NEW DELHI: The Supreme Court on Monday declined to wade into the community-sensitive debate over the desirability of bringing in a uniform civil code as envisaged in Article 44 of the Constitution, informing a PIL petitioner that the initiative rested with Parliament and not the judiciary.

Yet, the court kept the judicial window ajar for Muslim women who find themselves at the wrong end of triple talaq. “If a Muslim woman victim of triple talaq comes to the court and questions the validity of the divorce procedure, we can surely examine the legality of triple talaq and find out whether it violated her fundamental rights,” a bench of Chief Justice T S Thakur and Justices A K Sikri and R Banumathi said.

While an individual’s right to judicial remedy is clear enough, the court said no woman from the Muslim community had as yet challenged triple talaq on the ground that it was discriminatory while observing that the issue was not germane to the petition.

Petitioner advocate Ashwini Upadhyay, a BJP activist, employed four senior advocates including two former solicitors general — Gopal Subramaniam and Mohan Parasaran — to drive home the necessity of the uniform civil code in a multi-ethnic and multi-cultural country like India to ensure Hindus, Muslims, Christians and Sikhs were treated equally under civil law.

Subramaniam referred to the SC’s 1995 judgment in Sarla Mudgal case, in which the apex court had said, “Where more than 80% of citizens have already been brought under codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of uniform civil code for all citizens in India.”

Article 44 of the Constitution, under Directive Principles chapter, says, “The State shall endeavour to secure for the citizens a uniform civil code (UCC) throughout the territory of India.”

The clamour for uniform civil code had picked up after a two-judge bench of the SC issued notices to the attorney general and the legal services authority asking whether Muslim women suffered gender discrimination because of the personal law governing the community.

But the three-judge bench headed by the CJI refused to be swayed beyond what had been said by the SC in its earlier judgments, be it Shah Bano, Daniel Latifi, Sarla Mudgal or John Vallamattom.

Refusing to entertain Upadhyay’s PIL, the bench told Subramaniam, “Sarla Mudgal case is the best that you can refer to in support of the PIL. Article 44 is a constitutional goal. Are courts equipped and empowered to enforce constitutional goals? It reflects the hopes of Constitution makers. But hopes will remain in the realm of hope unless Parliament decides to convert them into enforceable rights.

“The Supreme Court has consistently declined to go into it. The moot question is can Supreme Court convert a Directive Principle into fundamental right? It is for Parliament to take a call on it. What cannot be done directly, cannot be done indirectly through the courts.”

However, the CJI-headed bench held out hope for Muslim women and assured them that the court would not back out from its duty to protect their rights, whatever might be the controversy or cost. “If a Muslim woman comes to the court and says triple talaq is bad, this court can examine it. But that is not the issue in this petition,” it said.

“It is pertinent that no woman from Muslim community till date has questioned triple talaq on the ground that the process was discriminatory against them,” the bench said and conveyed that if the petition was not withdrawn, it would consider imposing heavy cost on the petitioner. The petition was quickly withdrawn by Subramaniam.