Different property, matrimonial laws affront to nation’s unity: Centre told SC last year on UCC

New Delhi: Citizens belonging to different religions and denominations follow different property and matrimonial laws which is “an affront to the nation’s unity”, the Centre had said last year in its affidavit in the Supreme Court on the Uniform Civil Code matter.

The Law Commission on Wednesday initiated a fresh consultation process on Uniform Civil Code (UCC) by seeking views from stakeholders, including public and recognised religious organisations, on the politically sensitive issue.

In an affidavit filed on October 13, 2022 on a petition filed by Ashwini Kumar Udadhyay seeking uniform guidelines for ‘adoption and guardianship’ for all citizens, the Union Ministry of Law and Justice has said that Article 44 (UCC) is to strengthen the object of “Secular Democratic Republic” as enshrined in the preamble of the Constitution. Article 44 of the Constitution, part of the Directive Principle of State Policy, provides that the State shall endeavour to secure for the citizens a UCC throughout the territory of India.

Article 44 of the Constitution, part of the Directive Principle of State Policy, provides that the State shall endeavour to secure for the citizens a UCC throughout the territory of India.

The Centre has said in the affidavit that the expression “Uniform Civil Code” denotes the field of personal law relating to marriage, divorce, maintenance, custody and guardianship of children, inheritance and succession and adoption.

“This provision (Article 44) 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. This Article 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”, the affidavit has said.

The ministry has told the apex court that in view of the importance of the subject matter and sensitivity involved which requires in-depth study of the provisions of various personal laws governing different communities, the Centre requested the Law Commission of India to undertake examination of various issues relating to UCC and to make recommendation thereof.

It had said that Parliament exercises sovereign right to frame laws and no outside authority can issue it a direction to enact a law.

“It is a settled position of law and has been held in the catena of judgments that under our constitutional scheme, Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.

“It is respectfully submitted that a writ of Mandamus (a judicial remedy in the form of an order by a court to any government or subordinate courts) 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. It is for the legislature to enact or not to enact a piece of legislation. Further, in the catena of judgments it has been held that Public Interest Litigation should not be filed merely on the basis of newspaper reports,” the Centre has said in its affidavit.

The government, while stating that the petition of Upadhyay is not maintainable, had submitted that after receiving the request from the Central government, the 21st Law Commission has undertaken examination of various aspects of the matter and received several representation from various stakeholders and after detail research on the matter had uploaded a consultation paper on August 31, 2018 titled ‘Reform of Family Law’ in its website for wider deliberation/discussions.

“The term of 21st Law Commission, however, ended on August 31, 2018 and the 22nd Law Commission has been constituted”, it had said, adding that as and when the report of the Law Commission in the matter is received, the government would examine the same in consultation with the various stakeholders involved in the matter.

On Wednesday, the commission in public notice said, “Since more than three years have lapsed from the date of issuance of the said consultation paper, bearing in mind the relevance and importance of the subject and also the various court orders on the subject, the 22nd Law Commission of India considered it expedient to deliberate afresh over the subject”.

The 22nd Law Commission, which recently got a three-year extension, has accordingly begun examining issues related to UCC on a reference sent by the Ministry of Law and Justice in June 2016.

“Accordingly, the 22nd Law Commission of India decided again to solicit views and ideas of the public at large and recognised religious organisations about the Uniform Civil Code,” the statement said.

Those who are interested and willing can present their views within a period of 30 days from the date of notice to the Law Commission.

If need be, the Commission may call upon any individual or organisation for a personal hearing or discussion, it said.

In its consultation paper issued on August 31, 2018, the 21st Law Commission headed by Justice B S Chauhan (retd) had said that while the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be “dis-privileged” in the process.

It said the Commission dealt with laws that are discriminatory rather than providing a uniform civil code “which is neither necessary nor desirable at this stage”.

The consultation paper said most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination but is indicative of a robust democracy.

Implementation of a UCC has been part of the BJP’s election manifesto.

States such as Uttarakhand are in the process of framing their common code. The BJP had promised a UCC in Karnataka ahead of the assembly elections.