New Delhi: The Supreme Court on Tuesday observed that the time has come for a Uniform Civil Code (UCC) as it termed a plea seeking striking down of provisions of the Shariat law of 1937 for being discriminatory to Muslim women as a “very good case” which advisably only the legislature should look into.
A bench of Chief Justice Surya Kant and justices Joymalya Bagchi and R Mahadevan said if the court struck down the Shariat inheritance law, it would create a legal vacuum, as there is no statutory law governing Muslim inheritance.
CJI Kant told advocate Prashant Bhushan, appearing for petitioners, “In our over-anxiety for reforms, we may end up depriving them, and they might end up getting less than what they are already getting. If the Shariat Act of 1937 goes away, then what is the question? Will it not create an unnecessary void?”
Justice Bagchi said, “You have a very good case on discrimination, but would it not be appropriate for the court to defer it to the wisdom of the legislature, which has the mandate to enact a Uniform Civil Code as per the Directive Principles of State Policy.”
CJI Kant said, “The answer is Uniform Civil Code.”
Justice Bagchi pointed out that the rule of ‘one wife for one man’ is not being uniformly applied to all communities.
“But does that mean that the court can declare all bigamous marriages as unconstitutional? So, we have to defer to legislative power to bring the directive principles into effect,” he said, adding that it is best to defer the issue to the legislative wisdom.
Justice Bagchi further said, “This court has time and again recommended to the legislature to enact a Uniform Civil Code.”
At the outset, Bhushan submitted that the court can make a declaration that Muslim women are entitled to equal inheritance rights as men, and the provisions of the Indian Succession Act will apply if the court strikes down the Muslim Personal Law (Shariat) Application Act of 1937.
The bench wondered whether the court can at all adjudicate the constitutionality of a personal law practice and referred to the landmark Bombay High Court case of Narasu Appa Mali (1951) which held that personal laws (religious laws on marriage, inheritance, etc.) are not ‘laws in force’ under Article 13 of the Constitution and thus cannot be challenged for violating fundamental rights.
Bhushan said in 2017 the apex court struck down triple talaq as an unconstitutional practice.
“We cannot have a situation in the country now after the Shayara Bano judgment that Muslim women will not have the same rights as Muslim men in matters of divorce,” he said, adding that the issue is complicated and requires wide scale deliberations.
The bench allowed Bhushan to amend the petition filed by Poulomi Pavini Shukla and others and posted the matter for further hearing after four weeks saying it is an “important issue”.
“You do some homework and come out with some more citations and alternate remedies. Judicial intervention would be advisable if some aggrieved Muslim women who want to wriggle out of the 1937 Act come forward,” the bench observed.
Bhushan further argued that personal law relating to inheritance will not be protected under Article 25 of the Constitution, which guarantees religious freedom.
He said inheritance is a matter of civil right and cannot be claimed as an essential religious practice.
The CJI, however, repeated the concern whether the court’s intervention will leave the Muslim women without the protection of any law.
Bhushan said some of the petitioners and the advocate on-record are Muslim women.
