Every year on his death anniversary, i.e., on December 6, numerous articles are written about Dr. Bhimrao Ramji Ambedkar extolling his contributions to the political awakening of the depressed class, crusade against untouchability, heading the drafting committee that produced a truly progressive Constitution of India, etc.
While everyone is eulogizing his achievements and contributions, let us for a change look at Dr. B.R. Ambedkar’s argument in favour of a Uniform Civil Code, which has been as contentious as it is today since the drafting of the Constitution of India.
The following argument of Dr. B.R. Ambedkar has been taken from the Constituent Assembly Debates. For the sake of brevity, his argument has been trimmed without compromising on the authenticity and language of the argument.
Before we dive into his argument, let us first look at the provision pertaining to a Uniform Civil Code as contained in the Constitution of India:
ARTICLE 44 – Uniform Civil Code for the Citizens. – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
To reiterate, no paraphrasing has been done and trimmed only for brevity.
THE CONSTITUENT ASSEMBLY DEBATES – VOLUME 7 – 23 NOVEMBER 1948 – DEBATES ON ARTICLE 35 (Now Article 44)
The Honourable Dr. B.R. Ambedkar :
My friend Mr. Hussain Imam asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. We have a uniform and complete Criminal Code operating throughout the country. We have the Law of Transfer of Property operative throughout the country. There are the Negotiable Instruments Acts. This country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is the intention of those who desire to have article 35 (now article 44) as part of the Constitution to bring about that change.
Members who put forth these amendments (to Art.35, now Art.44) say that the Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India. Now I wish to challenge that statement. I think most of my friends who have spoken on this amendment have quite forgotten that up to 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 come into the field and to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shariat Law to them. That is not all.
My honourable friends have forgotten that apart from the North-West Frontier Province, 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 order to bring them on the plane of uniformity with regard to the other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India.
I am also informed by my friend, Shri Karunakara Menon, that in North Malabar the Marumakkathayam Law applied to all–not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarchal form of law and not a Patriarchal form of law. The Mussulmans, therefore, in North Malabar were up to now following the Marumakkathyam law.
It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in certain parts and it has been made applicable ten years ago. Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35 (now article 44), I am quite certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community.
I think they have read rather too much into article 35 (now Article 44), 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 North-West Frontier Province.
The law (Shariat Act of 1937) 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.
It would be perfectly possible for parliament to introduce a provision of that sort; so that the fear which my friends have expressed here will be altogether nullified.
- Shriram
