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The political debate on the UCC started with the framing of the Constitution and has been kept alive by judiciary as well as political class till date. If the issue of UCC is alive since independence, it is only because of the political reasons. The issue has again been brought at the forefront of public debate with the recent judgment in Shyara Bano case , which invalidated the irrevocable concept of triple talaq. This has also coincided with the Law Commission inviting public consultation on UCC in Oct 2016. But, before we move to the nuance of Uniform Civil Code in context of multi-cultural polity of India, we should begin by understanding the constitutional, judicial and the political history of UCC debate. But first of all it is mandatory to know the meaning and concept of UCC.

Many Books, Research Journals, Case Laws has been reviewed to right this article. references has been given at the appropriate places in the article

A. Prelude

The political debate on the UCC started with the framing of the Constitution and has been kept alive by judiciary as well as political class till date. If the issue of UCC is alive since independence, it is only because of the political reasons. The issue has again been brought at the forefront of public debate with the recent judgment in Shyara Bano case[3], which invalidated the irrevocable concept of triple talaq. This has also coincided with the Law Commission inviting public consultation on UCC in Oct 2016. But, before we move to the nuance of Uniform Civil Code in context of multi-cultural polity of India, we should begin by understanding the constitutional, judicial and the political history of UCC debate. But first of all it is mandatory to know the meaning and concept of UCC.

What is Uniform Civil Code (UCC)?

Uniform Civil Code (UCC) is a concept for one common law for India irrespective of religion, matters of secular nature like marriage, divorce, guardianship, inheritance and adoption may be governed by this code. Article 44 of Indian Constitution makes the provisions regarding this code. Article 44 of Indian Constitution reads as follows;

The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.[4]

The object of Article 44 which is the part of the Directive Principles in the Indian Constitution is to address the unfairness against susceptible groups and harmonize dissimilar cultural groups across the country. Dr. B R Ambedkar, in the constituent assembly had said that a UCC is desirable but for the moment it should remain voluntary, and thus the Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in part IV of the Constitution of India as Article 44. It was incorporated in the Constitution as an aspect that would be fulfilled when the nation would be ready to accept it and the social acceptance to the UCC could be made.

 Dr. Ambedkar in his speech in the Constituent Assembly had said, "No one need be apprehensive that if the State has the power, the State will immediately proceed to execute…that power in a manner may be found to be objectionable by the Muslims or by the Christians or by any other community. I think it would be a mad government if it did so."[5]

In the present research paper the researcher identified four phases when this issue led to intense political and public debate. These phases start from 1947 and are continue till date. The four phases may be devided as 1946-1950, 1951-55, 1985-86 and the current phase from 2015-2022.

B. Politics of UCC in Constituent Assembly: First Phase (1947-1950)

The story of the Uniform Civil Code in the Constituent Assembly begins at the committee stages of the Indian Constitution making process. The Sub-Committee on Fundamental Rights was tasked with drawing up a list of fundamental rights that were to be incorporated into the Constitution of India. A preliminary step that the sub-committee took was to request its members to come out with their own personal drafts of fundamental rights. In the submissions of Dr. Ambedkar, K.M. Munshi and Minoo Masani, there were provisions that demand for the adoption of a uniform civil code[6]. At the same time, members of the sub-committee were exercising with idea of splitting fundamental rights into two parts i.e. justiciable[7] rights and non-justiciable[8] rights. Terminology of this bifurcation itself suggests that the former would be enforced by courts whereas the latter would not be.

After doing thorough discussion on this matter in couple of sittings, the sub-committee submitted its report to its parent committee - the Advisory Committee – with a list of fundamental rights – split into two parts. The provisions relating to the uniform civil code were kept in the second part as non-justiciable fundamental rights. The majority of the subcommittee felt that the UCC provision was best incorporated as a non-justiciable right but that was not a unanimous decision of all members of the Sub-committee. Three members of this subcommittee namely – M.R. Masani, Hansa Mehta and Amrit Kaur expressed their dissenting views in the report in the following way:

“One of the factors that has kept India back from advancing into nationhood has been the existenc e of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life. We are of the view that a uniform civil code should be guaranteed to the Indian people within a period 5 to 10 years....’

