Uniform Civil Code: No uniformity in legal voices over states' power

While some argue that the Parliament is entrusted with enacting UCC, others point to states having the power to legislate on personal laws

Uttarakhand Chief Minister Pushkar Singh Dhami earlier this week said the draft proposal for the implementation of the Uniform Civil Code (UCC) was ready and the state government would come up with a final report on the matter in two months.

This poses the question whether states have the power to enact such a personal law. According to legal experts, the answer is not that simple. It depends on the interpretation of Article 44 of the Constitution, which says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

“As held by the Supreme Court, the power of states to legislate on subjects to the extent entrusted upon Union Parliament, whether exercised or not, be deemed to be restricted. This means that if the power to legislate upon a matter is entrusted upon Parliament, whether Parliament has exercised the same or not, states should not legislate on it,” said Rohit Jain, managing partner, Singhania & Co.

As the language used in the Constitution is "throughout the territory of India", it indicates the Union Parliament is entrusted with the responsibility to legislate upon a common UCC for the entire country, Jain argued.

Article 44 (then Draft Article 35) was debated by the Constituent Assembly on November 23, 1948. “The debate records that most stringent opposition came from Muslim members, who attacked the Article claiming that the UCC would violate freedom of religion and cause disharmony within the Muslim community. Importantly, they debated that there was already a common Civil Code in India and the only difference with the new code would be that it would cover marriage and inheritance, too," Jain said.

The Article was eventually adopted with the understanding that, as a Directive Principle, Parliament was not required to put the provision into effect immediately and that it may do so after consensus among communities.

“From the Constituent Assembly debate, it appears that the UCC may be read into the concurrent list. However, the endeavour of different states to bring their own UCC is contrary to the intention with which this Article was implemented, that is, to have a common UCC throughout the country,” according to Jain.

But Manini Roy, senior associate, TAS Law, has a different view on the issue. “Article 44 of the Constitution of India provides the right to the State to secure for its citizens a UCC. States are empowered to legislate upon personal laws, such as intestacy and succession, wills, joint family and partition, marriage and divorce, etc. All these forms part of Entry 5 of List-III-Concurrent List of the Seventh Schedule to the Constitution. Therefore, the State can have its own UCC,” she argued.

Suvigya Awasthy, associate partner, PSL Advocates & Solicitors, said there was doubt that according to Entry 5 of the Concurrent List in the Seventh Schedule, state governments are empowered to enact laws relating to a wide variety of subjects under the umbrella of personal laws and as specified therein. “The only caveat that comes along with state governments being empowered to enact laws pertains to the existence of the law enacted by the Central government, in which case, the law enacted by states will have to conform with the central law,” she said.

The power of the States to have a Uniform Civil Code finds its genesis in Entry 5, List III of the Concurrent list of the Seventh Schedule. States have been given the power to legislate on issues, such as succession, marriage, and divorce -- all of which are often cumulatively referred to as ‘personal laws’. So, while it seems simple and straight, that may not be the case, said Wasim Beg, partner, Luthra and Luthra Law Offices India.

"It is fair to say that the framers of the Constitution certainly intended the State to strive for 'a uniform civil code throughout the territory of India', rather than different versions of it across the Union's states. That is at the heart of the various legal opinions on the subject," he said.

Beg said states do have the power to legislate on subjects touching upon issues like marriage, divorce, and adoption, and any possible contradiction with Article 44 can be overlooked since Directive Principles of State Policy are not enforceable in a court and are mere ‘directory’ in nature. “However, this argument, although legally sound, would have to come at the expense of the seemingly obvious intent of the framers of the Constitution -- to strive for a uniform civil code ‘throughout the territory of India’. Different states having their own versions of the UCC can only have the opposite impact -- different/varying laws throughout the territory of India,” he apprehended.

According to Tushar Agarwal, who focuses on criminal law, constitutional law and commercial arbitration, based on the scheme of the Constitution, Article 162 indicates that the executive power of a state extends to matters concerning which the legislature of the state has the power to make laws. However, this power of the state executive is subjected to the executive power of the Union.

“The Union of India has not come up with any UCC, therefore a state executive endeavouring to implement a UCC within the territory of its ruling state is well within its power. Once the Union of India comes up with a UCC, the powers of the state executives will be subjected to the UCC implemented by the Union of India,” he said.

Recently, a few individuals approached the Supreme Court challenging the constitution of the committee on the Uniform Civil Code, set up by Uttarakhand. However, the Chief Justice of India dismissed the writ petition (civil) for being devoid of merits in terms of Entry 5 of Concurrent List & Article 162 of the Constitution.

“Therefore, in absence of the promulgation of a UCC by the Government of India, the constitution of the committee on a UCC by an individual state government cannot be per se unconstitutional,” he said.

Uniform civil code in other states

The UCC in Goa, known as Goa’s Portuguese Civil Code of 1867, is divided into four parts that deal with civil matters concerning property, acquisition of rights, right to property, and breach of those rights and remedies for the same. This code has found its survival by Section 5 (1) of the Goa, Daman and Diu Administration Act of 1962, which has permitted its continuance in the state.

As far as the marriage aspect is concerned, the Goa Civil Code elaborates upon the registration of marriages wherein the intent to marry is recorded by to-be spouses before the civil registration authorities, and after two weeks, the deed of marriage is executed.

The Goa Code also empowers ecclesiastical courts to nullify Catholic marriages. “However, in the case of non-Catholics, the power to nullify marriages lies only with civil courts, thus raising questions about the nature of uniformity between Catholic and non-Catholic marriages. A Hindu husband can take a second wife in the absence of an objection if the wife has completed 25 years of age and also attained 30 years of age without having a son. Additionally, this Code also makes provisions for pre-nuptial agreements," said Roy of TAS Law.

In May last year, the government of Uttarakhand formed a five-member committee, led by former Supreme Court judge (retired) Ranjana Prakash Desai to prepare a draft proposal for the implementation of UCC in the state.

The draft code focuses on equality among all, irrespective of religion, caste, and gender. The marriage registration under one law, the nullification of marriage under one law, the succession and intestate, partition, etc, are all made keeping in view the spirit of the Uniform Civil Code.

Talking about the Goan Civil Code, Beg said it is far from a "uniform" civil code and, in many places, ends up being a set of different laws for different people. “What the Uttarakhand draft will have in store is not known yet. The committee’s points of reference include marriage, divorce, property rights, and laws about rights of inheritance, heritage, and adoption. We do not have access to it yet. Some other states have expressed their inclination for having a UCC and how it stands legal scrutiny will only be cleared in due course,” he said.

On the other hand, Awasthy said Goa was the first Indian state to enact the UCC, owing to the implementation of the same by the Portuguese. “However, the laws that were implemented in Goa continued to remain part of the state even after its independence, and thus, the UCC has continued to be implemented in Goa without any hesitation. It has been largely advocated that the implementation of the UCC in Goa has been towards the brighter side, owing to the gender-neutral framework that is enjoyed by every individual -- which is  now being sought to be implemented by other states, such as Uttarakhand,” he said.