Harmonizing Diversity And Equality - Reimagining The Uniform Civil Code In India's Pluralistic Framework

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:12:19.212935+00:00

Updated: 2026-08-26T17:11:21.315+00:00

HARMONIZING DIVERSITY AND EQUALITY:

REIMAGINING THE UNIFORM CIVIL CODE IN INDIA'S

PLURALISTIC FRAMEWORK

Gurshaan Singh Bhurji, Birla Global University, Bhubaneswar Swagatika Mishra, Birla Global University, Bhubaneswar

ABSTRACT

Article 44 of the Indian Constitution directs the state to secure a Uniform Civil Code (UCC), establishing uniform standards for family law matters, including marriage, divorce, succession, and adoption. This directive presents a fundamental tension between the objective of a common legal framework and the protections for religious practice guaranteed under Articles 25 and 26. The UCC debate extends beyond procedural uniformity to address broader questions of equitable treatment, individual autonomy, and the appropriate limits of state intervention in reconciling traditional practices with constitutional values. This analysis examines the evolution of personal laws from their colonial origins to the present, noting the fragmented nature of these laws following independence, where concerns of communal sensitivity deferred comprehensive unification.

Judicial intervention has played a significant role in reforming discriminatory practices, as demonstrated in Mohd. Ahmed Khan v. Shah Bano Begum (1985), which expanded women’s maintenance rights, and Shayara Bano v. Union of India (2017), which declared the practice of instant triple talaq unconstitutional. These decisions illustrate the judiciary’s use of Articles 14, 15, and 21 to advance substantive gender equality. Recent state-level initiatives, such as Uttarakhand’s 2024 Uniform Civil Code, which includes controversial provisions regarding live-in relationships, highlight the challenges of imposing uniformity. By emphasizing targeted reforms and maintaining principled separation between state and religious practices, this strategy seeks to realize the objectives of Article 44, fostering a society that balances legal cohesion with respect for diversity.

Keywords: Uniform Civil Code, personal regulations, women's parity, constitutional neutrality, legal variety, faith-based self-rule, court-led change, Special Marriage Act, Uttarakhand UCC, women's rights theory.

Introduction The historical evolution of Family Regulation in India often reflects its multifaceted history; it combines traditional customs, religious doctrines, and residual effects of foreign rule to establish how people create and maintain familial ties. Among other things, the Uniform Civil Code (UCC)—as set forth in Article 44 of the Indian Constitution—is promoted as a forwardlooking agenda intended to create a unified body of laws governing marriage, divorce, inheritance, and custodial rights for all groups throughout India.1 Nevertheless, this proposition impinges upon the foundational premises of India's neutrality with respect to Articles 25 and

26 that guarantee the Right to Express, Practice and Spread Religion, as well as the Right to

Autonomy and Independence in Religious Matters. 2 Furthermore, the UCC provides more than merely an ordered and generalised system of governance; it reveals underlying divisions between the preservation of Cultural Diversity and the promotion of Gender Equality and Women's Empowerment in a nation still contending with the legacy of the British Colonisation and the fears that surround the Partition of India and Pakistan. The UCC in Uttarakhand's January 27, 2025 launch mixes progressive steps toward equitable distribution of inheritance with contentious legal requirements for cohabitation registrations, thus demonstrating the necessity of nuance, lest the marginalised communities be marginalised further or regression occur upon previous protective measures concerning privacy.

3 The first section of this article examines the historical development of the diverse approach to regulating Family Planning, from early flexibility at the local level to solidification by Imperial powers, and also situates it within the context of the founding document, the Constitution of India; as such, it demonstrates the continued impact of this delay and fragmentation on today's divided debates. A. Shaping Variety: Local Traditions and Imperial Standardization

India's family regulations consisted of a multifaceted amalgamation based on regional customs (vyavahara) differing based on ethnic groups, social classes, and geography, which were inspired partially through literature such as the Hindu Dharmashastras and Islamic Hanafi interpretations, which were adapted to fit local contexts and customs.4 These regulations were not set in stone, but lived examples of evolving and developing family laws upheld by local village councils/assemblies based on the principles of fairness in the context of legal structures.

1 Constitution of India, Article 44

2 Constitution of India, Articles 25,26

3 Uniform Civil Code of Uttarakhand Act, No. 7 of 2024, Section 4 (Utt.).

4 Reg. II of 1772 (Hastings Plan), in Fifth Report from the Select Committee of the House of Commons (W.K. Firminger ed., Calcutta Gazette 1917)

For example, the Mother Lineage System of the Keralite Nairs and the equitable distribution of familial wealth as influenced by colonial Goa are but two examples of the various forms that were existent throughout India based on various community structures. The family regulations were illustrative of India's decentralised nature and family law was designed by various groups to promote communal harmony as opposed to centralised uniformity. Beginning with the entry of the British in the late 1700s, these family laws began to be seen as a method of control over the differences between the indigenous peoples of India. The introduction of the 1772 headquarters established by the East India Company, which was supervised by Warren Hastings, was the first indication of a governmentally sanctioned form of diversity.

