A two-judge bench of the Delhi High Court comprising Chief Justice Rajendra Menon and Justice Brijesh Sethi has issued notice to the Central Government in a plea by petition-in-person, advocate Ashwini Kumar Upadhyay, seeking a Judicial Commission or a High-Level Expert Committee to draft a Uniform Civil Code (UCC) in the spirit of Article 44 of the Constitution
Upadhyay in his petition claimed that the true spirit of Articles 14 (Right to Equality), 15 (Right against Discrimination guaranteed), and 21 (Right to Life and Liberty) could not be secured without implementing a UCC.
He has also sought a direction to the Law Commission of India “to draft a Uniform Civil Code in the spirit of Article 44 of the Constitution within three months while considering the best practices of all religions and sects, civil laws of developed countries and international conventions”.
The Court now listed the matter for hearing on July 08, 2019.
UCC for Citizens
Article 44 of the Constitution of India, under the Directive Principle of State Policy, provides for a “uniform civil code”. It read as follows:
Article 44. Uniform Civil Code for Citizens. –The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
In Mohd Ahmad Khan vs Shah Bano Begum[(1985) 2 SCC 556], the Supreme Court held that “state should take initiative in making a uniform civil code” and further held that “a common civil code will help the cause of national integration by helping different loyalties to the conflicting ideologies”.
In Smt Sarla Mudgal v Union of India & Ors[(1995) 3 SCC 635], the Supreme Court held that “Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27”.
The apex further held that “when more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India”.
In John Vallamattom and Anr v Union of India [Writ Petition (Civil) 242 of 1997], the then Chief Justice of India V N Khare had said that “Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law”.
In 2015, a two-judge bench comprising of Justices Anil R Dave and Adarsh Kumar Goel in Prakash & Ors v Phulvati & Ors[(2016) 2 SCC 36]urged the then Chief Justice of India H L Duttu to set up a bench and to register a Public Interest Litigation to consider gender discrimination suffered by women owing to arbitrary personal laws. Justice Goel in his judgement said:
“An important issue of gender discrimination which, though not directly involved in this appeal, has been raised by some of the learned counsel for the parties which concerns rights to Muslim women. Discussions on gender discrimination led to this issue also. It was pointed out that in spite of the guarantee of the Constitution, Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during the currency of the first marriage, resulting in a denial of dignity and security to her”.
However, when this suo moto plea came before the Constitution Bench of the Supreme Court while deciding the triple talaq issue in Shayara Bano v Union of India[(2017) 9 SCC 1],the bench refrained from addressing the question on “whether personal law practices should be prevailed over the fundamental rights to life, dignity and non-discrimination”. The question over the UCC remains undecided.
UCC “neither necessary nor desirable”: Law Commission of India
On the request of the Central Government, the Law Commission of India studied the laws which were discriminatory and released a consultation paper on “Reform of Family Law” on August 31, 2018.
Observing the “absence of any consensus on a uniform civil code”, the commission said, “a uniform civil code which is neither necessary nor desirable at this stage” and asserted that most countries were now moving towards recognition of differences, and the mere existence of difference did not imply discrimination but “is indicative of a robust democracy”.
“While the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be dis-privileged in the process,” the Law Commission said.