A Uniform Civil Code

Dr Ambedkar made two points answers usually omit. First, that India already had a uniform code covering almost every aspect of human relationship, and "The only province the Civil Law has not been able to invade so far is Marriage and Succession." Second, an assurance that "the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary."

Held, against observed

This is the distinction the topic is built on: in each case, what the Court decided against what it merely said.

Facts. Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945, 1985 SCR (3) 844, (1985) 2 SCC 556, decided 23 April 1985. A divorced Muslim wife applied for maintenance under section 125 of the Code of Criminal Procedure 1973. Her husband said that on divorce and the expiry of iddat she ceased to be his wife, that he had paid mahr, and that section 127(3)(b) barred the order.

Held. The appeal was dismissed. Clause (b) of the Explanation to section 125(1), defining "wife" as including a divorced wife, "contains no words of limitation to justify the exclusion of Muslim women from its scope", so a divorced Muslim woman who has not remarried is a wife for that section. "Section 125 of the Code is truly secular in character."

Why it matters. The holding is about a section of a criminal procedure code, not about article 44. The famous passage, that "Article 44 of our Constitution has remained a dead letter" and that "A common Civil Code will help the cause of national integration", is an observation. It is worth quoting and decides nothing.

Facts. Smt. Sarla Mudgal v. Union of India, 1995 AIR 1531, (1995) 3 SCC 635, decided 10 May 1995. Petitions under article 32 by wives whose Hindu husbands had converted to Islam and married again without dissolving the first marriage.

Held. The second marriage of a Hindu husband after conversion to Islam, without the first being dissolved under law, is invalid and void in terms of section 494 of the Indian Penal Code, and the apostate husband is guilty of that offence.

Why it matters. Read what follows the holding with care, because it is constantly overstated. The Court requested the Government of India, through the Prime Minister, "to have a fresh look at Article 44", and directed it to file an affidavit on the steps taken. A direction to file an affidavit is not a direction to enact a code, and the Court did not purport to give one.

Facts. John Vallamattom v. Union of India, decided on 21 July 2003. A Christian priest and another member of that community petitioned under article 32 against section 118 of the Indian Succession Act 1925, which restricted their power to bequeath property for religious and charitable purposes.

Held. The petition was allowed and section 118 was declared unconstitutional as violative of article 14. Treating bequests for religious and for charitable purposes alike was discriminatory, and testators "constitute a homogeneous class" who cannot be divided by the duration of their survival. Following Sarla Mudgal, "marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26".

Why it matters. It is the clearest statement that succession is secular rather than religious, which is the doctrinal foundation of the case for a code. But the operative order rests on article 14; on article 44 the Court said only that it "has not been given effect to".

And the newest example makes the pattern plain. In Shayara Bano, decided 22 August 2017 by five judges, the order of the Court records that "by a majority of 3:2 the practice of talaq-e-biddat, triple talaq, is set aside". The three in the majority did not agree on the route, and the case is worked in [Women, Religion and Personal Law]. A practice was struck down without deciding whether personal law is "law" under article 13, and without any reliance on article 44.

What the Law Commission has said

The Ministry of Law and Justice referred the subject to the Law Commission on 17 June 2016. The sources are in this repository at ops/notes/LLM/Constitutionalism-Pluralism-and-Federalism/authorities/lc-consultation-paper-family-law-2018.txt and lc-ucc-public-notices.txt.

The Twenty-first Commission consulted, received over 75,378 responses, and on 31 August 2018 published a Consultation Paper on Reform of Family Law. Note the title: asked about a code, it answered about reform. Its conclusion, almost always quoted in half, reads: "This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy." Its method instead was to preserve the diversity of personal laws while ensuring they do not contradict fundamental rights, codifying as far as possible and removing inequalities by amendment.

The Twenty-second Commission reopened the question by public notice of 14 June 2023, deciding "again to solicit views and ideas of the public at large and recognized religious organizations", and extended the time on 14 July 2023. It never reported.

The Uttarakhand legislation of 2024

The one enacted example, read from the Uttarakhand Extraordinary Gazette of 12 March 2024 held at ops/notes/LLM/Constitutionalism-Pluralism-and-Federalism/authorities/ucc-uttarakhand-2024.pdf.

What it is. The Uniform Civil Code, Uttarakhand, 2024, Act No. 3 of 2024, "As passed by the Uttarakhand Legislative Assembly and assented to by the President on 11th March, 2024", long title "An Act to govern and regulate the laws relating to marriage and divorce, succession, live-in relationships, and matters related thereto". It came into force on 27 January 2025 by notification under section 1(2).

How a State could do it. Marriage and divorce, adoption, wills, intestacy and succession are Entry 5 of the Concurrent List, and the President's assent engages article 254(2), under which a State law on such a matter, repugnant to a parliamentary law, prevails in that State if it has been reserved for and received that assent.