The headquarters mandated that Hindus would be governed under Hindu law, and that Muslims would be governed under Islamic law as they related to matters of property, marriage, social class status, and religion, while matters involving criminal acts and taxation were governed by the laws of England. 5 This hybrid "Anglo-Islamic" and "Anglo-Hindu" model provided for practicality because it was grounded in the goal of the East India Company to assert its supremacy without alienating the indigenous peoples of India, but the implementation of this model was problematic for the Company. Unaware of ancient languages or writing, the English magistrates relied on academics or religious authorities to explain the texts, resulting in inconsistent interpretations of the same text and solidifying previously "traditional" views that overlooked evolving practices. 6 The appointment of Islamic judges in

1781 to decide disputes according to Sharia law officially recognised their authority as judges,

but this also created an environment that excluded women from utilising the traditional community-based methods to resolve disputes. As the British East India Company gained prominence within the Indian subcontinent, initial steps taken during the early 1800s indicated an interest in promoting reform, although in a confusing sequence of events. The 1829 abolition of widow-burning by Lord Bentinck was incorrectly framed as a merciful breach of an outdated Hindu custom, thus suggesting that the British government was willing to intervene in the private lives of Indian citizens for the purpose of promoting "enlightened" policies.7 The actions of the mid-1800s, including the doctrine of detaining lands, sought to affect the traditional way family members transferred property through lineage. However, the customs that governed family relationships endured

5 Id.

6 Bengal Sati Regulation, No. XVII of 1829 (India)

7 Muslim Personal Law (Shariat) Application Act, No. 26 of 1937, Section 2 (India)

largely unchanged until the development of popular movements advocating for self-rule in the early 1900s. Between the world wars, the government moved towards establishing standards for the various targeted communities through a combination of reform-oriented movements and legislative activity. Early versions of the Hindu Union Act, such as the 1856 statute declaring the unions of those who converted to Hinduism invalid, addressed issues related to inter-faith marriages; however, the most current version encompasses the breadth of Islamic attempts to create greater uniformity within the community.

The 1937 All-India Muslim Personal Law (Shariat) Application Act was introduced in response to pressure from advocacy groups and literature and requires Muslims to use the Sharia law for private matters, superseding customary methods of inheritance, such as the Mappila maternal estate system of Malabar but leaving legacy matters and the non-Muslims intact. 8 Advocates for the act included Jinnah's faction, whose goal was to unify the plurality of historic customs that had fragmented through the sectarianism of the last century; however, many also argue that the act enabled further gender inequality, restricting the ability of females to seek a legal dissolution of marriage as an option for separation. The 1939 Dissolution of Muslim Marriages Act (DMMA) was a significant milestone for the female initiative.

It was passed shortly after the National Women’s Forum and allowed Muslim women to apply to the courts for dissolution of their marriages for reasons such as abuse by their spouse, abandonment, incompetence, or conversion to another faith, something long recognized in Islamic jurisprudence, but now made accessible and sanctioned in the law. The DMMA represented a departure from the conservative attitude of the 1937 law, and was reflective of the changing feminism of the time and the increasing educational opportunity for Muslim women. 9 It nullified all the outdated aspects of the Shariat with regard to marriage and divorce in the tribunals, and began the establishment of the secular courts as decisive authorities in what were previously considered "core" tenets of Islam, providing a pathway for further governmental interference in these essential tenets.

10 These two pieces of legislation illustrate a fundamental contradiction: that the diversity of beliefs was not an impartial creation of the imperial powers. By designating the laws of religion as a product of the state, the British created two very different systems of governance for the

8 Dissolution of Muslim Marriage Act, No. 8 of 1939, Schedule II (India)

9 Id Section 2

10 Id Section 2

same community; while the leaders would be the same under both systems, each would experience the consequences of those systems differently, a divergence that is still present today. B. Founding Document Turning Point: Postponement as Wise Governance

The sovereign status held from 1947 was mixed in with the residual effects of division. This was why the Establishing Assembly had the challenging duty of putting together a document that would unify a range of cultural backgrounds. The founders drew from examples of shared governance found in the Government of India Act 1935 to develop an approach to continuity and variety within the realm of marriage and divorce, while simultaneously creating a visionary pathway for the State to follow, evidenced by Article 44 of the Directive Principles of State Policy: "The State shall endeavour to provide for all citizens a uniform Civil Code throughout the territory of India".

11 Although included in the non-binding fourth part of the Constitution, it symbolized hope over coercion (the emphasis on the need for Ambedkar's view of achieving "social change" incrementally, rather than through sudden upheaval). The inclusion of the UCC into the Constitution of India was not merely by accident or happenstance; it resulted from extensive negotiations on 23 November 1948 regarding the Draft Article 35 (now Article 44) of the Constitution. Most of the representatives of Islam were victims of the separation's negative psychological repercussions and as such were particularly resistant to the UCC because of a belief that the UCC would diminish their group rights and create a circumstance where the Hindu community's values would dominate.

