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 Constitutionmaking body, dominated by Congress, with nonCongressmen 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 SubCommittee, 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 legiti mise `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 19 th 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 Congress leaders and, therefore, highly influential. Nehru and these netas felt the Muslims, who were facing the brunt of communal violence in many Hindumajority areas, had genuine fears, and the Constitution would have to allay these and provide the minority community a sense of security.This meant not touching their personal laws or the laws of the Sikhs, who were also affected by violence in 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-toreligion p a r t y t o o b a ck i n g t h e League and its religionbased demand and branding Congress that had led the freedom movement.
Would the personal laws then stay or go, and did a unifor m code stand any chance? The rights subcommittee debates would determine that, followed by the decision of the Assembly’s advisory c o m m i t t e e, h e a d e d by Sardar Patel, and then a consideration of the entire Draft Constitution by the Assembly .
Source : timesofindia