A Public Interest Litigation has been filed before the Supreme Court under Article 32 of the Constitution, seeking a direction upon the Government of India to constitute an ‘Indian Civil Code Drafting Committee’ to prepare the draft of the Uniform Civil Code.
The PIL has been filed in Person by Anoop Baranwal and Nitya Prakash Tiwari, advocates of Allahabad High Court.
The PIL states that on the date of independence, India had the uniform Criminal Code, but it could not enacted the uniform Civil Code, although many of the modern nations like France, Switzerland, Germany, Portugal, Italy, Spain, Canada, Argentina, Japan, Greece, Macau, Turkey have accepted the uniform Civil Code.
Further our Constituent‒makers also adopted Article 44 in the Constitution directing the State to enact the uniform Civil Code so that our State‒affair must be governed by the secular and gender‒neutral provisions of law able to develop the holistic approach and brotherhood amongst the citizen, and never by the religion‒based laws, which may create the separatist tendency and isolationist outlook amongst the citizen.
It has been stated in PIL that under the scheme of the Constitution, the Uniform Civil Code is a concept, whose body, though is constituted under Article 44, but its mind lies in Article 13; its soul lies in Article 14 and 15; and its spirit lies in Article 25 and 26. So the issue of enactment of the Uniform Civil Code is required to be seen from the perspective of joint Constitutional command of Article 13, 14, 15, 25, 26, and 44 of the Constitution, and the provision of Article 44 cannot be taken in isolation without connecting it with the provision of Article 13, 14, 15, 25 and 26 of the Constitution.
PIL further state that while failure of the Respondent no. 1 in enacting the
uniform Civil Code during last 68 years is amount to make Article 44 a dead letter, the consultation paper of the Law Commission dated 31.08.2018 denying the necessity of the uniform Civil Code, which has now also been approved in the statement of the Minister of Law and Justice made in the Rajya Sabha on 05.08.2021, is amount to bury Article 44 in the graveyard as a dead letter.
In the PIL 13 substantial question of law of constitutional importance are raised.
Demands made in PIL
1. issue an appropriate writ, order or direction quashing the Consultation paper/report of the Respondent no. 2 dated 31.08.2018 to the extent it hold that ‘a uniform civil code is neither necessary nor desirable at this stage’, for being beyond power to re‒open and re‒raise the issue, which has already been closed by the Constituent Assembly by adopting Article 44 in the Constitution on 23.11.1948, for being against the joint Constitutional command of Article 13, 14, 15, 25, 26 and 44, and amount to bury Article 44 in the graveyard as a dead letter;
2. issue an appropriate writ, order, or direction setting aside the Judgment and Order dated 24.07.1951 of the Bombay High Court passed in Criminal Appeal No. 231 of 1951; State of Bombay vs. Narasu Appa Mali; AIR 1952 Bombay 84:
a- to the extent it holds that “the personal laws are not ‘laws in force’ within the meaning of Article 13 (1)” having the effect of immunizing the personal law from constitutional scrutiny, for being unconstitutional and contrary to the true spirit of Article 13 of the Constitution of India;
b- to the extent it holds that ‘Article 44 recognizes the existence of different codes applicable to the Hindus and Mahomedans in matters of personal law’, for being against the Constitutional command, and contrary to the true spirit of Article 44 of the Constitution of India;
c- to the extent it holds that ‘Polygamy is justified, if at all, on social, economic and religious grounds and hardly ever on grounds of sex. In the modern world polygamy may seem to be an anachronism and may seem to be based on outdated and outworn ideas, When, however, it is found recognized in any personal law, it is based on considerations which were very vital and compelling to those who believed and who still believe in the sanctity of their personal law. Therefore, it would be difficult to say that the institution of polygamy would constitute discrimination against members of one sex only on the ground of their sex’, for being unconstitutional and contrary to the true spirit of Article 14, 15, and 21 of the Constitution of India;
d). to the extent it uses the remarks of ‘impatient’ for the Great Legendry Members of the Constituent Assembly for being unwarranted, unpleasant, uncharitable;
3. issue an appropriate writ, order, or direction declaring the practice of the Respondent no. 1 of enacting the different legislations in respect of the subjects of civil nature viz. Age of marriage, Polygamy/Polyandry, Dissolution of marriage, Oral Divorce, Maintenance, Rights in marital property, Guardianship, Inheritance, Testamentary succession, Gift, Adoption, etc. religion‒wise separately for Hindu, Islam, Christian, Sikh, Parsi, etc., and practice of applying different provisions to the citizen separately on the basis of their religion, discriminatory, unconstitutional, and violative of Article 14 and 15 of the Constitution of India, and in breach of the ideals of secularism and Rules of Law, the basic features of the Constitution of India;
4. issue an appropriate writ, order, or direction quashing the proviso clause of Section 2 and provision of Section 129 of the Transfer of Property Act, 1882, which save the Muhammadan law as an exception, for being discriminatory, unreasonable, unconstitutional, and ultra vires Article 14 and 15 of the Constitution of India;
5. issue an appropriate writ, order, or direction commanding the Respondent no. 1 to constitute an ‘Indian Civil Code Drafting Committee’ able to work as a full-time institution to prepare the draft of the Uniform Civil Code (Indian Civil Code) in a comprehensive form in respect of the subjects of civil nature being practiced by the people in India in compliance of the joint Constitutional command of Article 13, 14, 15, 25, 26 and 44 of the Constitution without interfering in the subjects of religious faith viz. Expressing the faith in the god of one’s own choice, Performing any mode of worship; Visiting any kind of religious pilgrimage; Solemnizing marriage through any mode; Keeping any kind of religious fast; Wearing any religious dress; Eating any food; Posthumous cremation by adopting any mode as per one’s religious faith, Management of the religious places; Imparting the religious education as guaranteed under the Constitution, etc. and further monitoring the progress of this Drafting Committee, so constituted;
6. Issue an appropriate writ, order or direction issuing uniform guidelines on the various subjects relating the Marriage viz. the Age of marriage, Practice of polygamy or polyandry, Judicial separation, Dissolution of marriage, Maintenance, Rights in marital property, Guardianship, Inheritance, Testamentary succession, Gift, Adoption, which are regulated by the religion‒based different discriminatory legislations till the date the legislature steps in to enact uniform Civil Code (Indian Civil Code) and the executive discharges its role to implement it in compliance of the joint Constitutional command of Article 13, 14, 15, 25, 26 and 44 of the Constitution of India.