A state-level UCC raises a constitutional question on Article 44, which suggests the code ought to have a national character.
On 27 January, BJP-ruled Uttarakhand became the first state to implement a Uniform Civil Code, or UCC—a topic that has generated impassioned debate and divided opinion. This is a watershed moment as it represents the first coherent draft or model of a UCC, which until now had remained theoretical with no actual code in sight.
This is surprising, given that the idea had the support of courts, several women’s rights organisations, and political parties, especially the BJP. Yet, while the contents of the law are being debated by votaries and critics, its enactment raises as many questions as it seeks to resolve.
Chief among them: How does a state-level UCC fit into a constitutional framework that has long treated it as a national issue?
State-level UCC & Constitution question
To begin with, a state-level UCC raises a constitutional question on the interpretation of Article 44 of the Indian Constitution. A Directive Principle of State Policy, Article 44 says that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The phrase “throughout the territory of India” suggests that the code ought to have a national character rather than be implemented state by state.
This argument is bolstered by several Supreme Court rulings, primarily on minority issues. In successive judgments— Shah Bano (1986), Sarla Mudgal (1995), John Vallamattoom (2003), and ABC v. NCT of Delhi (2015)—the court has consistently exhorted the Union, rather than individual states, to enact a UCC.
Under the constitutional scheme, family and succession laws fall under the Concurrent List (Entry 5 of List III in the Seventh Schedule). This gives both Parliament and state legislatures the power to legislate on these matters. However, for a law to be applicable throughout India, as envisioned in Article 44, it must be enacted only by Parliament.
On the flip side, this interpretation stirs anxiety among opposition-ruled states, which see a national UCC as an assertion of Union dominance over states and dilution of the federal character of the Constitution.
Tribal rights and the UCC
The idea of implementing a national UCC is further complicated by the impact it may have on special constitutional provisions applicable to the Northeastern states and other tribal communities in India.
The customs of Northeastern states are protected under the Sixth Schedule under Article 244, which grant administrative autonomy to tribal communities. The Sixth Schedule also empowers regional and district councils in tribal areas of Tripura, Assam, Mizoram, and Meghalaya to legislate on customs and family matters. The Fifth Schedule similarly protects tribal customs in other states.
Moreover, Article 371 accords special status to Northeastern states, ensuring that parliamentary laws do not override customary practices unless the respective state legislatures give their approval.
Article 44, which calls for a nationwide UCC, is a standalone provision, with no other constitutional reference to it. In contrast, Articles 244, 371, and the Fifth and Sixth Schedules explicitly safeguard tribal customs, implying that a UCC may not apply to these regions.
Conundrum of colonial laws
Beyond the Northeast, the continued application of colonial-era foreign laws in some states and Union territories pose another challenge to the idea of a national UCC— an anomaly highlighted by scholars.
For instance, Goa and Daman & Diu continue to be governed by the Portuguese Civil Code of 1939—an anomaly sanctioned by a parliamentary legislation providing their continued application until they are amended or repealed by a subsequent law.
Similarly, in Puducherry, the French Civil Code of the early 19th century still applies to a sizable section of the population. These populations are exempt from the application of secular family laws such as the Special Marriage Act of 1954 and the Indian Succession Act of 1925. Almost all family laws exclude these territories from their ambit
It has been argued that the quest for a UCC should begin by repealing the foreign laws in these states and Union territories, and replacing them with the Special Marriage Act and the Indian Succession Act applicable elsewhere in the nation.
This argument appears viable, as these territories are ruled or administered by the BJP government, either through elected state governments or through Lieutenant Governors appointed on the recommendation of the Union government. It is pertinent to note that a similar course was adopted in 2019, when the Special Marriage Act and the Indian Succession Act were extended to the Union territories of Jammu & Kashmir and Ladakh after altering their status.
What course will the BJP take?
The UCC has consistently featured in the BJP’s election manifestos, including for the 2024 national elections. The 2024 manifesto stated: “BJP believes that there cannot be gender equality till such time Bharat adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draw a Uniform Civil Code, drawing upon the best traditions and harmonising them with the modern times.”
Interestingly, while the manifesto used the word ‘Bharat’—implying a national UCC—it is not clear whether the party now prefers a state-level approach across the nation. In either case, it will have to navigate the complex maze of constitutional and faith-based issues that have plagued the UCC for decades.
This article was originally published in ThePrint on 04 February, 2025. Mohammad Nasir is Assistant Professor of Law at Aligarh Muslim University and author of Syed Mahmood: Colonial India’s Dissenting Judge (Bloomsbury 2022). Maimuna Siddiqui reads law at Aligarh Muslim University. Views are personal.