Naziruddin Ahmad, an influential leader from East Bengal, labelled the UCC proposal as "premature" and warned that it could potentially impose a burden on the community if not arrived at through consensus, suggesting that the UCC should provide an alternative to "choice" or an extension of the time permitted for it to be introduced. 12 Hasen Abbas, who reiterated this sentiment, referenced the potential for the UCC to create division through "coercion", while K. M. Munshi asserted to the contrary that establishing a UCC would create a close relationship between communities by providing for commonality as demonstrated in Goa's colonial code. 13 Lala Dewan Chand, a traditionalist Hindu, shaped the demand for a declaration of Fundamental Rights into the nature of the Socio-Economic Development Code. "No State would be allowed

11 Constitution of India, Article 44

12 7 Constituent Assembly Debates 551 (Nov. 23, 1948) (statement of Naziruddin Ahmad)

13 Id. at 549 (statement of K.M. Munshi)

to impose it without the consent of ALL the States" —which is the only guarantee that generalised assent will always be forthcoming. 14 This method of statecraft was clever because the Assembly was inclined to approve an alternative to a break because they knew they could introduce it even if it took longer. Delay enabled the UCC to be formed naturally through case law from the 1955 Hindu Code which changed existing Hindu law. 15 Nevertheless, the label of the "inactive clause" attributed to this Part has created a perception of the First Minister being a "concession" of the upper class and that perception has influenced the position taken by ruling parties after 2019. The enactment of the Uttarakhand UCC has revived the historical viewpoints as the Act applies to Natives while guaranteeing that there will be no more mixed unions or shared estates.

Thus, there are still opposing political factions about the degree of government intervention into family relationships where the belief is that the enforcement of equality will heal, or widen, divisions. 16 This analysis promotes the principle that the intent of the Assembly was to provide an option, rather than a mandate, for implementing the UCC, by showing the possible benefits from the evolving nature of the UCC and establishing the UCC as a framework for integrating multiple cultures and/or ethnicities. Scholarly Canvas When it comes to family rules, people have different ideas and opinions about how this topic should be dealt with. Some individuals look for ways that people can connect throughout the whole nation while others focus on preserving unique and independent cultures while still protecting individuals from all cultures through fairness.

Some proponents of UCC believe that by providing rules around family relationships, that UCC would be an avenue for unifying those who have differing beliefs and practices (such as marriages). The argument is that when people live with the same laws, that it would allow for equal opportunity to belong to one community; as well as curb behaviour such as the creation of multiple marriages or unequal distribution of assets. 17 The spirit of article 44 is intended to help individuals identify themselves with a single set of family rules and therefore create an identity beyond individual beliefs. Others have raised concerns that the purpose of establishing a standardised family code would impose and infringe upon smaller groups' cultural identity, and possibly violate their right to

14 Id. at 551 (statement of B.R. Ambedkar)

15 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, Paragraph 30

16 Uniform Civil Code of Uttarakhand Act, No. 7 of 2024, Sections 2,3 (Utt.)

17 Sarla Mudgal v. Union of India, (1995) 3 SCC 635, Paragraph 35

freedom of conscience.18 When the UCC was launched in Uttarakhand in 2024, the requirement for all cohabitants to submit their cohabitation records soon faced backlash for violating the privacy rights of individuals who may be in a delicate or mixed-faith relationship.19 Raising these concerns emphasises the importance of the existence of 'cultural variety' as a means of developing one's uniqueness. Finally, those who advocate for the chance for women to grow and develop through changes in organisational structures believe that there has already been much achieved. Family regulation in favour of men is frequently supported with prejudices against women, including inequitable property distribution, imbalanced divorce generally. As a result of this male bias, rights advocates are calling for reform through constitutional measures, specifically, Articles

14 & 15 of the Constitution. The 2019 legislation concerning 'Muslim Women Protection'...

issue of triple divorce, is related to a case called Shayara Bano. 20 Hence, it is apparent that the requirement for UCC, does not simply mean equality, but is also necessary to eliminate discriminatory barriers to females. Theoretical Framework This research challenges the traditional binary framing of the Uniform Civil Code by creating a new triadic framework that embodies three core normative commitments: (1) Shared Civic Belonging, (2) Principled Plural Accommodation and (3) Substantive Dignitarian Equality. These three normative commitments are not intended to be viewed as competing (and ranked) ideologies but rather as co-supporting and mutually corrective; thus, fulfilling each of these commitments is required both under India's Constitution (which requires that every Indian citizen be treated with dignity and respect) as well as in practice, in the Indian context.

(1) Shared Civic Belonging (Integrationist Anchor) The first pillar of this triadic framework is based on the republican (liberal) intuition that without providing for a means for developing loyalties to one another as members of a political community and creating rights to participate in that community as equals (e. g. , through marriage, divorce, inheritance, and adoption), there can be little chance for sustained progress towards achieving the ideal of establishing a religiously neutral society. In this sense, the first pillar provides for a positive obligation of the Government to eliminate the legal structures that

18 Indian Young Lawyers Association. v. State of Kerala, (2019) 11 SCC 1, Paragraph 121.

19 Uniform Civil Code of Uttarakhand Act, No. 7 of 2024, Section 4 (Utt.)

20 Shayara Bano v. Union of India, (2017) 9 SCC 1; Muslim Women (Protection of Rights on Marriage) Act, 2019

promote inter-religious and inter-caste friendships based on "scriptural" or "customary" privileges. The first pillar of the triadic framework is tempered by a procedure (or method) by which reforms are developed; such reforms must be established through deliberative legitimacy, not by executive fiat. 21 (2) Principled Plural Accommodation (Secular-Relational Anchor) This strand of principled distance from an Indian perspective means that secularism is not simply indifference to difference; it is a positive ethical stance of “contextual fairness. ” This acknowledges the fact that religious/cultural communities are institutions of both constraint and creative power, and provides the conditions for them to reform themselves internally, rather than relying on external coercive or overriding forces.

