THE Union Government has opposed a petition at the Delhi High Court seeking direction to it to draft a Uniform Civil Code (UCC). It has contended that a court cannot issue a direction to enact a particular piece of legislation and that it is a matter of policy for the elected representatives.
An affidavit to this effect has been filed by the Union Ministry of Law and Justice at the Delhi High Court in response to a petition filed by the Bharatiya Janata Party (BJP) leader and advocate Ashwini Kumar Upadhyay.
Upadhyay has, in his petition, sought a Judicial Commission or a High-Level Expert Committee to draft a Uniform Civil Code (UCC) in the spirit of Article 44 of the Indian Constitution.
Article 44, under the Directive Principles of State Policy( DPSP), provides for a “uniform civil code”. It mandates that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
The expression ‘uniform civil code’, according to the union government, denotes the field of law relating to marriage, divorce, maintenance, custody and guardianship of children, inheritance and succession, and adoption. The Centre’s affidavit states that the purpose behind Article 44 is to strengthen the object of ‘Secular Democratic Republic’ as enshrined in the Preamble of the Constitution.
The affidavit states that the government is awaiting the report of the Law Commission of India as it had requested the latter – in view of the importance of the subject matter and sensitivity involved which requires in-depth study of the provisions of various personal laws governing different communities – to undertake an examination of various issues relating to uniform civil code, and to make recommendations.
The 21st Law Commission, after receiving several representations from various stakeholders, undertook detailed research on the matter, and had uploaded a consultation paper on August 31, 2018, for wider discussion. The consultation paper had suggested that the UCC “is neither necessary nor desirable at this stage” in the country. It was of the opinion that secularism cannot contradict the plurality prevalent in the country.
“Judicial discipline should caution courts from passing broad-stroke orders calling for legislation, on the basis of DPSPs.”
The final report of the Commission, however, is still awaited. Moreover, after the retirement of the then chairperson of the Law Commission Justice B.S. Chauhan, no appointment has been made to the Law Commission.
Speaking to The Leaflet, Arvind Kurian Abraham, a lawyer who specializes in constitutional law and legislative advocacy, agrees with the Centre’s decision to oppose the petition. He opines that the judiciary can nudge the Parliament to consider certain legal reforms, but a petition seeking a direction to the Centre to draft a Uniform Civil Code within a span of three months is tantamount to asking the judiciary to hijack the political process.
Abraham goes on to add that the UCC is a sensitive and complex issue, and that its resolution is left to the political process through the DPSPs, thereby making it non-justiciable. “Judicial discipline should caution courts from passing broad-stroke orders calling for legislation, on the basis of DPSPs. Keep in mind that the concept of DPSPs was adopted from the Irish Constitution, which in turn was influenced by how economic guarantees in Section V of the Weimer Constitution were not subject to judicial enforcement”, he added.
Abraham questions as to why is the petition citing reforms in supposedly ‘Muslim countries’. “Is the UCC relevant only for Muslims? And how are these countries comparators to India?”, he asks.
The Leaflet also spoke to Supreme Court advocate Vikram Hedge, who termed the stance taken by the union government both legally correct and pragmatic. “The stance of the Union of India is not so much against the UCC as much as a court mandate to enact UCC. With this, the Union reaffirms that the implementation of UCC, as and when it happens, shall be a participative exercise with inputs from all stakeholders. This stance of the Union is both legally correct and pragmatic”, Hedge told The Leaflet.
Indian Courts have been pushing for the enactment of the UCC. In Mohd Ahmad Khan vs. Shah Bano Begum (1985), the Supreme Court observed “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 vs. Union of India & Ors. (1995), the Supreme Court again observed 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 stance of the Union of India is not so much against the UCC as much as a court mandate to enact UCC. With this, the Union reaffirms that the implementation of UCC, as and when it happens, shall be a participative exercise with inputs from all stakeholders.”
In 2015, a two-judge bench, comprising of Justices Anil R Dave and Adarsh Kumar Goel, in Prakash & Ors vs. Phulvati & Ors., urged the then Chief Justice of India H.L. Dattu 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 vs. Union of India (2017), 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.
Last year, the Delhi High Court emphasised the need for a UCC so that settled principles, safeguards and procedures can be laid down, and citizens are not made to struggle due to conflicts and contradictions in various personal laws. Justice Prathiba M. Singh said uniform principles in respect of marriage, divorce, succession, and so on should be “common to all”.
In November last year, the Allahabad High Court had also called upon the union government to implement the mandate of Article 44.