Author(s): Ishika Gurjar
Paper Details: Volume 4, Issue 4
Citation: IJLSSS 4(4) 10
Page No: 96 – 102
ABSTRACT
The Uniform Civil Code (UCC) occupies a peculiar position in the Indian constitutional scheme — enshrined as a Directive Principle of State Policy under Article 44, yet persistently deferred for more than seven decades after independence. Its enactment by Uttarakhand in 2024, making it the first state in independent India to operationalise such a code, has reignited a debate that sits at the intersection of constitutional law, religious personal law, federalism, and minority rights. This article examines the constitutional foundations of the UCC, the principal objections rooted in religious freedom and federal competence, and the specific features and critiques of the Uttarakhand Uniform Civil Code Act, 2024. It further assesses whether a phased, opt-in model of uniformity — rather than a single imposed national code — might offer a constitutionally and politically sustainable path forward. The article concludes that while the aspiration for a common civil code is constitutionally sound and socially progressive, its realisation demands a process marked by genuine democratic deliberation, minority consultation, and gender justice as its animating purpose rather than as an afterthought.
Keywords: Uniform Civil Code; Article 44; Personal Laws; Uttarakhand UCC; Secularism; Gender Justice; Federalism.
1. INTRODUCTION
Article 44 of the Constitution of India directs the State to endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.1 Placed among the Directive Principles of State Policy, this provision has been aspirational in character since its adoption — non-justiciable, yet constitutionally significant as a reflection of the framers’ vision of a modern, secular republic in which the law governing marriage, divorce, inheritance, and adoption would eventually be the same for every citizen regardless of religious affiliation.
For over seven decades, successive governments at the Centre have refrained from legislating a UCC, treating it as a matter too politically sensitive to be resolved by ordinary parliamentary arithmetic. The Supreme Court, however, has intermittently reminded the State of its constitutional obligation.2 The debate was substantially reinvigorated when Uttarakhand, under the Uniform Civil Code Uttarakhand Act, 2024, became the first state in independent India to enact a comprehensive code governing personal law matters for its citizens.3
This article proceeds as follows. Part 2 traces the constitutional foundation of the UCC and its relationship with the right to religion under Articles 25 and 26. Part 3 examines the federal dimension of the debate, particularly whether a state legislature has competence to enact such a code. Part 4 analyses the substantive provisions and critiques of the Uttarakhand Act. Part 5 assesses alternative models for achieving gradual uniformity. Part 6 concludes with observations on the way forward.
2. CONSTITUTIONAL FOUNDATIONS AND THE RELIGION-REFORM TENSION
The inclusion of Article 44 in the Constitution was itself the product of a compromise. Several members of the Constituent Assembly, most notably Dr. B.R. Ambedkar, argued forcefully for a UCC as a vehicle of gender justice and national integration, while others, including members from Muslim personal law groups, expressed concern that the codification of civil law would amount to an encroachment upon religious freedom.4 The resolution was to place the provision among the Directives rather than the Fundamental Rights, thereby preserving the aspiration without immediately imposing an obligation.
The tension between the UCC and religious freedom has shaped the legal discourse ever since. Article 25 guarantees to every person the right to freely profess, practise, and propagate religion, while Article 26 protects the right of religious denominations to manage their own affairs in matters of religion.5 Personal law systems, in so far as they regulate matters such as marriage and succession, claim shelter under these provisions, though the courts have consistently held that personal laws in force immediately before the Constitution were not ‘laws in force’ within the meaning of Article 13 and therefore could not be directly challenged as violating fundamental rights.6
The Supreme Court addressed this tension most directly in Sarla Mudgal v. Union of India, where it lamented the absence of a UCC and directed the Government to take fresh steps towards its enactment, observing that a UCC would help in the cause of national integration by removing contradictions based on ideologies.7 In John Vallamattom v. Union of India, the Court reiterated that Article 44 had remained a dead letter and that no suo motu action had been taken by the State to enact a UCC.8 These observations, while not amounting to enforceable directions, placed consistent moral and constitutional pressure on successive legislatures.