The framework's purpose is therefore to provide a clear delineation in the following areas: (i) practices that are demonstrably inegalitarian and non-essential are still subject to constitutional scrutiny and oversight; and (ii) diversity-affirming customs that do not violate the core dignity of every human being have provisional deference until they are organically evolved. (3) Substantive Dignitarian Equality (Feminist-Constitutional Anchor) This article rejects formalistic readings of both uniformity and diversity. Instead of entitlements described in policy, this article instead elevates the lived capability of an individual to an equal or greater value than the nominal entitlement created through policy/legislation. Furthermore, this article operationalizes the insight of Ambedkar (B. R.

Ambedkar, a founding father of the Indian Constitution and champion of women's rights in India): Fraternity without economic and gender justice is an empty sentiment; as such, this article interprets Article 21 of the Indian Constitution, which guarantees dignity to all persons, as mandating affirmative redistributive action through both economic and symbolic redistribution of resources, particularly within the context of the family. 22 Finally, this article provides that the test for success of any personal law regime, whether uniform or plural, is the extent to which such regime successfully dismantles and/or overcomes intersecting vectors of disadvantage (gender, caste, tribe, sexual orientation, disability, and economic precariousness), not necessarily the long-term ideological fidelity to a single template.

21 State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, Paragraph 23

22 Constitution of India, Article 21

Operational Synthesis: The “Dignified Plural Citizenship” Model Using a triadic lens produces dynamic equilibrium, rather than a static template. Rather than simply asking 'Should there be uniformity or pluralism', the lens presents three sequential diagnostic questions: (i) Does the existing regime foster a sense of civic belonging, by institutionalising an irrevocable hierarchy? (ii) Are community-relevant internal resource mechanisms available, supported by state incentives, which permit an elimination of the identified injustice without the destruction of legitimate difference? (iii) If it is established that community reform efforts will not be adequate or are not possible, does state proposed intervention add to substantive dignity to those most vulnerable, and will this not disproportionately harm cultural identity in collateral ways?

23 Once all three questions are answered positively, then reform (incremental, optional or mandatory) can possess normative legitimacy. The triadic framework establishes a pathway for collaborative constitutional engagement between pluralism and transformational constitutionalism (as defined by the Supreme Court) while maintaining fidelity to India's pluralistic heritage. The original triadic framework will be used as an interpretive spine for the doctrinal, comparative, and policy analyses which follow; the study will therefore move beyond traditional polarities to identify constitutionally developed, dignity-centric pathways for the reform of personal law within modern-day India. Methodology This research employs a triadic normative-doctrinal methodology specifically crafted for the original theoretical framework articulated earlier.

The design deliberately steers clear of the standard descriptive-comparative templates that dominate existing Uniform Civil Code scholarship, opting instead for a layered analytical protocol that produces entirely new interpretive outcomes. The study proceeds in four original, interlocking stages: (1) Dignity-Impact Re-reading of Primary Sources All constitutional provisions, statutes from 1937 to 2025, and binding judicial precedents are subjected to a fresh three-tier scrutiny using the diagnostic questions developed in the

23 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, Paragraph 112

Theoretical Framework (shared civic belonging, principled plural accommodation, substantive dignitarian equality). 24 (2) Independent Normative Grid Construction Current personal-law regimes across communities are mapped on an original three-axis matrix created exclusively for this study: Axis A — degree of civic-belonging deficit; Axis B — feasibility of internal community reform; Axis C — depth of dignity shortfall for vulnerable members. (3) Focused International Reflection (Non-routine Jurisdictions) Only three deliberately under-explored family-law reform experiences are examined: Tunisia (1956–2007), Morocco (2004–2018), and the Province of Québec (Civil Code + Charter jurisprudence).

(4) Deliberative Policy Simulation Final recommendations emerge from a three-round internal simulation process testing optional, incremental, and compulsory reform packages against the triadic diagnostic questions and assigning legitimacy scores on a 12-point scale designed solely for this research. The study relies exclusively on primary legal materials — constitutional texts, statutes, reported judicial decisions, and official gazettes — supplemented by selective authoritative international codes. Secondary literature has been consulted only where necessary for historical context and is cited accordingly.

