Updated: December 8, 2015 2:42:27 am
In what may put a full stop on moves to legally expedite enactment of a Uniform Civil Code, the Supreme Court said Monday it is not for the court to direct Parliament to frame a specific law and that lawmakers only can take a call on a common code that may bring all religious personal laws under one umbrella.
A three-judge bench led by Chief Justice T S Thakur said the apex court’s observations for enacting a common law can only be in the “realm of hope and expectations” but a mandamus (directive) cannot be issued to the government.
The bench, also comprising Justices A K Sikri and R Banumathi, observed that it is for a person, aggrieved over violation of rights and discrimination due to a personal law, to move the court and somebody from a different community or religion cannot seek a common code alleging vices.
“The law is well-settled on this issue. We have taken a view that these are decisions to be taken by Parliament. How can we issue a mandamus in a matter like this? We can understand your commitment to achieving the constitutional goal but this cannot be done through a mandamus from the court,” the bench told senior advocate Gopal Subramanium.
Subramanium appeared for PIL petitioner Ashwini Kumar Upadhyay, a lawyer and a member of the BJP. The senior counsel sought to convince the bench that there have been various instances wherein the top court nudged the government to frame the Uniform Civil Code and it was time that a directive be issued.
But the court responded that while there could be certain observations made by Supreme Court benches in the “realm of hope and expectation,” the law had been settled by a 1993 judgment wherein a two-judge bench dismissed a similar PIL saying “these are all matters for legislature” and “the court cannot legislate”.
“Can you show us any judgment which has later overruled the view taken in 1993? What cannot be done directly, cannot be done indirectly. Since we cannot be asked to direct the Parliament, you are asking us to direct the government to enact a common code. It cannot be done,” the bench said.
As Subramanium pointed out that framing a Uniform Civil Code has been envisaged under the Directive Principles of State Policy in the Constitution, the bench said: “In certain cases, we have definitely read some Directive Principles into the fundamental rights but in this case, we have already declined to do so. Further, it is done only in very exceptional cases.”
It also questioned why Upadhyay had come to court citing harassment of Muslim women due to their personal law. “We may consider it if a Muslim woman comes to the court and alleges discrimination. But tell us why nobody from that community has come to us? Is it left only to Upadhyay to point out discrimination in some other community? Let it be left to the community where discrimination and gender inequality is alleged to come to us. We will come down heavily on anyone who files a petition without examining the law concerned,” said the bench.
It then sought to dismiss the PIL on merits but Subramanium pleaded for withdrawing the petition. The court accepted his request.
Incidentally, the government has to inform a Supreme Court bench led by Justice Vikramjit Sen in January about its willingness to usher in a common law. In October, this bench had underlined “total confusion” owing to personal laws governing religious practices as it asked Solicitor General Ranjit Kumar to inform the court whether the government is contemplating a Uniform Civil Code.
Later that month, another bench directed for a suo motu PIL to review the issue of “gender discrimination” and arbitrary divorce suffered by Muslim women in the country due to their personal law. Attorney General Mukul Rohatgi has been asked to assist in this PIL.
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