Context: The Kerala Legislative Assembly has unanimously adopted a resolution expressing its concern over the Union Government move to impose a Uniform civil code (UCC).

About the resolution

• The Kerala Assembly resolution essentially strikes a cautious note that a proposed “UCC could harm the secular nature of the country. “

• The resolution also talks about federalism – that the Centre could make a unilateral move on the contentious issue without consulting states.

• The resolution also argued that, it is critical to note that the Uniform Civil Code was limited to Directive Principles.

What does Constitution say about UCC?

• The Constitution refers to civil code only in its Directive Principles.

• Implementation of Directive Principles is not mandatory.

• The court may order to enforce Fundamental rights. But the Directive Principles of Article 44 of the Constitution cannot be enforced even by the courts.

Can the state legislate on UCC?

Article 162 of the Constitution

• The issue of personal laws falls in List III —the Concurrent List of the Seventh Schedule to the Constitution.

• While subjects in the Union lists fall within the purview of the Parliament, states can legislate on subjects in the State List.

• For entries in the ‘Concurrent List’, Article 162 of the Constitution gives state governments the power to legislate on subjects where a central law does not occupy the field.

• If there is a central law, it automatically gains precedence over the state law on the subject.

Entry 5 of Concurrent List

• Also the Entry 5 of the Concurrent lists “Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.

• This allows states the power to legislate on the subject but only in the absence of a central law.

• The Hindu Marriage Act, 1955; the Shariat Act of 1937, are central legislations on Hindu and Muslim personal laws.

Do states can bring their own personal laws again?

• The answer to it is NO, due to following cases;

• State laws on the issues mentioned in Entry 5 of the Concurrent List will not have precedence over central legislation.

• On specific areas not covered by central legislation, states can legislate.

• But central legislation already covers all aspects of marriage, divorce, inheritance and succession.

Supreme Court’s stand

• The Court mentioned that Article 162 of the Constitution indicates that the executive power of a State extends to matters with respect to which the Legislature of the State has power to make laws.

• In view of the provisions of Entry 5 of the Concurrent List of the Seventh Schedule, the constitution of a Committee per se cannot be challenged as ultra vires.