States can study feasibility of enacting UCC, says SC

Dismissing a PIL that challenged moves by Uttarakhand and Gujarat governments to set up panels for preparing drafts on implementation of the UCC, a bench headed by CJI Dhananjaya Y Chandrachud found no legal infirmity in the constitution of the committees to examine pertinent aspects of such a code.

State governments have the power to examine the feasibility of implementing a Uniform Civil Code (UCC), the Supreme Court said on Monday, underscoring that the Constitution permits not only the Union government but also the states to legislate on subjects such as marriage, divorce and adoption.

While hearing Upadhyay’s PILs last week, the CJI-led bench observed that having uniform laws on marriage, divorce, succession, adoption and maintenance was a matter for Parliament to consider. (PTI)

Dismissing a public interest litigation (PIL) that challenged moves by the Uttarakhand and Gujarat governments to set up panels for preparing drafts on implementation of the UCC, a bench headed by Chief Justice of India Dhananjaya Y Chandrachud found no legal infirmity in the constitution of the committees to examine pertinent aspects of such a code.

The bench, which also comprised justice PS Narasimha, referred to Entry 5 of the Concurrent List, under which both the Centre and the states are empowered to make laws on “marriage and divorce, infants and minors, adoption, wills, intestacy and succession, joint family and partition.”

It also lent credence to Article 162 of the Constitution which lays down that the executive power of a state shall extend to matters with respect to which the legislature of the state has power to make laws unless a central law occupies that field.

As soon as advocate Anoop Baranwal, appearing in person as the petitioner, questioned the legality of the state governments’ move, the bench retorted: “What is wrong with it? Why can’t they form a committee? They have only constituted a committee under their executive powers that Artcile 162 gives. States have the executive power under Article 162 to do so.”

Baranwal, to this, said that although Article 44 of the Constitution talks about UCC, it is merely a directive principle that does not bind a state to compulsorily move towards a common law for all communities and religions.

The top court, however, chose to steer clear of this debate, telling the petitioner lawyer that there is nothing in the Constitution or any law that can prevent a state from examining the feasibility of UCC.

“Look at Entry 5 of the Concurrent List. It covers subjects such as marriage, divorce, adoption, etc. Clearly, states can examine these subjects. Likewise, look at Article 162. State governments have the executive power,” said the bench.

Baranwal argued that the constitution of the committee is unconstitutional but the bench found no merit in the plea.

It then proceeded to record in its order: “The constitution of committees set up by the states of Gujarat and Uttarakhand to frame UCC is under challenge in this petition. Article 162 indicates that the executive power of the state extends to what legislature permits it to do. Constitution of a committee itself cannot be challenged as ultra vires. The petition is, therefore, dismissed.”

The 7th Schedule of the Constitution of India gives the allocation of powers and functions between the Centre and the states. The Union government (Parliament) has the exclusive power to legislate on matters relating to items in the Union List. Subjects such as defence, armed forces, foreign affairs, citizenship, railways, banking, taxation, interstate trade are under the Union List.

Similarly, the respective state governments have exclusive power to legislate on subjects given in the State List, and some of these matters will include public order and health, police, education and forest.

Under the Concurrent List, both the Union and the state governments have jurisdiction to legislate but in case of any conflict or overlapping, the law made by the central government prevails.

UCC refers to a common set of laws governing personal matters such as marriage, divorce, inheritance and succession for all citizens of the country. Article 44 of the Constitution, which is one of the directive principles of state policy, also advocates a uniform civil code. However, governments since Independence have allowed respective religion-based civil codes.

The Uttarakhand government on May 27 last year formed a five-member committee headed by retired Supreme Court judge Ranjana Desai to prepare a draft for implementation of UCC in the state. The other members of the committee include Pramod Kohli, retired Delhi high Court judge, Manu Gaur, social activist, Shatrughan Singh, retired Indian Administrative Service (IAS) officer, and Surekha Dangwal, vice-chancellor, Doon University.

Chief minister Pushkar Singh Dhami on February 12, during election campaigning, announced that the implementation of UCC will be the first decision the Bharatiya Janata Party (BJP) government would take after coming to power. Uttarakhand has 13.9 % Muslim population, according to the 2011 census, mostly in Terai area. Haridwar and US Nagar districts have over 34 % and 22 % Muslim population, respectively.

The same month, Himachal Pradesh chief minister Jairam Thakur also announced that UCC would be brought into the state soon. Similarly, in October 2022, the Gujarat government announced the setting up of a committee to study the modalities of implementing UCC.

In March 2022, the Supreme Court had sought the Union government’s comprehensive response to PILs filed by advocate Ashwini Upadhyay, demanding religion-neutral laws to regulate matters of divorce, adoption, guardianship, succession and inheritance.

Replying through a counter affidavit in October 2022, the government said that personal laws based on religion were an “affront to the nation’s unity”, adding a Uniform Civil Code will bring about integration of India by bringing different communities on a common platform through an unvarying legal regime.

At the same time, the government maintained that it is only for the elected representatives and the legislature to decide whether the country should have UCC and that no court can issue directives to Parliament for frame a specific statute.

While hearing Upadhyay’s PILs last week, the CJI-led bench observed that having uniform laws on marriage, divorce, succession, adoption and maintenance was a matter for Parliament to consider.

“We cannot make laws. This falls within Parliament’s sovereignty. We cannot tell Parliament you shall enact a law,” justice Chandrachud remarked on January 6 even as the matter was adjourned to a later date.