Three decades after the Supreme Court recommended a Uniform Civil Code for the country while dealing with a controversial Muslim maintenance lawsuit famously known as the Shah Bano case, the debate on the controversial issue which keeps surfacing off and on has reignited in an unprecedented manner with the Law Commission for the first time being asked to examine its implementation. The issue has always been dear to BJP and the Sangh Parivar and very few know that incidentally it was Ashwini Upadhyay, a spokesperson of the Delhi unit of the party and a Supreme Court lawyer who began it all.

It was Upadhyay's Public Interest Litigation in the Supreme Court in December 2015 which triggered several significant observations on the issue from a bench headed by none other than Chief Justice of India TS Thakur which the government has apparently latched on to. Though the PIL was dismissed, CJI Thakur told Upadhyay: "How can a mandamus [a court order] be issued on such an issue? Constitutional goal is one thing, and possibility of them being fulfilled is yet another thing. These are the things in realm of Parliament and the Supreme Court cannot do anything. You go the government" "Let people aggrieved in a community come to this court alleging discrimination. Has anybody come forward? What cannot be done directly, you are trying to do indirectly... We cannot ask Parliament to bring the common civil code. It is up to the law makers to discuss and take a decision", the CJI said. Upadhyay, boosted by the SC observations did not lose any time and he wrote a letter to Union Law Minister Sadananda Gowda urging him to take the opinion of the Law Commission on the issue.

TRIPLE TALAQ, POLYGAMY

Yes, there are already several aggrieved before the Supreme Court too and the debate over the code has come at a most opportune time . The exercise begun by Supreme Court five months ago to examine if practices like triple talaq and polygamy permitted by Islamic personal law resulted in gender discrimination within the community has led to several "affected" Muslim women coming forward and filing petitions in the apex court challenging the validity of such practices which draw its strength from Muslim personal laws Though the timing of government approaching the Law Commission with the issue is suspect and is widely believed that it is an attempt to trigger a political debate ahead of the crucial Uttar Pradesh Assembly elections, Modi government can always cite Supreme Court's several observations on the issue. One bench had even asked the government's stand on the issue and sought an affidavit.

On October 13, 2015, the Supreme Court said there was "total confusion" in the country due to various personal laws governing religious practices and asked the Modi government to clarify if it was willing to implement the Code.

The bench had posed the query while hearing a PIL challenging the legal provision that forces Christian couples to wait for at least two years for divorce whereas other religions like the Hindu Marriage Act and the Parsi Marriage and the Special Marriage Act, and Divorce Act prescribed only one year for it.

CRY FOR SPECIAL BENCH



Two weeks later, another bench of the court on its own orders registration of a PIL and urged then Chief Justice HL Dattu to set up a Special Bench to consider gender discrimination suffered by Muslim women owing to "arbitrary divorce and second marriage of their husbands during the currency of their first marriage". SC wanted an answer from Centre to the question as to whether "gender discrimination" suffered by Muslim women should not be considered a violation of the Fundamental Rights under Articles 14, 15 and 21 of the Constitution and international covenants. The Modi government has now asked the Law Commission to "examine" the issue of implementing the controversial UniformCivil Code "in detail and submit a report".

The commission, at present headed by retired Supreme Court judge Balbir Singh Chauhan is expected to submit the report after holding wideranging discussions with all the stakeholders. Article 44 of the Indian Constitution sets implementation of the code as a duty of the state. UCC will set common personal laws for all citizens, irrespective of the religion, setting aside the current form of different set of personal laws for different communities. There are different personal laws for Hindus and Muslims which cover property, marriage and divorce, inheritance and succession.

Also read: Uniform Civil Code soon? Modi government writes to Law Commission