The Necessity of a Secular UCC

Modi’s pitch for a secular civil code for all Indians is perfectly in line with the arguments made by BR Ambedkar in the Constituent Assembly. On November 23, 1948, when Article 35 of the draft Constitution, that called for a uniform civil code, came up for discussion before the Assembly, Ambedkar took the firm stand that it shouldn’t get mired in communal discourse.

Rejecting amendments proposed by members like Pocker Sahib, Hussain Imam and Muhammad Ismail Sahib, Ambedkar reiterated that there was no merit in their argument that the “Sharia law was immutable and uniform throughout India”. He reminded them that many other laws like the criminal procedure code, law of transfer of property and negotiable instruments act were applicable to all Indians, covering every aspect of their lives. He argued that until the Sharia Act was passed by the British colonial government in 1937, most Muslims in provinces of British India followed Hindu law.

The NWFP (today’s Khyber-Pakhtunkhwa) was not subject to Sharia until 1935. Until 1937, in the rest of India, including provinces where Muslims lived in large numbers like the United Provinces, Central Provinces and Bombay, they were governed in matters of succession and others by existing Hindu laws. Ambedkar refers to a law in North Malabar region called Marumakkathayam Law that was applicable to both Hindus and Muslims by which matriarchy was followed by the people of Kerala.

Ambedkar’s argument in the Constituent Assembly was that the uniform civil code should be seen in the same light as a secular law applicable to all. “Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindu law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by Article 35, I am quite certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

The Uniform Civil Code should have been implemented after the formation of the first government in 1952. MC Chagla, who rose to become the education minister in Jawaharlal Nehru’s government, insisted that “Article 44 is a mandatory provision binding the Government, and it is incumbent upon it to give effect to this provision”. However, Nehru couldn’t muster the courage when the best opportunity came during the reform in the Hindu law in 1954. He evaded the issue, arguing that “I do not think that time is ripe in India for me to try to push it through”.

The issue lingered on since then. Cases of Hindu men indulging in polygamy by converting to Islam were taken to the courts numerous times. Rejecting the contention that Sharia compliance was a matter pertaining to Islamic faith alone, the courts repeatedly told the government that civil law reform is not just a matter concerning any one religion and hence a uniform code is essential.

In Sarla Mudgal vs Union of India (1995), the Supreme Court had held that “when more than 80 per cent of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, anymore, the introduction of Uniform Civil Code for all citizens”. In the John Vallamattom vs Union of India case in 2003, the SC had again said that “It is a matter of regret that Article 44 of the Constitution has not been given effect to”. Highlighting the prevailing confusion due to various personal laws, the SC asked the government in October 2015 if they were willing to implement a Uniform Civil Code. “What happened to it? Why don’t you frame and implement it?” it asked.

Based on the SC observations, Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan, wrote a letter to Prime Minister Narendra Modi in November 2015, stating that “Certain orthodox and patriarchal males have stonewalled any attempt towards reform in Muslim personal law. In the process, Muslim women have been denied their Quranic rights as well as their rights as equal Indian citizens. Almost all Muslim countries the world over, such as Morocco, Tunisia, Turkey, Egypt, Jordan and even Bangladesh and Pakistan in our neighbourhood, have codified personal laws governing marriage and family matters… Indian Muslims are denied this opportunity”.

As the BMMA leaders argued, codification of personal laws has nothing to do with religion. It is a step towards gender justice, and a secular necessity, as pointed out by Prime Minister Modi.