Last week, as the nation celebrated its 78th Independence Day, Prime Minister Narendra Modi delivered his address to the nation. His speech touched upon various issues, including women’s safety, events in Bangladesh and simultaneous elections.
However, his remarks on the Uniform Civil Code (UCC) made headlines. Speaking in favour of the UCC, the Prime Minister argued for a discussion on a Secular Civil Code in India.
The UCC has always been a contentious topic, attracting heated debate, even in the Constituent Assembly. The issue has become increasingly polarising, with critics opposing a debate, citing arguments of the right to religion, secularism and majoritarianism. However, shutting down any discussion disregards the text and spirit of the Constitution and indicates selective veneration for it.
The UCC has a constitutional status and finds a place as a Directive Principle of State Policy (DPSP) in Part IV of the Constitution. Article 44 of the Constitution reads, ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. Although the directive principles are non-binding, they carry an important constitutional status as they impose a duty on the State to apply them when making laws.
While speaking in the Constituent Assembly, Dr BR Ambedkar remarked that merely because the DPSPs lack legal force, it does not diminish their binding status. He called for welcoming the DPSPs as instructions to the legislature and the executive, which should guide their exercise of power.
Importantly, Ambedkar also stated that regardless of which political party comes to power, it must respect the DPSPs and not ignore them. He remarked,
“The inclusion of such instructions in a Constitution such as is proposed in the Draft becomes justifiable for another reason. The Draft Constitution as framed only provides a machinery for the government of the country. It is not a contrivance to install any particular party in power as has been done in some countries. Who should be in power is left to be determined by the people, as it must be, if the system is to satisfy the tests of democracy. But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions which are called Directive Principles. He cannot ignore them.”
Ambedkar envisaged the DPSPs as a direction to future governments, hoping they would be incorporated when framing law and policy. Therefore, calls for discussion over Article 44 should not be dismissed outright, as this would be a disservice to the framers of our Constitution, who incorporated the provision in the Constitution.
Furthermore, in debates over contentious issues such as affirmative action, fundamental rights and federalism, we often cite their constitutional status to reject calls for reform or change through amendments. However, constitutional veneration cannot be selective; it should apply across all provisions, especially those which were deemed essential for the governance of a country, such as the DPSPs.
Article 44 is a key provision of the Constitution and was discussed at length both during the drafting stage and the Assembly debates. According to the Minority Sub-Committee of the Assembly, a UCC was eminently desirable for the country. In fact, the key supporters for the UCC were women members Hansa Mehta and Rajkumari Amrit Kaur, both of whom called for making UCC an enforceable fundamental right and had remarked that one of the key factors hindering India’s progress to an advanced nation was the existence of personal laws. Similarly, Ambedkar was also a key supporter, arguing that unification was not a novel idea, as we already have a uniform criminal code and civil code, with only marriage and succession left to be codified.
The UCC also had its detractors in the Assembly, who primarily opposed it on three grounds – sacred status of religion, the right to religion and fear of a majoritarian code. A detailed account of the debate on UCC in the Assembly can be read here. Despite the critics, the provision was accepted and incorporated in the Constitution granting it a constitutional status. Therefore, a call for discussion on the UCC furthers the intention of the Constitution framers, including Ambedkar, and should be welcomed.
However, any discussion on the UCC should proceed with an important caveat: it should be informed, well-intentioned and non-partisan. In a previous post, I argued that public awareness and soliciting public views should precede and inform large-scale policy changes. Further, a discussion on the UCC should not be a smokescreen for imposing the laws and practices of one religion over the other or for targeting a particular religion and its practices. Instead, the discussion should focus on adopting best practices from across religions or creating new, secular, and just policies.
If used wisely, Article 44 can help eliminate discriminatory practices across religions and usher in a progressive, inclusive and gender-just family code in India.
Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.
Disclaimer – The author was involved in the drafting of the Model Code on Indian Family, 2024. The Code is a comprehensive, gender-just and queer inclusive family law code prepared by the Vidhi Centre for Legal Policy (non-commissioned work).