Uniform, but for which gender(s)? India's UCC push faces a crucial question on same-sex couples and transgender rights

When Amit Shah announced that Uniform Civil Code (UCC) would be in force across all 21 NDA-governed states before the 2029 general election, the debate shifted from whether India would have UCC, to uniform for whom?

Uttarakhand's code has been in effect since January 2025. Other states have since implemented similar legislation. The code taking shape cannot, on any fair reading, be called truly uniform.

Article 44 places UCC among the directive principles of state policy. Though not enforceable in court, these principles are not merely aspirational. In 'Minerva Mills v. Union of India' (1981), the apex court recognised harmony between fundamental rights and directive principles as part of the Constitution's basic structure. So, Article 44 must be pursued in harmony with Articles 14, 15 and 21, which guarantee equality, non-discrimination, dignity and individual liberty.

The court has never hesitated to test personal law against the Constitution's guarantee of equality. In Sarla Mudgal v. Union of India (1995), it addressed the misuse of religious conversion to circumvent restrictions on bigamy. In 'Shayara Bano v. Union of India' (2017), it struck down the practice of instant triple talaq. Both decisions held that personal law must yield to equality, gender justice and constitutional morality.

The case for UCC rests on the premise that a woman's rights in marriage, divorce, maintenance and inheritance should not depend on her community. But if equality is the entire argument for UCC, it can't be abandoned the moment the code is drafted. And that is precisely what has happened.

The Uttarakhand code defines a 'person' in binary terms as either female or male. It defines marriage as the union of a man and a woman. It defines and requires registration of live-in relationships in the same strict heterosexual parameters. Transgender persons and same-sex couples are omitted, as though they were not among the citizens the code claims to govern uniformly.

The bills modelled on it repeat the omission. The result is a code uniform only for cisgender heterosexual persons, while queer citizens are excluded from civil status: unable to marry, register a partnership, adopt together, inherit from one another or seek maintenance. Rather than eliminating inequality, it entrenches a majoritarian family ideal behind a facade of uniformity.

The Constitution is not silent. Supreme Court precedent protects equality, dignity, identity and autonomy. In 'National Legal Services Authority v. Union of India' (2014), the court accepted transgender persons as equal constitutional rights holders, stating that 'recognition of one's gender identity lies at the heart of the fundamental right to dignity'. It held that gender self-determination falls within the personal liberty guaranteed by Article 21.

In 'K S Puttaswamy v. Union of India' (2017), the court recognised sexual orientation as an essential attribute of privacy and dignity. In 'Navtej Singh Johar v. Union of India' (2018) 10 SCC 1, it established that constitutional morality must take precedence over social morality.

Then there's 'Supriyo v. Union of India' (2023), commonly read as a defeat for marriage equality. It declined to extend Special Marriage Act to same-sex couples, while acknowledging discrimination faced by queer couples and recognising the need to address their legal entitlements. So, the case entrusted the legislature with shaping the civil framework governing marriage, divorce, maintenance and inheritance. UCC is precisely such a framework.

It would be contradictory to place responsibility for addressing queer citizens' exclusion on the legislature, only for the code to perpetuate that very exclusion.

A truly UCC remains a goal worth pursuing. Uniformity, however, is not a slogan but a discipline. A code earns the name 'uniform' only if it holds the same promise to every citizen: to marry, adopt, inherit, be recognised by the law as family. If India is to draft a civil code for the 21st c., it must include all its citizens, including those left out of the earlier law.

The Constitution will allow nothing less. The top court has said as much. The only question is whether the legislature is listening.

Bhasin and Pathak are partners, and Sudheer is associate, Shardul Amarchand Mangaldas & Co