Different personal laws followed by people of various religions are detrimental to the nation’s unity, the Centre told the Delhi high court while supporting the need for a Uniform Civil Code (UCC) in India.
“Citizens belonging to different religions and denominations follow different property and matrimonial laws, which is an affront to the nation’s unity,” stated the affidavit filed in the high court around a week ago.
Citing Article 44 of the Constitution, which provides that the state shall endeavour to secure UCC throughout the country, the Centre maintained that the purpose of this provision is to strengthen the object of “secular democratic republic, ” as envisaged 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,” the affidavit, filed before a bench of chief justice DN Patel and justice Jyoti Singh, said.
It added that Article 44 divests religion from social relations and personal law while propounding the concept of common law for all citizens in matters of marriage, divorce, succession, maintenance, custody, guardianship of children, inheritance, succession and adoption.
The affidavit, filed through the Union law ministry, stated that considering the importance and sensitivity of the UCC, it was referred to the Law Commission of India that favoured a wider consultation in an August 2018 report.
As and when the final report of the Law Commission is received, the government said, a consultation will ensue with all the stakeholders.
It is important to note here that even though the Centre has told the high court that it is awaiting a report from the Commission, the Centre has not re-constituted the Commission after the retirement of its last chairman, justice BS Chauhan, in August 2018.
The response was filed in a plea by BJP leader Ashwini Upadhyay, seeking to formulate the Code (UCC) to promote unity, fraternity and national integration by citing Article 44.
The plea relied upon a 1995 Supreme Court judgment in Sarla Mudgal Vs Union of India, where the top court asked the Centre to look into the formation of the UCC.
In July 2021, in a separate judgment, justice Prathiba M Singh of the Delhi high court said that UCC should not remain a mere hope in the Constitution while lamenting “various complexities in the society due to differences in personal laws.
Dealing with a plea involving the applicability of the Hindu Marriage Act (HMA), 1955 in respect of parties belonging to the Meena community, justice Singh had said that there is a requirement for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession etc, so that settled principles, safeguards and procedures can be laid down.
Meanwhile, in its affidavit filed in Upadhyay’s case, the central government, through its standing counsel Ajay Digpaul, opposed the petition, saying that UCC is a matter of public policy and that no direction in this regard can be issued by any court.
It also submitted that the Parliament exercises sovereign power to enact laws, and no outside power or authority can issue a direction to enact a particular piece of legislation.
“This is a matter of policy for the elected representatives of the people to decide…to have a legislation or not is a policy decision, and the court cannot give any direction to the Executive,” the affidavit read.
In his plea, Upadhyay contended that the government has “failed” to put in place a uniform civil code, as provided under Article 44 of the Constitution.
The plea also said that Goa has had a common civil code since 1965, which applies to all of its residents, and it is the only state to have it as of now.
The petition has sought directions for the Centre “to constitute a judicial commission or a high-level expert committee to draft the uniform civil code in the spirit of Article 44 of the Constitution within three months while considering the best practices of all religions and sects, civil laws of developed countries and international conventions”.