SC Strikes A Blow For Uniform Civil Code

Source: The Times of India dated 20.02.2014

Muslim personal law can’t curtail right to adopt: SC

Strikes A Blow For Uniform Civil Code

Dhananjay Mahapatra TNN 

New Delhi: In a landmark order indirectly pushing for the Constitution-suggested Uniform Civil Code, the Supreme Court on Wednesday ruled that personal law prohibition against adoption would not bar a Muslim from adopting a child if he chose the secular Juvenile Justice (Care and Protection of Children) Act route. 

    Giving the judgment on a PIL by Shabnam Hashmi nine years back, a bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and S K Singh said the JJ Act was a secular law which gave prospective parents the option to adopt a child. “A Muslim was always free to exercise his option either to adhere to the personal law prohibition against adoption or choose JJ Act route to take a child into his/her family,” the bench said, adding “To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution.” 

    Article 44 of the Constitution says, “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” The bench said, “The vision contemplated in Article 44 of the Constitution, that is a Uniform Civil Code, is a goal yet to be fully reached.” 

    The Muslim Personal Law Board had opposed Hashmi’s plea for a uniform adoption law that would prevail over all religious prohibitions. The board had given elaborate arguments against permitting Muslims to adopt children. The board had said Islam did not recognize an adopted child to be treated on a par with a biological child. “The Islamic law professes ‘kafla’ system under which the child is placed under ‘kafil’ who provides for the well-being of the child, including financial support, and this is legally allowed to take care of the child though the child remains the descendant of his biological parents and not of the ‘adoptive’ parents,” it said. 

SHOWING THE 'SECULAR' WAY 
    The Muslim Personal Law Board prohibits adoption, says Islam does not allow an adopted child to be treated at par with a biological child 

    SC refuses to restrain a Muslim from adopting a child if he/she chooses the Juvenile Justice (Care and Protection of Children) Act route 

    However, the court also feels that the time is not ripe to lift the statutory right to adoption to the level of a fundamental right 

    The (Juvenile Justice Care and Protection of Children) Act is a small step in reaching the goal enshrined by Article 44 (Uniform Civil Code)... The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs 

    — Supreme Court Not time yet to make adoption a fundamental right, says SC 

    The board attempted to give legal recognition to its religious ‘kafla’ system by informing the court that even UN Convention of the Rights of Child recognized it as an alternative to child care contemplated under the JJ Act. The court, however, refused to restrain a Muslim if he/she chose to take JJ Act route to adopt on the grounds that faith did not permit it. 

    Writing the judgment, Justice Gogoi said, “An optional legislation (JJ Act) that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of Uniform Civil Code is achieved. The same can only happen by collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active today.” 

    The conflict in thinking fuelled by dictates of religions was also the reason why the court felt the time was not ripe to lift the statutory right to adopt to the level of a fundamental right. It said, “Conflicting view points prevailing between different communities as on date on the subject makes the vision contemplated in Article 44, that is a Uniform Civil Code, a goal yet to be fully reached and the court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution,” the court said.

Disappointed Muslim board may seek review 

New Delhi: The SC decision on Wednesday to allow people of all religions, including Muslims, to adopt children, though it is not allowed under Muslim personal law, evoked mixed reactions from the community. While Syed Zafar Mahmood, former OSD to the Sachar Committee and Zakat Foundation of India president, called it the “best that could have happened”, the All India Muslim Personal Law Board (AIMPLB) said it was considering legal options against the judgment. The AIMPLB had vehemently opposed Shabnam Hashmi’s plea for a uniform adoption law in the SC. Pointing out that Prophet Muhammad encouraged adoption, Zafar Mahmood said, “The judgment dovetails the Islamic law with the law of the land. The SC, while clearly desisting from declaring it a fundamental right, has technically enabled Muslims to opt for adoption. This is the best that could have happened.” AIMPLB spokesperson Abdur Raheem Qureshi, however, said the judgment interfered with fundamental rights guaranteed under Article 25 of the Constitution. “We are mulling legal options, including seeking a review of the judgment,” he said. SQR Ilyas of the Welfare Party called the apex court judgment “unfortunate”.