The discourse over the implementation of the Uniform Civil Code has often stirred up a whirlwind of uproar by political advocates and religious objectors. India follows a system of legal pluralism that allows different religious communities to be governed by their codes of personal law. This has been seen as a way of protecting distinct communal identities and safeguarding the right of citizens to practice their faith, as enshrined in the Constitution.
The Constitution grants equal protection under the law to all citizens. That said, Muslims are governed by a personal law, which came into force in 1937. However, the authors of the Constitution wanted a common set of family laws. Article 44 of the Directive Principles of State Policy in the Indian Constitution mandates that “The state shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India.”
The Uniform Civil Code (UCC) calls for the formulation of one law for India which would apply to all religious communities in matters such as marriage, divorce, inheritance, and adoption. Because of the intrepid opposition of Muslim members, the idea was dropped, but the issue was not sealed. It was left to the wisdom of the coming generations to explore the concept of a generic set of personal laws—a uniform civil code (UCC) applicable to all Indians.
The authors of the Constitution had realized that Muslims were stubborn about retaining their laws, and time was not ripe for the fruition of a Common Civil Code. One of the active participants in the debate who played a crucial role in shaping the discourse was Kazi Syed Karimuddin, who represented CP and Berar province in the Constituent Assembly and was a leading criminal lawyer at Yavatmal.
Kazi Syed Karimuddin was born on 19 July 1899 in Yavatmal, Maharashtra. He obtained a law degree from Aligarh Muslim University and became a notable litigator. Karimuddin was elected to the Constituent Assembly from the Central Provinces through a Muslim League ticket. In the Assembly, he made interventions on essential issues related to privacy, emergency provisions and proportional representation.Karimuddin was a Member of the Rajya Sabha (1954-1958).
On this issue, the Assembly was divided into two parts: on one side, there were people like K.M. Munshi and on the other end were Kazi Syed Karimuddin and Maulana Hasrat Mohani. Muslim members of the Assembly believed that the protection of personal laws must be a priority. Consequently, a majority of 5:4, of the subcommittee on Fundamental Rights decided that UCC should not be adopted as a Fundamental Right.
- KM Munshi believed there should be some limitations on religion to bring togetherness and integration as the basis of national civic identity.
- Kazi Karimuddin, argued: “The people outside and the members of the Constituent Assembly must realize that a Muslim regards the personal law as part of the religion and I really assure you that there is not a single Muslim in the country at least I have not seen one, who wants a change in the mandatory provision of religious rights and personal laws, and if there is anyone who wants a change in the mandatory principle, or religion as a matter of personal law, then he cannot be a Muslim. Therefore, if you really want to protect the minorities because this is a secular state it does not mean that people should have no religion, if this is the view of the minority Muslims or any other minority they want to abide by personal law, those laws have to be protected.”
- Hasrat Mohani, freedom fighter and Urdu poet who coined the iconic “Inquilab Zindabad” slogan, was equally emphatic: “I would like to say that any party, political or communal, has no right to interfere in the personal law of any group. More particularly I say this regarding Muslims. There are three fundamentals in their personal law, namely, religion, language, and culture, which human agency has not ordained. Their personal law regarding divorce, marriage, and inheritance has been derived from the Quran and its interpretation is recorded therein. If there is any one, who thinks that he can interfere in the personal law of the Muslims, then I would say to him that the result will be very harmful. … Mussalmans will never submit to any interference in their personal law, and they will have to face an iron wall of Muslim determination to oppose them in every way” .
- Naziruddin Ahmad believes that the approval from the community of people has to be obtained who will be affected by the implementation of a uniform civil code. Further, he said there would be a time in the future when there would be uniformity in the personal laws of every religion, but this time has not come. The authority in the hands of the State to make uniformity in personal laws is before time. Power shouldn’t be in the hands of the State concerning personal laws.
- Dr Babasaheb Ambedkar believed that the State has no duty to interfere with religious laws. There is no need to be aggressive on the fact that the State has the power, and they will utilize this power which is in contravention to the personal laws of every religion, including Muslims.
- Sir B N Rau, the constitutional advisor to the Constitution of India, believed that a uniform civil code is a part of directive principles which is just s direction to the State to make laws and directive principles have the least educative power.
In his stellar speech, Kazi Karimuddin argued that in Article 31, the country’s economic pattern was based on vague generalizations. The word ‘Directive’ must be deleted. . He endorsed Mr Kamath’s suggestion that they should be made Fundamental Principles of State Policy. His submission was that the word ‘Directive’ is unnecessary and meaningless. The provisions under this Chapter become only platitudes or pious wishes, and Dr Ambedkar rightly stated that they are more or less only Instruments of Instruction. If they are an Instrument of Instruction, why should they find a place in the Fundamental Principles to be embodied in the Constitution?
Kazi Karimuddin believed that The Directive Principles provisions embodied in Part IV are significant as they relate to uniform civil code, economic patterns, and many Fundamental matters. Directive Principles mean that they will not be binding on the State; in any case, they would not be enforceable in a court of law. His submission is that if this Constitution is not laying down these principles for being enforced in a court of law, or if they are not binding on the State, they are meaningless. He drew the members’ attention to what Dr Ambedkar had said in his book.
Dr Ambedkar said that we do not want to lay down certain principles because it would open the coming generations to have their pattern. It is only stated in Article 31 that there will be an improvement in economic, social and other things. What is the use of generalizations, as expressed in Article 31? Therefore, it is no use treating these principles as Directive; such a course will not prove to be for the good of the people and the State. All these principles must be made mandatory so that a scheme embodying these principles can be brought into operation within ten years.
The Supreme Court struck a note of caution in the Sarla Mudgal judgment. The court stated,
“The desirability of uniform civil code can be hardly doubted but t can concretize only when social climate is properly built by the elite of the society and the statesmen, instead of gaining personal mileage, rise above and awaken the masses to accept the change.”
The Law Commission, acting on a reference made by the government in 2016, had on August 31, 2018, floated a consultation paper on Reform of Family Law. The consultation paper covered topics of marriage and divorce, custody and guardianship, adoption and maintenance, and success and inheritance.
In the 185-page consultation paper, the Commission has dealt with laws that are discriminatory “rather than providing a uniform civil code which is neither necessary nor desirable at this stage.”
The Commission stated in the consultation paper: “While the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of society must not be dis-privileged in the process. The resolution of this conflict does not mean the abolition of difference. Commission has therefore dealt with laws that are discriminatory rather than providing a UCC”
Moin Qazi is a political commentator