A lot of ink has been spilt on the pros and cons of a Uniform Civil Code (UCC) in India by commentators on the Right and the Left. I am not sure if I can contribute any “original” thought, apart from originally restating what has already been said on the issue. However, in these series of posts, given my training as a lawyer, one of the objectives is to understand the position of Indian Courts on the issue.

Before I discuss the observations of Indian Courts on the UCC, I thought it would help to reproduce the eloquent, reasoned and passionate submissions of Late Shri Lokanath Misra (father of current BJD MP from Puri and Senior Advocate, Mr.Pinaki Misra, who is representing Cricketer Sreesanth in the spot-fixing case) during the Constituent Assembly Debate of November 25, 1948.

I request our readers to go through each and every word and sentence of Shri Misra’s submissions to the Constituent Assembly to understand the core of the chorus, not clamour, for UCC. Here it goes:

"Shri Lokanath Misra: Sir, I want to move amendment No.259 standing in my name. I beg to move: that after clause (2) of article 8, the following new clause be inserted and the existing clause (3) be re-numbered as clause (4):

"(3) The Union or the State shall not undertake any legislation or pass any law discriminatory to some community or communities, or applicable to some particular community or communities and no other."

In moving this new article I seek than supplementing Article 35 which we have passed. Article 35 directs the state to do certain things, that is, to bring about a uniform civil code. My article simply says what the state should not do, so that it may not frustrate the very purpose for which Article 35 has been enacted. Sir, deliberately we have chosen that our state is a secular state and we have tried to get rid of all the wrangling of religion because of the belief that although religion was made to unite mankind it has been found that it has disunited mankind and has brought various disputes. Rightly, therefore, have we declared that our State would be a secular State and thereby we mean that everybody who inhabits this lend, who is a citizen is just a man and his human needs will be fulfilled and his religion, if he has any, will be taken care of by the individual himself.

If we approve of this purpose, to give mankind that equality, that sense of justice, then when we are here to legislate for a future constitution, we must make it a fundamental right that we will not legislate in a manner and on a matter which will discriminate between one community and another. Our law must be so broad-based, must be so very intrinsically sound that it must apply to every human being, every citizen of this land.

When you make any difference between citizens in this land, you can make it only on the lines of community and community directly means religion and we have deliberately eschewed religion. Therefore, to be frank enough, to be bold enough, to be true enough to our professions, we must make it a point that whenever we bring anything on the anvil of legislation, it must be such that it will apply to one and all of this land ad there will be no differentiation. Let people say: We have one fundamental safeguard against inequality and injustice. Here is the law. It applies to everybody, - be he a Rajah, be he a Praja, be he a Hindu, be he a Muslim, be he a Parsi, be he a Christian. That itself is enough safeguard, because it will apply to every citizen equally. If the law is bad, it is bad for everybody; if it is good for everybody.

Therefore, I say this must be a fundamental principle. We must accept it here and now that any law that henceforward we may be legislating must be applicable to one and all. To that effect, I candidly place before this House that to avoid all future doubts, all disparity, all discrimination, all distinction, we must make it a law and a fundamental law that the Union or the States shall not undertake any legislation or pass any law discriminatory to some community or communities, or applicable to some particular community or communities and no other.

This House has very frankly, openly and boldly accepted the principle in Article 35. I simply beg this House to make that article complete and self-sufficient. that gave only a direction; this gives a positive mandate for what we should not do, because by not doing all these things, by discriminating between citizens and communities we have divided the country and let it not lead to greater divisions. I submit that unless we accept this principle, our idea of a united Nation, of a united making and of equality of every citizen in this land will be frustrated. I therefore commend this new article to the consideration of this great House."

These submissions of Late Shri Lokanath Misra verily capture the essence of the argument for UCC, and one could not have put them any better. When one reads his submissions today, one cannot help but feel a sense of tragic irony that a cause such as the Uniform Civil Code which was originally propounded as an idea corollarial to, and not antithetical to the concept of secularism in the interest of national integration and rule of law, has now become a tool of covert communalism in the hands of left-libbers and pseudo-secular talking heads, not to mention the vote-bank driven politics of the Congress.

What is worse is that anyone who speaks for a UCC is branded communal, which effectively kills the debate and prevents any meaningful discussion on the issue. And here, I’d like to reproduce the words of the former Prime Minister, Shri Atal Bihari Vajpayee, from one of his sterling speeches in chaste Hindi in the Lok Sabha, where he addressed head on the demonization of any pro-UCC voice in the name of secularism:

“Is desh me is samay logon ke vichaaron me manthan chal raha hai. Chinthan ki dishayen badal rahi hain. Log purani maanyataon ko phir se kasauti par kas rahe hain. Meri samajh me nahi aata ki jab Samvidhan ke nirmataon ne shaadi-byaah ki ek kanoon banane ki sifarish ki, aur ye kaha ki raj uski taraf dhyan dega (in apparent reference to Article 44 of the Constitution), to kya woh sampradayik kaaranon se prerit the? Kya yah sampradayik mudda hai? Criminal law ek hai, civil law ek kyon nahi ho sakta? Goa me abhi bhi civil law ek hai!

 

Agar Muslim mitron ko usme kathinayi hai, to kathinayi aakar bata sakte hain. Ye keh sakte hain ki hume aur samay chahiye apne samaj ko tayyar karne ke liye. (lekin) ye nahi kaha ja raha hai, aur dal bhi (in a reference to other so-called “secular” parties) is baat ke liye unhe prerit nahi kar rahe hain! Thoda bahut to sanshodhan karo, waqt badal raha hai! Islamic deshon me personal law me sanshodhan ho raha hai! Thoda parivartan hona chahiye, gender equality ka maamla hai!”…

 

These are precisely the questions that any sane pro-UCC voice is bound to ask of the pseudo-secular clique. If the goal of a Uniform Civil Code finds express mention in the Constitution, and the framers of the Constitution admittedly bore no ill-will towards the minorities of India, why then is the issue of a UCC being painted with a communal brush to prevent any meeting ground between communities? Is it just because the BJP is asking for it? This cannot and ought not to be the basis for opposing any legitimate cause.

I think the genuine left-libbers, the ones with no vested interest of any kind, must ask themselves these questions. Is their misplaced sense of righteousness and warped definition of secularism preventing reforms within minority communities on critical issues such as succession and gender equality? If yes, aren’t they contributing to further regression in these communities?

If yes, are they not responsible for the miserable lives led by the women in these communities? These are precisely the kind of people who, on the one hand, wouldn’t think twice before launching a “Pink Chaddi” campaign at the drop of a hat to protest against boorish idiots who bash up women in bars, and on the other, come up with bizarre hypocritical justifications to rationalize their tolerance for a medieval mindset that refuses to give women their rightful place under the sky, all in the name of “Secularism”.

In the next few posts, I will discuss the decisions of Indian Courts on the UCC and compare the situation here with other countries which too are beset with the complications that come with “multiculturalism” of the protectionist and regressive kind.

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J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (http://thedemandingmistress.blogspot.in/).