Blurb: In this two-part series, Aditya Prasanna Bhattacharya revisits the UCC’s roots in the Constituent Assembly debates and traces its evolution within India’s legal framework. He emphasises the need to move beyond the debate on whether the UCC is a legitimate legal reform or a politically motivated imposition on minorities. Instead, he calls for a more dispassionate approach towards reforming our archaic family laws. Here is the link to the second part of the series.
An exercise for the reader
| “One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life…a uniform civil code should be guaranteed to the Indian people…” |
“Laws that divide our nation based on religion and foster discrimination have no place in modern society. Therefore, I assert that it is time for the country to demand a Secular Civil Code…Once this shift takes place, it will eliminate religious discrimination and will bridge the gap felt by ordinary citizens.” |
Of the two statements above, one is an excerpt from the Hon’ble Prime Minister’s latest Independence Day address from the ramparts of the Red Fort on August 15, 2024. The other is a part of the minutes of dissent filed by Minoo Masani, Amrit Kaur, and Hansa Mehta in March 1947 as members of the Sub-Committee on Fundamental Rights – the body responsible for giving us Parts III and IV (Fundamental Rights and Directive Principles) of the Indian Constitution. Guess which is which.
Introduction
On his address to the nation on the occasion of the 78th Independence Day, the Prime Minister of India pointed out that the notional ‘civil code’ of India – i.e. the corpus of all our family/personal laws – is communal as it is based on religious discrimination. He went a step further – emphasizing the need to have a secular civil code – one that uniformly applies to all persons irrespective of the religious community to which they belong. Curiously, stalwarts such as BR Ambedkar, Hansa Mehta, Amrit Kaur, and Minoo Masani would have agreed wholeheartedly with this remark. In fact, they would have probably critiqued the Prime Minister for not going far enough. This piece explains why.
The constitutional history of the Uniform Civil Code (‘UCC’) is best captured in two parts:
1. Discussion and Drafting by the Sub-Committee, the Advisory Committee, and the Drafting Committee
2. Debate and Adoption by the Constituent Assembly
The first part has been examined in this post, and the second part has been studied here.
1. Discussion and Drafting by the Sub-Committee, the Advisory Committee, and the Drafting Committee
1.1. The Sub-Committee on Fundamental Rights
The subject of the UCC was introduced to the drafting process of the Constitution on 30 March 1947 in a meeting of the Sub-Committee on Fundamental Rights, (‘Sub-Committee’) which itself was a part of the Advisory Committee on Fundamental Rights and Minorities (‘Advisory Committee’).1 The Sub Committee had been tasked with preparing the first draft of the chapter on fundamental rights. It may be noted that at the time, the term ‘fundamental rights’ referred to the joint set of justiciable rights (what we know today as fundamental rights, i.e., Part III of the Constitution) as well as non-justiciable rights (what we know today as directive principles of state policy, i.e., Part IV of the Constitution).
On 30 March 1947, the Sub-Committee discussed the UCC for the first time. Minoo Masani urged that it was the responsibility of the State to establish a uniform code.2 Three more members of the Sub-Committee – Hansa Mehta, Amrit Kaur, and BR Ambedkar supported this proposal.3 But a majority of 5 members (Kriplani, Daulatram, Shah, Munshi, and Ayyar) opposed it on the ground that it was wholly outside the competence of the Sub-Committee.4 However, the Sub-Committee eventually decided that ‘a clause regarding a uniform civil code for the country’ could be inserted in the draft if it were made a non-justiciable principle.5 Based on this decision, the Constitutional Advisor Sir BN Rau prepared the following clause 6 as a non-justiciable directive principle:6
“The Union and every unit thereof shall endeavour to secure for the citizens a uniform civil code.”
On 31 March 1947, the Sub-Committee decided that instead of using the expression ‘unit and every unit thereof’, it would be more appropriate to use the catch-all term ‘State’, which includes the Union as well as its constituent units.7 Accordingly, the Draft Report of the Sub-Committee, presented to the Advisory Committee on 3 April 1947 contained the following clause 41 in the chapter titled ‘Non-justiciable Rights’:8
“The State shall endeavour to secure for the citizens a uniform civil code.”
In the Notes on Clauses prepared by Sir B.N. Rau, it was stated that clause 41 was based on section 94 of the Constitution of Canada, which reads as follows:9
“94. Legislation for Uniformity of Laws in Three Provinces.– Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof.”
Several members of the Sub-Committee were themselves displeased with contents of the Draft Report. With respect to the UCC clause, the minutes of dissent of Hansa Mehta, MR Masani, and Amrit Kaur explicitly called for UCC to be made a justiciable fundamental right:10
“We are not satisfied with the acceptance of a uniform civil code as an ultimate social objective set out in clause 41 as determined by the majority of the sub-committee. One of the factors that has kept India back from advancing to nationhood has been the existence 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 of 5 or 10 years in the same manner as the right to free and compulsory primary education has been guaranteed by clause 24 within 10 years. We, therefore, suggest that the Advisory Committee might transfer the clause regarding a uniform civil code from chapter 2 to chapter 1 after making suitable modifications in it.”
