The call for a Uniform Civil Code arises time and again in India, but does so with such political motifs and motives that the spirit of its purpose tends to get lost. It is only proper that the nation’s highest court has carefully walked the wedge between the legislature and its own turf in an order this week in which it has steered clear of issuing a directive to Parliament to frame a law to give effect to such a code.
The fact is that the civil code is a directive principle in the Constitution, which is a “great to have” item, while fundamental rights are the “must have” principles. It is not the judiciary but only the legislature in its political wisdom that can take a true call on the issue.
The Supreme Court’s ruling in frowning on a public interest petition from a BJP activist is a mature one, not only in the context of the politically charged atmosphere in which religious tensions have risen, but also in the backdrop of the Shah Bano Case of 1985, when the then Chief Justice of India, YV Chandrachud, stirred up a controversy with his call for a common civil code while awarding maintenance to a divorced Muslim woman.
The case gave rise to protests and eventually a new law that helped the government reverse the order. There is only so much the courts can do where the matter concerns the making of laws, as they essentially reflect the political realities of the day. However, the Constitution is a deeper issue.
It is, therefore, laudable that the court reserved its specific right to pronounce on the controversial triple talaq (divorce) should there be a plea from an aggrieved Muslim woman, because it has rightly viewed the issue as one concerning a fundamental right.
The nuance lies in the fact that the judiciary upholds basic rights but may be guilty of overreaching or futile posturing if it crosses a certain line. Also, personal law is a tricky issue, in which common sense cannot be the guiding principle. Hindu family laws were modified in the 1950s but the Christians and Muslims do enjoy a special status.
The larger national interest demands that community leaders, politicians and jurists arrive at a closure on issues like the triple talaq, bearing in mind that women’s equality is an ideal on which there is a national consensus.