It is also important to appreciate that the UCC debate has an inextricable gender dimension. Existing personal law systems, across religious communities, have historically disadvantaged women with respect to rights of divorce, inheritance, guardianship, and matrimonial property. The Hindu Succession (Amendment) Act, 2005, which conferred equal coparcenary rights on daughters, and the Muslim Women (Protection of Rights on Divorce) Act, 1986, which emerged from the politically charged Shah Bano controversy,9 illustrate how reform through individual statutes has been possible but uneven and piecemeal. A UCC, if genuinely oriented towards gender justice, would offer a more systematic corrective.
3. THE FEDERAL DIMENSION: LEGISLATIVE COMPETENCE AND STATE POWER
A question that has received insufficient attention in the popular discourse on the UCC concerns legislative competence. The Seventh Schedule to the Constitution distributes legislative power between Parliament and the state legislatures. Entry 5 of the Concurrent List covers marriage and divorce, intestacy and succession, joint family and partition, and adoption and wills.10 This means that both Parliament and a state legislature are, in principle, competent to legislate on these subjects, subject to the rule that a state law inconsistent with a parliamentary law on the same subject will, to the extent of the inconsistency, be void under Article 254.
It follows that a state legislature possesses the constitutional competence to enact a code governing personal law matters for persons within its territory, provided that the state law does not conflict with any existing central legislation on the subject. Since there is presently no uniform central code on marriage or succession that applies to all religious communities, a state UCC would not immediately attract the vice of repugnancy under Article 254. This reading was implicitly accepted by the Uttarakhand government in proceeding with its enactment, though the question has not yet been definitively settled by judicial authority.
The federal dimension also has a demographic and political dimension. States with significant religious minority populations are unlikely to willingly enact a UCC in the near future, and compelling them to do so through central legislation may provoke constitutional challenges on the ground of interference with protected religious practices. A state-level laboratory model, in which individual states experiment with their own codes and generate empirical evidence of their effects, may in this sense be more politically sustainable than a single, immediately applicable national code.
4. THE UTTARAKHAND UNIFORM CIVIL CODE ACT, 2024: PROVISIONS AND CRITIQUES
The Uttarakhand Uniform Civil Code Act, 2024 was passed by the state legislature in February 2024 following the recommendations of an expert committee constituted in 2022.11 The Act is structured around five principal subjects: marriage and its registration, divorce, succession, live-in relationships, and adoption. It applies to all citizens of Uttarakhand, with the exception of Scheduled Tribes, whose customary personal laws are protected by virtue of Article 366 and the Fifth Schedule of the Constitution.12
On marriage, the Act prescribes a uniform minimum age of marriage — eighteen years for women and twenty-one years for men — and mandates the compulsory registration of all marriages regardless of the religion of the parties. On divorce, it provides for mutual consent divorce and fault-based grounds that broadly mirror those available under existing Hindu and Christian personal law statutes. On succession, it adopts a scheme broadly akin to the amended Hindu Succession Act, conferring equal inheritance rights on sons and daughters.
One of the more novel and controversial provisions of the Uttarakhand Act relates to live-in relationships: it mandates the registration of such relationships with a district-level authority and imposes penalties for non-registration.13 Critics have pointed out that this provision inverts the rationale of progressive personal law reform, which has typically moved in the direction of expanding individual autonomy, and instead subjects a category of private consensual adult relationships to state surveillance and potential criminalisation. The right to privacy, recognised as a fundamental right by a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India,14 would appear to provide a strong constitutional basis for challenging compulsory live-in registration.
The exclusion of Scheduled Tribes from the Act, while constitutionally defensible, also reveals a tension at the heart of the UCC project: if the goal is genuine uniformity, then the selective application of the code to some communities but not others merely relocates the problem of differential legal treatment rather than resolving it. If, on the other hand, the exclusion reflects a principled recognition that customary law systems of tribal communities deserve constitutional protection, then the same logic ought to extend to similar customary practices of other communities, which could substantially narrow the code’s application.
5. ALTERNATIVE MODELS: TOWARDS A PHASED AND PARTICIPATORY APPROACH
Given the constitutional, political, and social complexity of a single omnibus UCC, several scholars and commissions have proposed alternative paths towards greater uniformity in personal law. The Law Commission of India, in its 2018 Consultation Paper on Reform of Family Law, concluded that a UCC was neither necessary nor desirable at that stage, and instead recommended that discriminatory practices within each personal law system be identified and reformed through targeted legislative amendments.15 This recommendation was not without its critics, who argued that it amounted to an indefinite postponement of a constitutionally mandated goal.
