Delhi High Court
Mool Chand Kucheria vs Union Of India & Anr on 28 May, 2014
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th May , 2014
+ W.P.(C) 3604/2014
MOOL CHAND KUCHERIA ..... Petitioner
Through: Mr. Kaushal Yadav, Adv.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mrs. Abha Malhotra, Adv. for R-1&2.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 226 of the Constitution of India filed as a
Public Interest Litigation seeks a direction to the Govt. of India, to
implement in a time bound manner the suggestion contained in the judgment
of the Supreme Court in Sarla Mudgal Vs. Union of India 1995 (3) SCC
635 to secure for the citizens a uniform Civil Code throughout the territory
of India and also seeks a direction for constitution of a Committee of
religious Gurus / Experts to see the smooth implementation of the said
guidelines.
2. The Supreme Court in Sarla Mudgal supra while dealing with the
petitions under Article 32 of the Constitution of India concerned with the
status of the second marriage of a Hindu husband after conversion to Islam
held such second marriage to be a void marriage in terms Section 494 of the
IPC. However earlier judgments of the Supreme Court on the need for a
uniform civil code throughout the territory of India and the long way it will
go in solving the problems were noticed and it was observed that the
Government would be well advised to entrust the responsibility to the Law
Commission to bring about the comprehensive legislation in keeping with
modern day concept of human rights.
3. Nevertheless the fact remains that the Supreme Court, inspite of
having held so, did not issue any direction as the petitioner is asking us to
issue. The reason therefor is clear from the other judgments of the Supreme
Court. The Supreme Court in A.K. Roy Vs. Union of India (1982) 1 SCC
271 held that it is not for the Courts to censure the Executive nor is it for the
Courts to take over the function of the Parliament, otherwise, there will be
chaos with each organ of the State overstepping its jurisdiction and
interfering with the functions of another organ of the State. Similarly, in
State of Himachal Pradesh Vs. A Parent of a Student of Medical College,
Shimla (1985) 3 SCC 169, the order of the High Court of the Himachal
Pradesh directing the filing of an affidavit setting out what action had been
taken towards implementation of the recommendations contained in the
report of the Anti-Ragging Committee, was set aside and it was held that the
order of the High Court so directing was wholly unsustainable even though
made in a public interest litigation. It was held that the direction of the High
Court amounts to compelling the Government to initiate legislation and
which the Court was not entitled to do. The Supreme Court held that it is
entirely a matter for the executive branch of the Government to decide
whether or not to introduce a particular legislation and is not a matter which
is within the sphere of the functions and duties allocated to the judiciary
under the Constitution. It was yet further held that the Courts cannot even
indirectly require the executive to introduce a particular legislation or the
legislature to pass it and the Courts cannot assume to itself a supervisory role
over the law making activities of the Executive and the Legislature.
4. Reference may also be made to Common Cause (A Regd. Society)
Vs. Union of India (2008) 5 SCC 511 holding that Courts cannot create
rights where none exist nor they can go on making orders which are
incapable of enforcement or direct legislation or proclaim that they are
playing the role of a law maker, merely for an exhibition of judicial valour.
5. Mention may lastly be made to the judgment of the Full Bench of this
Court in Common Cause Vs. Union of India AIR 2001 Delhi 93 affirmed
by the Supreme Court in the judgment by the same name reported in AIR
2003 SC 4493, also holding that no mandamus could be issued by the Courts
for bringing into force of legislation. A good discussion on the subject and
reiteration of the principle can also be found in the recent judgment of the
Supreme Court in V.K. Naswa Vs. Home Secretary, UOI (2012) 2 SCC 542
where it was held that Courts have a very limited role and in exercise of that,
it is not open to have judicial legislation. It was further held, neither the
Courts can legislate nor the Courts have any competence to issue directions
to the legislature to enact the law in a particular manner.
6. The counsel for the respondent appearing on advance notice has also
invited our attention to Pannalal Bansilal Patil Vs. State of Andhra
Pradesh AIR 1996 SC 1023 where it was inter alia held as under:-
"12. The first question is whether it is necessary
that the legislature should make law uniformly applicable
to all religious or charitable or public institutions and
endowments established or maintained by people
professing all religion. In a pluralist society like India in
which people have faith in their respective religions,
beliefs or tenets propounded by different religions or
their off-shoots, the founding fathers, while making the
Constitution, were confronted with problems to unify and
integrate people of India professing different religious
faiths, born in different castes, sex or sub-sections in the
society speaking different languages and dialects in
different regions and provided secular Constitution to
integrate all sections of the society as a united Bharat.
The directive principles of the Constitution themselves
visualize diversity and attempted to foster uniformity
among people of different faiths. A uniform law, though
is highly desirable, enactment thereof in one go perhaps
may be counter-productive to unity and integrity of the
nation. In a democracy governed by Rule of Law, gradual
progressive change and order should be brought about.
Making law or amendment to a law is a slow process and
the legislature attempts to remedy where the need is felt
most acute. It would, therefore, be inexpedient and
incorrect to think that all laws have to be made uniformly
applicable to all people in one go. The mischief or defect
which is most acute can be remedied by process of law at
stages."
7. We therefore do not find any ground to entertain this petition which is
dismissed.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
MAY 28, 2014
pp
