New Delhi: Addressing the nation from the ramparts of the Red Fort, Prime Minister Narendra Modi in his 11th Independence Day speech called for a ‘secular (or uniform) civil code’ to govern personal matters including succession and marriage, for Indian citizens. The Supreme Court, he said, “has repeatedly addressed the issue” and “advocates for this change”.
“… And it is our collective responsibility to realise the vision of the framers of our Constitution. We should welcome diverse opinions and perspectives. Laws that divide our nation based on religion and foster discrimination have no place in modern society,” Modi said.
A Uniform Civil Code refers to a unitary system of personal laws applicable to all irrespective of religion. At present, Indians are governed in such matters by their respective religious laws. Matters under the scope of personal laws include divorce, inheritance, succession, and marriage.
It may be recalled that a UCC is envisioned within the Constitution in Article 44, as part of the directive principles of state policy (DPSP). Though they are not mandatory, directive principles are considered as critical recommendations for lawmaking.
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India,” reads Article 44.
In March this year, Uttarakhand became the first state to implement a UCC. But there have been consistent calls by the apex court, various high courts, in Parliament and in multiple reports of the Law Commission for nationwide implementation of UCC in line with Article 44.
With Modi reiterating his party’s call for a nationwide uniform civil law, here is a look at cases where the Supreme Court has endorsed the idea.
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UCC an ‘unaddressed constitutional expectation’
The first time the Supreme Court called for implementation of a common civil code was in the Shah Bano case, where a Muslim woman approached the court seeking maintenance under section 125 of the criminal procedure code. Through this judgment, Muslim women were brought within the ambit of the maintenance law provided in this code.
It was noted that a UCC would further the case of national integration and advised the government to end “a piecemeal approach” to personal laws issues, such as the maintenance owed to a wife, before the court.
In May 1985, in yet another case (Jordan Diengdeh vs SS Chopra) dealing with personal laws, the Supreme Court noted the lack of uniformity in various personal laws and called for uniformity in the same.
Then, in the Sarla Mudgal case (1995), the Supreme Court issued clear directions to the Centre to implement a uniform civil code.
The court was confronted with the question of whether a Hindu man married under Hindu law could convert to Islam to remarry another woman. It held that such a remarriage was not permissible and could not be solemnised.
“Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste… we direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take,” it said.
“We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning,” the court added.
Critically, Justice Kuldeep Singh, who led the bench that delivered the Sarla Mudgal judgement, also pulled up the central government for failing to implement a uniform civil code, exalting it to look into the same. “We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and endeavour to secure for the citizens a uniform civil code throughout the territory of India,” the court said.
Adding, “We further direct the Government of India through the Secretary, Ministry of Law and Justice, to file an affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a uniform civil code.”
The court had said that there was no justification whatsoever to keep the civil code in abeyance and there had been no efforts to retrieve the UCC from ‘cold storage’ since the enactment of the Constitution.
More recently, in 2020, the apex court was dealing with a case as to whether a Christian woman could be designated the sole guardian of her child. In the case, the Court again referred to the UCC as an “unaddressed constitutional expectation”.
‘UCC within domain of legislature’
One of the most rampant criticisms of the UCC has been that it affects one’s freedom of belief as it seeks to amend personal laws.
In the landmark Triple Talaq case, wherein the Supreme Court declared the practice of instance triple talaq as ultra vires, it noted that there was no connection between religious and personal laws in a civilised society.
“[Article 44] is based on the premise that there is no necessary connection between religious and personal law in a civilized society,” it observed.
The court also discussed the drafting history of the provision and the case law interpreting it, noting that all contentions raised during constituent assembly debates on the effect of a UCC on freedom of belief were rejected.
“All this leads to the clear understanding, that the Constitution requires the State to provide for a uniform civil code, to remedy and assuage, the maladies expressed in the submissions advanced by the learned Attorney General,” the court concluded in the Triple Talaq case.
Despite such directions and observations, in the basic structure case (Kesavananda Bharati), the court noted that implementation of the UCC ultimately remained the mandate of the legislature. “Obviously, no court can compel the government to lay down a uniform civil code even though it is essentially desirable in the interest of the integrity and unity of the country,” it said.
Such orders on implementation of the UCC have been considered as beyond the remit of the courts — a position endorsed by CJI D.Y. Chandrachud as recently as last year.
In a plea by Delhi BJP leader Ashwini Upadhyay seeking implementation of uniform religious and gender-neutral laws on divorce, adoption, and maintenance, the court accepted the Centre’s argument that enactment of such laws remained within the legislature’s remit.
“This lies exclusively within the domain of the legislature. It is a well settled position that a mandamus cannot be issued to legislative to enact law,” it said at the time.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint
(Edited by Amrtansh Arora)
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