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The Supreme Court's directive to the Government that it should enact a uniform civil code is an example of judicial activism deserving of the highest plaudits. The provocation for this ostensible intrusion into the executive realm is a persistent legal and social anomaly which has its origin in Muslim Personal Law: the freedom Muslims are given to have more than one wife. This has evidently inspired Hindu husbands to covert to Islam for the purpose of facilitating a second marriage. The court's emphasis on the need for a uniform civil code that would supercede personal law followed its nullification of the second marriages of four men whose wives had sued after falling victim to this practice. But the verdict in these cases covers only converts and not Muslims by birth. He can still have four wives under the Shariat Act (1937) which stipulates that Muslims will be governed by personal law in cases of marriage, divorce, inharitance, succession and related matters.
Actually, the Supreme Court was really reminding the govt of its duty. Article 44 of the Constitution says: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." This is one of the Directive Principles of State Policy required to be applied by the state while making laws....
Unlike fundamental rights, the directive principles are not justiciable, that is, a citizen cannot ask the court to force the implemetation of a directive principle. But in 1979 in the Minerva Mills case, Justice PN Bhagwati broke this barrier and ruled that the court could, in certain circumstances, direct the govt to implement a directive priniciple. The recent judgement is in keeping with Bhagwati's verdict. This is not the first time, however, that the SC has reminded the govt of its duty to enact a UCC. The earlier occasion was the controversial 1985 Shah Bano case which involved the question whether a Muslim husband was exempt from paying his divorced and indigent wife the monthly compensation stipulated by the CPC. Under Section 125 of the CrPC, any man who deserts or divorces a wife who cannot support herself, must pay a stipulated compensation. While upholding the Muslim wife's right to the protection of the general law, justice YV Chandrachud stated in passing that it was high time that the govt implemented the UCC. But Muslims, by and large, resisted being brought under the purview of the beneral law, arguing that the only compensation to be paid was during the iddat (a brief period following the separation). Under Rajiv Gandhi, their demand was enshrined in a statute - the controversial Muslim Women's Bill.
The court's new pronouncement went much further than Chandrachud. It requested the prime minister to "have a fresh look at Article 44" and directed the Centre to file an affidavit by August 1996, indicating the steps taken and efforts made by the govt towards securing a ucc. This affects not only Muslims but also Christians who, if they marry under the Christian Marriage Act, cannot get divorce except on grounds of adultery, as well as Hindus' entitlement to tax breaks under the classification of Hindu undivided family. For example, under ucc, either all religions would be able to avail of these tax advantages, or none.
Even though the court said there was "no justification whatsoever in delaying the introduction of a uniform personal law in the country", the long deadline it gave to the govt for reporting the progress made, is a dampener. This is because by August 1996, the political situation may change drastically following the general elections. Thus, there is no immediate pressure on the Rao govt to initiate the long overdue action. It would be politically inexpedient to take up such incendiary issues in an election year.
The court, nevertheless, laid down the exact route the Center sould take in this regard. It said the govt shuld ask the Law Commission to draft a comprehensive legislation in consultation with the Minorities Commission, incorporating the "present-day concept of human rights for women". In the interim period, the court asked the Centre to consider whether a committee could be set up immediately to enact a law for checking misuse of the right to convert one's religion. It suggested that the law may provide that every citizen who changes his religion cannot marry another woman unless he divorces his first wife.
As for the problems involved in
enacting the code are concerned, the court pointed out that, unlike India,
many Islamic countries have codified and reformed the Muslim Personal Law
to check its misuse. Polygamy has been banned in Syria, Tunisia, Morocco,
Iran and even Pakistan. One ivory-tower observation made by Justice Kuldip
Singh is "no community can oppose the introduction of a ucc". To that,
Justice RM Sahai added some armchair advice: "The sentiments and emotions
have to be cooled and tempered by sincere efforts." The need is to draw
a balance: to safe guard the civil rights and the identity of minorities
while refusing to pander to religious fundamentalism of any colour.
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