By Arun Anand-
As the country celebrates the Constitution Day on 26 November, it would be pertinent to look at the debate in Constituent Assembly on the issue of Uniform Civil Code, especially in view of a recent observation by Allahabad High Court on this issue. The Court has favoured the Uniform Civil Code asking the Centre to look at the possibility of implementing it. The court observed, “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so,” the court observed.
The issue was discussed at length in the Constituent Assembly on 23 November, 1948. First the Muslim members spoke and moved seeral amendments to Article 35 which comprised provisions related to having a uniform civil code in the country. Mohammad Ismail, Naziruddin Ahmad, Mahboob Ali Baig Sahib Bahadur, Hussain Imam were some of the members who moved these amendments. Naziruddin Ahmad moved the amendment saying, “That to article 35, the following proviso be added, namely: – ‘Provided that the personal law of any community which has been guaranteed by the statue shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law’.”
Ahmad said, “In moving this, I do not wish to confine my remarks to the inconvenience felt by the Muslim community alone. I would put it on a much broader ground. In fact, each community, each religious community has certain religious laws, certain civil laws inseparably connected with religious beliefs and practices. I believe that in framing a uniform draft code these religious laws or semi-religious laws should be kept out of its way.”
Moving another amendment, , Mohamad Ismail Sahib, a Muslim member from Madras said:
“Sir, I move that the following proviso be added to article 35:
“Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.”
The right of a group or a community of people to follow and adhere to its own personal law is among the fundamental rights and this provision should really be made amongst the statutory and justiciable fundamental rights. It is for this reason that I along with other friends have given amendments to certain other articles going previous to this which I will move at the proper time. Now the right to follow personal law is part of the way of life of those people who are following such laws; it is part of their religion and part of their culture. If anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages. This secular State which we are trying to create should not do anything to interfere with the way of life and religion of the people.”
The counter argument to all these arguments was presented by Dr BR Ambedkar, KM Munshi and Alladi Krishnaswamy Ayyar.
Strongly favouring a Uniform Civil Code for the country, Ambdekar said, “I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to the Muslims of the NorthWest Frontier Province and to apply the Shariat Law to them.”
He further added, “I quite realise their feelings in the matter, but I think they have read rather too much into article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country.”
Munshi made a very interesting point in the case when he said, “… Look at the disadvantages that you will perpetuate if there is no Civil Code. Take for instance the Hindus. We have the law of Mayukha applying in some parts of India; we have Mithakshara in others; and we have the law-Dayabagha in Bengal. In this way even the Hindus themselves have separate laws and most of our Provinces and States have started making separate Hindu law for themselves. Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is therefore not merely a question for minorities but it also affects the majority.”
Taking an example from one of the Islamic rulers himself, he further added, “This attitude of mind perpetuated under the British rule, that personal law is part of religion, has been fostered by the British and by British courts. We must, therefore, outgrow it. If I may just remind the honourable Member who spoke last of a particular incident from Fereshta which comes to my mind, Allauddin Khilji made several changes which offended against the Shariat, though he was the first ruler to establish Muslim Sultanate here. The Kazi of Delhi objected to some of his reforms, and his reply was–“I am an ignorant man and I am ruling this country in its best interests. I am sure, looking at my ignorance and my good intentions, the Almighty will forgive me, when he finds that I have not acted according to the Shariat.” If Allauddin could not, much less can a modern government accept the proposition that religious rights cover personal law or several other matters which we have been unfortunately trained to consider as part of our religion.”
Speaking in favour of a Uniform Civil Code and opposing the amendments proposed by the Muslim members, Ayyar said, “The second objection was that religion was in danger, that communities cannot live in amity if there is to be a uniform civil code. The article actually aims at amity. It does not destroy amity. The idea is that differential systems of inheritance and other matters are some of the factors which contribute to the differences among the different peoples of India. What it aims at is to try to arrive at a common measure of agreement in regard to these matters.”
At the end of the arguments, the members voted overwhelmingly in favour of a Uniform Civil Code being part of the Constitution. The amendments proposed by some of the Muslim members were rejected.