New Delhi: The Centre would examine the need for a Uniform Civil Code (UCC), and hold consultation with various stakeholders involved in the matter, once it receives a report from the Law Commission on the subject, the Narendra Modi government has told the Delhi High Court.
In a 12-page affidavit filed a week ago, the Union Law Ministry outlined the purpose behind Article 44 of the Constitution that deals with UCC. The affidavit (which was made public Friday) was the ministry’s response to a PIL filed by advocate and Delhi BJP member Ashwini Kumar Upadhyaya in 2019, who has demanded a direction to the Centre to frame UCC within three months of such direction being issued.
Even as the Ministry underlined that Article 44 is aimed to strengthen the object of a secular democracy and that Indian citizens following different civil laws was an affront to the nation’s unity, the affidavit was silent on how much time the government will take to bring in the code.
However, it urged the HC to refrain from any directions to the government to frame the code since it was beyond the court’s jurisdiction.
Under the constitutional principle of separation of powers, only the parliament can undertake the task of drafting a legislation and a court cannot issue a writ to the legislature to enact a particular law, the ministry said, demanding Upadhyaya’s petition be rejected.
Incidentally, however, the Supreme Court too gave the Centre four weeks Friday to specify its stand on implementation of UCC in the country.
Strengthening ‘secular democratic republic’
Article 44 is included in Part IV of the Constitution, which relates to Directive Principles of State Policy. This chapter, the ministry explained, creates an obligation upon the State to endeavour to secure for citizens a uniform civil code throughout the country.
The object, it added, is to strengthen the “secular democratic republic,” as enshrined in the Preamble.
“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,” submitted the affidavit.
The Article is based on the concept that in matters of inheritance, right to property, maintenance and succession, there will be a common law.
“Citizens belonging to different religious and denominations follow different property and matrimonial laws which is an affront to the nation’s unity,” the affidavit added.
In view of the importance and sensitivity involved, the government had approached the Law Commission in 2016 to undertake examination of various issues relating to UCC and carry out an in-depth exercise on it.
The Commission, after receiving several representations from various stakeholders, undertook detailed research and uploaded a consultation paper on 31 August, 2018 titled “Reform on Family Law” on its website for wider discussion. The affidavit does not reveal the development thereafter.
SC on UCC
On the technical point of jurisdiction, the ministry reminded the HC about the “settled position of law”, under which only the Parliament can exercise its sovereign power to enact a legislation.
“A writ of mandamus cannot be issued to the legislature to enact a particular 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,” the ministry said.
Incidentally, the Supreme Court Friday gave the Centre the last opportunity to specify its stand on implementation of UCC in the country and gave it four weeks to do so. A bench led by Justice S.K. Kaul is hearing two petitions seeking uniform divorce laws and uniformity in alimony and maintenance.
The bench also transferred cases on the UCC pending in various HCs to itself and tagged all of them for a final adjudication. This means Upadhyaya’s petition on which the ministry gave its response will now be heard in the SC in future.
(Edited by Poulomi Banerjee)