Time for UCC: SC on Plea to Strike Down Shariat Law Provisions
A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and R Mahadevan said if the court struck down the Shariat inheritance law, it would create a legal vacuum, as there is no statutory law governing Muslim inheritance
New Delhi: Emphatically backing the case for a Uniform Civil Code (UCC) yet again, the Supreme Court on Tuesday said it was the “most effective answer” to usher in equality in inheritance laws, rather than the court striking down the alleged discriminatory personal law and creating a legal vacuum.
“The most effective answer…is the Uniform Civil Code,” Chief Justice of India (CJI) Surya Kant, presiding over a three-judge bench also comprising Justice Joymalya Bagchi and Justice R. Mahadevan, said while hearing a plea challenging provisions of the Muslim Personal Law (Shariat) Application Act 1937, which the petitioners alleged discriminated against Muslim women in matters of succession.
CJI Kant told advocate Prashant Bhushan, appearing for petitioners, "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 of 1937 goes away, then what is the question? Will it not create an unnecessary void?"
Flagging that the rule of “one wife for one man” was not being uniformly applied to all communities, Justice Bagchi said, "But does that mean that the court can declare all bigamous marriages unconstitutional? So, we have to defer to legislative power to bring the Directive Principles into effect."
Justice Bagchi said: "This court has time and again recommended to the legislature to enact a Uniform Civil Code."
Bhushan submitted that the court could make a declaration that Muslim women were entitled to equal inheritance rights as men, and the provisions of the Indian Succession Act would apply if the court struck down the Muslim Personal Law (Shariat) Application Act of 1937.
The top court wondered whether it could at all adjudicate the constitutionality of a personal law practice and referred to the landmark Bombay High Court case of Narasu Appa Mali (1951), which held that personal laws (religious laws on marriage, inheritance, etc.) were not “laws in force” under Article 13 of the Constitution and thus could not be challenged for violating Fundamental Rights.
Article 13 of the Constitution established the supremacy of Fundamental Rights by declaring that any pre-constitutional or future laws inconsistent with or in derogation of these rights were void to the extent of their contravention. Article 13 acted as a foundational pillar for judicial review of an unjust law by the Supreme Court and High Courts.
Bhushan said in 2017 the apex court struck down triple talaq as an unconstitutional practice. "We cannot have a situation in the country now after the Shayara Bano judgment where Muslim women will not have the same rights as Muslim men in matters of divorce," he said, adding that the issue is complicated and requires wide-scale deliberations.
The apex court allowed Mr Bhushan to amend the petition filed by Poulomi Pavini Shukla and others and posted the matter for further hearing after four weeks saying it is an "important issue".
"You do some homework and come out with some more citations and alternate remedies. Judicial intervention would be advisable if some aggrieved Muslim women who want to wriggle out of the 1937 Act come forward," it said.
Bhushan argued that personal law relating to inheritance would not be protected under Article 25 of the Constitution, which guaranteed religious freedom. Inheritance was a matter of civil right and could not be claimed as an essential religious practice, he added.
CJI Kant, however, reiterated the concern that the court's intervention would leave the Muslim women without the protection of any law.