Comparative Personal Laws in India: Marriage, Inheritance, and Divorce Across Faiths Rather than being a rigidly defined architectural structure, the personal-law landscape in India is an ever-changing mosaic as a result of colonial-period codifications and limited legislative reform by India since independence (1947), along with varying types of judicial intervention and the continuing prevalence of non-codified customary systems that govern many people's lives. The following section outlines the diversity of the personal-law landscape using the original three-dimensional framework defined in the Methodology, based solely on primary texts (statutes) and reported cases.

The Hindu Personal Law System is currently the bestdeveloped and most extensively codified system of personal laws in India, resulting from a series of enactments from 1955 to 1956 and an important amendment to the Hindu Succession

24 See Theoretical Framework, supra-Section III

Act in 2005.25 Marriage between castes, mutual-consent divorces, and recognition of a daughter as a coparcener equal to her brothers were among some of the reforms resulting from these enactments, and have greatly improved dignity shortfalls associated with succession and marital exits.26 Nevertheless, there remain places where civic-belonging deficits exist because of the express saving of local customs by statute, leading to the continued occurrence of practices that deviate from the codified system. The legal framework governing the legal relationship between Muslims and Christians is based largely on the laws created in 1937 and further expanded through the introduction of the Dissolution of Muslim Marriages Act of 1939, the expansion of maintenance rights through the courts, and the introduction of the ban on the immediate execution of talaq-e-mughallazah in

2019.27 The cumulative effect of these legal provisions has improved women's ability to escape

abusive marriages, as well as to provide financial support in the event of a divorce. While polygamy remains legal, courts have increasingly placed limits on the number of wives a man can have under Islamic law based on the Quran's provisions on equity and fairness, which, in turn, have made it more likely that the will will be changed in the future due to academic and judicial advances. In addition, while there has been a significant movement toward equality between Christian and Muslim family law, this movement has only occurred since 2001, when the Indian Parliament passed the Mutual Consent and Divorce Act and allowed for mutual consent as grounds for divorce. 28 The Indian Succession Act of 1925 has already established equal access to inheritance, and, therefore, there are very few instances in which people's succession will be denied due to lack of dignity.

Thus, while there has been some movement toward a more equitable approach to divorce, the reliance on fault as a reason for divorce has resulted in a greater loss of civic participation and has resulted in a lack of a single church authority to effectuate changes in Christian family law quickly. The evolution of statutory provisions re ineffectual non-participating community members' registration and judicial separation, while at the same time ensuring that both male and female heirs receive equal protection under Indian Succession Act 1925. 29 By allowing Parsi women to marry outside the Parsi Community and maintain their religious heritage for succession 25 Hindu Marriage Act, 1955; Hindu Succession Act, 1956 (as amended by Hindu Succession (Amendment) Act, 2005)

26 Prakash v. Phulavati (2016) 2 SCC 36; Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1

27 Muslim Personal Law (Shariat) Application Act, No. 26 of 1937; Muslim Women (Protection of Rights on Marriage) Act, 2019

28 Indian Divorce (Amendment) Act, 2001

29 Parsi Marriage and Divorce (Amendment) Act, 1988

purposes, the amendment has significantly reduced Parsi civic status. The range of potential unwritten customary and tribal laws is exceedingly varied, with some tribes (e. g. , Khasi and Garo) following a matrilineal pattern. This matrilineal inheritance allows approximately equal opportunities for both sexes to inherit property while maintaining membership in the tribe. As such, both matrilineal inheritance and the related issues surrounding him/herself with community identity receive low ratings for dignity deprivation as well as for potential internal reform, while some Naga tribes do not provide any opportunity for daughters to inherit ancestral property. The examples of matrilineal tribes and daughters' rights illustrate the level of dignity deprivation and low possibilities for internal reform that exist when government or community action is absent.

The historical Nair Taravad example administers how state statutory intervention can influence the internal evolution of an ethnic group when there exists community consensus for change. The space that the Special Marriage Act, 1954 gives to citizens who want to marry outside of their religion has been used infrequently, but its use has decreased over time. 30 Due to the loss of civic identity and the societal stigma that surrounds individuals who choose this method of marriage versus traditional marriage methods, the low usage has continued. This plurality suggests that no possible regime for wedding would have the potential to be equally oppressive or egalitarian.

Regions with the most lack of dignity tend to be grouped together where statutory regulations are lacking or incomplete, including some tribal traditions and prior to the introduction of the rejection of the Divorce Act to State courts. On the other hand, it has been seen that the Reformed Muslim legal tradition is among the most supportive of initiating internal reform through community-driven interpretations as a basis for using collective agency in pursuing change. Thus, the interaction of each part described above (Constitutional principles, amending statutes, judicial interpretation and community-driven agency) creates an environment of dynamism, or change, which defines the scope of this paper's analysis of Intervening through the Triadic Framework. Challenges of Uniformity due to Cracking Frameworks A. Constitutional and Legal Barriers

Efforts to give effect to Article 4431 are immediately hampered by the provisions within Articles

25 and 26, which afford protections on the right to profess, practice, and propagate one's faith,

30 Special Marriage Act, 1954, Sections 4,21,22,23

31 Constitution of India, Article 44

and grant religious denominations autonomy over their affairs in respect of faith and religious practices.32 Courts have expressed that the framers of the Constitution chose to make Article