Based on the notes and the minutes of dissent submitted to the Draft Report, the Sub-Committee met again on 14 and 15 April to finalise the Report. On April 15, in the face of opposition by several members, a majority of the members of the Sub-Committee accepted the existing formulation of the clause on UCC.11 As such, the final Report of the Sub-Committee presented to the Advisory Committee on 16 April 1947 contained the following clause 39 in Part II of the Chapter on Fundamental Rights:12
“The State shall endeavour to secure for the citizens a uniform civil code.”
Hansa Mehta, MR Masani, and Amrit Kaur offered a verbatim reproduction of their previous dissent to the draft report. 13
1.2. The Sub-Committee on Minorities
On 19 April 1947, the Sub-Committee on Minorities (the other sub-committee which made up the Advisory Committee) discussed the UCC clause. While it was in favour of retaining the clause, it felt that a clarification that the adoption of the UCC would be undertaken on a purely voluntary basis was necessary.14 The Minutes record this in the following terms:
“This clause may be redrafted to make it clear that while a uniform civil code for all citizens was eminently desirable, its application should be made on an entirely voluntary basis.”
In its interim report to the Advisory Committee, the Sub-Committee on Minorities echoed this recommendation.15
1.3. The Advisory Committee on Fundamental Rights and Minorities
In July 1947, Masani, Amrit Kaur, and Hansa Mehta made one final attempt to make UCC an enforceable fundamental right. In a letter written to Vallabhai Patel, the Chairman of the Advisory Committee, the group reminded him that the circumstances had changed since the issue had last been considered,16 and that given the renewed need for a ‘more homogenous and closely knit Indian nation’, the option of making UCC an enforceable right be reconsidered.17 However, their attempts did not yield fruit, and eventually, the Advisory Committee decided to adhere to the version of the clause proposed by the Sub-Committee on 16 April 1947.
Accordingly, the Supplementary Report of the Advisory Committee on the subject of fundamental rights presented to the Constituent Assembly on 25 August 1947 contained the following clause 7 in the chapter titled ‘Fundamental Principles of Governance’:
“The State shall endeavour to secure for the citizens a uniform civil code.”
By August 1947, the Constituent Assembly had discussed and debated the decisions made by the various committees and sub-committees. The formulation of the UCC clause was accepted without debate. Sir BN Rau was then tasked with putting together the first working draft of the Constitution based on the decisions made by the committees and sub-committees which had received the imprimatur of the Constituent Assembly. Article 36 of this Draft Constitution thus reiterated the existing version of the UCC clause:18
“The State shall endeavour to secure for the citizens a uniform civil code.”
1.4. The Drafting Committee
The Drafting Committee19 now had the task of perusing this draft, making necessary additions/excisions/modifications as it saw fit and submitting the revised draft to the Constituent Assembly for its consideration. In the course of its discussions, the UCC clause was brought up for the first time on 13 November 1947. The Drafting Committee felt that the expression “throughout the territory of India” should be added to the end of the clause.
Accordingly, in the Draft Constitution put together by the Drafting Committee and submitted to the Constituent Assembly on 21 February 1948, draft article 35 read as follows:20
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
That this is the version of the clause which features in our Constitution as article 44 and no further changes were made belies the fierce debate that unfolded in the Constituent Assembly on the subject of a uniform civil code for the entirety of India.
Click here for the second part of this series.
Endnotes
[1] B Shiva Rao, The Framing of India’s Constitution: Select Documents (1967) (‘B Shiva Rao’) Vol II, p. 134
[2] Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966) (‘Austin’) p.80
[3] Austin, p.80
[4] Austin, p.80
[5] B Shiva Rao, Vol II, p. 134
[6] B Shiva Rao, Vol II, p. 136
[7] B Shiva Rao, Vol II, p. 134
[8] B Shiva Rao, Vol II, p. 142
[9] B Shiva Rao, Vol II, p. 150
[10] B Shiva Rao, Vol II, p. 161
[11] B Shiva Rao, Vol II, p. 168
[12] B Shiva Rao, Vol II, p. 176
[13] B Shiva Rao, Vol II, pp.177-178
[14] B Shiva Rao, Vol II, p. 206
[15] B Shiva Rao, Vol II, p. 209
[16] This was most certainly a reference to partition – Austin, p.81
[17] Austin, p.81
[18] B Shiva Rao, Vol III, p.13
[19] At the time, the members of the Drafting Committee were – Alladi Krishnaswami Ayyar, N. Gopalaswami; B.R. Ambedkar, K.M Munshi, Mohammad Saadulla, B.L. Mitter and D.P. Khaitan.
[20] B Shiva Rao, Vol III, p.528
Author Details: Aditya is a Senior Resident Fellow in the Research Director’s Office at the Vidhi Centre for Legal Policy. He obtained a BA LLB (Hons.) from NLSIU Bangalore in 2021, where he was a founder of Law School Policy Review – a leading law and policy blog for law students in India. His areas of interest include constitutional law, regulatory design, and family law. He has academic publications on constitutional law, legislative drafting, and arbitration law. At Vidhi, he has been providing legislative drafting assistance to various Ministries, Departments, and Authorities of the Central Government and various State Governments. He has also worked closely with several High Courts in designing case management systems.
Ed Note: This article has been coordinated by Ishika Garg from the Constitutional Law and Information Collective (CLIC), edited by Sukrut Khandekar and published by Baibhav Mishra from the LAOT Student Editorial Team.
