The right forum

Apex court does well to emphasise primacy of the legislature, and the political process, in deciding on a uniform civil code.

By: Express News Service | Published: December 9, 2015 12:02 am
Supreme Court on Thursday early morning. Express Photo by Amit Mehra. 30.07.2015. Supreme Court on Thursday early morning. Express Photo by Amit Mehra. 30.07.2015.

A three-member bench of the Supreme Court led by Chief Justice T.S. Thakur on Monday clarified that Parliament alone had the power to legislate a uniform civil code (UCC), and that it was not for the judiciary to direct lawmakers in this regard. The judges said that the apex court’s past observations hinting at the desirability of the UCC were in the “realm of hope and expectations” and emphasised that it could not issue a directive to the government on the matter. The apex court’s remarks, made in the context of a PIL that pleaded for a UCC, underline the separation of powers envisaged by the Constitution and point to the primacy of the legislature in addressing contentious issues that require a political process and consensus.

The UCC was a contentious matter even at the time of the framing of the Constitution. It is no easy task to build a consensus on a common code, considering the diversity of faiths and traditions in the subcontinent. The Constituent Assembly wisely refused to force a UCC on the new republic, and left it as a suggestion in the directive principles of state policy in the Constitution. The apex court on Monday pointed out that it has read the directive principles into the fundamental rights only in exceptional situations and hinted that the UCC did not merit the same consideration. The court also made it clear, however, that its stance should not be read as a refusal to address the discrimination and inequalities embedded in specific personal laws. For instance, if the issue at stake is harassment to Muslim women due to Muslim personal law — as the petitioner, Ashwini Kumar Upadhyay, a lawyer and BJP member, had pleaded — the court said, “we may consider it (court intervention) if a Muslim woman comes to the court and alleges discrimination… Let it be left to the community where discrimination and gender inequality is alleged to come to us”.

In the past, proponents of a UCC have framed their argument in terms of the imperative of national integration, or presented it as a women’s rights issue. Yet, in a climate where stirrings of a majoritarian nationalism have stoked new apprehensions in minority communities, it is all the more necessary to tread sensitively and carefully on the matter. In any case, as the court has pointed out, the debate and the negotiation must be led by the political class and the legislature is the right platform to host it.

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  1. R
    Nov 16, 2016 at 12:00 pm
    I think every religion has their own tradition and rituals and we have to respect all religion i am a muslim but i respect all religions in this world.
    1. S
      Subrahmanian S
      Dec 9, 2015 at 8:07 am
      “What is happening? Why is this happening? It’s total confusion. I feel it's rather late, not to act even now. "Take a quick call on uniform civil code" - so told SC itself to the Centre, for the second time (in four months on Oct 13, 2015) and reminded the government of its responsibility as enshrined in the Consution. It gave the government three weeks to come up with a proposal to amend the Christian divorce act while asking it to take a quick decision on a uniform civil code to end the confusion over personal laws. “If you want to have a uniform civil code have it, you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by justice Vikramjit Sen told solicitor general Ranjit Kumar. India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance While Hindu Law overhaul began in the 1950s and continues, Christian and Muslim laws are relics of the colonial era. Article 44 says the state shall work towards securing a uniform civil code across the country replacing personal laws of various religious communities. The provision is a part of the Directive Principles of State Policy that are not enforceable by any court but, says Article 37, the government is duty-bound to apply them in making laws. “What is happening? Why is this happening? It’s total confusion.The peioner is just asking that the Christian law should be on the same platform as that of the Hindu law as their personal law (Christian) prescribes a minimum of two years, while others have one year,” the bench said. Albert Anthony has challenged the validity of Section 10A (1) of the Divorce Act, 1869, saying the two-year mandatory period of separation was biased against the Christian community amounting to “hostile discrimination”. Kerala and Karnataka high courts had declared the provision unconsutional but Christians living in the other states were being denied benefit of the two judgments, he said. Granting relief to unwed mothers who didn't want to reveal the name of their child’s father in a guardianship case, justice Sen had in July strongly advocated such a code. “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law,” he had said. Not just courts, but activists, too, are of the view that common secular personal laws will go a long way in bringing about gender parity. “A common civil code will help the cause of national integration by removing disparate loyalties to law which having conflicting ideologies,” CJI YV Chandra said in the Shah Bano maintenance case as early as in 1985. Ten years later, the court declared invalid the second marriage of a Hindu man who converted to Islam to marry without divorcing his first wife. “It appears that…the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949,” justice Kuldip Singh said in what came to be known as the Sarla Mudgal case. A uniform civil code, however, continues to be a contentious issue. While the BJP, which leads the government at the Centre, has been demanding it for long, not a small wonder some minority groups are still opposed to it!
      1. Rajiv Edavan
        Dec 9, 2015 at 9:54 am
        Uniform civil code is the foundation of a civilised democratic country. Congress has distorted it time and again for political gain. It is important that judiciary bring corrections to those changes to uphold democracy and give justice to one and all.