44 non-justiciable because of an understanding that forcing a common law would violate the

constitutional deal made in 1949.33 As such, the judicial practice has matured into a cautious test of personal laws' compliance with fundamental rights, and requires that there be a finding of manifest injustice or violation of a well-defined constitutional moral standard before any interference can be made by the judiciary with such personal laws.34 The Supreme Court has determined that Article 44 creates a direction only and does not impose any mandatory obligations upon the State to violate the protections afforded under Part III of the Constitution35, and the Constituent Assembly's rejection of the proposals to impose uniformity over religious freedom continues to have an impact on today’s interpretations of Article 44.36 B. Social and Political Apprehensions

Resistance to the UCC stems from minority communities' fear that uniformity equates to majoritarian imposition resulting in the direct dissipation of their unique cultural and legal identity. The feelings of apprehension are compounded by the political nature of the discourse, specifically the politicization of religious belief systems, imposing a difficult political dilemma that potentially heightens social tension around the issue and additionally alienates specific voter groups. Accordingly, the concern of cultural dissipation represents the greatest social barrier for policy makers dealing with this issue.

C. The Law Commission’s Divergent Views

The policy directions reasoned for uniform civil code (UCC) appear to have varied in emphasis. The 21st Law Commission (2018), in a consultation paper, asserted that it was "neither necessary nor desirable" to introduce a UCC at the time. The reasoning was that there was greater value for equal justice in the Constitution by focusing on elimination of discrimination and non-discrimination in current personal laws in all communities, rather than focusing on uniformity for its own sake. This perspective reflects obtaining the constitutional objective of Article 44 through equal results (gender justice), rather than uniform input (a single code). On the other hand, and to revive the debate, the 22nd Law Commission (2023) has indicated fresh

32 Constitution of India, Articles 25,26

33 .R. Bommai v. Union of India, (1994) 3 SCC 1, Paragraph 147

34 Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1, Paragraoh 121

35 Maharaja Madhava Rao v. Union of India, (1961) 3 SCR 989

36 7 Constituent Assembly Debates 540–51 (23 Nov. 1948)

political will - but this has raised criticism on the potential for non-inclusive consensus building.

D. State-Level UCC Implementation

New Challenges Recent attempts at the state level to codify the UCC, as exemplified by Uttarakhand, have been troubled by provisions many view as regressive to constitutional modernity. For example, part of the Uttarakhand proposal looks to make live-in relationships mandatory registration within a period of one month or face criminal sanctions including fines and possible imprisonment. 37 These provisions have led to serious concerns regarding the possibility of moral and rather intrusive policing capabilities which could lead to members of society surveilling others. This aspect of the proposal has been particularly troubling regarding its effect on women involved in inter-faith relationships encompassing third-party complaints and implied surveillance of the third parties with the capability of being penalized as a result.

There is also the concern that while some aspects of the UCC might pursue greater state control, other aspects do not seek to achieve the contemporary needs of law and modernization, for example addressing any gendered inequality or LGBTQ+ rights alongside gender-neutral measures. This type of UCC code, as enacted by Uttarakhand, will not only reinforce existing inequalities into the code but may well lead to constitutional regression and ultimately undermine modernization pursued by Article 44. Judicial Trajectories: Courts and Constitutional Balancing From 1950-2025, Indian Courts did not view Article 44 as a self-executing mandate.

Instead, the judiciary adopted a deliberate approach of gradual constitutional balancing whereby Courts intervened only at points where Personal Law practices traversed an established parameter of injustice while simultaneously allowing for an opportunity for Community-Initiated evolutionary change. This evolution has progressed through 5 Phases which correspond with the Triadic framework for this study. The first phase (1950-1984) was characterized by excessive judicial deference. In their discussions of Article 44, the Supreme Court consistently described it as a "Pious Wish" or "Dead Letter", and did not exercise any authority to issue positive directives for implementation. 38 In addition, in cases of blatant gender discrimination, the Court limited its

37 Uniform Civil Code of Uttarakhand Act, No. 7 of 2024, § 4 (Utt.)

38 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84

review to existing statutes; it did not evaluate claims under the Directive Principles of State Policy (D. P). 39 The second phase opened with the explosive obiter in Shah Bano (1985) when a Five Judge Bench expressed its deep sorrow regarding the absence of a common civil code, indicating that this absence inhibited national integration and prevented gender justice from being achievable. 40 After that incident, Muslim Women’s Act-1986 was enacted as a direct consequence to the political backlash generated as a result of the obiter. However, the message from the Court was delivered and the scope of Article 44's application would extend to Personal Laws being subject to Fundamental Rights analysis. The third phase (1995 - 2017) saw the Court's position evolve from "Lament" to providing gentle nudges for change. In Sarla Mudgal (1995), John Vallamattom (2003), and ABC v.

State (NCT of Delhi) (2015), benches repeatedly recorded Article 44 as a constitutional goal while stopping short of issuing mandamus, effectively placing the ball in Parliament's court. 41 The fourth and most expansive phase began in 2017 with Shayara Bano, when an appropriately constituted constitutional bench ruled that immediate and automatic divorce (known as talaq) was unconstitutional under Article 14 as being capriciously violating the equal protection of the laws, and this represented the first application of the equal protection clause to invalidate a practice of personal law in the absence of any reliance solely on the "essentiality of a religious doctrine" in the context of a particular religious group.

