Common Civil Code
By Inder Jit
(Released on 7 May 1985)
Three cheers for the Supreme Court and its five-man Constitution Bench presided over by the Chief Justice, Mr. Y.V. Chandrachud, on two counts. First, its bold and enlightened judgement in the Mohammed Ahmed Khan vs Shah Banoo Begum case. Specifically, the Bench held that a divorced Muslim woman unable to support herself is entitled to maintenance from her husband. In ruling so, the Constitution Bench has now confirmed two earlier judgements of the Supreme Court on the question about which doubts had been raised by two judges of the Court. Second and more important, it has drawn the nation’s much-needed attention to the failure of successive Governments of free India to implement Article 44 of the Constitution which forms part of the Directive Principles of State Policy. This Article reads: “The State shall endeavour to secure for the citizens a uniform civil code throughout the country.” Mr. Justice Chancrachud said it was a matter of regret that Article 44 had “remained a dead letter”. However, “a beginning has to be made… Inevitably the role of the reformer has to be assumed by the Courts.”
Nation’s attention drawn to failure of successive Governments of free India to implement Article 44 of the Constitution which forms part of the Directive Principles of State Policy. This Article reads: “The State shall endeavour to secure for the citizens a uniform civil code throughout the country.” Mr. YV Justice Chandrachud said it was a matter of regret that Article 44 had “remained a dead letter”. However, “a beginning has to be made… Inevitably the role of the reformer has to be assumed by the Courts.”
Some pertinent questions arise not only on the basis of the far-reaching social implications of the judgment but also against the backdrop of what was observed by the Chief Justice and the four other judges Mr Justice D.A. Desai, Mr Justice O. Chinnappa Reddy, Mr Justice E.S. Venkataramiah and Mr Justice Ranganath Misra. They stated: “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” How come that Nehru did little in his time to implement Article 44? The matter becomes more intriguing since Nehru stood and worked for national integration — and was equally known for his enlightened vision of social reform. (Remember, he pushed through the Hindu Code Bill in the face of stiff opposition from Dr Rajendra Prasad, India’s first President.) Again, how come that Nehru and Indira Gandhi failed to follow the wise and practical advice given by the father of the Constitution, Dr B.R. Ambedkar, for implementing Article 44 and giving India a common civil code.
To begin from the beginning. What exactly happened in the Constituent Assembly? The record of the debate that took place on Article 35 (now Article 44) of the Constitution on November 23, 1948 is interesting and revealing. Five leading Muslim members opposed the article in its original form and moved amendments. Mr Mohammad Ismail Sahib (Madras), for instance, moved that the following be added at the end of the article: “Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.” Mr Naziruddin Ahmed next moved the following amendment on a broader ground: “Provided that the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law.” Mr. Mehboob Ali Baig Sahib Bahadur moved: “Provided nothing in this article shall affect the personal law of the citizen.” Mr. Pocker Sahib supported the amendment proposed by Mr. Mohammad Ismail, describing it as “very moderate and reasonable.”
All the five members were heard fully and made the same points. Every group or community, it was argued, had a right to follow its own personal law, which was part of their religion and culture and had been observed for generations and ages. Further, that a common civil code would clash with Article 19 of the Constitution which provided: “Subject to public order, morality and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess practice and propagate religion.” It was also argued that Article 35 would undo what had been given in Article 19 and the Assembly should, therefore, “try to prevent this anomaly.” At least one Member pointedly asked: “What do you mean by uniform law? What have you in mind – Mitakshare or Dayabhaga system? There are so many others…” However, Mr. Husain Imam conceded that common civil code was “a very desirable thing.” But this should be done at “a very distant date.” Mr. Naziruddin Ahmed also said: “The goal should be towards a uniform civil code, but it should be gradual and with the consent of people concerned.”
Three legal stalwarts met the concerted attack by the Muslim members on the article on behalf of the Drafting Committee. They were Mr. K.M. Munshi, Mr Alladi Krishnaswamy Ayyar and, finally, Dr. Ambedkar. Mr. Munshi asserted that Article 35 did not infringe the fundamental rights mentioned in Article 19. Parliament would be entitled to enact laws in the field of social welfare and reform. There was nothing tyrannical in the Article. When the Shariat Act was passed under the British regime, the Khojas and the Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs for generations since conversions. Yet the Central Legislature at the instance of certain Muslim members enacted the Shariat Law and the Khojas and the Cutchi Memons were forced most unwillingly to submit to it. The British had wrongly fostered the feeling that personal law was part of religion. This was not so, as shown by Allauddin Khilji, who made several changes which went against the Shariat though he was the first ruler to establish the Muslim Sultanate in India.
