Wednesday, July 23, 2003
The Supreme Court and the Uniform Civil Code
The SC has again regretted the fact that the Government of India has not evolved a Uniform Civil Code for all Indians. Many people seem puzzled as to why the SC did not just order the government to evolve a UCC. In fact, for a fleeting moment, I thought the Courts could just usurp the power of the executive and legislature and come up with broad, binding orders creating such a uniform law. It would be possible if the SC were considered a part of the State machinery. The courts in India are NOT included in the definition of the State. So, they cannot usurp the power and enforce the UCC.
They cannot even order the govt to enforce UCC. Article 44 comes under the Directive Principles of State Policy. These are advices that the framers of the constitution placed on record for all govts to come... So, UCC is not a fundamental right of the citizen. Directive Principles are not enforceable. The constitution itself states so clearly:
" The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws."
In fact, the SC has only regretted, and not ordered the govt only because of this fact.
To make the point of unenforceability clearer, let me give u an example. Article 45 states that:
" The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years."
Forget 1960, to this day, this has not been achieved. This does not mean that the Government has acted unconstitutionally.
Some DPSPs are completely absurd even... Article 51 is a case in point:
The State shall endeavour to -
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and
(d) encourage settlement of international disputes by arbitration.
It is possible to argue that Article 51(d) means that we *should* seek UN intervention in Kashmir dispute!
The fundamental problem is the idea of a benevolent state that the framers of the Indian constitution held. While the founding fathers of US like Thomas Paine held the concept of state in utter contempt, ours did not.
Sample this from Thomas Paine:
"Society in every state is a blessing, but government, even in its best stage, is but a necessary evil; in its worst state an intolerable one."
This kind of contempt led them to never trust the Governments of the future to do anything. They never trusted them to follow thru on any of their advice. They, in fact, as much as possible, took power away from the government. Hence their focus on individual liberty.
Indians did not hold such a contempt. They were so trusty of the Government, they even allowed the Governments to enjoy the full power of that very penal code which the British had used to run an imperial state. They believed that if the nature of the rulers determined the consequences of the laws - a fundamentally wrong assumption according to Paine and others.
Had the libertarians written the Indian constitution, even if they had reluctantly allowed a non-UCC in the first place, they would have made Art 44 it like this:
"All citizens shall enjoy a Uniform Civil Code from the commencement of the tenth year from the acceptance of this constitution. The Parliament shall have the power to enforce this article by appropriate legislation. This article shall not be amended."
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