The dissent note then goes onto demand that the Uniform civil code be put into the justiciable part of the fundamental rights.

About one and a half year later, Dr. Ambedkar on 4^th November, 1948 presented the Draft Constitution to the Constituent Assembly for consideration. The constituent assembly gave place to the uniform civil code provision in the Directive Principles of State Policy as Draft Article 35. The wording of Article 35 went like this “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’.[9]

When on 23^rd November 1948, the Constituent Assembly took up this provision for discussion. The Muslim members of the Assembly took a lead in this debate and proposed amendments which aimed to do 2 things:

1. Introduction of provisos to Draft Article 35 such that personal laws are kept out of its scope and

2. To put the uniform civil code in operation only with the prior assent of the community in question.[10]

Ismail Sahab, Nazzirudin Ahmad and Pocker Sahib Bahadur were the Muslim members who made important interferences in the assembly debate and opposed the uniform civil code. The arguments they put forth consisted of the following:

1. That the provision of uniform civil code violates the freedom of religion provision of the Draft Constitution.

2. The uniform civil code would create disharmony within the Muslim community

3. No intervention will take place in the personal law without the approval of religious communities.

Pocker Sahib Bahadur[11] further attacked the constituent assembly in strong terms as follows:

“Who are the members of this Constituent Assembly who are contemplating to interfere with the religious rights and practices? Were they returned there on the issue as to whether they have got this right or not? Have they been returned by the various legislatures, the elections to which were fought out on these issues?”

K.M. Munshi, Alladi Krishnswamy and Dr. Ambedkar took part in the debate and strongly defended the uniform civil code. KM Munshi made the following points:

1. That the uniform civil code is important for unity and integrity of the nation and also for upholding the secular character of the Indian Constitution.

2. Till now the debate seemed to be around Muslim sentiments, K.M. Munshi argued, that even Hindus are also insecure about this provision. He asked the members of the Assembly, how any reform is possible in the Hindu society, specifically with regards to the rights of women, if there is no uniform civil code.

3. K.M. Munshi asked the Muslim members what was inheritance/marriage etc. got to do with personal law?

Alladi Krishnaswami Aiyyar also joined this debate and responded to the arguments made by Muslim members that the uniform civil code would bring about disharmony. He suggested;

1. That the UCC would do the opposite; it would in fact create amity among different communities. He further paid emphasis on the ability of the UCC to bring about unity in the country.

2. Alladi then asked the Muslim members that why there were no protests when the British interfered with Muslim religious practices by bringing about a uniform criminal code?

Now Dr. Ambedkar came into the debate:

1. He further emphasized Alladi’s point about there was nothing new about the uniform civil code. There already existed a common civil code[12] in the country except for the areas of marriage, inheritance etc. which are the main targets for the uniform civil code in the Draft Constitution

2. He reminded the Constituent Assembly that the uniform civil code was only optional. By virtue of it being in the Directive Principles, the state is not obliged to immediately bring the provision into effect. It can do so when it wishes to. Responding to the initial amendments proposed in the debate, Dr. Ambedkar argued that the provision allowed future legislatures to legislate such that the UCC comes into effect only after the consent of communities was obtained.

Dr. Ambedkar’s speech was the last intervention in the Constituent Assembly regarding the UCC[13].

Soon after, Draft Article 35 was put to vote. The Constituent Assembly adopted the article which would later be re-numbered as Article 44 of the Constitution of India.

When we go through the constituent assembly debate we find that Uniform civil code was a very controversial article during drafting of the Constitution, similar to the ban on cow slaughter and other provisions. The proceedings of the Constituent Assembly seem to indicate that the decision of placing the uniform civil code in the Directive Principles and not the fundamental rights was an act of compromise between members in support and members in opposition. It was a way for the Constituent Assembly to defer the taking a decision and allow future legislatures to take a final call for the preparation of Uniform Civil Code.

