Today, let’s explore whether any state in the Union of India has the authority to enact and enforce a Uniform Civil Code.
Article 44 of the Constitution is part of the Directive Principles of State Policy. At the time of framing of the Constitution, there was no Uniform Civil Code in place. Given the diversity of India, there were several laws and customs of communities, including religious communities, in place. It is in this context that Article 44 was drafted, mandating, “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”
There are three expressions in this provision that require attention. First is the word “State”, second is the expression “endeavour to secure” for its “citizens”, and the third is the “Uniform Civil Code throughout the territory of India”.
The “State” here means not a state government, but the Union of India, since such a law, if framed by the Union, will be applicable throughout the territory of India. That cannot happen if the law is framed by a state government. The second clue that the State means the Union of India comes from the expression “citizens”. We all know that the status of citizenship is granted only by the Union. Those residing within a state are not its citizens.
Article 44 further mandates that the “State”, meaning the Union of India, shall endeavour to enact a Uniform Civil Code. It seems clear to me that a state government cannot, under its legislative powers, enact a law pursuant to the mandate under Article 44 of the Constitution.
It is, therefore, clear that any provision under the Uniform Civil Code, Uttarakhand, 2024, which applies to the residents of Uttarakhand, excluding tribals, would fall foul of the laws framed by the Union of India.
Even though the law has received presidential consent, it still falls foul of both parliamentary statutes and the personal law of religious communities. For example, if a marriage or a divorce is recognised under a parliamentary statute, it may not be recognised under the Uttarakhand Civil Code, because, in Uttarakhand, an enquiry may be conducted which may not recognise such a marriage or a divorce. The sub-registrar, under the Uttarakhand Civil Code, has been conferred with such powers.
In addition, many of the provisions fall foul of the right to privacy recognised by the Supreme Court as a fundamental right. This allows for vigilantes to get into the act of questioning all forms of marriages and divorce, including inter-caste and inter-faith marriages.
Article 254 of the Constitution stipulates that if there is any inconsistency between laws made by parliament and those made by the legislatures of states, such of the provisions of state laws that are inconsistent with the law made by parliament would be repugnant, and therefore, would be declared void to the extent of the inconsistency.
Marriage of Hindus under the Hindu Marriage Act 1955 cannot be questioned under any state legislation. Interfaith marriages under the Special Marriage Act 1954 also cannot be questioned under state legislation, since the rights acquired under a parliamentary legislation cannot be taken away through burdensome state laws.
Even more surprising is that Uttarakhand’s Uniform Civil Code seeks to legislate on live-in relationships. There is no provision in the Constitution which entitles the state legislature to enact a law seeking to regulate live-in relationships. The legislative remit of a state legislature is confined to what is included in Entry 5 of the Concurrent List, and that too as long as the laws made by a state legislature are consistent with the laws made by parliament.
The subject matter of Entry 5 of List III is: Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.
It is clear from this entry that state legislatures do not have the legislative competence to deal with matters relating to live-in relationships, which according to the legislature is akin to a marriage. Such a power, if at all, would reside with parliament under Entry 97 of List I, a residual entry that empowers parliament to legislate on matters not covered specifically under lists II and III. Parliament has passed no such law. Therefore, the entire chapter dealing with the regulation of live-in relationships is without authority of law.
A political play
The desire to enact a Uniform Civil Code has been a part of the BJP’s agenda, reflected in its various manifestos of 1989, 1996, 1998, 2009, 2014, 2019 and 2024.
It is also interesting to note that no non-BJP ruled state has made any public announcement to enact such legislation. So the endeavour of the BJP in various states where they are in power is to politicise the issue, and target the minority community with the intent to bring their laws in conformity with the laws applicable to the majority community. It is yet another way of polarising the polity and raising issues which are divisive in nature instead of those which need to be addressed.
Obviously, the intent of such an endeavour is to divert the attention of the people from the pressing issues of the day.
The home minister, in his speech in parliament on December 17, 2024, said that the BJP government would enact such a law in all states to implement Article 44 of the Constitution. This itself suggests that the intent behind such a divisive law is to muddy the waters for political gain. From ‘love jihad’ to ‘flood jihad’, triple talaq to the three-language formula, “goli maro” to “shamshan ghat”, “qabristan” to what you eat and what you trade in, putting up names of owners of restaurants to not buying everyday requirements from shops belonging to minority communities—are all matters that seek to destroy the fabric of this country.
The Uniform Civil Code is another such endeavour.
Kapil Sibal | Senior lawyer and member of Rajya Sabha
(Views are personal)
(Tweets @KapilSibal)