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The Breathing Historical Background of India's Uniform Civil Code

In 1948, as the Constitution of India was being drafted and the principles of pluralism were under discussion, one particular social reform emerged as a contentious issue. It caused a split within the Constituent Assembly. After months of debate without reaching a consensus, a compromise was eventually made. Do you know what this compromise concerned? The Uniform Civil Code (UCC)�a single civil code for all. Its implementation would have signified the elimination of personal laws.

What are personal laws? These are laws based on scriptures and religious texts that govern nearly every aspect of life, including marriage, divorce, inheritance, adoption, and guardianship. Many of these laws were discriminatory and unfair to minority groups and women. For instance, Sharia law included provisions that deprived women of inheritance rights, and certain Hindu customs prevented women from remarrying.

The Constituent Assembly's intention was to abolish or restrict such laws. They aimed to govern India by a constitution that would ensure the same laws applied equally to all citizens, regardless of their religion, sex, gender, or sexual orientation. "One nation, one law" was the goal, but it was not achieved. The Uniform Civil Code was not incorporated into the Constitution. Why? India was�and is�a diverse and vast nation, a complex tapestry of religions, ethnicities, customs, and social structures.

Unifying such a country under a single law was viewed as an incredibly challenging task at the time. Moreover, there was significant opposition to the Uniform Civil Code from both Islamic fundamentalists and orthodox Hindus, who wanted Sharia and the Shastras to dictate personal laws. They feared that a Uniform Civil Code would unleash a Pandora's box, undermining their authority and posing a threat to religious freedom. Warnings of potential social unrest were issued.

Consequently, the framers of India's Constitution retreated. They relegated the proposal to a Directive Principle in Article 44, which states: "The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India." Thus, the Uniform Civil Code remained a mere directive. The decision was to implement it when India was prepared to embrace it. Seven decades have elapsed, and it remains a proposal, still mired in controversy. Is it time for India to adopt a Uniform Civil Code? One law for all citizens?

Hello and welcome. I'm Nandini Ranjan, and I come to you with arguably the most contentious concept in modern Indian history: a concept to govern India under one law.

First things first, what is a Uniform Civil Code? One law for one nation? Historians say its origins can be traced back to the Romans, who governed themselves based on civil law, not holy texts. The Mesopotamians did the same; they followed the Code of Ur-Nammu, apparently the oldest law code in history. It encouraged people to think of themselves as one family with one set of rules. The U.S. Constitution is another example. It states that all men are created equal, mind you.

The patriarchy-that's a discussion for another day. Now, imagine if Thomas Jefferson had said that only white men are created equal. American history would have been different, but it's not. American law treats all citizens as equal, and all of them must follow the same law. Well, that's not the case in India.

Laws here are based on religion, caste, culture, and even geography, especially when it comes to property and inheritance rights. Take, for instance, the states of Northeast India, such as Nagaland, Meghalaya, and Mizoram. They're not governed by mainstream laws; they make their own personal laws based on their customs and practices, no matter how archaic they may be. And these laws are said to preserve the peculiar cultures of these states.

Then we come to religion. Certain personal laws for Muslims in India are determined by the Quran. They're mostly related to marriage, divorce, inheritance, and custody of children. A woman's right to alimony is determined as per the Sharia, as is a woman's right to the inheritance of property, even her right to adopt a child. And all of this leaves women at the mercy of the Muslim Personal Law Board, a body run mostly by men and influenced by clerics.

The British supported its formation to divide and rule, aiming to keep India segregated into watertight compartments. Consider this: if different communities have different rules, there would be friction and divisions, which the British could exploit to their advantage. Unfortunately for India, this continued even after independence, and not for lack of trying. From Dr. B.R. Ambedkar to Jawaharlal Nehru, they all wanted to abolish personal laws and introduce a civil code. In fact, Ambedkar was the strongest proponent of it. Here's what he said in a Constituent Assembly debate:

"I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field."

After all, what is the purpose of having this liberty? We have it in order to reform our social system, which is full of inequities and discriminations that conflict with our fundamental rights. It is, therefore, quite impossible for anyone to conceive that personal law should be excluded from the jurisdiction of the state. Nehru agreed with all of this but feared civil strife. He felt that Muslims who had stayed back in India after partition would feel insecure if a civil code were introduced immediately.

So, he said the reform had his "extreme sympathy," but the time was not ripe for it. Allow me to quote: "I want to prepare the ground for it, and this kind of thing is one method of preparing the ground," he said. What was he referring to? The Hindu Code Bills. These were several laws passed in the 1950s to codify and reform Hindu personal law; certain personal laws were abolished. Nehru said this was the first step towards bringing a uniform civil code, but that's where it remained.

In the 1980s, the issue gained momentum again, courtesy of the Shah Bano case. A woman appealed for justice after being divorced by her husband, to whom she had been married for 40 years. Then the husband left her and refused to pay alimony. According to Muslim law, she was entitled to only three months of maintenance, three months after 40 years of marriage. So she went to the Supreme Court, and the court ruled in her favor. Shah Bano was awarded maintenance. Muslim clerics and politicians protested, saying this verdict was in conflict with Islamic law. They took to the streets, demanding the verdict be nullified. Rajiv Gandhi was the Prime Minister of India at the time.

His government brought in legislation�the Muslim Women (Protection of Rights on Divorce) Act of 1986�which overturned the Supreme Court's verdict. It restricted the rights of Muslim women to maintenance for only 90 days. The debate over a uniform civil code became more intense. The Supreme Court of India stated that a common civil code would help the cause of national integration by removing disparate loyalties to laws that have conflicting ideologies.

This was three decades ago. Since then, there have been many Shabanos, numerous court battles over personal law, and many petitions for a uniform civil code. However, no government has managed to implement it, election after election. The Bharatiya Janata Party (BJP) promised in its 2019 manifesto to include the best provisions from different personal laws of various religions. They have been in power for eight years and did implement it on March 11, 2024. Yet, critics argue that this move undermines secularism and targets India's Muslims. Political and religious groups, as well as tribal communities from the Northeast, oppose it, claiming it's a conspiracy to impose majority Hindu views on minorities. Proponents of the uniform civil code disagree, asserting that it will bring uniformity, uplift women, and support oppressed religious communities. They point to the state of Goa, the only Indian state with a uniform civil code. While the British ruled the rest of India, Goa was under Portuguese control until 1961. They introduced a civil code applicable to all, which is still in force.

Some Islamic countries have reformed personal laws to prevent their misuse, such as Turkey, Tunisia, Morocco, Egypt, and Jordan. They have all codified personal laws according to their constitutions. Turkey and Tunisia have abolished polygamy, while Jordan and Egypt have banned Triple Talaq. If Muslim countries can reform personal laws and Western democracies can follow a common civil code, why then are Indians living under laws passed before independence?

The issue is more legal than political, and it's not that there aren't orthodox practices in other religions. Biases exist in the personal laws of every faith in India. Laws pertaining to succession among Hindus are unequal, and those pertaining to inheritance among Christians are lopsided. Even Sikhs, Jains, and Parsis are governed by the same laws as Hindus, regardless of how distinct their practices and cultures may be.

Is it time to put an end to all of this and unite India under one law?
It makes sense, but it remains controversial due to its misuse by religious forces and misinterpretation by politicians. The way forward is to build consensus, bring together experts from all communities and faiths, draw from the best of their traditions and practices, make them applicable for modern times, and unite them under one civil code. It's about time we did this.

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