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 | Updated: December 9, 2015 12:02:35 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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