New Delhi: The Union law ministry told the Supreme Court that parliament exercises the sovereign right to frame laws and no outside authority can issue it a direction to enact a law, thus recommending that petitions seeking a uniform civil code (UCC) should be dismissed as non-maintainable.
The ministry made these submissions in an affidavit that was filed in response to the petitions filed by advocate Ashwini Upadhyay seeking a direction to the Union government to frame religion and gender-neutral uniform laws for divorce, adoption, guardianship, succession, inheritance, maintenance, marriage age and alimony.
“It is a settled position of law and has been held in the catena of judgments that under our constitutional scheme, Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation,” the ministry said.
“It is respectfully submitted that a writ of Mandamus (a judicial remedy in the form of an order by a court to any government or subordinate courts) cannot be issued to the legislature to enact a particular legislation.”
“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. It is for the legislature to enact or not to enact a piece of legislation. Further, in the catena of judgments it has been held that Public Interest Litigation should not be filed merely on the basis of newspaper reports,” the law ministry said in an affidavit filed last week.
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The top court had earlier sought a comprehensive response from the Union government on a batch of petitions seeking a direction to the government to frame religion and gender-neutral laws for civil matters.
Upadhyay has filed five separate petitions through advocate Ashwani Kumar Dubey, seeking such laws. The BJP leader had, in August 2020, filed the PIL seeking “uniform grounds of divorce” for all citizens, in keeping with the spirit of the constitution and international conventions. He had filed another PIL seeking “gender and religion-neutral” uniform grounds of maintenance and alimony for all citizens in accordance with the spirit of the Constitution and international conventions.
Six PILs have been filed before the Supreme Court – four by Upadhyay, one petition filed by Lubna Qureshi and another petition filed by Doris Martin – seeking enactment of a UCC.
According to LiveLaw, some of the petitions said that though the Supreme Court or high court “cannot ask the Government to implement Article 44 of the constitution”, it can direct the Union government to constitute a committee to prepare a draft of UCC.
Article 44 of the Indian constitution is a directive principle requiring the state to endeavour to secure a UCC for all citizens.
The law ministry said that the purpose behind Article 44 is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution. “This provision is provided to effect integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws. Thus, in view of the importance and sensitivity of the subject matter, in-depth study of various personal laws is required,” the affidavit said, according to LiveLaw.
The ministry assured the top court that it is conscious of the matter and that the 21st Law Commission undertook a detailed examination of the the UCC by inviting representations from several stakeholders. Since the said commission’s term ended in August 2018, the matter will be placed before the 22nd Commission, it said.
Similar pleas seeking UCC are also pending before the Delhi high court. The Union government in an affidavit filed before the HC earlier this year also said that a directive principle is a matter of public policy and no direction can be issued by the court.
(With PTI inputs)