By Inder Jit
(Released on 16 October 1990)
More and more people are swearing by secularism today than ever before in the past two decades. Equally interestingly, more and more people are today swearing by Dr B.R. Ambedkar, the architect of our Constitution. Both Houses of Parliament concluded their special session on Punjab on October 5 with a fervent call to the people to live up to the ideals of democratic secularism as enshrined in the Constitution. Baba Sahib, as Dr Ambedkar was affectionately called, was also remembered time and again in Parliament as the two Houses debated the Mandal report and the tragic fall-out of the Government’s decision on it. Outside the two Houses, even the Shahi Imam seemed to be standing up for secularism as he attacked the BJP Chief, Mr L.K. Advani, for his rath yatra. Yet few have paused to ask a pertinent question: How many of those who swear by secularism and Dr Ambedkar are willing to implement the secular provision of the Constitution which provides: “The State shall endeavour to secure for the citizens a uniform civil code throughout the country.”
Tragically, there is no sign of any common civil code even after four decades of the Constitution. In fact, the Government’s failure in the matter was spotlighted in 1985 by a five-member Constitution Bench of the Supreme Court, presided over by the Chief Justice, Mr Y.V. is Chandrachud, in a bold and enlightened judgment in the famous Shah Bano case. The Chief Justice went to the extent of stating that it was a matter of regret that Article 44 had “remained a dead letter.” However, “a beginning had to be made… Inevitably, the role of the reformer was to be assumed by the courts… A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” But the Supreme Court was halted soon thereafter in its tracks by the Mullahs and prevented from taking on the role of reformers. The Rajiv Government, as readers would recall, was prevailed upon by the fundamentalists to bring forward the Muslim Women (Protection of Rights on Divorce) Bill. In one stroke, the hopes of reform roused by the Supreme Court’s historic judgment were dashed to the ground.
Much of the trouble (and confusion) over the common civil code has arisen because of widespread ignorance and general disinclination among our rulers and their advisers to delve deep into matters. Consequently, what transpired in the Constituent Assembly on the debate on Article 35 (now Article 44) of the Constitution on November 23, 1948, bears repetition, five leading Muslim members opposed the Article and were given a full hearing, unlike what happens today. Every group or community, it was argued, had a right to follow its own personal law, which was part of their religion and culture. Further, that a common civil code would clash with and undo Article 19 of t Constitution, which provides for “freedom of conscience and the freely to profess, practise and propagate religion.” Nevertheless at least two of them said something refreshing which deserves recalled. Mr Hussain Imam conceded that a common civil code very desirable thing.” But this should be done at “a very date.” Mr Naziruddin Ahmed also said: “The goal should be uniform civil code, but it should be gradual and with the people concerned three legal stalwarts met the concerted attack by the Muslims members on the article on behalf of the Drafting Committee. They were Mr. K.M. Munshi, Mr Alladi Krishnaswamy Ayyar and, finally, Dr B.R. Ambedkar, Mr. Munshi asserted that Article 35 did not infringe the fundamental right mentioned in Article 19. Parliament would be entitled to enact laws in the field or social welfare and reform. There was nothing tyrannical in the Article. When the Shariat Act was passed under the British regime, the causes 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 one 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, he asserted, 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.
How many of those who swear by secularism and Dr Ambedkar are willing to implement the secular provision of the Constitution which provides: “The State shall endeavour to secure for the citizens a uniform civil code throughout the country.”
Mr Alladi Kirshnaswamy 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, even 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.”
The Chief Justice (Mr V Y Chandrachud) went to the extent of stating that it was a matter of regret that Article 44 (earlier Article 35) had “remained a dead letter.” However, “a beginning had to be made… Inevitably, the role of the reformer was to be assumed by the courts… A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”
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 (moved by Muslim members.) 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 the Hindu Law to the Muslims of the North-West 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 Marumakkathayam Law applies to all …. not only to Hindus but also to Muslims… the Marumakkathayam Law is a matriarchal form 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 the 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 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.”
Dr Ambedkar went to the heart of the matter. He said: ‘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 the 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.
Where do we go from here? The Government should even now follow the wise and practical advice tendered by Dr Ambedkar. Either we believe in Baba Sahib in this year of his birth centenary or we do not. India and its secularism deserves a voluntary common civil code for gradual acceptance without further delay. Enlightened opinion among the Muslims will then have a choice: be liberal and progressive or remain obscurantist and backward. My own talk with a cross-section of Muslims during my travels to various parts of our country shows that a sizeable section of the community will be happy to have such a code to satisfy their own enlightened craving. Ultimately, no one community should be allowed the veto to block progressive legislation, especially when it is voluntary and does not seek to impose any view or way of life on any one arbitrarily. Much valuable time has been lost already in implementing the Directive Principle enshrined in Article — and in taking India towards genuine secularism and national integration. — INFA