Supreme Court had described Goa as a “shining example” with a Uniform Civil Code and noted that India must strive for one.
Article 44 of the Constitution makes a reference to it in the chapter dealing with the Directive Principles of State Policy and says: “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” Unfortunately, this Directive Principle of the State Policy enshrined in the Constitution remained dormant and conflicts between secular and religious authorities over Uniform Civil Code cooled down until the 1985 Shah Bano case, which saw intense politicization.
While ruling in favor of Shah Bano, the Supreme Court held that Section 125 of CrPC applied to all citizens irrespective of religion. It further recommended that a Uniform Civil Code be set up. The issue became a bone of contention with the then Prime Minister Rajiv Gandhi reversing the effect of the SC decision bypassing the Muslim Divorce Act.
The All India Muslim Personal Law Board (AIMPLB) and Muslim conservatives supported the Rajiv Gandhi Government and accused the judiciary of promoting Hindu dominance over every Indian citizen at the cost of minorities.
The UCC has been on the political agenda of the BJP, and its predecessor BJS, since its inception and it wanted successive governments to fulfill the cherished ideals of the framers of the Indian Constitution. However, it could not move ahead as it still depended on its allies to form the governments at the Centre and the states.
Now that the party has the numbers in the Lok Sabha and the Rajya Sabha as well as most state Assemblies, the party leaders believe that the time to bring a UCC has come.
While the BJP had been debating the issue of the Uniform Civil Code for a long time, the party first promised the implementation of a common civil code in its 2019 Lok Sabha election manifesto. According to legal experts, both the Central Government and states are empowered to implement UCC as the issues under it are in the Concurrent List of the Constitution. The judicial support for the idea, reflected in the Supreme Court’s validation of its law banning triple talaq practice among Muslims has also emboldened it.
Expectedly, the AIMPLB and other conservative Muslim organizations have vehemently protested against the move. But the Government has reasons to believe that these organizations are not true representatives of the Muslim opinion. The fact is that personal laws do not form the five pillars of Islam — faith, prayers, alms, fasting, and pilgrimage — which constitute the core faith of the religion.
According to Maulana Kahkashan Waqar, an activist of Pasmanda Muslim Mahaz, an organization representing low-caste Muslims, it is wrong to put a communal color to the UCC issue by terming it as an “interference” in the religious matter of Muslims and a plot against Islam. “This is done at the behest of the upper-class Ashraaf community who are currently leading the Muslim society. The reality is different,” he asserts. Interestingly, Muslim members of the Constituent Assembly had also expressed reservations when Article 44 came up for discussion on November 23, 1948. Ismail Sahib contended that there was no need to regiment the civil law of the people. Naziruddin Ahmad argued that the laws pertaining to marriage and inheritance were part of religious injunctions.
Their arguments were countered by KM Munshi, Alladi Krishnaswami Ayyar, and BR Ambedkar. Munshi pointed out that many countries had common civil codes and the personal laws of minorities were not recognized in any of the advanced Muslim countries. Ayyar said the leaders of India wanted the whole of the country to be welded and united together into a single nation. “Is this country to be kept always as a series of competing communities?” he asked.
Ambedkar said he was “very much surprised” by the arguments put forth by the Muslim members because there was already a uniform and complete criminal code, a Transfer of Property Act, the Negotiable Instruments Act, and other laws that mean practically there was a civil code applicable to the whole of the country.
Further, Ambedkar challenged the contention that Muslim law was immutable and uniform throughout India. Up to 1935, the North-West Frontier Province and other states followed the Hindu law in the matter of succession. In fact, in north Malabar, the Marumakkathayam, which was a matriarchal system, applied to all, including the Muslims.
However, there were two Muslim members of the House – Naziruddin Ahmad and Hussain Imam – who felt that India could have a common civil code, “sometime later”. The question is whether 75 years is not a long time? As regards the rights of minorities, can one hope for ideas such as equality and fraternity to develop uniformly within the country if one constantly keeps harping on differences, as Alladi Krishnaswami Ayyar had warned?