Mr Alladi Krishnaswamy Ayyar successfully turned the tables on Mr Pocker Sahib saying: “You must know that the Muslim law covers the field of contracts, the field of criminal law, the field of divorce law, the field of marriage and every part of law as contained in the Muslim law. When the British occupied this country they said, we are going to introduce one criminal law in the country which will be applicable to all citizens, be they Englishmen, be they Hindus, be they Muslims. Did the Muslims take exception and did they revolt against the British for introducing a single system of criminal law? Similarly we have the law of contracts governing transactions between Muslims and Hindus, between Muslims and Muslims. They are governed not by the law of the Koran but by the Anglo-Indian jurisprudence, yet no exception was taken to that. Again, there are various principles in the law of transfer which have been borrowed from the English jurisprudence. Today, oven without Article 35, there is nothing to prevent the future Parliament of India from passing such laws. Therefore, the idea is to have a uniform civil code… which will run into every aspect of civil law.”
Dr Ambedkar assured Muslim members: “I think they have read rather too much into Article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary…”
Characteristically, Dr Ambedkar went to the heart of the matter and made two observations. First, the Muslim Personal Law was not immutable and uniform throughout India, contrary to what had been stated in the amendments. He said: “Most of my friends who have spoken on this amendment have quite forgotten that upto 1935 the North-West Frontier Province was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to… abrogate the application of that the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shariat Law to them. This is not all… Up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession… In north Malabar, the Marumak-Kathayam Law applies to all – not only to Hindus but also to Muslims… the Marumakkathayam Law is a Matriarchal from of law and not a Patriarchal form of law.”
Second, Dr Ambedkar assured the Muslim members as follows: “I think they have read rather too much into Article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by the ground by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the NWFP. The law said that here is a Shariat Law which should be applied to Mussulmans provided a Mussulman who wanted that he should be bound by the Shariat Act should go to an officer of the State, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors.”
Union Law Minister A.K. Sen asserted Article 44 did not hit any person…assured the House that in accordance with the Government’s policy “for a very long time” the personal law of the minority communities — Sikhs and Muslims — in regard to marriages or succession or divorce would not be touched “unless the community itself agrees that it should be so done.” ….”India stands as the greatest champion for free thinking, free religion, free religious practices and it will remain so…”
Significantly, Article 44 came to be spotlighted in the Lok Sabha on April 12 when the House concluded discussion on a bill by Mr G. M. Banatwala (Muslim League) seeking to amend the Constitution to delete Article 44. His main argument was that the Muslim Personal Law was the “religious obligation of a Muslim” — and there was “no question of surrendering it.” The Union Law Minister, Mr A.K. Sen asserted that Article 44 did not hit any person and urged Mr Banatwala to withdraw his bill. He also assured the House that in accordance with the Government’s policy “for a very long time” the personal law of the minority communities — the Sikhs and the Muslims — in regard to marriages or succession or divorce would not be touched “unless the community itself agrees that it should be so done.” Mr Banatwala withdrew the bill as Mr Sen further assured: “India stands as the greatest champion for free thinking, free religion, free religious practices and it will remain so…”
Where do we go from here? The Rajiv Government seems disinclined for the present to do anything which may add to its troubles. Nevertheless, it is a great pity that the practical idea put forward by Dr Ambedkar has not been implemented so far. The regret is all the greater since enlightened Muslim opinion, led by some eminent Muslim intellectuals, favours a more liberal interpretation of the Muslim personal laws as done by Egypt, Tunisia and, nearer home, by Pakistan. No Egyptian, I am told, is allowed to take a second wife without the specific written consent of the first wife — and the courts. Bourguiba’s Tunisia, at one stroke, put an end to polygamy and one-sided repudiation of wife by her husband by uttering the word “talaag” (divorce) thrice. Pakistan, too, has made “talaag” difficult by bringing in Family Courts. India, which is now preparing to move into 2000 AD, needs to move fast towards is common civil code. The code, as suggested by Dr Ambedkar, could and be applied voluntarily to begin with. Let an overdue beginning be made. — INFA