The Delhi High Court on Friday said it will not issue any direction to Parliament for drafting a uniform civil code as the matter falls under the domain of the legislature and it was not going to interfere into it.
A bench of Chief Justice D N Patel and Justice C Hari Shankar declined to ask the central government to file a response to the five petitions saying, “Nothing doing. The matter needs to be disposed of. We are not going to give a direction to the Parliament.”
However, it allowed the petitioners, including BJP leader Ashwini Kumar Upadhyay, to argue their respective cases.
The bench on Friday heard substantial arguments on behalf of petitioners Firoz Bakht Ahmed, the chancellor of Maulana Azad National Urdu University, and Amber Zaidi, who claims to be a social activist and media personality.
It said it will continue to hear arguments on behalf of the others, including Upadhyay on Monday.
It refused to allow the All India Muslim Personal Law Board (AIMPLB) to argue in the matter, saying “we have not yet allowed you to intervene. How can you argue then?”
When the matter came up for hearing in the post-lunch session, Upadhyay, who is also a lawyer, told the court that it had issued a notice to the Centre in this matter on May 31 and till date no counter affidavit has been filed by the government.
He and the lawyers for the other petitioners urged the bench to ask the government to file its response in their respective petitions, before continuing with hearing the matter.
However, the court declined to do so and said if the government does not want to file a response, let it not.
It asked the petitioners to lay down what relief they were seeking and said that thereafter, it will pass an order.
The counsel for Ahmed, the grandnephew of India’s first education minister Maulana Abul Kalam Azad, and Zaidi told the court that there were several Supreme Court judgements favouring creation of a uniform civil code, but the government till date has not even initiated a consultation on the issue.
They urged the bench to direct the government to at least initiate a consultation process on whether there is a need for a uniform civil code as provided under Article 44 of the Constitution.
All the petitioners, in their respective pleas, have contended that India “urgently needs a Uniform Civil Code” to promote national integration as well as gender justice, equality and dignity of women.
Apart from Upadhyay, Ahmed and Zaidi, the remaining two petitions have been filed by lawyer Abhinav Beri and Nighat Abbass, who claims to be a social activist, media panellist and political analyst.
All the petitions have sought directions to the Centre to constitute a judicial commission or a high-level expert committee to draft the UCC while considering the best practices of all religions and sects, civil laws of developed countries and international conventions.
The petitioners have contended that gender justice and gender equality, guaranteed under Articles 14-15 of the Constitution and dignity of women, guaranteed under Article 21 of the Constitution, cannot be secured without implementing the Article 44 (the State shall endeavour to secure for citizens a Uniform Civil Code (UCC) throughout the territory of India).
The petitions have claimed that a UCC would replace the personal laws, based on the scriptures and customs of various religious communities, with a common set of rules governing every citizen of the country.
The BJP, in its manifesto before the 2019 Lok Sabha Elections, had mentioned the UCC saying that Article 44 of the Constitution lists it as one of the Directive Principles of State Policy.
The BJP believes that there cannot be gender equality till such time India adopts a UCC, which protects the rights of all women, and reiterates its stand to draft a UCC, drawing upon the best traditions and harmonising them with the modern times, the manifesto said.
Upadhyay, in his plea, has claimed that the issue of UCC is there in the BJP’s manifesto since the time of Jan Sangh in 1952.
He has contended that the Centre has “failed” to put in place a UCC as provided under Article 44 of the Constitution.
Beri’s petition has sought that a direction be given to the Law Commission to draft a UCC within three months taking into account the best practices of all religions and sects, civil laws of developed countries and international conventions and publish that on its website for at least 90 days for wide public debate and feedback.
In last 70 years, the Constitution has been amended 125 times and the judgment of the Supreme Court has been nullified five times but the executive has not taken serious steps to implement a Uniform Civil Code, the plea has said.
In December 2015, the Supreme Court bench headed by then Chief Justice of India TS Thakur had declined to hear Upadhyay’s petition in which he had sought to bring in the civil code, which brings all religious personal laws under one umbrella. He had then withdrawn the petition.
On October 12, 2015, while dealing with a divorce case under the Christian Divorce Act, a Supreme Court bench headed by Justice Vikramajit Sen had asked the government to take a quick decision on the UCC to end the confusion over personal community laws.
On July 23, 2003, an apex court bench led by the then CJI V N Khare had said that Article 44 was based on the premise that there was no necessary connection between religious and personal law in a civilised society.
The apex court was hearing a petition challenging section 118 of the Indian Succession Act, 1925, which prevents Christians from bequeathing property for religious and charitable purposes.
The simmering debate over the UCC hit the headlines in 1985 after the Supreme Court awarded maintenance to a 60-year-old divorced Muslim woman, Shah Bano.
“A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies,” CJI YV Chandrachud had said then. But the then Congress government reversed the verdict after pushback from the clergy and Muslim Personal Law Board.