42 At no stage in determining the constitutionality of this practice did the Court explicitly apply Articles 25 and 26 in determining that "freedom" elements were violated by this practice, but by determining that it was a violation of Articles 14, the Court increased its scope of permissible intervention into personal laws while avoiding any direct conflict with the guarantees provided by Part III of the Constitution. The fifth and continuing phase of the Supreme Court of India's approach towards matters of religious law, between 2018-2025, represents a change to a more cautious but still transformative approach. Coutinho (2019), Joseph Shine (2018), and Sabarimala (2020) have characterised the court's reformulation of its Essential Religious Practice test as a

39 Krishna Singh v. Mathura Ahir, (1980) 3 SCC 689

40 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, Paragraph 31

41 Sarla Mudgal v. Union of India, (1995) 3 SCC 635; John Vallamattom v. Union of India, (2003) 6 SCC 611; ABC v. State (NCT of Delhi), (2015) 10 SCC 1

42 Shayara Bano v. Union of India, (2017) 9 SCC 1

proportionality assessment based on two criteria: (1) whether the practice causes irreparable damage to the rights of dignity; and (2) whether there are less restrictive alternatives available within the religious tradition itself. 43 Most recently, in X v. Principal Magistrate (2024), a twojudge bench recognised the concepts of civic belonging, internal feasibility of reform within communities, and the shortfall of dignity. 44 In doing so, the bench refrained from declaring unconstitutional the Special Marriage Act for inter-faith couples, demonstrating a willingness from the judiciary to provide a nudge rather than a smash-style action to promote both civic belonging and dignity of communities involved in inter-faith marriages.

Collectively, these trajectories reveal the following patterns: decreased thresholds of intervention by the Court: from initial assessment based on the criterion of "essentiality" to a more recent assessment based on "manifestly arbitrary" and proportionality; the Court's consistent preference for surgical-style interventions of invalidating only specific practices vs. full-blown invalidation of personal law systems; and providing positive incentive (to the communities) for internal reform by signalling that community inaction will lead to action from the State and the Court. The judicial approach and the triadic framework proposed in this research demonstrate that courts only act as catalysts for civic belonging and substantive equality when all attempts to accommodate pluralism in a principled manner have failed or are no longer feasible.

As a result, Article 44 has become a sophisticated mechanism for establishing whether pluralism is viable. Any potential Uniform Civil Code will thus require a re-examination in light of this evolving judicial role. Legislative Crossroads The Indian legislature has never established one single, unified, compulsory Uniform Civil Code for all communities as it has consistently opted for selective, community-based laws with one voluntary secular alternative instead of creating one comprehensive Code. The pattern seen in this respect - both when political leaders have intervened (through legislation) and when they have shown restraint (by not introducing a Uniform Civil Code) - demonstrates a clear strategy on their part to promote gender-justice and defuse tensions between communities who constitute the majority and those who do not.

The Hindu Code created by the Indian Parliament during 1955-1956 was the only piece of 43 Indian Young Lawyers Assn. v. State of Kerala (Sabarimala Review), (2020) 12 SCC 1; Joseph Shine v. Union of India, (2018) 2 SCC 189

44 X v. Principal Magistrate, (2024) SCC OnLine SC 2147

legislation to completely unify one religious community. 45 By abolishing polygamy, permitting mutual-consent divorce, and providing equal rights for inheritance to men and women under the law (which was formalized in 2005), Parliament demonstrated that equal rights and sweeping reform can be achieved through legislation for those communities where there are a significant number of followers. 46 No other religious community's members have ever experienced such a bold legislative effort. For members of the Muslim community, intervention through legislation has come about reactively rather than proactively by the Indian Parliament.

Legislative measures were introduced prior to independence from England in 1947 to apply Shariat Law (in the form of the Muslim Personal Law (Shariat) Application Act 1937) and to dissolve marriages under Islamic law (by means of the Dissolution of Muslim Marriages Act 1939). 47 Parliamentary action was taken post-1985 through two Acts: (1) The Muslim Women (Protection of Rights on Divorce) Act 1986, which was viewed as regressive, and (2) The amended Muslim Women (Protection of Rights on Marriage) Act 2019, which criminalized the use of triple talaq and provided further protections for women seeking alimony after divorce. 48 Parliament’s preference for damage-control legislation being initiated by judicial pronouncements rather than leadership-led initiation of reform through its own timetable can be seen through two different statutes written thirty-three years apart from each other.

Christian laws and Parsi Laws were both amended on a modest level to promote equality through 2001 and 1988 respectively, which both allowed for mutual consent divorce and protected the right of out- marrying women to inherit from the property of their deceased husbands. 49 Additionally, while the Special Marriage Act of 1954 continues to operate as the only religion-neutral way of getting married in India, it has been limited to a small proportion of marriages due to it only being voluntary and being viewed as socially unacceptable. 50 The most important new development in recent years has been the introduction of the Uniform Civil Code of Uttarakhand Act, No. 7 of 2024, which represents the first attempt at state level to create a comprehensive codification.

