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How Would a Uniform Civil Code Reconcile with Special Provisions For States in the Constitution?

The Nagaland Bar Association appeals to the Law Commission to exempt Nagaland from the UCC.
Nagaland Bar Association

Image Courtesy: Morung Express

Before the Law Commission was able to present its report on a Uniform Civil Code (UCC), the Nagaland Bar Association (NBA) has appealed to the Commission to suggest exempting Nagaland from the ambit of the UCC. This is based on the existence of special provisions for Nagaland under Article 371A under which the Union Government has no jurisdiction over Naga customary law and practices. However, Nagaland is not the only state to have special provisions regarding customary law and practice, Mizoram and Sikkim also have similar provisions.

Article 371A restricts Parliament from extending any law to Nagaland regarding religious or social practices, customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law, ownership and transfer of land and its resources. The caveat being that these laws may be extended to Nagaland if the Legislative Assembly passes a resolution to that effect. Article 371G which relates to Mizoram is identically worded. Btu Article 371F which concerns Sikkim, on the other hand, does not state the same specifically. However, clause (k) states that all laws in force in Sikkim prior to the 'merger' shall remain in force until amended or repealed by a competent legislature. Clause (n) empowers the President to modify the application of any law to Sikkim. Thus, two questions arise; would the UCC extend to states that have special provisions regarding laws applicable and would the UCC extend to Autonomous District Councils (ADC) under the Sixth Schedule?

Regarding the UCC applicability to states with Constitutional protections regarding laws and practices, all these provisions made their way into the Constitution through negotiations with either belligerents or a State. 371A was a product of the Shillong Accord, signed between the Government of India and the 'Naga Underground'. This provision entered the Constitution in 1962 after a faction of the Naga National Council agreed to accept autonomy rather than press for sovereignty. Considering that the peace talks with several factions of the National Socialist Council of Nagalim are still in the works, applying the UCC to Nagaland could potentially derail the entire process. Article 371G was brought into the Constitution after the Mizo National Front (MNF) signed the Mizo Accord with the Government of India and put an end to their insurgency. The MNF now exists as a political party in Mizoram. However, the promise of non-interference in customary law and practices was a necessary condition for ending the insurgency. Extending the UCC here may not carry the same weight as in Nagaland. However, the senior members of the MNF still consist of those who remember and participated in the armed struggle.

In the case of Sikkim, the Constitutional provision was introduced on the basis of a Tripartite Agreement between the Government of India, the Chogyal (King), and members of the agitating political parties in the kingdom. The spirit implicit in the 8th May Agreement was that the role of India was to be that of a benevolent ombudsman. The Agreement was signed between two sovereign entities and the subjects of the kingdom. However, Article 371F restricts the High Courts and the Supreme Court from hearing any matters arising out of agreements and treaties signed by Sikkim, thus even if the UCC were to be unilaterally extended to Sikkim, no legal recourse exists.

Regarding the applicability of a UCC to ADCs created under the Sixth Schedule, it is not entirely clear. On one hand, some of the ADCs were created in a bid to pacify political unrest. On the other hand, the powers possessed by the ADCs is limited to local land issues. Therefore, they have no jurisdiction over social practices or customary laws. Arunachal Pradesh, for example, has neither ADCs under the Sixth Schedule nor the Article 371H – special provisions for Arunachal Pradesh – exclude Indian laws from applying to the state. Despite the absence of legal backing, Arunachal Pradesh still largely follows customary laws. However, even if a UCC is enforced to the whole of the country, it's enforcement is still debatable.

Whether the Law Commission would recommend that the UCC not be uniformly applied particularly in states that have special Constitutional provisions, remains to be seen. However, Law Commission recommendations are rarely acted upon promptly. Even if a Bill is tabled it still needs to be passed. Thus, stakeholders who have something to lose need not fear, at least for the next ten years.

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