The constitution of India took its final shape and adopted by the constituent assembly on 26^th Nov. 1949, but the politics of Uniform Civil Code did not stopped. In the next phase of the politics on UCC, we will look at important constitutional developments related to the uniform civil code in post independent with a focus on the Supreme Court.

C. Politics of UCC during the Codification of Hindu Customary Law: Second Phase (1951-1955)

The UCC was intensely debated during the codification of Hindu Customary Practices and the need was felt keeping in mind the widely prevalent gender discriminatory practices within the Hindu Community. It was presumed that the Hindu laws were extremely gender unjust compared to laws of other communities and needed immediate reforms. Daughters had no right to inherit property; the right of widows was a limited life estate. Women had no right to divorce and there was no restraint upon men regarding polygamy. Child marriage, abandonment of widows etc. were problems faced by women in Hindu community. But that was not the complete reality similar problems may be seen in Muslim community also even in present times and it is also a truth that Muslim community is the second largest community of India after Hindus. But at that time the urgency was to reform Hindu laws and this issue saw huge division within the Parliament with Senior Leaders like Sardar Vallabhai Patel and Dr. Rajendra Prasad opposed to codification of customary Hindu practices.[14] On the other hand, Dr. B.R. Ambedkar was dissatisfied with the diluted version of Hindu Code Bill and he felt that the bill retained its Brahmanical patriarchal bias and would achieve little for elevating the position of women within the Hindu fold. This issue led to resignation of Dr. B.R. Ambedkar from the Cabinet as he was dissatisfied with the final draft. Finally, intense debate on reforming personal laws led to a lesser version of this bill being passed by the parliament in 1955[15], in the form of four separate Acts, Marriage Act[16], Succession Act[17], Minority and Guardianship Act[18] and Adoptions and Maintenance Act[19]. The issue of reforming Muslim personal law was deferred till the time the demand was made from within the community. The political class was aware of the recent tragedy of Partition[20] and didn’t want to appear as majoritarian on this fragile issue.

D. Politics of UCC after Shah Bano Case: Third Phase (1985-86)

After 1956, with the passing of the Hindu Code bill, the personal laws in India had two major areas of application; the codified Customary Personal Law for Hindus and the un-codified Shariat based Personal Law for the Muslims. After codification of Hindu Customary Law the frequent conflict between secular and religious authorities over the issue of UCC eventually decreased. In 1985 when supreme court decided the Shah Bano case[21], the debate on UCC again started. And this phase of 1985-86 saw intense politicization over UCC. In this case shah Bano was a 73-year-old woman who sought maintenance from her husband, Muhammad Ahmad Khan who had divorced her after 40 years of marriage by triple talaq (Talaq-e-Biddat) and denied her regular maintenance. The Supreme Court held in her favour by declaring that Sec. 125 of Cr.P.C. applied to all citizens irrespective of their religion. The Supreme Court in obiter dicta further recommended that a uniform civil code should be set up by the Government to resolve this type of controversies on the matters of secular nature. The issue was politicized and the then government in the Prime minister ship of Rajiv Gandhi, to overturn the effect of Supreme Court decision passed the Muslim Divorce Act[22], which restricted maintenance to Muslim Women for the iddat period only. The All India Muslim personal Law Board (AIMPLB ) defended the actions of Rajeev Gandhi government and supported the Muslim conservatives who accused the judiciary of promoting Hindu dominance over every Indian citizen at the expense of minorities. The Criminal procedure Code provision given under section 125 for maintenance was seen by the Muslims as a threat to their religious-cultural identity.

E. Politics of UCC in Present Scenario: Fourth Phase (2015-Till date)

The fourth or present phase of politicization of UCC starts from 2015 and merges two strands – one of national integration and the other of gender justice in support of UCC. This phaase started with the Supreme Court hearing the petition of Shyara Bano[23]. The Supreme Court invalidated the practice of instantaneous irrevocable triple talaq or talaq-e-biddat. The Constitution Bench of the Supreme Court, by 3:2 majority, set aside and declared the practice of instantaneous Triple Talaq or Talaq-e-Biddat to be unconstitutional under Article 14 read with Article 13(1) of the Indian Constitution. In Shayra Bano v. UOI, the Court held that the Muslim Personal Law (Shariat) Application Act of 1937 had sanctioned the practice as a matter of personal law.

