ONE NATION ONE CODE - How

Ambedkar and others pushed for a uniform code

before Partition
Vaibhav Purandare

With communal conflict raging outside, the Constituent Assembly had to take a call on
individual rights, the place of religion, and minority insecurity

Barely 24 hours after Jawaharlal Nehru's 'tryst with destiny' speech, Claude Auchinleck, designated as
supreme commander of the Indian and Pakistani armies, informed Lord or `Dickie' Mountbatten, earlier
viceroy and now governor-general, that India was in a state of civil war.

The situation in the subcontinent had turned combustible ever since the Muslim League had passed its
1940 `Pakistan' resolution, and Mohammed Ali Jinnah had raised communal tempers so much by 1946
that violence had broken out in many parts. With Partition and
Independence had come mass migration and terrible slaughter. Hardly the
perfect setting for India's Constituent Assembly, first convened in
December 1946, to calmly focus on its job of framing a new Constitution.

Its members even had difficulty reaching the Assembly chamber for its fifth session in August 1947;
with the bloodbath raging in both Old and New Delhi, they needed special curfew passes.

Yet this Constitution making body, dominated by Congress, with non-Congressmen like B R Ambedkar
the exceptions, was keen to transform India's political revolution into a social one and to create a
document enabling social (and as part of it, economic) progress and fostering national unity and
stability. It rejected at the outset the idea of a 'Gandhian Constitution' (based on the village as a key unit
of national life) and decided to accept the parliamentary government model adopted by leading Western
nations. Fundamental rights and Directive Principles of State Policy (the latter inspired by the Irish
Constitution) were to be the soul of this Constitution.
 But if the balancing of individual rights and the common good or 'group interests' was a ticklish issue
in a largely tradition-bound, caste-ridden and now communally-split society, there was an even more
delicate matter to
deal with the
status of religion.
The Assembly was
clear that India
would have no
state religion -- it
would be secular.
But whether
secularism in the
Indian context
meant 'total
separation of
church and state'
as in some
Western societies
or 'equal respect
for all religions'
was to be decided.
Those in favour of 'equal respect' won, as India was deeply religious, and the Fundamental Rights Sub-
Committee, one of the Assembly's key panels, put in a clause on the freedom to practise religion.

One of its members, Rajkumari Amrit Kaur, however objected to this,

saying 'free practice' could legitimise 'anti-social practices' such as Sati,
purdah and devdasi customs and nullify laws such as the one favouring
widow-remarriage (the Constitution eventually adopted a provision
saying the right to practice religion should not prevent the state from
enacting social reform laws). The battle related to faith had begun soon
after the Assembly was formed, and it became fierce when, during the
discussion on citizenship, the matter of a uniform civil code was first
raised. This was in February-March 1947, that is, in fact, some months
before freedom came and months after communal violence had begun.

The rights sub-committee had 12 members. When it first met in February, it had in front of it drafts on
rights prepared by some of its members like Ambedkar, K M Munshi, K T Shah and Sardar Harnam
Singh, and also by the constitutional adviser B N Rau and the Congress Experts Committee, a party
panel that had prepared a draft for the Assembly's 'guidance'. The drafts of at least two members
Ambedkar and Munshi included a clause on a common civil code as a justiciable right, meaning it
would be enforceable by courts. Till the
early 19th century, religion had pretty much
ruled the life of Indians. Following
demands from Hindu social reformers,
though, the British had gradually outlawed
certain practices and, in 1946, readied a draft for reform of Hindu laws. Yet the majority of faith-based
practices were left untouched, and in the case of Muslim personal law, the colonial power, always eager
to divide and rule, had not intervened at all.
There were two opinions on this sensitive subject among Indian leaders at the time. One was that
personal laws had to go at once in order to create a casteless, classless and united society on the basis
of equality, direct elections and universal suffrage. The other was the view of Nehru and some other Commented [SMH1]: The right to vote in political
Congress leaders and, therefore, highly influential. Nehru and these netas felt the Muslims, who were elections
facing the brunt of communal violence in many Hindu-majority areas, had genuine fears, and the
Constitution would have to allay these and provide the minority community a sense of security. This Commented [SMH2]: Diminish or put at rest (fear,
meant not touching their personal laws or the laws of the Sikhs, who were also affected by violence in suspicion, or worry).
the Punjab (claimed during Partition talks by both India and Pakistan; eventually it was divided).

As the Congress wanted to project itself as a secular outfit representative of all Indians, Jinnah's
allegations from 1939 onwards that Congress governments in the provinces had interfered with their
(Muslims') religious and social life, and trampled upon their economic and political rights, established
a Hindu Raj and emboldened Hindus to ill-treat Muslims must have worked on the minds of Nehru
and other leaders too. So must have the Communist Party of India's 1943 resolution accepting the
essence of the demand for Pakistan which praised Jinnah and sought to paint Congress as a party with
a religious bias. Here was a non-Muslim and an avowedly antithetical-to religion party too backing the Commented [SMH3]: As has been asserted, admitted,
League and its religion based demand and branding Congress that had led the freedom movement. or stated publicly; openly.
Commented [SMH4]: Directly opposed or contrasted;
Would the personal laws then stay or go, and did a uniform code stand any chance? The rights mutually incompatible
subcommittee debates would determine that, followed by the decision of the Assembly's advisory
committee, headed by Sardar Patel, and then a consideration of the entire Draft Constitution by the
Assembly.

On Thursday: What happened to Ambedkar's proposal?