New Delhi: The Uttarakhand government announced on Thursday that it would form a “high-level” group of experts to prepare a draft Uniform Civil Code (UCC) for the state.
decision has been taken during the first meeting of the state cabinet committee chaired by Chief Minister Pushkar Singh Dhami, a day after the new government was sworn in.
“We decided to implement the Uniform Civil Code in the state. The state cabinet has unanimously approved that a committee (of experts) will be formed at the earliest and will be implemented in the state. We also expect other states to follow us,” CM Dhami told reporters for the second time after the meeting.
The question that has arisen with Uttarakhand’s announcement is whether a state government has jurisdiction to implement the UCC, which plans to scrap religion-specific personal laws and develop a common set of laws governing matters such as marriage, divorce, adoption, inheritance and succession. .
Experts say yes, since all these subjects are part of the concurrent list of Annex VII of the Constitution, on which the Center and the State can make laws.
However, there might be an obstacle. In the event that the code conflicts with an existing central law on any of the subjects, the state will have to seek the ascension of the president to implement the code.
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The Center maintained the status quo on the UCC
The UCC is defined in Article 44 of the Constitution as part of the guiding 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 endeavor to assure the citizens of a uniform civil code throughout the territory of India.”
Implementing the UCC was Dhami’s biggest poll promise in the 2022 Uttarakhand Assembly elections.
On the last day of his campaignwhich took place in the middle of hijab row in karnatakaDhami promised to set up a committee of experts on the UCC to “realize the spirit of the Constitution”, “enhance equal rights for all in the state” and “strengthen social harmony”.
The UCC, he said, would strengthen “gender justice and strengthen the empowerment of women”.
Meanwhile, the Center maintained the status quo by making the code central legislation, although he is part BJP manifestos in the Lok Sabha Elections.
In an affidavit filed in the Delhi High Court in January this year, the Center said it would consider the need for a UCC after consulting various stakeholders on the matter, once it received the report from the Law Commission on the subject.
The affidavit was in response to a PIL filed by lawyer and Delhi BJP leader Ashwini Upadhyaya.
In accordance with the Centre’s request to undertake a review of various UCC issues, the 21st The Law Commission posted a consultation paper on “family law reform” on its website in 2018 for broader discussion, she told the court.
Even as the Center pointed out that Article 44 was intended to reinforce the purpose of the “secular democratic society” and that Indian citizens following different civil laws were an affront to the unity of the nation, the affidavit was silent. on the time that the government will take to bring in the code.
But he asked the HC to refrain from instructing the government to frame the code as it was outside of its remit.
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What the legal experts say
As a concept, the UCC is meant to contain personal law issues that by their nature are part of the concurrent list, said Supreme Court attorney J. Sai Deepak.
“All topics that should be covered under the UCC are part of entry 5 of the concurrent list. Therefore, states are not prevented from creating a common code applicable to all, regardless 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 power over entries in competing lists. As long as it (the law) does not conflict with the measures taken by the Indian Union, states can legislate,” she said.
Deepak added, “There is already a precedent and that is Goa. If a UCC can work there, it can be implemented in any state.
The Civil Code of Goa is a legacy of Portuguese colonial law.
Supreme Court Counsel, MP Raju, said the state seeking to draft such a law must define the word uniform and the content of the code.
“Only then can it be determined whether it is valid or 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 conflict with central family laws. “These central laws apply nationwide and are not state specific. Conflicts will arise if they were specific to the state enacting the uniform code,” he added. “There are no limitations in the concurrent list on the power of the state.”
(Editing by Sunanda Ranjan)
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