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HVK Archives: Supreme Court rejects govt report on civil code

Supreme Court rejects govt report on civil code - The Telegraph

Posted By Ashok V Chowgule (ashokvc@giasbm01.vsnl.net.in)
30 October 1996

Title : SC rejects govt report on civil code
Author :
Publication : The Telegraph
Date : October 30, 1996

This article is from an earlier data. It is being sent to
indicate the thinking of the author at that time.

The Supreme Court today rejected the Center's affidavit
ruling out a common civil code and directed it to list
steps taken towards phasing out personal laws.

A division bench presided over by Justice Kuldip Singh
asked the attorney-general, Mr Ashok H. Desai, to file a
"better" affidavit. The Centre yesterday submitted an
affidavit expressing its inability to legislate a uniform
civil code as directed by the court.

The document, submitted to the Supreme Court through the
additional secretary in the Union law ministry, Mr Ragh-
bir Singh, said it was not possible to change personal
laws of minority communities. The counsel for the Centre.
Mr V. C. Mahajan, said the government had a "consistent
policy" of not interfering in the personal laws of commu-
nities. The initiative for change should "come from the
communities concerned," he said.

A bureaucrat in the law ministry said: "Not enacting a
common civil code is a political decision of the present
government. Bureaucrats file affidavits only on the basis
of the policies of the powers that be. Tomorrow, Mr
Raghbir Singh may file an affidavit which is the reverse
of what has been rejected by the court."

On May 10, 1995, a division bench of the Supreme Court
president by Justice Kuldip Singh, in the Sarala Mudgal
case, directed the Centre to file an affidavit detailing
efforts taken to bring in a common civil code as called
for in the Constitution.

Ms Mudgal, president of Kalyani, a social welfare organi-
sation, had brought in a case involving three Hindu wives
whose husbands deserted them after marrying Muslim women
and embracing Islam.

While declaring the second marriages illegal, the Supreme
Court lamented that though the Constitution called for a
common civil code, successive governments had put the
proposal in "cold storage".

In yesterday's affidavit, the United Front government
said marriage, divorce succession and the like were
essentially religious matters" and Article 25 of the
Constitution guaranteed freedom of religion.

Hundreds of representations on the issue from minority
communities were attached to the affidavit. The law
department concerned said the government had received
1,19,980 representations from minority communities, 1,16,
539 postcards, 3,010 inland letters and telegrams. Be-
sides, office-bearers of several religious bodies have
sent 439 joint representations to the government.

The affidavit quoted Constituent Assembly debates and the
opinion of Constituent Assembly members, including B. R.
Ambedkar, in its support. Dr Ambedkar had wanted the

government to have the power to enact laws on the issue,
but it was not mandatory for the Centre to bring in a
common code contrary to the personal laws of minority
communities, it said.

The affidavit said enactment of a uniform civil law was a
"continuous" process and no over-night change was possi-
ble. Legislations on issues like abolition of child
marriages, "special marriages", removal of caste disabil-
ities and women's inheritance rights were steps towards
"slowly and steadily" achieving the goal of a uniform
civil code, it claimed.

The Centre's affidavit listed the Special Marriage Act,
1954, allowing marriages between people of different
religions, the Hindu Marriage Act, 1955, the Hindu Adop-
tion and Maintenance Act, 1956, the Hindu Minority and
Guardianship Act, 1956, and the Hindu Succession Act,
1956, which include certain minority communities such as
the Sikhs, Jains and Buddhists, as "progressive" legisla-
tions including towards a common civil code.

The attorney-general is said to be working on a new
affidavit. Officials have received "strict instruction"
not to disclose information. An irate Mr N. K. Namboodri
of the legislative department said: "I have been in-
structed no be tell you anything. Don't stand here any
more even for a minute."

"Yes, I am the official concerned (in charge of the
affidavit) but I will not say what progress has been
made," he added.

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