UCC may solve gender bias in personal laws, says apex court
New Delhi, March 11 -- The Supreme Court on Tuesday suggested that a Uniform Civil Code (UCC) may be the way to address gender discrimination in personal laws, weighing in on a contentious and polarising issue which is also the only major incomplete ideological agenda of the Bharatiya Janata Party (BJP), which has been in power at the Centre since 2014.
Hearing a petition challenging Muslim inheritance rules asdiscriminatory to women, the apex court indicated that long-standing concerns over gender discrimination in personallaws may ultimately require legislative action in the form of a UCC.
During the hearing, a bench comprising Chief Justice of India Surya Kant and justices R Mahadevan and Joymalya Bagchi repeatedly pointed to the constitutional directive for a UCC, suggesting that structural reforms in personal laws across communities may be better addressed through legislation rather than judicial intervention.
"The answer is a Uniform Civil Code," observed the bench while hearing submissions from advocate Prashant Bhushan, who appeared for the petitioners.
The court was considering a writ petition, moved by advocate Poulomi Pavini Shukla and Nyaya Naari Foundation, challenging provisions of Muslim personal law relating to inheritance, which the petitioners argued deny Muslim women equal rights compared to men. The hearing comes amid renewed debate on UCC, which refers to a common set of laws governing personal matters such as marriage, divorce, adoption, inheritance and succession, applicable to all citizens regardless of religion.
Currently, different religious communities in India follow separate personal laws. For instance, Hindus are governed by statutes such as the Hindu Marriage Act and Hindu Succession Act, Christians by the Indian Christian Marriage Act and Indian Divorce Act, and Parsis by the Parsi Marriage and Divorce Act.
Muslim personal law, incontrast, remains largely uncodified and is derived fromreligious texts, though certain aspects are recognised through statutes such as the Shariat Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939.
Article 44 of the Constitution states that the State shall endeavour to secure a Uniform Civil Code throughout India.
Although Directive Principles are not enforceable in courts, constitutional jurisprudence has repeatedly emphasised that they are fundamental to governance.
In several landmark decisions, including Shah Bano (1985) and Sarla Mudgal (1995), the Supreme Court highlighted the need for greater uniformity in personal laws, while also clarifying in later rulings that courts cannot compel the government to enact a UCC.
More recently, Uttarakhand became the first state to implement UCC, introducing a framework that governs marriage, divorce and live-in relationships across communities. And Gujarat has set up a committee to come up with a draft UCC.
On Tuesday, the bench questioned whether courts could examine the constitutionality of practices rooted in personal law.
It referred to the Narasu Appa Mali judgment of the Bombay high court, which held that uncodified personal laws are not subject to constitutional scrutiny.
The bench also raised concerns about the consequences of striking down such provisions without an alternative legal framework in place. If the court were to invalidate inheritance rules flowing from the Shariat law, it asked, would that not create a legal vacuum for Muslim women, given the absence of a comprehensive statutory framework governing Muslim inheritance?
"In our overanxiety for reforms, we may end up depriving them," said the bench, cautioning that judicial intervention could inadvertently place women in a worse position than the one they currently occupy.
"If the Shariat Act of 1937 goes away, what is the position then? Will it not create an unnecessary void?" the bench asked.
Bhushan responded that in such a scenario the Indian Succession Act could apply and argued that the court could declare that Muslim women are entitled to equal inheritance rights.
He relied on the Supreme Court's 2017 Shayara Bano judgment, which struck down the practice of instant triple talaq, to contend that discriminatory personal law practices could be tested against constitutional guarantees.
According to Bhushan, inheritance is a matter of civil rights and cannot be shielded under Article 25, which protects freedom of religion. Bhushan argued that such matters cannot be treated as essential religious practices.
However, the bench repeatedly returned to the broader constitutional scheme, observing that reforms cutting across communities may be better addressed through Parliament's legislative powers.
Referring to Article 44 of the Constitution -- a Directive Principle of State Policy that urges the State to secure a UCC for citizens -- the bench highlighted that courts have historically emphasised the importance of such reform but have refrained from issuing binding directions to the government.
The top court bench alsohighlighted how personal law differences across communities raise complex constitutional questions that may not be resolved through isolated judicial interventions.
Illustrating the point, the bench observed that even widely accepted norms such as monogamy are not uniformly applied across all communities.
"But does that mean the court can declare all bigamous marriages unconstitutional?" asked the bench, adding that courts must be mindful of the limits of judicial power when dealing with matters that fall within the legislative domain.
"It is best to defer to legislative wisdom," the bench remarked, noting that courts have previously recommended that Parliament consider moving towards a uniform civil framework.
The court also indicated that judicial scrutiny may be more appropriate in petitions directly filed by Muslim women seeking relief from discriminatory provisions under the Muslim Personal Law (Shariat) Application Act, 1937.
Bhushan pointed out that some of the petitioners in the present case are Muslim women.
The bench then suggested that the petition be amended to specify possible legal remedies if the inheritance provisions are struck down.
On Bhushan agreeing to amend the petition accordingly, the court adjourned the matter for further hearing....
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