Uniform, State by State: The Constitutional Paradox Inside Gujarat's Civil Code

Article 44 From the Bottom Up: Why "Uniform" Now Arrives One State at a Time **Article

44 says the State shall endeavour to secure a uniform civil code for citizens "throughout the territory of India". Most readers take "the State" to mean the Union. The Constitution does not. Under Article 36**, the word carries the meaning given in Article 12, which includes state governments and legislatures.

So Gujarat can plausibly claim to be carrying out Article 44 itself and it has now done so, becoming the second state after Uttarakhand to enact a comprehensive code.

The Mechanism: Concurrent Subject, Presidential Assent

Marriage, divorce, adoption and succession fall under Entry 5 of the Concurrent List, so both Parliament and state legislatures can legislate on them. The difficulty is that Parliament already has, through laws such as the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956 and the Special Marriage Act, 1954.

This is where Article 254 does the work. When a state law on a Concurrent subject conflicts with an existing central law, the central law ordinarily prevails. Under Article 254(2), however, the state law prevails within that state if it was reserved for the President and received assent.

The assent given on September 17 is therefore not a formality. It is what allows a Gujarat statute to override central personal laws inside Gujarat.

The Paradox: Uniformity That Must Make Exceptions

The code exempts Scheduled Tribes notified under Article 342, the provision under which the President specifies tribal communities state by state. It also exempts groups whose customary rights are protected under Part XXI, the chapter of special provisions that includes, for example, Article 371A protecting Naga customary law and Article 371G protecting Mizo customary law.

These exemptions are not political concessions the state chose to make. The Constitution itself protects these customary systems, so a state law cannot simply override them. A "uniform" code therefore begins by excluding people.

Add a state-by-state rollout and India is moving toward a patchwork of uniformities, with two states now having codes, the rest having none and constitutionally protected groups outside all of them.

The Reach Question: Gujarat's Law Outside Gujarat The

Act also applies to Gujarat residents living outside the state. Article 245 gives Parliament power to make laws with extraterritorial operation. A state legislature makes laws for the state or part of it. Courts have upheld state laws reaching beyond state borders only where there is a sufficient territorial nexus, a doctrine applied in State of Bombay v.

RMDC (1957). Residence in Gujarat may supply that nexus. The practical test is harder. A Gujarati living in Maharashtra in a live-in relationship or a couple marrying in Kerala, may be bound by Gujarat's code where they live, while being judged by central laws in the courts there.

Which law a court applies and whether residence alone is enough of a link, is unsettled and likely to be litigated.

For the exam: do not stop at "Gujarat implements the UCC". Name Entry 5, Article 254(2), Article 342 and Part XXI and explain the irony that each piecemeal step toward uniformity also widens differences between states.