Authored By: Sanna Vakil Shaikh
A.K.K NEW LAW ACADEMY
Introduction
In January 2024, Uttarakhand became the first Indian state to enact a Uniform Civil Code, giving statutory life to a promise that had sat quietly in the Constitution’s Directive Principles for seven decades.[1] Article 44 asks the State to “endeavour to secure for the citizens a uniform civil code throughout the territory of India,” yet leaves the timing, method, and content of that endeavour entirely open.[2] That silence has allowed the debate to be fought less over principle than over process. This article argues that while the constitutional case for a uniform civil code rests on sound foundations of gender justice and equal citizenship, the current trajectory of state-by-state codification is constitutionally awkward and practically self-defeating, and that only a deliberative, consultative, and genuinely national process can fulfil what Article 44 actually intended. It proceeds by examining the constitutional design of Article 44, the judicial pressure that has built around it, and the federalism problem exposed by Uttarakhand’s example.
The Constitutional Promise and Its Deliberate Silence
Article 44 belongs to Part IV of the Constitution, the Directive Principles of State Policy, which Article 37 explicitly declares “shall not be enforceable by any court.”[3] The framers were not careless in choosing this placement. During the Constituent Assembly debates, members such as Mohammed Ismail Khan and Naziruddin Ahmad pressed for a proviso protecting personal laws from any future uniform code, while B.R. Ambedkar resisted an absolute exemption but conceded that no future Parliament could be forced to legislate against the popular will.[4] The result was a compromise: a directive with moral and political force, but no timeline and no enforceable content.
This creates a genuine tension with the fundamental rights chapter. Article 25 guarantees every person the freedom to profess, practise, and propagate religion, subject to public order, morality, and health, and it expressly permits the State to regulate secular activity associated with religious practice.[5] Personal laws governing marriage, divorce, succession, and adoption have historically been treated as falling substantially within this protected sphere, even though many provisions within them are more social custom than religious command. At the same time, Articles 14 and 15 guarantee equality before the law and prohibit discrimination on grounds including religion and sex.[6] Where personal law systems treat similarly situated men and women, or citizens of different faiths, unequally in matters of inheritance, maintenance, or marital rights, the equality guarantee and the directive in Article 44 pull toward reform, while Article 25 counsels caution. The Constitution does not resolve this tension; it hands the task to democratic politics.
Judicial Pressure and the Limits of Adjudication
Because Parliament has been reluctant to legislate, the judiciary has periodically stepped into the gap, though always carefully, and always without purporting to enact a code itself. In Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court held that a divorced Muslim woman was entitled to maintenance under the secular provision of Section 125 of the Code of Criminal Procedure, and Chief Justice Chandrachud used the occasion to lament the absence of a uniform code and the confusion created by the plurality of personal laws.[7] The judgment provoked a strong political reaction and the subsequent enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, illustrating how sensitive this terrain remains even when the underlying legal question is narrow.
A decade later, in Sarla Mudgal v. Union of India, the Court confronted the practice of Hindu husbands converting to Islam solely to contract a second marriage without dissolving the first, and again invoked Article 44 to urge the State to secure a common code, observing that successive governments had failed to make any real effort in that direction.[8] In John Vallamattom v. Union of India, the Court struck down a restrictive provision of the Indian Succession Act applicable to Christians as violative of Article 14, again noting, in obiter, the desirability of uniformity.[9] More recently, in Shayara Bano v. Union of India, a five-judge bench declared the practice of instantaneous triple talaq unconstitutional, a decision that led to codified reform through the Muslim Women (Protection of Rights on Marriage) Act, 2019.[10] Read together, these judgments show a consistent pattern: courts identify specific injustices within personal law and correct them through constitutional interpretation, but they stop short of directing Parliament to enact a uniform code, recognising that Article 44 is a directive addressed to the legislature, not a mandate the judiciary can execute on its behalf.
The Uttarakhand Experiment and the Federalism Difficulty
Uttarakhand’s Uniform Civil Code Act, 2024, is the first serious attempt to give Article 44 legislative form, and it is instructive precisely because of what it reveals about the difficulty of doing so piecemeal. The Act standardises rules on marriage registration, divorce, succession, and maintenance across religious communities within the state, and additionally mandates registration of live-in relationships, while carving out an exemption for Scheduled Tribes to protect customary practices recognised elsewhere in the Constitution.[11] Other states, including Gujarat and Assam, have since indicated their own intentions to legislate along similar lines.
The difficulty is structural rather than merely political. Entry 5 of the Concurrent List empowers both Parliament and state legislatures to make laws on marriage, divorce, and matters of succession, so each state is on firm constitutional ground in legislating its own code.[12] Yet a code that varies from one state to another is, definitionally, not uniform; it simply multiplies the number of personal law regimes a citizen may encounter rather than reducing it, and it creates fresh conflict-of-laws problems for citizens who marry, inherit, or relocate across state lines. It is submitted that a genuinely uniform code requires central legislation preceded by the kind of sustained public consultation that the Law Commission of India has itself called for, engaging religious and community stakeholders rather than treating uniformity as a matter to be settled by whichever state legislature moves first.[13]
Conclusion
The constitutional case for a uniform civil code is stronger than its critics often allow, because equal citizenship should not depend on which personal law a person happens to be born into, particularly where those laws disadvantage women in matters of maintenance, inheritance, and marital autonomy. Yet the manner of achieving uniformity matters as much as the goal itself. Judicial intervention has repaired specific injustices without displacing personal law wholesale, and that caution has been appropriate given the judiciary’s limited institutional role under Article 44. State-level codification, by contrast, risks the opposite problem: it moves quickly but produces diversity rather than uniformity, and it does so without the broad-based consultation that legislation touching religious practice and family life demands. The more defensible path forward is a central code developed through a phased, consultative process, drawing on Law Commission recommendations and genuine engagement with affected communities, so that the eventual code commands legitimacy rather than merely legal force.
Reference(S):
INDIA CONST. arts. 14, 15, 25, 37, 44, sch. 7 list III entry 5, art. 366(25).
Constituent Assembly Debates, Vol. VII (23 Nov. 1948).
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 (India).
Sarla Mudgal v. Union of India, (1995) 3 SCC 635 (India).
John Vallamattom v. Union of India, (2003) 6 SCC 611 (India).
Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
The Uttarakhand Uniform Civil Code Act, 2024 (India).
Law Commission of India, Consultation Paper on Reform of Family Law (31 Aug. 2018).
[1]The Uttarakhand Uniform Civil Code Act, 2024 (India).
[2]INDIA CONST. art. 44.
[3]INDIA CONST. art. 37.
[4]Constituent Assembly Debates, Vol. VII (23 Nov. 1948).
[5]INDIA CONST. art. 25.
[6]INDIA CONST. arts. 14, 15.
[7]Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 (India).
[8]Sarla Mudgal v. Union of India, (1995) 3 SCC 635 (India).
[9]John Vallamattom v. Union of India, (2003) 6 SCC 611 (India).
[10]Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
[11]The Uttarakhand Uniform Civil Code Act, 2024, §§ 3–4 (India); INDIA CONST. art. 366(25).
[12]INDIA CONST. sch. 7, list III, entry 5.
[13]Law Commission of India, Consultation Paper on Reform of Family Law (31 Aug. 2018).
