Centre for Advanced Legal Studies and Research, (CALSAR), Thiruvananthapuram


G S Gokul
Department of Law, University of Kerala, Kariavattom Campus

“The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”.

          This is what Article 44 (Article 35 as in the Draft Constitution) of the Constitution of India calls for. Yes, this comes within the Directive Principles of State Policy, a simple suggestion from the makers of the Constitution of India to the future lawmakers of our country, no more enforceable than a command of the mediator in a mediation. Yet, the amount of resistance received by this article in the Constituent Assembly is enough to show how people feel about it from its very inception.

          Mohammed Ismail Saheb, Naziruddin Ahamed, Pooker Sahib Bahadur, Hussain Imam and many others strongly expressed their feeling in the Constituent Assembly Debates against bringing such a provision into the Constitution. They focused on four main points on why such an inclusion will affect the concept of secularism which the Constitution is trying to secure.

          To begin, India is a country with diverse ethnic and cultural backgrounds. Its diversity can be easily identified even by the stark geographical differences that spread along the length and breadth of our country. This leads us to the primary question- Can a single law accommodate the wishes and aspirations of the entire population of our country?

          Further, India is a Hindu-majority country and obviously, the minorities are worried that their culture and ethos might get overshadowed by the outcry of the majority. Their major concern is, what ensures that the new law that deals with their personal life will be an inclusive one and will not be something that imposes unfamiliar principles.

          Adding on it, they feel personal law and religious freedom are one and the same. Hence, by preventing them from exercising their personal laws as directed by their religion, it appears as if their freedom of religion is curtailed which is nothing short of a fundamental right. Obviously, it is a well-established principle that fundamental rights stand at a higher pedestal when compared to any law in the country let alone the Directive Principles of State Policy. So, will the Uniform Civil Code ensure the protection of their religion?

          Above all, the most startling contention was that raised by Mr. Hussain Imam. He said that the time was not ripe enough for such an adventure on the part of the government of India. People need to be educated first before they can be brought under a single law that might be alien to them. They should be able to comprehend that, though the law they are following is against the principle taught to them, it is justice of the nation that the said law is trying to secure.

          Even after seven decades of Independence, it feels like we are still in the same position as we were back then- Personal laws regarding marriage and succession continue to be dealt with by the uncodified strands of law that are different for different communities. On a closer evaluation, the first three concerns were properly and the 4th one was partially dealt with by Dr. B R Ambedkar with the help of passionate arguments from K.M. Munshi and others in the Constituent Assembly Debates itself.

          Regarding the diversity point, Pan India laws were already in existence and were being successfully implemented as and when the Constituent Assembly Debates were taking place on this Article. Ambedkar cited that the Civil Procedure Code, the Indian Penal Code, and many other laws were all tested and proved examples of pan-India laws. They found acceptance amongst all the diverse communities of our country. Considering Hindu and Muslim principles of morality, we can clearly see that most of these provisions which we find as relevant to a civil society in these laws couldn’t even be enacted. This includes providing equal opportunity to women and equal opportunity to all, a fundamental right that our constitution is trying to secure. Thus, a pan-India law on reasonable grounds will receive acceptance even if it is against religious principles.

          The second point regarding the Hindu influence in a law of such kind though could be easily countered at the time of the Constituent Assembly Debates by stating that even Hindu laws were different in different aspects (this can be understood from followers of two different texts vis. Mithakshara and Dayabhaga) and additionally, a non-Hindu concept might be adopted if that is found to be appropriate, it is questionable now.  Hence, laws were enacted taking the best and they necessarily need not align with any religious ideology. It is clearly something that society finds to be appropriate at the relevant time that gets adopted as a law and gets implemented.

          However, this is of concern at present. Primarily because of the ideologies followed by the present Union Government. There is a growing concern that the ethos of a single community might get imposed upon the entirety of the nation. Several acts on the part of the Government have fueled this concern even more. The inaugural ceremony of the Central Vistas stands as a testimony to this point.

          Additionally, the timing is also very skeptical. The government seems to be in a hurry to introduce a set of laws that were part of their election manifesto. Publicity stunts like transforming the entire penal system and procedure laws (in reality retaining the old contents intact), and imposing new and unfamiliar names for the same seem to be a part of an agenda- 2024 Lok Sabha election. This is indeed increasing the concerns of the common folks regarding the ingenuity of such a law being enacted in the present scenario.

          From the standpoint of personal laws and religious freedom, we can clearly see, not only from what was presented by Ambedkar but also from the repeated iterations on the part of the Supreme Court that there is no connection between religious freedom and personal laws. In John Vallamatton v. Union of India (AIR 2003 SC 2903) a three Judge Bench expressed regret for non-enactment of the Common Civil Code. It also stated that Article 44 is based on the premise that there is no necessary connection between religion and personal law in a civilized society.

          In addition, marriage registration was something that received no support in the Constituent Assembly Debates. In fact, it was shown as an example that might not receive acceptance among the public. However, the Supreme Court Decision in Seema v. Ashwani Kumar. (AIR 2006 SC 1158) that all marriages must be registered irrespective of the ethos of the parties imparted several benefits in the society which include-      

  1. Prevention of child marriages                                                                                                                                                             

2. Checking bigamy and polygamy                                                                                                                                                            

3. Ensure rights under marriages, like maintenance and custody

 4. Deter husbands from deserting their wives.                       

In spite of repeated outcries on the part of the judiciary to bring in a Uniform Civil Code, it still remains a distant reality.                                                    

          Now with regards to the final and the most important questions- is the time ripe? Whether the society ready to accept a Uniform Civil Code? To answer the first question, it has been from the day India got its independence. To the latter, India will never be ready and the seven-decade-long history stands as a testament to the same.

          However, Dr. B R Ambedkar in the Constituent Assembly Debates itself has suggested a remedy for this. Uniform Civil Code must gain acceptance among the public before they can become enforceable. So, in its initial stage, it shall only be applicable to those who are ready to accept it rather than having a universal application. The same way a fish is introduced into a new environment.

          Change is inevitable and a Uniform Civil Code is always welcome but the change must be gradual. Additionally, when it comes to matters like the Uniform Civil Code, the intention on the part of the government must be genuine and bona fide. That is the betterment of the public. Their only aim must be to enforce constituent principles in the society.      

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