This is the first of a four-part series on the incendiary subject of junking personal laws for different communities—and embracing a single code that rules all citizens. We begin with how the British invented these laws—pretending they were ‘native’ customs. And why the framers of the Constitution did not junk them.
Editor’s note: The Uniform Civil Code will soon become one of the biggest issues in the upcoming Lok Sabha elections—with the BJP putting it front and centre of its platform. We are therefore doing a three-part series that begins with the origins of the personal laws—traces their evolution in free India—and ends with the current political debate.
Researched by: Nirmal Bhansali & Rachel John
A colonial history of personal laws
The non-interference policy: In order to effectively rule India, the British implemented a sweeping set of laws—and accompanying judicial system. This was a mix of English law and local customs. They decided not to interfere with what they viewed as “family law”—all matters concerned with marriage, divorce, maintenance, inheritance, succession, adoption, and guardianship. The reasons for the decision vary. They may have viewed family law as closely tied to religion—and therefore best not tampered with. Or perhaps they didn’t see matters like marriage and inheritance as vital to their economic interests.
First, cataloguing Indians: In 1772, Governor General Warren Hastings grandly declared “the laws of the Koran with respect to the Mussalmans, and those of the Shasters with respect to the Hindoos, shall be invariably adhered to.” Blithely ignoring the immense diversity of identities and practices, the natives were first slotted into categories created by the rulers:
[T]he key lesson the British carried from India to Africa was the social classification of the people—by religion and/or caste in India, or by tribe in Africa. “Encased by custom, frozen into so many tribes. ..the subject population was, as it were, containerized. That imperative, the containerization of a subject people, was the core lesson that Britain learned from its Indian encounter.”
Next, enforcing ‘native’ laws: To frame these laws, the British turned to the native elites—whose norms would now be imposed on all who were put into their particular “container.” Worse, English judges were tasked with interpreting these laws—unlike the Mughal era when these matters were administered by members of the community. The entire project was wrong-headed:
[T]he construction of Hindu law in India by the British colonial government [and] the British effort to “find” Hindu law...assumed that Hindu law would be found through...deduction from precedent and a focus on cases. Hindu law gradually came to be based on previous judges’ decisions, not on Hindu sacred texts. These texts themselves were mistranslated and selected according to conceptions of English civil law, so that Hindu law was ultimately defined in terms of European conceptions of Hindu law.?
The truth is that there never was a uniform ‘Hindu’ or ‘Muslim’ or ‘Christian’ set of laws—except in the mind of the British—as many historians note:
A considerable body of literature now argues that ‘custom,’ ‘tradition,’ and ‘native law’ were fundamentally altered—if not outright invented—by the colonial rulers, even as they sought to compile, preserve, and know them. As a result of these processes, ‘the law was gradually transformed from being a vast body of texts and locally variegated customs, all of which was constantly interpreted, to a rigid, codified body of legal rules— the personal laws.’
Point to note: The British did not formally codify these laws until the 1930s/40s—relying instead on a piecemeal approach.
The Constituent Assembly debates
The big picture: The framers of the Constitution were under particular pressure to ensure that minorities could thrive in free India:
Moreover Britain had often claimed that it had a special obligation to protect the minorities, because Indians could not find justice at the hands of other Indians. Assembly members in general and the Congress leadership in particular intended to refute this. As Sardar Patel told the first meeting of the Advisory Committee: “It is for us to prove that it is a bogus claim, a false claim, and that nobody can be more interested than us in India, in the protection of our minorities... At least let us prove we can rule ourselves and we have no ambition to rule others.”
The great debate: The framers fiercely debated the need for a uniform civil code. Some of the fiercest defenders of the personal laws were inevitably Muslim—who were anxious about their status in the aftermath of the Partition. Leaders argued that in the case of Muslims, the personal law was closely linked to the freedom of religion:
I would like to say that any party, political or communal, has no right to interfere in the personal law of any group. More particularly I say this regarding Muslims. There are three fundamentals in their personal law, namely, religion, language, and culture which have not been ordained by human agency. Their personal law regarding divorce, marriage, and inheritance has been derived from the Quran and its interpretation is recorded therein. If there is any one, who thinks that he can interfere in the personal law of the Muslims, then I would say to him that the result will be very harmful.
Supporters were liberal nationalists who viewed the personal laws as a threat to a unified Indian identity—which was still fragile and newborn. Also: a UCC was essential to ensure the equality of women:
Member K.M. Munshi however, rejected the notion that a UCC would be against the freedom of religion as the Constitution allowed the government to make laws covering secular activities related to religious practices if they were intended for social reform. He advocated for the UCC, stating benefits such as promoting the unity of the nation and equality for women. He said that if personal laws of inheritance, succession and so on were seen as a part of religion, then many discriminatory practices of the Hindu personal law against women could not be eliminated.
Point to note: The President of the Constituent Assembly—Rajendra Prasad—cautioned Jawaharlal Nehru that introducing “basic changes” in personal law imposes “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
The end result: The uniform civil code did not become a fundamental right. The subcommittee in charge of framing those rights—headed by Sardar Patel—decided it was beyond their remit to make that call. It was included instead as a Directive Principle—remaining an aspirational goal: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Even those who supported the idea were unwilling to turn the tide of a very long history:
I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come… What the British in 175 years failed to do or were afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the state to do all at once. I submit, sir, that we should proceed not in haste but with caution, with experience, with statesmanship, and with sympathy.
The bottomline: In part two, we look at the evolution of these laws in independent India—including landmark moments like the Shah Bano case.
The Hindu has an explainer on the Constituent Assembly debates–while Leaflet has extensive quotes from the framers. Alok Prasanna Kumar captures both sides of the debate in Deccan Herald. Rohit De in Times of India points out the UCC wasn’t scuttled just to protect Muslims.