The Supreme Court on Thursday agreed to examine a PIL challenging parts of the Muslim Personal Law (Shariat) Application Act, 1937, even as it flagged the limits of judicial intervention and called a uniform civil code a “constitutional ambition.”
A bench led by Chief Justice Surya Kant, along with Justices Joymalya Bagchi and Vipul M Panchol, issued notice to the Union Ministry of Minority Affairs and sought its response on the plea filed by a non-Muslim party — Poulomi Pavini Shukla and the Nyaya Naari Foundation.
At the outset, the bench appeared hesitant, noting that striking down or altering provisions of the 1937 law could amount to judicial legislation. “We can neither legislate nor create amendments,” the CJI said, cautioning that replacing personal laws with the Indian Succession Act may cross into Parliament’s domain.
The court, however, agreed to hear the matter after senior advocate Prashant Bhushan argued that certain provisions violate women’s fundamental right to equality under Article 14.
Calling the uniform civil code a “constitutional ambition,” the CJI added, “it has nothing to do with religion.”
The bench also questioned the maintainability of the petition in its current form. “Can someone who is not a Muslim file such a petition?” the CJI asked, suggesting that affected Muslim women should be part of the proceedings.
He directed Bhushan to bring “actual sufferers” on record. “You will have to add the affected women as party/intervenors so that it doesn’t appear to be an issue of other persons challenging a faith,” he said, noting that Article 25 concerns may arise later.
Bhushan told the court that several Muslim organisations have issued statements backing the plea, stressing that inheritance rights of Muslim women must be protected.
Arguing the case, he said the 1937 law discriminates against women in matters of inheritance. “In the absence of uniform civil law, 100 million Muslim women [are] being discriminated against women receive half or even less of what male counterparts receive,” Bhushan said, calling it a violation of Article 14.
“It’s discriminatory to say women will get half or less than what male counterpart will get This can’t be essential religious practice protected under Article 25,” he added, describing the issue as “purely civil.”
The petitioner argued that the provisions are not an essential religious practice and restrict individuals’ right to dispose of self-acquired property. “Every Muslim who has self-acquired property is being denied the right to will their property according to their decision,” the plea said, adding that they are bound by the Shariat Act.
Justice Bagchi observed that “reformation should come from within the sect itself,” while also remarking that “the answer is in the Constitution.”
Bhushan countered that even Hindu law is not entirely uniform and includes customs and local practices. “For drafting the UCC, one must incorporate the most liberal aspects from all religions which protect the rights of the most people,” he said, adding that any such code should not reinforce fears that it would be based solely on the Hindu Code.
The bench acknowledged concerns about overreach. Justice Bagchi asked whether it falls within the judiciary’s scope “to make social reforms,” even as Bhushan maintained that the Supreme Court has the power to strike down discriminatory laws.
Issuing notice, the top court said it would proceed cautiously, mindful of both constitutional principles and the limits of its role.
– Ends
With PTI inputs
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