Time for Uniform Civil Code, says SC as petition challenges ‘discriminatory’ Shariat law provisions

As an PIL sought to declare unconstitutional provisions of the Muslim Personal Law (Shariat) Application Act, 1937, for discriminating against Muslim women, the Supreme Court on Tuesday said that the time has come for a Uniform Civil Code (UCC) in India.

“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… The answer is Uniform Civil Code,” said a bench of Chief Justice of India Surya Kant, Joymalya Bagchi and Justice R Mahadevan.

The comments from the bench came after advocate Prashant Bhushan contended on behalf of petitioner Poulomi Pavini Shukla that the Muslim Personal Law (Shariat) Application Act, 1937, which discriminated against women in matters of inheritance was a statute and the Supreme Court could interfere with it to that extent.

“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,” Bhushan submitted.

The bench wondered if it struck down the provision on inheritance under the 1937 Act, would it not lead to a legal vacuum with regard to Muslim inheritance.

However, Bhushan said in such a situation provisions of the Indian Succession Act would apply and the Supreme Court can make a declaration that Muslim women were entitled to inheritance rights equal to men.

Bhushan sought to emphasise that inheritance was a civil right which was not a part of an essential religious practice and it can’t be protected under Article 25 of the Constitution (Right to religion).

However, the bench cautioned against it. “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 1937 goes away, then what is the question? Will it not create an unnecessary void?” the CJI asked.

The petitioner submitted that equal inheritance rights have already been given to Hindu daughters under the Hindu Succession Act, 1956 (as amended in 2005) and for Christian and Parsi women under the Indian Succession Act, 1925.

After the enactment of the Uttarakhand UCC, Muslim women in the state have also been granted equal inheritance rights, she submitted.

Shukla – an advocate pointed out in her petition that the Uttarakhand UCC created two distinct regimes of civil rights within the Muslim community as a Muslim woman living in the state would get equal inheritance rights with her brothers while a Muslim woman in other parts of India would inherit half the share of a male sibling under the Muslim Personal Law (Shariat) Application Act, 1937.

She urged the top court to declare that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it governed intestate succession and inheritance, was void to the extent it discriminated against Muslim women by denying them equal shares in inheritance. Shukla said these provisions violated Articles 14, 15 and 21 (right to equality, right to non-discrimination and right to live with human dignity) of the Constitution.

As the bench said judicial intervention would be advisable on a petition filed by Muslim women themselves seeking to wriggle out of the Shariat Act, 1937, Bhushan said some Muslim women had also moved the top court.

The bench asked Bhushan to amend the petition to include suggestions with regard to remedies in the event the Shariat inheritance provisions were struck down and adjourned the hearing.

The bench also pointed out during the hearing that in Narasu Appa Mali’s case (1951), the Bombay High Court held that personal laws cannot be subjected to constitutional tests.

India — a secular country — has different personal laws for each religious group governing marriage, divorce, maintenance, succession, inheritance, child custody and adoption. While Hindu Law has been reformed substantially since the 1950s, Muslim and Christian laws have remained largely unchanged, despite allegations of inherent gender bias.

Article 44 of the Constitution says, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” However, Article 44 falls under the ‘Directive Principles of State Policy’ (DPSP), which is not enforceable by courts.

In the famous Kesavananda Bharati’s case (1973) — in which the doctrine of basic structure was propounded, a 13-judge Constitution Bench led by CJI SM Sikri emphasised the need to have a UCC.

In Shah Bano’s case (1985), a Constitution Bench said, “A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”

In 1995, the top court declared invalid the second marriage of a Hindu man who converted to Islam to marry without divorcing his first wife. “It appears that…the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it has been lying since 1949,” Justice Kuldip Singh said in the Sarla Mudgal case.

In October 2015, while dealing with a divorce case under the Christian Divorce Act, a bench headed by Justice Vikramajit Sen had asked the government to take a quick decision on the UCC to end the confusion over personal laws applicable to different communities.

Citing the wish of the founding fathers, a Supreme Court bench led by the bench of Justice Deepak Gupta in September 2019 lamented that no steps have been taken for framing of a UCC despite exhortations from it.