Senior Advocate and spokesperson of the Bharatiya Janata Party, Ashwini Upadhyay, has been waging a battle in the Courts for the implementation of a Uniform Civil Code. He had filed a PIL seeking a direction to the Central Government to draft a UCC in the spirit of the Constitution.
On the face of it, Upadhyay’s intentions appear noble. However, as the wise men say, the road to hell is paved with good intentions. Therefore, we ought to consider the PIL on the basis of its own merit and not the virtue of its intentions. For when consequences are terrible, good intentions are little consolation.
Implementation of the UCC should be the sole prerogative of the elected Central Government, not the Judiciary. It ought to be left to people who have been elected by the citizens of this country. An unelected body, which has developed tyrannical tendencies in recent times, should have nothing to do with it. If the Judiciary starts interfering with consequential matters such as the UCC, then what is the point of voting in elections?
Upadhyay’s PIL does not wish for the Judiciary to interfere with its drafting. He merely wants a direction to be issued to the Law Commission in that particular regard. However, whether such a code should be drafted at all should be entirely the prerogative of the elected government. If they do not, then it should be the responsibility of the voters to hold them accountable, not the Judiciary. If the elected government believes that the UCC is not a necessity, then it is up to the voters to either reward or punish them, not the Supreme Judiciary.
The person who filed the current PIL is a member of the party with 303 MPs in the Lok Sabha. Instead of involving the Judiciary, a better strategy would be getting the top leadership of the BJP on board with his plans. His party has the strength to bulldoze through the idea if it’s serious about it. A PIL appears to be a misguided strategy.
The larger issue is the constant ground that the elected government, over the course of the past three decades, has been ceding to the Judiciary. For much of the time period, India was ruled by coalition governments which often had parties with antagonistic ideologies in power. As a consequence, governments often found it hard to take hard decisions on consequential matters. While the government abdicated its responsibilities, the Judiciary saw it as an opportunity to extend its own power. And as a result, the ‘tyranny of the unelected‘ became rampant in the country.
When the BJP was elected to power in 2014 with a resounding majority, it had the opportunity to thwart the devious schemes of the Judiciary. Initially, it even made efforts to disband the Collegium system through the NJAC. However, after the Judiciary unconstitutionally deemed it illegal despite the fact that it was passed by all necessary legislative bodies, the NDA government abandoned its efforts.
In 2019, the country has again reposed its faith on Narendra Modi and elected him to power with an even greater majority. Therefore, it’s of paramount importance that it bells the cat and puts the Judiciary in its place. The government should tell the Judiciary clearly that it has no business issuing it any orders in matters such as the UCC. One would have expected members of the party to realize the manner in which the Judiciary has been usurping the power of the elected. That a spokesperson of the party himself approached the Courts in the matter is concerning indeed.
Not only the UCC, the government should stamp its feet on Rohingyas, the Ram Mandir issue and Sabarimala as well. The government cannot afford to abdicate its responsibility any longer. When unelected tyrants who are not accountable to Indian citizens in any manner usurp the powers of the elected, the country suffers.
The government fiddled when the Judiciary sanctioned the desecration of the Sabarimala Temple. The government has been maintaining a stoic silence while the Supreme Court does everything it can to avoid issuing a verdict on the Ram Janambhoomi case. An argument can also be made that the Judiciary was interfering in the elections, either willingly or unwittingly, by prolonging its hearings on the Rafale Deal. Somehow, the matter has gone unusually quiet after the results were declared.
The Judiciary of the country has acquired tyrannical tendencies and is actively subverting the will of the people. Its judgments are often contradictory and fails to inspire the trust of citizens. In certain cases, it waxes eloquence on the freedom of expression of individuals while on others, it asks individuals to apologize for a meme. The Supreme Court allowed the desecration of the Sabarimala, however, it refused to even entertain a PIL that seeks to permit the entry of Muslim women in Mosques. While it takes up PILs filed by Rohingyas, it prevaricates when it comes to the Ram Janambhoomi case.
As such, the primary responsibility of the government is to put a leash on it. The members of the ruling party should not be inviting the Judiciary to further infringe upon the domain of the elected.