Law commission

Decision on Uniform Civil Code is pending Law Commission report, Modi government tells HC Delhi

New Delhi: The Center would consider the need for a Uniform Civil Code (UCC) and hold consultations with various stakeholders involved in the issue, once it receives a report from the Law Commission on the matter, the Narendra government said. Modi at the Delhi High Court.

In a 12-page affidavit filed a week ago, the Union Department of Justice outlined the purpose of Section 44 of the Constitution which deals with the UCC. The affidavit (which was made public on Friday) was the ministry’s response to a PIL filed by lawyer and Delhi BJP member Ashwini Kumar Upadhyaya in 2019, which sought an instruction from the Center to frame the UCC in the three months following the issuance of this instruction.

Even though the ministry pointed out that Section 44 is meant to reinforce the purpose of a secular democracy and that Indian citizens following different civil laws were an affront to the unity of the nation, the affidavit was silent on the time the government will take to bring the code.

However, he urged the HC to refrain from instructing the government to frame the code as it was outside the jurisdiction of the court.

Under the constitutional principle of separation of powers, only parliament can undertake the task of drafting legislation and a court cannot issue an order to the legislature to enact a particular law, the ministry said, demanding that the petition for ‘Upadhyaya be rejected.

Incidentally, however, the Supreme Court also gave the Center four weeks on Friday to clarify its position on the implementation of the UCC in the country.

Strengthening the “secular democratic republic”

Article 44 is included in Part IV of the Constitution, which relates to the guiding principles of state policy. This chapter, explained the ministry, creates an obligation for the state to strive to provide citizens with a uniform civil code throughout the country.

The goal, he added, is to strengthen the “secular democratic republic”, as enshrined in the preamble.

“This provision is intended to effect the integration of India by bringing the communities to the common platform on matters which are currently governed by various personal laws,” the affidavit said.

The article is based on the concept that in matters of inheritance, right of ownership, maintenance and succession, there will be a common right.

“Citizens of different religions and denominations follow different property and marriage laws, which is an affront to the unity of the nation,” the affidavit adds.

Given the importance and sensitivity involved, the government had approached the Law Commission in 2016 to undertake a review of various issues relating to the UCC and conduct an in-depth exercise thereon.

The Commission, after receiving several representations from various stakeholders, undertook detailed research and posted a consultation paper on August 31, 2018 titled “Family Law Reform” on its website for broader discussion. The affidavit does not reveal subsequent developments.

SC on UCC

On the technical point of jurisdiction, the ministry reminded the CH of the “established position of law”, under which only Parliament can exercise its sovereign power to enact legislation.

“A writ of mandamus cannot be issued to the legislature to enact particular legislation. It is a matter of policy that belongs to the elected representatives of the people and no direction in this regard can be issued by the court,” the ministry said.

Separately, the Supreme Court on Friday gave the Center the final opportunity to clarify its position on the implementation of the UCC in the country and gave it four weeks to do so. A bench headed by Judge SK Kaul is hearing two motions asking for uniform divorce laws and uniform alimony and maintenance.

The bench also transferred pending UCC cases in various HCs to itself and flagged them all for a final decision. This means that Upadhyaya’s petition to which the ministry gave its response will now be heard by the SC in the future.

(Editing by Poulomi Banerjee)


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