A more structured alternative would be an optional or opt-in civil code, under which Indian citizens of any religious community would be free to elect to be governed by the common code rather than their personal law for purposes of marriage, divorce, and succession. Such a model already has an analogy in the Special Marriage Act, 1954, which permits inter-religious and irreligious marriages under a secular statutory regime without compelling any person to abandon their personal law.16 An expanded and modernised version of this statute, accompanied by robust legal awareness campaigns, could serve as an effective transition mechanism towards greater uniformity without the political and constitutional risk of a mandatory code.
A third model, gaining increasing traction in comparative jurisdictions, is the codification of personal laws within each community through a consultative process that simultaneously brings each code into conformity with constitutional guarantees of equality and dignity.17 This approach treats uniformity and reform as distinct goals: reform within each tradition can proceed even in the absence of a single uniform code, and the resulting plurality of reformed personal laws may, in practice, converge over time without the coercive imposition of uniformity from above.
6. CONCLUSION
The Uniform Civil Code debate in India resists simple resolution because it simultaneously engages questions of national identity, religious freedom, gender justice, and federal structure that are each, individually, among the most contested in constitutional law. The Uttarakhand experiment is significant as a first legislative step, but its limitations, particularly in its treatment of live-in relationships and its exclusion of tribal communities, illustrate that enacting a code is a different challenge from enacting a just code.
What is clear from over seven decades of constitutional experience is that the deferral of the UCC cannot indefinitely serve as a substitute for democratic engagement with its underlying questions. The aspiration embedded in Article 44 reflects a vision of India in which citizenship, rather than religious community, is the primary determinant of a person’s civil rights. Achieving that vision in a society as plural as India’s demands not the imposition of uniformity by legislative fiat, but the patient construction of consensus through genuine consultation with all communities, especially women within those communities who have most to gain from principled reform. The Uttarakhand Act may or may not survive judicial scrutiny in its entirety, but it has at least demonstrated that legislating in this space is possible, and that the debate must now shift from whether a UCC should exist to what it ought to contain and how it should be brought into being.
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FOOTNOTES
1. The Constitution of India, 1950, art. 44.
2. Sarla Mudgal v. Union of India, (1995) 3 SCC 635; John Vallamattom v. Union of India, (2003) 6 SCC 611.
3. The Uniform Civil Code Uttarakhand Act, 2024 (Uttarakhand Act No. 3 of 2024).
4. B. Shiva Rao, The Framing of India’s Constitution: Select Documents (Indian Institute of Public Administration, 1967) Vol. II, pp. 554–562.
5. The Constitution of India, 1950, arts. 25 and 26.
6. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84; see also Krishna Singh v. Mathura Ahir, (1980) 3 SCC 141.
7. Sarla Mudgal v. Union of India, (1995) 3 SCC 635, para 39.
8. John Vallamattom v. Union of India, (2003) 6 SCC 611, para 51.
9. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556; the political aftermath led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
10. The Constitution of India, 1950, Seventh Schedule, List III (Concurrent List), Entry 5.
11. Report of the Expert Committee on Uniform Civil Code, Government of Uttarakhand (2022).
12. The Uniform Civil Code Uttarakhand Act, 2024, s. 3, Proviso (exempting members of Scheduled Tribes as defined under art. 342 of the Constitution).
13. The Uniform Civil Code Uttarakhand Act, 2024, ss. 378–390 (provisions relating to registration and regulation of live-in relationships).
14. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
15. Law Commission of India, ‘Consultation Paper on Reform of Family Law’ (2018), p. 7.
16. The Special Marriage Act, 1954 (Act No. 43 of 1954).
17. Flavia Agnes, ‘From Shah Bano to Kausar Bano: Contextualising the Muslim Woman within a Communalised Polity’ in Shirin Rai and Geraldine Lievesley (eds), Women and the State: International Perspectives (Taylor & Francis, 1996).