Even the Supreme Court, on number of occasions, expressed distressed over the government’s failure in enacting a common civil code to end discrimination between various religious communities in matters of marriage, succession and property. Now since the Union Government headed by Narendra Modi has shown the political will to initiate implementation of the will of the founding fathers of the Constitution, there is hue and cry. Due to the political will of the Indian government, the bill banning Triple Talaq is already taken up in the Parliament. Even the Supreme Court has already declared Triple Talaq as “Unconstitutional” since it is inhuman custom of divorcing Muslim women and directed the government to make a law banning it. The Law Commission of India is all set to prepare groundwork for UCC.
Prime Minister Jawaharlal Nehru favoured implementing the UCC but was little cautious about the reaction from the Muslim community. Even Deputy Prime Minister Sardar Patel and his loyalists like K.M. Munshi were in its favour. After an extensive debate in the Constituent Assembly on 23 November 1948, the article 35 in the draft Constitution, which later became Article 44, was incorporated in the Constitution : “ The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” Even the Indian State of Goa, which remained under Portuguese rule till 1961, has a Common Civil Code for all the communities since 1870.
Unlike the popular perception, Barrister Sardar Patel was definitely an important Constitution maker. No doubt, Dr. B. R. Ambedkar was the Chairman of the seven member Drafting Committee in the Constituent Assembly. Other members of the Drafting Committee were N. Gopalaswamy Ayyangar, Krishnaswamy Ayyar, Dr. K. M. Munshi, Syed Mohammad Saadullah, B. L. Mitter (resigned due to ill health), N. Madhava Rau, D. P. Khaitan ( Died in 1948 ), T. T. Krishnamachari. The Sardar was the Chairman of Advisory Committee on Minorities, Fundamental Rights, etc. and his reports and active participation in the Constituent Assembly was responsible for the rights and protection given to the minorities and even the reservations to the Scheduled Castes and Scheduled Tribes as well as the provisions for the Socially and Educationally
Backward Communities and Classes. Though the Sardar was busy with the gigantic work of the integration of the Princely States and was the Home Minister of India, his contribution as a Constitution maker was beyond imagination. In spite of his busy schedule, he had contributed so much by participating in the debates and finalizing the Indian Constitution as an active member of the Constituent Assembly of India. One who goes through the 5 bulky volume Constituent Assembly Debates brought out by the Lok Sabha Secretariat and the Volume XI of “The Collected Works of Sardar Vallbhbhai Patel –Special Volume- Sardar Patel as Constitution Maker” would certainly resist the myth that the Indian Constitution is just copied down from the Government of India Act, 1935.
The Constituent Assembly took almost three years(two years, eleven months and seventeen days to be precise) to complete its historic task of drafting the Constitution for Independent India. During this period, it held eleven sessions covering a total of 165 days. Of these, 144 days were spent on the consideration of the Draft Constitution. Those who adorned the front row in the Assembly were Pandit Jawaharlal Nehru, Maulana Abul Kalam Azad, Sardar Vallabhbhai Patel, Acharya J.B. Kripalani, Dr. Rajendra Prasad, Sarojini Naidu, Dr. Harekrushna Mahatab, Pandit Govind Ballabh Pant, Dr. B. R. Ambedkar, Sarat Chandra Bose, C. Rajgopalachari and M. Asaf Ali. Two hundred and seven representatives, including nine women were present. As to its composition, members were chosen by indirect election by the members of the Provincial Legislative Assemblies, according to the scheme recommended by the Cabinet Mission. The arrangement was : (i) 292 members were elected through the Provincial Legislative Assemblies; (ii)93 members represented the Indian Princely States; and (iii) 4 members represented the Chief Commissioners’ Provinces. The total membership of the Assembly thus was to be 389. However, as a result of the Partition under the Mountbatten Plan of 3 June 1947, a separate Constituent Assembly was set up for Pakistan and representatives of some Provinces ceased to be members of the Assembly. As a result, the membership of the Assembly was reduced to 299.
Prime Minister Nehru, Deputy Prime Minister Sardar Patel, Law Minister Dr. B. R. Ambedkar and Chairman of the Constituent Assembly, Dr. Rajendra Prasad, who later was elected as the President of India, did have some differences but after extensive brain-storming they have come up with the best suitable Constitution for India. In a report submitted to the President of the Constituent Assembly of India dated 23 April 1947, Patel states: “The Fundamental Rights Sub-Committee recommended that the list of fundamental rights should be prepared in two parts, the first part consisting of rights enforceable by appropriate legal process and the second consisting of directive principles of social policy which, through not enforceable in Courts, are nevertheless to be regarded as fundamental in governance of the country.”
In the Constituent Assembly, while supporting Dr. B. R. Ambedkar’s proposed Article 35 making the provision for Uniform Civil Code country wide, Munshi had presented two important arguments on 23 November 1948 : (1) The UCC cannot be tyrannical to minorities. Nowhere in advanced Muslim countries the personal law of each minority has been recognized as sacrosanct as to prevent the enactment of a Civil Code.Take for instance Turkey or Egypt. Even when the Shariat Act was passed in British India at the instance of Mohammad Ali Jinnah and others, the Khojas and Cutchi Memons were highly dissatisfied since they followed certain Hindu customs for generations.(2) Allauddin Khilji(1296-1316) made several changes which offended against the Shariat, though he was the first ruler to establish Muslim Sultanate here. The Kazi of Delhi objected to some of his reforms, and his reply was – “I am ignorant man and I am ruling this country in the best interests. I am sure , looking at my ignorance and my good intentions, the Almighty will forgive me, when he finds that I have not acted according to the Shariat ! What is important is the political will and nothing would stop the Indian government from implementing Goa like Civil Code since the founding fathers of the Constitution have made the provision, though as a Directive Principle supported by the Supreme Court directives.
Next Column: The Forgotten Slogan of Akhand Bharat
( The writer is a Socio-political Historian. E-mail : [email protected] )
