The Supreme Court on Monday refused to direct the government to take a decision on having a Uniform Civil Code(UCC) for all citizens across the country, saying it was for Parliament to make laws.
A bench headed by Chief Justice of India TS Thakur declined to interfere in the matter. “Let Parliament take a view on it,” it said.
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance.
Hindu family laws were modified in the 1950s but those for the Christians and Muslims are colonial-era relics. Activists have long argued Muslim personal law, which remained mostly unchanged, contains provisions biased against Muslim women, often victims of polygamy and the triple talaq system,.
The decision came on a petition that said personal laws were inconsistent with the declaration in the preamble of the Constitution “to constitute India into Socialist Secular Democratic Republic”.
“It was almost impossible to secure ‘JUSTICE, social, economic and political; and EQUALITY of status and of opportunity; to all Indian citizens’ as set out in the preamble without a Uniform Civil Code,” the petitioner, Ashwani Upadhyay, had said.
Terming personal laws as “unjust, unfair, inhumane, discriminatory and unconstitutional,” the petitioner contended that citizens shouldn’t be discriminated on the ground of religions, race, caste, sex, birthplace. “Can we allow social evils like polygamy and child marriage…in 21st century in the garb of personal laws?” he asked. But the CJI’s bench disagreed with his contentions.
But the CJI didn’t agree, wondering why none of the alleged victims of the personal laws were before the court. He warned the court would come down heavily on the petitioners if they filed such cases without regard for the law.
A contentious and emotive issue, the Uniform Civil Code has been a long-standing demand of the BJP but many minority groups have opposed what they see as an effort to erase their cultural and religious identities. After the SC decided to examine Muslim personal law for gender discrimination and bias, the All-India Muslim Personal Law Board --which lobbies for Shariah or Islamic law in family matters -- said it would oppose any move to alter their family laws.
In his petition, Upadhyay said marriage, divorce, maintenance, inheritance and adoption matters were of a secular nature and could be better regulated by a Uniform Civil Code as required under Article 44 of the constitution which says, “The State shall endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”.
The provision is a part of the Directive Principles of State Policy that are not enforceable by any court but the government is duty-bound to apply them in making laws.
The simmering debate over the Uniform Civil Code hit the headlines in 1985 after the Supreme Court awarded maintenance to a 60-year-old divorced Muslim woman, Shah Bano.
“A common civil code will help the cause of national integration by removing disparate loyalties to law which having conflicting ideologies,” CJI YV Chandrachud had said then. But the then Congress government reversed the verdict after pushback from the clergy and Muslim Personal Law Board.
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.
On October 12 while dealing with a divorce case under the Christian Divorce Act, a bench headed by justice Vikramjit Sen had on October 12 asked the government to take a quick decision on the Uniform Civil Code to end the confusion over personal community laws. It was hearing a public interest litigation by a Delhi man seeking waiver of two-year mandatory separation period before a Christian couple can move a court for divorce by mutual consent. The separation period is one year for other religions.
“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,” justice Sen’s bench had told solicitor general Ranjit Kumar.
“What is happening? Why is this happening? It’s total confusion….The petitioner is just seeking 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, whereas others have one year,” it had said.
Albert Anthony had 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”.
The Kerala and Karnataka high courts had declared the provision unconstitutional but Christians living in the other states were being denied benefit of the two judgments, he had said.