Centre Files Affidavit Opposing PIL For Uniform Civil Code, Challenges Maintainability [Read Affidavit]
The Centre has filed its first counter affidavit in response to the three Writ Petitions filed by Advocate Ashwini Kumar Upadhyay seeking the implementation of a Uniform Civil Code in India.
The Centre in its affidavit has challenged the maintainability of the Petitions filed by the Lawyer stating that a Writ of Mandamus cannot be issued to the Legislature to enact a particular piece of legislation.
- W.P. for Adoption
The Advocate had filed a Writ Petition before the Apex Court seeking a Uniform Civil Code for Adoption.
The Petitioner had stated before the Court that an adopted child gets equal status as a biological child under the Hindu Law but he does not have the same rights as of biological child under the Muslim, Christian and Parsi Personal Law, which is crucial for the mental and emotional well-being of the child. Further, it was also submitted that the mother can a natural guardian in Hindu Law but cannot in Muslim, Christian and Parsi Law. Thus, keeping mothers on a lower pedestal is against gender justice, gender equality and is contrary to Articles 14, 15 and 21 of the Constitution.
The Petitioner had also averred that the matters such as minimum age of marriage, grounds of divorce, adoption and guardianship, maintenance and alimony, succession and inheritance are secular activities and the State had not taken steps in this regard till date since it is the duty of the State to provide gender neutral and religion-neutral laws in the spirit of Articles 14, 15, 21, 44 and International Conventions.
The Petitioner had filed a PIL seeking a direction to remove the anomalies in the grounds of adoption and guardianship and make it uniform for all the citizens throughout the territory of India.
- W.P. for Succession
A Writ Petition was also filed by the Lawyer seeking Uniform Civil Code for Succession.
The Petitioner had submitted before the Court that succession and inheritance is the most crucial and pivotal affair and directly affects the right to life, liberty, and dignity, guaranteed under Article 21 of the Constitution. Further, it was also averred that discriminatory grounds of succession and inheritance not only reinforce patriarchal stereotypical notions but also contravene principles of gender justice, gender equality and dignity of women under Articles 14, 15 and 21 of the Constitution.
It was also submitted that implementing uniform grounds of succession and inheritance will strengthen constitutional ethos as laid down in Part III and Part IV of the Constitution of India.
- W.P. for Divorce
Another Writ Petition was filed by the Advocate seeking a Uniform Civil Code of Divorce.
The Petitioner had submitted before the Court that Divorce is the most traumatic misfortune for men and women but even after 73 years of Independence, divorce procedures are very complex and neither gender-neutral nor religion-neutral. Hindus, Buddhists, Sikhs, and Jain have to seek divorce under the Hindu Marriage Act. Similarly, Muslims, Christians and Parsis have their own personal laws and Couples belonging to different religions have to seek divorce under the Special Marriage Act. Hence, the grounds of divorce are neither gender-neutral nor religious-neutral.
Thus, the Petitioner had filed a PIL seeking direction to the Centre to remove anomalies in the grounds of divorce and make it uniform for all the citizens throughout the territory of India.
- Centre's Counter Affidavit
In the affidavit, the Union has submitted before the Apex Court that the purpose behind Article 44 of the Constitution is to strengthen the object of the 'Secular Democratic Republic' as enshrined in the Preamble of the Constitution. Further, it has also been submitted that Article 44 divests religion from social relations and personal law.
The Court has also been apprised of the fact that the Centre had requested the Law Commission of India to undertake an examination of various issues relating to the Uniform Civil Code and to make recommendations thereof. After this, the Law Commission undertook the examination of various aspects of the matter and received several representations from various stakeholders and uploaded a consultation paper on August 31st, 2018 titled 'Reform of Family Law' on its website for wider deliberations.
Further, it has also been submitted that since the term of the 21st Law Commission ended on August 31st, 2018, the subject matter will be placed before the 22nd Law Commission for its consideration when the Chairman and members of the Commission are appointed.
The Union has further submitted that the Petitioner has not approached the Court with clean hands since the Petitioner has also filed yet another Petition before the Delhi High Court in which the Union is Respondent No. 1 and has sought a direction to draft a Uniform Civil Code in the spirit of Article 44 of the Constitution within three months and this could also have a legal nexus with the issue involved in the present PIL.
The Centre has also submitted before the Court that under the Constitutional scheme, Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a piece of legislation as this is a matter of policy for the elected representatives of the people to decide and no direction in this regard can be issued by the Court.
While referring to a catena of judgments, it has also been stated that PIL should not be filed merely on the basis of newspaper reports.
Also, it has also been averred that to have legislation or not is a policy decision and the Court cannot give any direction to the Executive.
Stating that the Petitions are not maintainable, the Centre has stated in the affidavit that a person acting bonafide and having sufficient interest in the proceedings of public interest litigation will have alone have locus and may approach the Courts for the poor and needy suffering from violation of their statutory rights, however, in the present Petition there is nothing to suggest that the affected person has taken up any cause and approached the Court.
Thus, it has been prayed before the Apex Court to dismiss the Petitions with cost.
Cause Title - Ashwini Kumar Upadhyay v. Union of India & Ors.
Click here to read/download the Affidavit