New Delhi: The Uttarakhand government announced Thursday that it will form a “high-powered” expert panel to prepare a draft Uniform Civil Code (UCC) for the state.
The decision was taken at the first state cabinet committee meeting headed by Chief Minister Pushkar Singh Dhami, a day after the new government was sworn in.
“We have decided to implement the Uniform Civil Code in the state. The state cabinet unanimously approved that a committee (of experts) will be constituted at the earliest and it will be implemented in the state. We also expect other states to follow us,” second-time CM Dhami told reporters after the meeting.
The question that has arisen with Uttarakhand’s announcement is whether a state government has the jurisdiction to implement UCC, which envisages doing away with religion-specific personal laws and framing a common set of laws governing matters such as marriage, divorce, adoption, inheritance and succession.
Experts say it can, since all these subjects are part of the concurrent list under Schedule VII of the Constitution, on which both Centre and state can make laws.
However, there could be one hurdle. In case the code is in conflict with an existing central law on any of the subjects, then the state will have to seek the President’s ascent for implementing the code.
Centre has maintained status quo on UCC
The UCC is defined under Article 44 of the Constitution as part of the Directive Principles of State Policy, which are not enforceable in any court, but are considered fundamental in the governance of the country.
It says that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
Implementation of the UCC was Dhami’s biggest poll promise in the 2022 Uttarakhand assembly elections.
On the last day of his campaign, which came amid the hijab row in Karnataka, Dhami promised to set up a committee of experts on UCC to “realise the spirit of Constitution”, “boost equal rights for everyone in the state” and “enhance social harmony”.
The UCC, he said, would boost “gender justice and strengthen women empowerment”.
In an affidavit filed before the Delhi High Court in January this year, the Centre submitted that it would examine the need for a UCC after consulting various stakeholders in the matter, once it receives the Law Commission’s report on the subject.
The affidavit was in response to a PIL filed by advocate and Delhi BJP leader Ashwini Upadhyaya.
Pursuant to the Centre’s request to undertake an examination of various issues relating to UCC, the 21st Law Commission uploaded a consultation paper on “Reform of Family Law” on its website in 2018 for a wider discussion, it told the court.
Even as the Centre underlined that Article 44 is aimed to strengthen the object of “secular democratic society” and that Indian citizens following different civil laws was an affront to the nation’s unity, the affidavit was silent on how much time the government will take to bring in the code.
But it asked the HC to refrain from any directions to the government to frame the code since it was beyond its jurisdiction.
What legal experts say
As a concept, UCC is meant to contain matters of personal law that by nature are part of the concurrent list, said Supreme Court advocate J. Sai Deepak.
“All the subjects that are expected to be dealt under UCC are part of Entry 5 of the concurrent list. Therefore, states are not precluded from making a common code applicable to all irrespective of their tribe, religion or community,” he added.
Another Supreme Court lawyer who did not wish to be named had a similar view.
“States have the power on entries in concurrent lists. Till it (law) is not in conflict with steps taken by the Union of India, states can legislate,” she said.
Added Deepak: “There is already a precedent and that is Goa. If a UCC can operate there, it can be implemented in any state.”
Goa’s civil code is a legacy of Portuguese colonial law.
Supreme Court advocate M.P. Raju said the state seeking to draft such a law must define the word uniform and the contents of the code.
“Only then can it be ascertained if it is valid of invalid,” he added. At present, there are central legislations regulating marriage, divorce, succession and inheritance for Hindus, Raju said.
However, Deepak said a uniform state code would not be in conflict with central family laws. “These central laws are for the entire country and are not state-specific. Conflict will arise if they were specific to the state that is enacting the uniform code,” he added. “There is no limitation in the concurrent list on the state’s power.”
(Edited by Sunanda Ranjan)