Supreme Court backed UCC on 5 occasions

Satya Prakash

New Delhi, June 28

Prime Minister Narendra Modi’s remarks on Tuesday that the Supreme Court has repeatedly insisted on enactment of a Uniform Civil Code (UCC) have brought the role of the judiciary in the controversial matter of personal laws to the fore.

India a secular country has different personal laws for each religious group governing marriage, divorce, maintenance, succession, inheritance, child custody and adoption. While the Hindu law has been reformed substantially since the 1950s, Muslim and Christian laws have remained largely unchanged.

Different personal laws for each religion

• India a secular country has different personal laws for each religious group governing marriage, divorce, maintenance, succession, inheritance, child custody and adoption
• While the Hindu law has been reformed since the 1950s, Muslim and Christian laws have remained largely unchanged

The need for UCC finds mention in Article 44 of the Constitution which says, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. However, Article 44 falls under the ‘Directive Principles of State Policy’ (DPSP), which is not enforceable by courts. But Article 37 on non-justiciability of DPSP says these principles “are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

In the famous Kesavananda Bharati case (1973) in which the doctrine of basic structure of the Constitution was propounded, the apex court emphasised the need to have a UCC. “Desirable as it (UCC) is, the government has not been able to take any effective steps towards the realisation of this goal. 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,” a 13-judge Bench led by CJI SM Sikri had said.

In Shah Bano’s case (1985), a Constitution Bench had said, “A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”

In 1995, the top 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 has been lying since 1949,” Justice Kuldip Singh said in the Sarla Mudgal case.

In October 2015, while dealing with a divorce case under the Christian Divorce Act, a Bench headed by Justice Vikramajit Sen (since retired) had asked the government to take a quick decision on the UCC to end the confusion over personal laws applicable to different communities.

Citing the wish of the founding fathers, an SC Bench in September 2019 lamented that no steps had been taken to frame the UCC despite its exhortations.

The top court cited Goa as a “shining example” where a UCC (under the Portuguese Civil Code, 1867) was applicable to all, regardless of religion, “except while protecting certain limited rights”.