The Court clarified that “…an arbitrary action must involve negation of equality” and determined that, because triple talaq states that “…the marital tie can be broken capriciously with no attempt at reconciliation to save it”, this arbitrariness violates Article 14 of Constitution of India.

The apex court further held in Shayra Bano v. UOI that the Muslim Personal Law (Shariat) Application Act 1937 is void where it recognizes and enforces triple talaq, citing Article 13(1) of Indian Constitution, which states that all laws in force immediately before the commencement of the current Constitution (including the 1937 Act) are void where they are inconsistent with the fundamental rights enshrined in the Constitution.

The SC ruled that the practice of Talaq-e-biddat is not protected by the exception set out in Article 25, as the court determined that it is not an essential component of the Islamic religion.

The court justified its position by stating that, while the Hanafi School practices it, it is sinful in it. Triple Talaq contradicts the basic tenets of the Quran and whatever contradicts Quran also contradicts Shariat; thus, what is bad in theology cannot be good in law.[24]

The landmark decision in Shayra Bano case is unquestionably a step toward equality, and it has provided a foundation for future personal law and social amendments. This decision in Shayara Bano v. Union of India also dealt with the minority in a very viable manner, which is a step toward secularism.

Although the primary focus was not gender justice, it will have significant positive implications for advancing women’s rights and gender equality in India. It is expected that this judgment will be viewed objectively and will assist Muslim women in living a better and more secure life as guaranteed by the law of the land.

The present government under the prime minister ship of Narendra Modi has been a consistent supporter of Uniform Civil Code as it views the multicultural and multi-religious personal laws as countervailing forces to the unity and integrity of the nation. So, today the UCC debate is seeing coalition of majority religion forces and Women Groups on one side and conservative minority groups like All India Personal Law Board (AIPLB) opposing the idea on the other side. With the Supreme Court striking down triple talaq in August 2017[25] and with the case of FGM (Female Genital Mutilation) among Bohra Muslims, a sub-sect of Shia, pending before the Supreme Court, there is every possibility of further polarization on UCC.

1. Research Scholar, Ch. Charan Singh University, Meerut 2. Dean, Faculty of Law, Ch. Charan Singh University, Meerut 3. AIR 2017 9 SCC 1 (SC) 4. Article 44 of the Indian Constitution 5. https://www.business-standard.com/about/what-is-uniform-civil-code as on 13.05.2022 6. On 23rd of November 1948, the Constituent Assembly took up this provision for discussion. 7. According to Oxford Dictionary Justiciable means (of a state or action) subject to trial in a court of law 8. According to Collins dictionary nonjusticiable means ‘not capable of being determined by a court of law 9. Now the provision of Uniform Civil Code has been given under Article 44 of the Indian constitution in Directive principles of statepolicy. 10. Constituent Assembly Debate on 28th Nov 1948 11. Member of constituent assembly 12. The Code of Civil Procedure, 1908 13. On 4th Nov, 1948, Dr. B.R. Ambedkar, Chairman of Draft Committee, formally introduced the draft in the Constituent Assembly. 14. Parliamentary debates on Hindu Code Bill 15. Only Hindu Marriage Act was passed in 1955, other acts which codify the Hindu customary Laws were passed in 956 16. Hindu Marriage Act, 1955 17. The Hindu Succession Act, 1956 18. The Hindu Minority and Guardianship Act, 1956 19. The Hindu Adoptions and Maintenance Act, 1956 20. The Independence of India Act, 1947 21. Mohammed Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945 22. The Muslim Woman (Protection of Rights on Divorce) Act, 1986 23. Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC) 24. https://lawplanet.in/shayara-bano-vs-union-of-india-case-summary-2017-scc/ as on 14.05.2022 25. Judgment in Shyara Bano Case was given by the Supreme Court on 22nd August 2017 26. Article 44 of the Constitution of India