Uniform Civil Code is essential for national harmony, objections to it are spurious

By Rakesh Dwivedi

Few, if any, eyebrows were raised when the Law Commission washed its hands of the task of ushering in a Uniform Civil Code (UCC) by terming it as “neither necessary nor desirable at this stage.” It did not deviate from the trajectory that the aspiration for UCC has followed since the framers of the Constitution included it among the Directive Principles which they, as per Article 37, wanted to be “fundamental in the governance of the country.”

The absence of surprise at the Law Commission rebuffing the need for UCC marks a collective acquiescence in the betrayal of the task we had so loftily set for ourselves as a young nation.


While the framers of the Constitution stressed through Article 44 that it will be the “duty of the State to apply these principles in making laws”, the mandate remains unfulfilled because of resistance mounted on so-called religious grounds, by ginning up fear of majoritarianism and creating a fog of confusion that has not been allowed to dissipate since the days the idea was debated in the Constituent Assembly.

In the debates on the issue Muslim members of the Constituent Assembly, being the sole opponents, raised the very same objections that are being feverishly peddled seven decades after Independence. Mohammad Ismail Sahib, Naziruddin Ahmed, Mahboob Ali Baig, B Pocker and Hussain Imam argued for exemption of personal law, which governs issues of marriage and inheritance in the community, from the Civil Code on the ground that they were derived from the Holy Quran and sharia. Pocker alleged that UCC would conflict with their fundamental right, and dismissed Article 44 as “tyrannical and undemocratic”. Hussain Iman sought deferment until India was sufficiently developed.

KM Munshi, Alladi Krishnaswami Ayyar and BR Ambedkar took them on by saying the right to religious freedom did not extend to freeing secular dimensions of religion from the law of the land. They pointed out that not just European countries but also Turkey and Egypt did not give Muslims the right to govern secular matters by personal laws; and that up to 1937, even the North West Frontier Province was not subject to sharia.

Ambedkar pointed out that while criminal and contract laws were governed by personal laws in the pre-colonial times, British introduced uniform codes and Muslims accepted. Already, there was uniformity of laws in several matters, so why should there be objection to covering of the “little corner of marriage and succession.” Munshi said equality of women would not be possible if personal laws were permitted. They argued that UCC was essential for national harmony and a strong and consolidated nation.

Likewise, in 1954, the Supreme Court unambiguously held in ‘Commr HRE vs Lakshmindra Swamiar of Sri Shirur Mutt’ case that the right to religion and religious practices guaranteed under Articles 25 and 26 didn’t extend to secular matters associated with religion. Article 25 is unequivocal that the right to practice and propagate religion is subject not only to laws regulating public order, morality and health but also to laws regulating any economic, financial, political “or other secular activity”.

The clarity in the Constitution that secular matters associated with various religions can come under the purview of measures such as the one which seeks to improve status of women has been sought to be obfuscated by setting off a faux debate over interference “with constitutionally guaranteed” religious rights.

The deception has been so successful that it has obscured the fact that UCC is a “Civil Code” and not a religious code. The “civil” in the UCC indicates that it would not cover that which is comprised in the expression “matters of religion”. UCC does not contemplate uniformity of religion and banishment of all religions other than Hinduism as is being alleged.

The real issue, thus, is whether “religion” can be granted the elasticity to envelop “personal law” relating to marriage and succession? Answer given by the Constituent Assembly was “no”. Marriage, divorce, maintenance, adoption and inheritance are all secular matters and could be regulated by Parliament. In Shirur Mutt case, the Supreme Court upheld the formation of a board by law to supervise administration of secular affairs of temple so as to prevent mismanagement. A fortiori marriage and succession could not be considered intrinsic part of religion though some rituals in marriage may be prescribed by religion.

Marriage and succession largely impact women and girl children unequally in all religions. Article 15(4) empowers the state to make special provisions for women and children. UCC would go a long way in curing this radical evil of gender inequality. The state clearly fumbled when it reversed the law declared in Shah Bano case.

Of course, in seeking uniformity of “civil”, UCC ought not to ride roughshod over linguistic and cultural diversity or the different ways of life. UCC must look at a civil code which eliminates all subjugation, and all negatives, that philosopher Immanuel Kant identified as “radical evils” and which impede social justice, equality, liberty and fraternity with dignity. UCC should integrate, assimilate and syncretise the good in all the ways of life that thrive in mother India.

As for the perennial “why now” question raised by people who allege the focus was only on discrimination against Muslim women when there were issues of atrocities against women and girls among Hindus too, the answer is very simple. It is 71 years since Independence and high time we realised the goal assigned to us by the republic’s founding fathers, who we never tire of quoting.

(The writer is senior advocate, Supreme Court of India)