Hindustan Times ·
Crime, law and justice
BJP’s state-by-state push for UCC raises a key question: Is it ‘uniform’ code?
Amit Shah wants UCC in all 21 NDA-ruled states by 2029. The state route is constitutional, but tribal exemptions and differing rules test what uniform means.
Union home minister Amit Shah’s announcement last week that the Uniform Civil Code (UCC) will be implemented in all 21 states governed by the BJP-led National Democratic Alliance (NDA) before 2029 was telling of how the party was pursuing one of its longest-standing ideological promises.
Instead of going through Parliament to enact a single national code, the Union government and states with BJP in governance were attempting to build a common civil-law framework one state at a time, beginning with Uttarakhand and now moving through Assam and Madhya Pradesh, with Gujarat preparing to follow.
The approach raises a fundamental constitutional question: if Article 44 speaks of securing a UCC “throughout the territory of India”, why is the project being pursued primarily through state legislatures?
What is UCC?
UCC is essentially a common set of rules governing personal civil matters irrespective of a person’s religion. These include marriage, divorce, adoption, maintenance, guardianship, inheritance and succession.
India currently does not have such a uniform regime. Different communities are governed by a combination of secular statutes and personal laws. Hindu personal law has largely been codified through statutes such as the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. Christians and Parsis have separate marriage and divorce laws. Muslim personal law remains substantially uncodified, although the pre-Independence central legislature enacted laws such as the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939.
The constitutional basis for the UCC is Article 44, which states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. But Article 44 is part of the Directive Principles of State Policy and is therefore not enforceable by a court. Article 37 expressly says that the Directive Principles are not enforceable, while also declaring them fundamental to the governance of the country and making it the State’s duty to apply them in making laws.
Article 44 sets out a constitutional objective, not a directly enforceable right to demand a UCC. The Supreme Court has repeatedly acknowledged the importance of that objective, but has also made clear that the choice of whether and how to achieve it belongs principally to the legislature.
Another crucial constitutional provision underpins state-led passage of UCC.
Entry 5 of the Concurrent List in the Seventh Schedule expressly covers “marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition”, as well as matters in which parties were historically subject to personal law.This means both Parliament and state legislatures have legislative competence over these subjects.
So, constitutionally, states are not trespassing into an exclusively parliamentary field by legislating on the UCC. The more difficult question is whether a patchwork of state-level codes can ultimately satisfy the constitutional aspiration of a uniform code across India.