File Photo of Uttarakhand CM Pushkar Singh Dhami launching the Uniform Civil Code portal. (PTI)
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National integration and gender equality, the need to pre-empt criminal offences, and protection of children born out of live-in relationships — these are some of the major arguments that the State’s counter affidavit has put forth in response to a clutch of petitions challenging the Uniform Civil Code in the Uttarakhand High Court, The Indian Express has learnt.
According to sources familiar with the matter, the affidavit from the Union of India and the state government argues that the right to privacy is not absolute and that the framers of the Constitution — including visionaries such as Dr B R Ambedkar — recognised the UCC as a necessity in fostering national unity and integrity. It also cites cases such as the 1985 Shah Bano Begum case for maintenance, the 2019 Jose Paulo Coutinho verdict where Goa was cited as a “shining example” of UCC, and the UN General Assembly Convention on elimination of discrimination against women to bolster its arguments on the need for the law – including mandatory to registration of marriage and live-in relationships.
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The affidavit was in response to five petitions challenging the provisions of the Uniform Civil Code of Uttarakhand Act, 2024, and the rules under the law.
According to sources, the state in its affidavit dismissed privacy concerns raised by the petitioners for mandatory registrations. For this, the affidavit is learnt to have argued that there was consensus that legislators and policymakers are better equipped to handle complex social issues, and the intervention by courts is justified only when fundamental rights or constitutional mandates are flouted.
Here are some other arguments that the state has made:
The UCC, it is learnt to have further argued, reflects evolving ideas that value individual rights and gender equality over archaic customary practices. According to it, the UCC will only contribute to “national integration” through a unified legal system and that this uniformity will help mitigate possibilities for divisive politics based on religious identities.
It has also argued that while mandatory registration of marriages is to ensure “stability” of marital ties and its regulation, punitive action for failure to register live-in relationships is meant to “deter” criminal activity and future offences.
The state is also learnt to have claimed that there is a lacuna in addressing the interest of children born out of wedlock and “deserted” women: according to it, although the Supreme Court has held that children cannot be treated as illegitimate, the absence of documentation poses difficulties in establishing paternity and inheritance, which the UCC will address. According to the sources, the state will also likely argue that during consultations, stakeholders told the UCC draft committee that live-ins should be regulated.
Another contention countered in the affidavit is about the right to privacy. According to the state, the registrar is just a collector of information and that there are safeguards to secure this information to prevent surveillance. Concerns about relaying information to the police have also been similarly allayed, it is learnt.
The state also cites the three-fold test under 2017 Puttaswamy – or right to privacy – judgment. According to it, any law that makes incursions on privacy must meet the following criteria: it should be made by a competent legislature, made in furtherance of a legitimate state interest, and should not be disproportionate. The state argues that the UCC passes this test.
The state has also dismissed concerns that the UCC registration being linked to Aadhaar could lead to surveillance as an absurdity and an impossibility, stating that this information was merely to maintain records. According to the state, information thus collected remains in silos and merging of these silos are prohibited. The state will maintain that details provided to the registrar are only for the specific purpose of maintenance of record and are not cross-linked, sources said.
On the petitioner’s argument that the law cannot be applied to an Uttarakhand native who no longer lives in the state, the affidavit learnt to have claimed the state is authorised to make laws with extraterritorial application provided there is a nexus between the state and citizen. Significantly, the law’s application to Uttarakhand residents outside the state is one of its most controversial provisions.
Regarding concerns about compulsory registration of marriages, the state is learnt to have argued that as many as 15 states and one Union Territory in India have already made marriage registration compulsory. The state’s interest lies in regulating marriages to ensure their stability, and it has little to do with surveillance of the couple, it is learnt to have said.
Aimed at regulating aspects such as marriage, divorce, inheritance, adoption, and property succession, the Uniform Civil Code of Uttarakhand Act, 2024, was passed in February last year, with the rules under it coming into effect this January. According to the government, the rules were meant to codify a disparate set of personal laws that govern these aspects but critics argue that it violates privacy and opens vulnerable couples to unwarranted scrutiny — even the risk of violence.
Aiswarya Raj is a correspondent with The Indian Express who covers South Haryana. An alumna of Asian College of Journalism and the University of Kerala, she started her career at The Indian Express as a sub-editor in the Delhi city team. In her current position, she reports from Gurgaon and covers the neighbouring districts. She likes to tell stories of people and hopes to find moorings in narrative journalism. ... Read More
