Demystifying The Uniform Civil Code
By
Moin Qazi, New Age Islam
12 July
2023
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).
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Also Read: Why Critics Of
Uniform Civil Code Should Come Up With Better Arguments
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On this
issue, the Assembly was divided into two parts: on one side, there were people
like KM 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... Musalmans 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 the 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 was 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 the 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 the Reform of Family Law. The
consultation paper covered marriage and divorce, custody and guardianship,
adoption and maintenance, and success and inheritance.
In the
185-page consultation paper, the Commission has dealt with discriminatory laws
“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. The resolution of this conflict does not
mean the abolition of difference. The commission has therefore dealt with
discriminatory laws rather than providing a UCC.”
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Moin Qazi is the author of the bestselling book,
Village Diary of a Heretic Banker. He has worked in the development finance
sector for almost four decades.
URL: https://newageislam.com/islam-politics/demystifying-ucc-uniform-civil-code/d/130193
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