And its own limit. Section 2 provides that "Nothing contained in this Code shall apply to the members of any Scheduled Tribes ... and the persons and group of persons whose customary rights are protected under Part XXI". So the first uniform civil code enacted in independent India is not uniform within its own State, and article 44 speaks of a code "throughout the territory of India".

The arguments, at their strongest

For. Article 37 makes article 44 fundamental in the governance of the country and imposes a duty to apply it in making laws. Personal laws distribute rights in marriage, divorce, maintenance and succession unequally between men and women, and the threshold question in [Women, Religion and Personal Law] means the equality guarantee may not reach them at all; a code brings them inside Part III beyond argument. Ambedkar's point stands: uniformity already covers crime, contract, property and evidence. Munshi's stands too: the majority community's law is already codified, so codification cannot in itself be an attack on faith. And John Vallamattom holds these are secular matters, so article 25 is not in the way.

Against. The Law Commission's answer is that discrimination and not difference is the root of inequality, so the remedy is to remove the discriminatory rules law by law, and it warned that codifying a custom can crystallise prejudice. The framers deliberately left article 44 unenforceable after hearing exactly the objection now made. Some tribal systems are matrilineal and uniformity could displace them, which the Uttarakhand Act concedes in section 2. And a code enacted State by State produces a new diversity in place of the old.

The neutral proposition to close on. No court has held that article 44 obliges Parliament to act by any date, and none has struck down a rule of personal law for offending it. That is the legal position, whichever side a reader is on.

A worked example

The Union introduces a Bill applying one law of marriage, divorce and succession to all citizens and repealing the codified Hindu, Muslim, Christian and Parsi provisions. It is challenged before enactment and again after.

Step one, before enactment? No. A court does not restrain the introduction of a Bill, and article 44 is unenforceable in any case: article 37 says so in terms.

Step two, competence? Yes. Marriage and divorce, adoption, wills, intestacy and succession are Entry 5 of the Concurrent List. The difficulty is political, not legislative.

Step three, article 25? On John Vallamattom, marriage and succession are secular and outside articles 25 and 26. A challenger's better argument is that a particular rule in the code invades a practice essential to a religion: see [Essential Religious Practices].

Step four, article 14. A uniform rule treats unlike cases alike, which is a real argument and rarely a winning one, uniformity of civil rights being a legitimate object with a rational nexus. The stronger point is the Law Commission's inverse one: a scheme codifying each community separately would be more vulnerable than one codifying them together.

Step five, the advice. The Bill is likely within power and likely to survive a Part III challenge as a whole. The litigation will be about particular provisions, which is where every previous reform ended.

What it does NOT mean

It does not mean the Supreme Court has directed a uniform civil code. In Sarla Mudgal it requested a fresh look at article 44 and directed an affidavit about steps taken. That is the high-water mark.

It does not mean India has no uniform civil law. Ambedkar's list holds: only marriage and succession stand outside it. Nor is article 44 performed by one State enacting a code, the article speaking of a code throughout the territory of India.

Quick revision

• Article 44: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Part IV, so article 37 applies and no court can enforce it.
• Constituent Assembly, 23 November 1948: three provisos moved, only two put and negatived, the article adopted without amendment. Ambedkar's assurance that a code might at first be voluntary.
• Shah Bano (1985): held a divorced Muslim wife may apply under section 125, "truly secular in character"; the "dead letter" passage is an observation. Sarla Mudgal (1995): held a second marriage after conversion void and the husband guilty under section 494, requested a fresh look at article 44 and directed an affidavit on steps taken.
• John Vallamattom (2003): held section 118 of the Indian Succession Act 1925 unconstitutional under article 14, and that marriage and succession are secular and outside articles 25 and 26. Shayara Bano (2017) set triple talaq aside 3:2 without using article 44 at all.
• Law Commission 2018: a code is "neither necessary nor desirable at this stage", the remedy being to remove discriminatory rules. The 22nd Commission reopened the subject in June 2023 and never reported.
• Uttarakhand: Act No. 3 of 2024, assented by the President 11 March 2024, in force 27 January 2025, under Entry 5 of List III with article 254(2). Section 2 excludes Scheduled Tribes.

Test yourself

1. Quote article 44 and explain the effect of article 37 on it.

2. What was moved, what was voted on and what was adopted in the Constituent Assembly on 23 November 1948?

3. For each of Shah Bano, Sarla Mudgal and John Vallamattom, separate the holding from the observation about article 44.

4. State the Law Commission's 2018 conclusion in full, and say what it proposed instead.

5. On what power did Uttarakhand enact its Code, and why did the President's assent matter?

6. Give the strongest argument for a code and the strongest against.