New Delhi: The Supreme Court on Tuesday suggested that the Uniform Civil Code (UCC) could be the way to address gender discrimination in personal laws, hitting a controversial and polarizing issue that is also the only major unfinished ideological agenda of the Bharatiya Janata Party (BJP), which has been in power at the Center since 2014.
Hearing a petition challenging Islamic inheritance rules as discriminatory against women, the Supreme Court noted that long-standing concerns about gender discrimination in personal status laws may eventually require legislative action in the form of a personal status law.
During the hearing, a bench comprising Chief Justice of India Surya Kant and Justices R Mahadevan and Joymalia Bagchi repeatedly referred to the UCC’s constitutional directive, suggesting that structural reforms in personal laws across communities could be better addressed through legislation rather than judicial intervention.
“The answer is Uniform Civil Code,” the bench observed while hearing submissions of advocate Prashant Bhushan, who represented the petitioners.
The court was considering a petition filed by lawyer Poulomi Bhavini Shukla and the Nyaya Nari Foundation, challenging the provisions of the Islamic Personal Status Law related to inheritance, which the petitioners said deprived Muslim women of equal rights compared to men.
The hearing comes amid renewed debate over UCC, which refers to a common set of laws governing personal matters such as marriage, divorce, adoption, inheritance and succession, and which applies to all citizens regardless of religion.
Currently, different religious sects in India follow separate personal laws.
For example, Hindus are subject to laws such as the Hindu Marriage Act and the Hindu Succession Act, Christians are subject to the Indian Christian Marriage Act and the Indian Divorce Act, and Parsis are subject to the Parsi Marriage and Divorce Act.
In contrast, Islamic personal status law remains largely uncodified and is derived from religious texts, although some aspects are recognized through laws such as the Sharia Application Act of 1937 and the Dissolution of Islamic Marriage Act of 1939.
Article 44 of the Constitution states that the State shall endeavor to secure a uniform civil code throughout India.
Although the Directive Principles are not enforceable in courts, constitutional jurisprudence has repeatedly emphasized that they are fundamental to governance.
In several landmark decisions, including Shah Bano (1985) and Sarla Mudgal (1995), the Supreme Court highlighted the need for greater uniformity in personal laws, while also making clear in subsequent rulings that courts cannot force the government to enact personal law.
Recently, Uttarakhand became the first state to implement UCC, introducing a framework governing marriage, divorce and cohabitation relationships across communities. Gujarat has formed a committee to come up with the UCC project.
On Tuesday, the court asked whether courts could examine the constitutionality of practices rooted in personal status law.
She referred to the ruling of the Bombay High Court in the Narasu Appa Mali case, which held that uncodified personal laws were not subject to constitutional scrutiny.
The authority also raised concerns about the consequences of abolishing these provisions without an alternative legal framework.
She wondered that if the court decided to invalidate the inheritance rules derived from Islamic law, would this not create a legal vacuum for Muslim women, given the absence of a comprehensive legal framework governing Islamic inheritance?
“In our undue concern about reforms, we may end up depriving her,” the bench said, warning that judicial intervention could inadvertently put the woman in a worse position than the one she currently occupies.
“If the Sharia Law of 1937 is repealed, what then will be the situation? Will it not create an unnecessary vacuum?” Ben asked.
Bhushan responded that in such a scenario Indian inheritance law could be applied and said the court could declare that Muslim women are entitled to equal inheritance rights.
He relied on the Supreme Court’s 2017 Shiara Bano ruling, which struck down the practice of instant triple talaq, to assert that discriminatory personal law practices could be tested against constitutional guarantees.
According to Bhushan, inheritance is a matter of civil rights and cannot be protected under Article 25, which protects freedom of religion. Such matters cannot be treated as basic religious practices, Bhushan said.
However, the body repeatedly returned to the broader constitutional scheme, noting that reforms involving communities might be better addressed through Parliament’s legislative powers.
Referring to Article 44 of the Constitution – a directive of state policy urging the state to secure UCC for citizens – the court highlighted that courts have historically emphasized the importance of such reform but have refrained from issuing binding directives to the government.
The Supreme Court bench also highlighted how differences in personal status law between communities raise complex constitutional questions that may not be resolved through isolated judicial interventions.
To illustrate this point, the bench noted that even widely accepted norms, such as monogamy, are not applied uniformly in all societies.
“But does that mean the court can declare all bigamy unconstitutional?” he asked the jury, adding that courts must be mindful of the limits of jurisdiction when dealing with matters that fall within the legislative domain.
“It is better to defer to legislative wisdom,” the Council noted, noting that the courts had previously recommended that Parliament consider moving towards a unified civil framework.
The court also noted that judicial scrutiny may be more appropriate in petitions filed directly by Muslim women seeking relief from discriminatory provisions under the Muslim Personal Law Implementation (Shariah) Act, 1937.
Bhushan noted that some of the petitioners in this case are Muslim women.
The court then proposed amending the petition to specify possible legal remedies in the event of the inheritance provisions being cancelled.
After Bhushan agreed to amend the petition accordingly, the court adjourned the case for further hearing.
