Now when we can see that article 44 i.e., the uniform
civil code which comes under directive principle is contradicting the article
25 which is a fundamental right to freedom. The personal laws as we saw earlier
are concerned with marriage, divorce, adoption, maintenance etc. now these
issues have no relation to any religion but every religion hold different laws
regarding these issues. we see no interference what so ever with the religion
as religion can be practiced, professed and propagated even if there was a
uniform civil code in the county. The faith of a person towards their religion
does not seem to fetter by the personal laws. when we have a uniform criminal
law without hurting the sentiments of people there is no reason why uniform
civil code should not be implemented.[16]
The government taking action on the issue of
triple talak by passing the Muslim women (protection of Rights on marriage) act[17]
2019 criminalizing the practise of triple talaq. This bill was passed by both
the houses of the parliament with a 2/3rd majority. The next action
was the abrogation of article 370 which removes the special provisions given to
the state of Jammu and Kashmir. Now it allows all law followed in the rest of
India to be applicable in Jammu and Kashmir too. We can assume that these
actions show the that the legislature is moving along the lines of uniform
civil code.[18]
Day in and day out thousands of cases come to
the supreme court where the court feels the need for a uniform civil code.in
2019 the supreme court questioned the legislature on not taking steps towards
the implementation of the uniform civil code. The court stated that in the last
63 years no step has been taken in order to implement the UCC[19].
The court also made a remark on how the goa civil code is an example of how we
can break the barriers of religion. These statements show that the judiciary
has the intend to implement the uniform civil code.
The case of Mohd. Ahman Khan v Shah Bano
Begum[20]
a man drove out his wife from his house after 43 years of married life. The
wife asked the husband for maintenance and the husband refused by divorcing her
by verbally stating talaq three times. While the proceedings of this case it
was brought to light that the laws of inheritance in Muslim women are highly
indifferent towards women. Y.V. Chandrachud J referred to the article 44 of the
constitution which is the UCC, he said that this article is like a dead letter
so far and that to provide better judgement to all the UCC has to be
implemented or at least a beginning has to be made in this matter.
Conclusion
From this research we can understand that when
the constituent assembly took up the debate on the uniform civil code there
were many shortcomings to it as the country had already wounded by the
Britishers and it probably wouldn’t be the best idea to impose a uniform civil
code affecting matters such as divorce, marriage, adoption, inheritance etc.
back then it was important that people would feel secure and comfortable with
the new found feeling of nationality and freedom. But things have changed now
India has been developing multi dimensionally and it is important that basic
rights such as equality is granted to all irrespective of religion, gender etc.
uniform civil code is very necessary now to reduce the burden on the courts so
that we have a speedy and more efficient justice delivery system in place. It
would also be a great initiative to empower women for example the Hindu women’s
property rights under the Hindu succession act 1956 is till discriminatory even
after the amendment in 2005 because if a woman dies without a will her property
is given to the heir from her husband’s side. Now when a uniform civil code is
implemented in India it would make sure that the laws are not discriminatory in
nature. Now comes the most important reason why it should be implemented, to
promote integrity in the nation. The uniform civil code would help to break
down religious, class and gender barriers and make us feel like one. This
process will definitely not be easy considering the diverse culture in the
country and political interference but it definitely would help India grow if
we made or took initiatives in the lines to implement the UCC. The need of a
uniform civil code has to be seen from horizons above the vote banks and
political benefits. When B.R Ambedkar said that for the moment the civil code
can be put aside unless it’s voluntary little did, he know that this state
would not change even after 74 years of independence. I think it’s time that we
take the dreams of our founding fathers to the next step and make our country a
better place to live which would be filled with peace and prosperity.
Article Information
“CONSTITUENT ASSEMBLY DEBATE UNIFORM CIVIL CODE: ONE COUNTRY, ONE LAW” (By-Ananya Eliza Varghese)
Authors: Ananya Eliza Varghese
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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