Personal laws affront to nation’s unity, but parliament to take a call on Uniform Civil Code: Centre in Supreme Court
The Union government told the apex court that Uniform Civil Code will ensure the integration of India by bringing different communities on a common platform through an unvarying legal regime
New Delhi: A uniform civil code (UCC) is desirable but it is for Parliament to legislate one, the government has told the Supreme Court.
Personal laws based on religion are an “affront to the nation’s unity”, the government told the apex court, adding that UCC will ensure the integration of India by bringing different communities on a common platform through an unvarying legal regime.
At the same time, the central government maintained that it is only for elected representatives and the legislature to decide whether the country should have a UCC, and no court can issue directives to Parliament to frame a specific statute.
The government submitted its affidavits on Monday in response to a bunch of three public interest litigations (PILs) filed by advocate Ashwini Upadhyay, who demanded religion-neutral laws to regulate matters of divorce, adoption, guardianship, succession and inheritance. The three affidavits, which contained the same pleadings, will be taken up by a bench headed by Chief Justice of India Uday Umesh Lalit on Wednesday.
Filed through the law ministry, the government in its affidavit underscored the significance of Article 44 in the Constitution, which as a directive principle of state policy lays down that the state shall endeavour to secure for the citizens a UCC throughout India. Directive principles, as Article 37 makes clear, are not enforceable by any court and are meant to guide the state.
The government stated that the purpose behind Article 44 was to strengthen the object of “Secular Democratic Republic”, as enshrined in the Preamble of the Constitution. “This provision is provided to effect integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws,” said the affidavit, adding the provision is based on the concept that in matters of inheritance, right to property, maintenance and succession, there will be a common law.
“Article 44 divests religion from social relations and personal law. Citizens belonging to different religious and denominations follow different property and matrimonial laws which is an affront to the nation’s unity,” stressed the government.
In view of the importance of the subject and the sensitivities involved, the government said, the issue was referred to the law commission for making appropriate recommendations following an in-depth study of the provisions of various personal laws governing different communities. In 2018, the law commission preferred a wider consultation, but it could not take place because the term of the previous commission ended in August that year and the chairman and members of the new commission are yet to be appointed.
The government told the court that once the office bearers of the law commission are appointed and they submit a report after scrutiny of the matter, the government would commence a deliberation with stakeholders and a policy decision can then be taken.
Seeking dismissal of Upadhyay’s petitions for demanding orders from the court, the affidavit emphasised that a writ of mandamus cannot be issued to the legislature to enact a particular legislation.
“It is settled position of law as has been held in a canon of judgements by this hon’ble court that under our constitutional scheme, Parliament exercises sovereign power to enact laws and no outside power or authority can issue direction to enact a particular piece of legislation. This is a matter of policy for the elected representatives of the people to decide and no direction in this regard can be issued by the court. It is for the legislature to enact or not to enact a piece of legislation,” added the government.
It also accused Upadhyay of concealing facts and not approaching the Supreme Court with a “clean hand”, contending the petitioner has already moved a PIL before the Delhi high court, demanding a UCC within three months.
“In the present petition, there is nothing to suggest that the affected person has taken up any cause and approached the court. Hence, the present petition is not maintainable,” the affidavit added.
Starting its judgment in the famous Shah Bano Case (1985) that related to alimony for Muslim women, the top court has dwelt on the UCC in a raft of judgments.
In many of these rulings, including the Sarla Mudgal case (1995), the top court favoured a common law for all citizens and reminded Parliament of the spirit of Article 44. At the same time, it refrained from issuing any positive directive to the government in this regard, underlining that lawmaking was the exclusive right of Parliament.