No, the Uniform Civil Code was not deferred just for Muslims

By Rohit De

The dominant narrative about the Uniform Civil Code in the Constituent Assembly describes it as a compromise between equality and pluralism. While women members like Hansa Mehta and liberal egalitarians like Ambedkar advocated for state reform of family law, Muslim conservatives argued that this would impede their religious freedom. Muslim League members within the Constituent Assembly proposed amendments to exclude “personal law of the community” from the operation of the Uniform Civil Code. The

Jamaat-e-Ulema-e-Hind

demanded specific provisions for protecting Muslim personal law from interference in the future Constitution.

Given the need to ensure that Indian Muslims felt secure in a majoritarian secular leadership, the goals of equality and uniformity were deferred by placing the UCC within the non-implementable Directive Principles of State Policy. All the above facts are accurate.

However, this narrative both ignores the significant Hindu opposition to the Uniform Civil Code, as well as the fact that the impending reforms in the 1940s were in Hindu law. Muslim law had undergone significant legislative reform in the late ’30s. In contrast to their Hindu and Christian sisters, under formal law Muslim women could inherit and hold property, maintain a separate legal identity from their husband, were required to give consent to marriages and could independently sue for divorce in the courts. The Muslim legislative reforms of the 1930s were remarkable because despite years of opposition to

state interference, the community had used the instruments of the colonial state and secular lawmaking to change Muslim personal law.

Hindu reformers sought to find common ground in the language of equality and progress.

Dr. G.V. Deshmukh who had authored several bills to give Hindu women the right to property was an enthusiastic supporter of the Shariat Act, noting that it abolished customary laws that prevented women from inheriting. He said that if “Mohammedan society progresses, in future every society in India will follow their example”. Radhabai Subbaroyan, the sole woman legislator, praised the Muslim members for granting women the same right to claim divorce and hoped they would be “guided by the sense of justice in all matters regarding women”, much to the alarm of Hindu conservative members.

The Shariat Act was analogised to the UCC by K.M Munshi, who noted that it abolished the customs of several Muslim groups without their consent. Since Muslim law had recently been reformed, the main legislative reforms on the anvil in 1945 were the draft Hindu Code Bill and a slate of anti-untouchability and temple entry legislations.

In 1931, the Indian National Congress had spelt out a constitutional vision that would use instruments of state to transform society and the economy. In 1945, the All India Women’s Conference had issued a Charter of Rights and Duties that placed family law reform as a major agenda. Sir B.N Rau and Dr Ambedkar, the two men most closely associated with drafting the Constitution, were also involved in heading the committee to reform the Hindu Code. The Hindu Code reforms and the Constitution were seen as joint projects.

Orthodox

Hindus and caste groups looked upon the debates on freedom of religion with foreboding and petitioned the Constituent Assembly demanding that the state not interfere with Hindu religious practice.

A petitioner from Madras expressed concern at the proposed abolition of untouchability, noting while “communal” untouchability was bad, there are religious occasions (like births, deaths and marriages) as well as the monthly periods of women when caste untouchability is required.

Other letters protested that the draft Constitution took away from the privilege of freedom of religion, by allowing the state to intervene in any ‘secular activity’ of a religious body. How could a secular government, not guided by religious principles, make laws on religious practice in the name of social welfare or to throw upon religious institutions to all communities?

The Hindu Women’s Association of Kumbakonam reminded the assembly that the “ceremonies, marriage, and social functions of Hindu are based on religion and guided by Sastric principles” and only religious authorities could reform them. The Vaishnava Siddhantha Sabha noted that while the Congress had been crying for toleration and religious freedom, in practical work, it was intolerant in stating that religion would be subordinated to the general welfare of the country. On the question of untouchability, the Sabha pleaded for tolerance of their orthodox views and complained that orthodox Hindus were underrepresented in the Assembly. Coordinated resolutions and petitions from across India protested the government’s interference in Hindu dharma and sastras without involving religious readers.

The All India Varnashrama Samaj Sangh argued that the Constitution should give the fundamental right to every person to live according to the tenets of their own scriptures.

If a provision in the scripture was considered unfair to some members of the religion, it may not be overridden by the state and the remedy to such members was that they could leave the religion. They argued that any law that intervenes in religious practice had to be reviewed by a statutory body of religious experts who would decide whether the law was in conflict with the scriptures.

In the early years of Independence, the resistance to Hindu law reform became a chief plank of opposition to the government both from Congress members and the public. The first constitutional challenge to personal laws came not from a commitment to equality, but from a Hindu man who wanted to continue to practice polygamy.

Therefore it is important to note that the deferment of the UCC was not only to accommodate Muslim sensibilities but in anticipation of a massive pushback from orthodox Hindus. It required Nehru to contest and win an election on the issue to gain the legitimacy to enact some piecemeal Hindu law reform. Legislative legitimacy remains key to the project of family law reform.

The writer teaches law and history at

Yale University

, Connecticut, USA


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