Rev. Dr. Francis Assisi Almeida –
- Introduction:
The Uniform Civil Code captured the attention of the civil society and religious communities when the 22nd Law Commission of India issued a notification dated June 14th, 2023 calling for their opinions. Ever since the Constitution’s inception, it has become a bone of contention and especially, the judiciary has taken a keen interest in it whenever the issue of divorce among inter-faith couples appeared before it. It has a strong base that is couched in the history of India and before independence, despite feeling its prominence, no authorities including the British, dared to implement the same due to its deep roots in the history of different communities including Hindus. India, being one of the most diverse countries, shelters communities with different customs, languages, cultures, and beliefs; therefore, it is highly impossible to implement any laws or provisions that affect all the communities uniformly. UCC is one such provision that draws the ire of different communities in its implementations.
Also Read:
Part II: Why the Sudden Interest in UCC Today
Part III: The Challenges in Implementing the UCC
- Uniform Civil Code and its Background:
Uniform Civil Code by its very terminology, denotes uniformity in civil laws concerning property, inheritance, marriage, adoption etc. irrespective of one’s custom, culture, and religious beliefs. Though criminal law applies to all equally, provisions of civil law relating to properties, inheritance, marriages, divorces, adoptions, etc. are followed according to their personal laws. To bring uniformity among all, the UCC under the Constitution makes provisions to implement a common uniform civil code like criminal law.
Uniformity, no doubt, is one of the important traits that necessitates bringing unity between different aspects of society. But uniformity doesn’t mean the conglomeration of different concepts that give adverse effects on the unity between various communities in society. Uniformity and unity are two different concepts and they cannot be intermingled without having a common factor that merges them together. Therefore, after sufficient deliberation on the point, the Constituent Assembly placed Art. 44 of the Constitution i.e., “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” under the Directive Principles of State Policy (DPSP). DPSP are non-justiciable rights as mentioned in Article 37 and therefore, they merely provide aid and assistance to State in implementing its welfare policies.
2.1. Uniform Civil Code under Colonial Period:
The Lexi Loci Report of 1840 emphasizes the necessity of uniformity in codifying the legal provisions of Indian law concerning criminal law, evidence and contract but excludes the personal laws of Hindus and Muslims while having such codification. In 1859, the Queen of England in her Proclamation promised the personal laws of Indians shall be kept outside the purview of such codification and they shall be guided by Advocate & Secretary, Karnataka Regional Commission for Education (KRCE). Bangalore. Email- [email protected] separate codes according to the norms of their communities. Criminal law provisions were codified and applied to all the people of India irrespective of their religion or any other differences. However, personal laws were kept intact without codification.
2.2. Constituent Assembly Debates and UCC:
When the Constituent Assembly entrusted the task of drafting the fundamental rights to a sub-committee, the members of the sub-committee, namely, Dr Ambedkar, Munshi and Minoo Masani submitted the proposals for the Uniform Civil Code (UCC) while submitting their proposals under fundamental rights. While deliberation in the sub-committee, it was proposed to split all the proposals into two parts, namely, justiciable rights and non-justiciable rights and finally, these proposals were submitted to the Advisory Committee, a parent Committee that was constituted to draft the provisions of the Constitution. The proposal for the UCC was found under non-justiciable rights. Despite the feeling of the majority members of the Committee to include the proposals for the UCC under the non-justiciable rights, members like M.R Masani, Hansa Mehta and Amrit Kaur presented their dissenting notes for the same and demanded them to be included under the justiciable rights, i.e., Fundamental Rights. In their dissenting note, they expressed their displeasure that giving prominence to personal laws based on religion over and above the common law could impact the development of nationhood. Further, they opined that even if they are given prominence over the common law, such prominence shouldn’t be extended for long and within 5 or 10 years the UCC should be implemented.
Finally, when Dr Ambedkar presented the proposal of a Uniform Civil Code before the Constituent Assembly on November 4, 1949, it was placed under the Directive Principles of State Policy (non-justiciable rights), and numbered as Article 35 which read, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
The Muslim Community members of the Constituent Assembly vociferously opposed the proposal of UCC when it was presented for discussion on November 23, 1948. They demanded two amendments to Article 35, first, the provisions are to be introduced to keep the personal laws out of the reach of UCC and second, UCC is to be operationalized with the prior assent of the community in question. Further, they argued that the UCC violates the freedom of religion guaranteed under the Constitution and it brings disharmony within the Muslim Community. Therefore, no interference must take place in the personal law without the assent of the community in question or the community that gets affected.
Whereas, K.M. Munshi, Alladi Krishnswamy and Ambedkar defended the Uniform Civil Code. Dr. Ambedkar while addressing the issue opined that UCC is an optional/voluntary one and State doesn’t have any immediate obligation to bring UCC into effect. Further, he observed, it shall come into effect after obtaining the consent of the communities in question. Finally, Article 35 was put to vote and the Constituent Assembly adopted the same and later it was renumbered as Article 44 of the Constitution.
A notable point in the Constituent Assembly deliberation was that there was a lack of absolute consensus about the formulation of the UCC and also the exact concept of the UCC. One of the opinions among the members of the Constituent Assembly was that UCC would prevail over the personal laws and similarly, another opinion was that both UCC and personal laws shall co-exist and UCC shall be followed by those who provide their assent for the same and others would follow their personal laws.
Tomorrow: Part II: Why the Sudden Interest in ICC Today?