The years of the Constituent Assembly (CA) discussions (1946–49) witnessed the transfer of power, Partition, and the making of a nation-State. The visions of secularism in CA were informed by the events and processes of Partition and Independence. Hindu–Muslim riots in major cities of the then United Province compounded the sense of suspicion generated around Muslim personal law, and also reflected the insecurities that Partition generated. It was against this backdrop that the debate on uniform civil code (UCC) unfolded.

Many sought the recognition of difference in personal law as a secular nation’s acceptance of diversity. For some, a unified code was a means of creating conditions for national integration. Others saw uniformity as universality of indigenous values, imbued with Hindu symbolism. This meant that the neutrality of a code was not necessarily guaranteed, which explains the historical opposition to uniformity by religious minorities.

In substantial extracts of CA debates, repeated invocation of Hinduism as liberal, sensible and secular, remained notoriously consistent. The debate on cow slaughter effectively criminalised the cultural and dietary preferences of many Dalits and Muslims. Raghu Vira, who later joined the Jana Sangh, compared cow slaughter to the killing of a learned man, a Brahmin. Another Congress member, Seth Govind Das, expressed disappointment over fundamental rights being applicable only to human beings and not animals, since cow slaughter indicated the “collapse of dharma”. Lokenath Misra of the Swatantra party misleadingly stated that India would be “perfectly secular” without the presence of Islam. The minority commission’s report also did little to assuage Muslim vulnerability, as it abolished reservation and separate electorates for Muslims, even as it did not seek to relinquish personal law.

Although leading women members such as Amrit Kaur and Hansa Mehta strongly advocated for a uniform family law as well as a Hindu Code Bill, the “women’s question” remained incidental to discussions on UCC. Unless the discussion was specifically on an issue such as of women abducted in Partition violence, there was overall a poor representation of women, as well as women’s issues. One member, Rohini Kumar Chaudhari, added a note of regret about the way in which women were “elbowing out” men. This found support from Lokenath Misra who opined that if women were to compete with men, it would spell the end of the glorious Hindu civilisation.

But a crucial question loomed over the discussion, and Muslim League member B Pocker Sahib Bahadur finally articulated it in 1948 – If CA was not representative enough to debate the Hindu Code Bill, could it legislate UCC? This raised other related concerns: Why was the idea of a uniform family law more acceptable to Hindu conservatives than the Hindu Code Bill? Could UCC and different personal laws coexist? Most of these questions remained unanswered, and the only certain inference from the debate was that there was uncertainty over the understanding of UCC.

Hussain Imam, a representative from the Indian Union Muslim League (IUML), argued, “The majority need not have the safeguard, because they are the majority, and nothing can be passed in the legislature without their full consent…the minority have not got this privilege and therefore it is necessary that the personal law of the Muslims and other minorities … should be preserved from interference by the legislature without the concurrence of a vast majority of the members thereof.” Mohammad Ismail Sahib suggested adding a proviso to UCC, “provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law”.

Imam’s and Sahib’s speeches illustrate that they conceived of UCC that existed parallelly and voluntarily with personal laws. Naziruddin Ahmad, the member from Bengal, argued for a positive right to be able to freely practise one’s religion so long as there was no violation of the fundamental rights of the individual. Both Ahmad and Sahib also referred to pamphlets they received from Hindu organisations that described such interference in personal law regimes as “tyrannous”.

Maulana Hasrat Mohani, a founding member of the Communist Party, emphasised that religion, culture, and language together constituted personal law, which was derived from the Quran, and therefore inviolable. Mohani was a known Urdu poet, a self-proclaimed Sufi, and famously had deep appreciation for the Hindu god Krishna.

A strict separation between religion and State, argued by Tajamul Hussain, was then considered a radical voice in the assembly. He moved an amendment (to Article 19 on freedom of religion) towards a model of uniformity closer to one adopted by present-day France, suggesting that “[n]o person shall have any visible sign or mark or name, and no person shall wear any dress whereby his religion may be recognised”. It was defeated.

KM Munshi, an influential voice in the assembly, imagined UCC as an achievement of modernity, the greater good for which he, as a self-professed liberal, was willing to pay the cost. Munshi’s endorsements of uniformity, however, have to be read alongside his early writings about setting up akhadas for military training of Hindu men and his routine opposition to non-violence as an effective tool against imperialism.

The other prominent argument that surfaced was that uniformity was indeed a precursor for unity and integration. Alladi Krishnaswamy Ayyengar quoted the German and the French constitutions to indicate that uniformity held an indirect link to the prosperity of these nations. He saw uniformity as the harbinger of modernity by simultaneously speaking of the triumph of indigenous values over colonial mindset. This urge to endorse modernity but also make religion conform to somewhat secular moralities enabled the contradictory and confusing opposition to the Hindu Code Bill and support for UCC.

BR Ambedkar brought some finality to this debate. “It is perfectly possible that the future parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary … so that the fear which my friends have expressed here will be altogether nullified,” he said in November 1948.

Ambedkar introduced the element of choice in the civil code, which still endures. For Ambedkar, uniformity did not imply homogenisation. He saw uniformity as a means to decentralise the custody of the Constitution, wresting it away from Hindu upper-caste domination.

Uniformity, therefore, represented modernity, solidarity, and tyranny of the majority for different members. Unlike the polarisation visible in current discussions, CA witnessed a rich debate with divergent opinions. Recalling these debates serves as an important reminder that the desirability of UCC was always in question. The 21st Law Commission’s consultation paper which echoed similar concerns 70 years later should serve as a reminder that UCC as an electoral promise may be entirely incompatible with democratic demand.

Dr Saumya Saxena is the author of Divorce and Democracy: A history of personal law in post-Independence India. Views expressed are personal.