Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a UCC for India but there has been no attempt at framing one.

What is a Uniform Civil Code?

• A UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
• Article 44 is one of the directive principles. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
• Fundamental rights are enforceable in a court of law. While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution”.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List. Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.
• Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a UCC relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion; Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”; Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
• In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter.
• The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of fundamental rights and therefore the UCC was made less important than freedom of religion.

What was the view of Muslim members in the Constituent Assembly?

• Some members sought to immunise Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a Uniform Civil Code, conceded that it would be unwise to enact Uniform Civil Code ignoring strong opposition from any community.
• Gender justice was not mentioned in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Jawaharlal Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it.
• Ambedkar eventually had to resign. Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

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• The Kerala government moved the Supreme Court against the Citizenship (Amendment) Act becoming the first state to challenge the law.
• It filed a petition under Article 131 of the Constitution and asked for the law to be declared unconstitutional and in violation of Articles 14 (equality before law), 21 (protection of life and personal liberty) and 25 (freedom of conscience and free profession, practice, and propagation of religion).

What is Article 131 of the Constitution?

• The Article vests the Supreme Court with original jurisdiction over disputes occurring between states or between states and the Centre.
• The original jurisdiction of a court means the power to hear a case for the first time, as opposed to appellate jurisdiction, in which the court reviews the decision of a lower court.
• Unlike the original jurisdiction under Article 32 (which gives the top court the power to issue writs, etc.), the jurisdiction in Article 131 is exclusive, meaning it is only the Supreme Court which has this authority.
• Under Article 226, the High Courts too have the power to issue writs, directions etc.

Original jurisdiction

• Article 131 reads, “Original jurisdiction of the Supreme Court. — Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute —

(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

• The said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad, or other similar instrument which, having been entered into or executed before the commencement of this Constitution.
• However they continue in operation after such commencement, or which provides, that the said jurisdiction shall not extend to such a dispute.

What kinds of disputes are covered under Article 131?

• In ‘State of Rajasthan vs Union of India’, 1977, the Supreme Court ruled that the existence or extent of a legal right is a precursor before a suit under Article 131 is entertained. But mere wrangles between governments have no place in the scheme of that Article.
• Similarly, in the 1978 case, ‘State of Karnataka vs Union of India’, which involved the Centre’s authority to order an inquiry into a state Chief Minister’s conduct, jurisdiction under Article 131 was held valid.
• In the present case filed by Kerala, central legislation (CAA) is being challenged. In 2011, a two-judge Supreme Court Bench in ‘Madhya Pradesh v Union of India’ had held such a suit was not maintainable.
• Later in 2013, another two-judge Bench in ‘State of Jharkhand v State of Bihar and Another’ disagreed with the previous verdict and referred the matter to a larger Bench. Kerala’s plaint relies on the 2013 verdict.

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