Not Constitutional Morality? CJI Wonders If SC Can Adjudicate On 'UCC' Pleas

The Supreme Court on Monday (February 20), while hearing a group of Public Interest Litigations (PILs) seeking enactment of a Uniform Civil Code, remarked that these are legislative functions and wondered whether the courts can even decide on this.

The apex court bench consisting of Chief Justice of India DY Chandrachud, and Justices PS Narasimha and JB Pardiwala was hearing a group of six PILs - four filed by Advocate Ashwini Upadhyay, one by petitioner Lubina Qureshi and another by Doris Martin.

Appearing for the Muslim organisations, Senior Advocate Kapil Sibal told the court that these issues fall within the domain of the government, Parliament, and state legislatures. “How can the SC deal with it? It has no jurisdiction to legislate. The SC shouldn’t be seen as passing orders in these issues,” he said.

Senior Advocate Gopal Sankarnarayanan, representing Ashwini Upadhyay interjected that “There are multiple petitions. The prayer asking the Law Commission to prepare a report, how can that be objected to?”

To this, Chief Justice of India DY Chandrachud replied, “These are legislative functions. How can we decide?”

In reply to this, Solicitor General Tushar Mehta said that “In principle, there cannot be any objection to gender- and religion-neutral personal laws. It is for the government to initiate the process of legislation and Parliament to decide. But, the SC can examine what all it can do on the judicial side.”

Notably, the Supreme Court in the past has intervened in matters where it considered that rights of women of the minority community were being denied or infringed upon. Most famously, in the Shah Bano case, the courts went against massive opposition from the Muslim clergy and granted the right to maintenance to divorced Muslim women.

The judgment was however upended by the then Rajiv Gandhi government when it passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which overturned the court’s judgment.

Ironically, the judgment in the Shah Bano case was delivered by the then Chief Justice of India YV Chandrachud, the father of the current CJI.

The courts nonetheless went on to defend the rights of Muslim women later on too in cases like Danial Laitifi (2007) and Shabana Bano (2009). The apex court said in the Sarla Mudgal case (1995) that, “When 80% of the population has already been brought under codified personal laws, there is no justification to keep the UCC in abeyance anymore.”

In 2014, the apex court gave equal rights to Muslim women to legally adopt children like any other Indian citizen and the same could not be denied by the Muslim personal law.

Recently, the Delhi High Court expressed the desire to enact the UCC, while the Madras High Court in a string of judgments has tried to bring the personal laws for Muslims on par with the other communities.

The court bench has now asked the petitioners to give a short synopsis of each petition and the reliefs sought. The next hearing is now scheduled after four weeks.