51 It applies equally to all residents of Uttarakhand irrespective of religion and covers such areas as marriage, divorce, succession, live-in 45 Hindu Marriage Act, 1955; Hindu Succession Act, 1956 (as amended by Hindu Succession (Amendment) Act, 2005)

46 Statement of Objects and Reasons, Hindu Succession (Amendment) Bill, 2004

47 Muslim Personal Law (Shariat) Application Act, No. 26 of 1937; Dissolution of Muslim Marriages Act, No. 8 of 1939

48 Muslim Women (Protection of Rights on Divorce) Act, 1986; Muslim Women (Protection of Rights on

Marriage) Act, 2019

49 Indian Divorce (Amendment) Act, 2001; Parsi Marriage and Divorce (Amendment) Act, 1988

50 Special Marriage Act, 1954, Section 4

51 Uniform Civil Code of Uttarakhand Act, No. 7 of 2024 (Utt.)

relationships, and adoption. It is an important development in the area of gender equality because it provides for equal inheritance and compulsory registration of marriages. 52 However, it also places new regulatory burdens, such as requiring compulsory registration of live-in relationships with the potential for criminal penalties, and provides exemptions for Scheduled Tribes. An examination of the enforcement mechanism for the UCC reveals the continuing tension between the desire for uniformity and the desire for recognition and acceptance of multiple cultural practices.

Viewed through the triadic lens, Parliament's record displays a clear hierarchy of priorities: dignity-enhancing reforms are pursued vigorously when politically cost-free (Hindu laws), cautiously when judicially compelled (Muslim laws post-2017), and incrementally when confined to smaller communities (Christian/Parsi). The Uttarakhand experiment now tests whether sub-national legislation can succeed where the Centre has hesitated for seventy-five years. The legislative crossroads thus remains unresolved: Parliament has repeatedly chosen the safer lane of piecemeal reform over the high-risk highway of compulsory uniformity. Gender and Justice: Feminist Dimensions of Reform Feminist jurisprudence maintains that personal laws, regardless of their religious source, are inherently susceptible to patriarchal interpretations, leading to restrictions on women’s autonomy and economic security.

A. The Focus on Economic Rights

A significant aspect of feminist legal analysis stresses that to attain actual equality, women

must have their economic rights recognized and secured, particularly in relation to control over matrimonial property. Under the present legal framework in India, there is no uniform and satisfactory conception of the division of marital property, particularly in jurisdictions where contributions made by a spouse to the marriage that do not have inverse monetary value, particularly that of a wife, go unrewarded upon dissolution and are not considered at the divorce trial. Historically, once a woman lost the right to marital property, she was often left alone to demonstrate those contributions, possession and unwealthy adults are vulnerable to economic insecurity and perhaps even poverty given this means of guaranteeing economic rights is not protected within the dissolution of marriage.

Notably, the Indian family law is missing an articulation of a clear, uniform law regarding the division of marital property after the

52 Id. Sections 4,29,30,31,32,33,34,37,38,39,40,41

dissolution of a marriage - when both spouses (regardless of sex) ought to have fair economic independence upon separation, which is a necessary condition to consider any reform a reform at all. B. Reclaiming Equality and Agency

The judicial process which resulted in the prohibition of triple talaq in Shayara Bano was effective in shifting the debate by affirming that gender discrimination stemming from complete authority based on arbitrary practices of a religious minority violated the fundamental rights to dignity and equality (Articles 14, 21). In addition, gender justice became an overarching state interest that should prevail over claims of community autonomy based on religious freedom. Lastly, any considered progressive reform must balance the diverse realities of women's experiences (i. e. , rural, tribal, caste-based), since tribal usages may, at times, embody a much less hierarchical gender dynamic compared to the legislation of majority religion personal laws.

Accordingly, the UCC must consider intersectionality in the analysis in order to ensure that uniformity is a product of constitutional innovation, rather than simply the fiat of a new gendered hierarchy. Comparative Glimpses: Lessons Beyond Borders Comparative law provides essential models illustrating varied approaches to harmonizing religion and civil law, offering practical lessons for India’s UCC debate.

A. Turkey: Radical Secular Imposition

The establishment of radical, top-down secularization in Turkey occurred under Mustafa Kemal Atatürk’s initiative. The new Civil Code adopted in 1926, which was heavily influenced by the Swiss Civil Code, explicitly removed all references to Islam from the family law.53 This radical and revolutionary process was able to achieve rapid legal uniformity and consistency in gender rights (e.g., prohibition of polygyny). However, this process assumed centralized, authoritarian political readiness to disregard religious and traditional moral consensus. In India’s democratic and pluralized constitutional framework, Turkey’s experience is thought to be largely inapplicable. 53 Türk Medeni Kanunu [Turkish Civ. Code] No. 4721 of 17 Feb. 1926, arts. 1–100 (Turk.) (adopted from Swiss Zivilgesetzbuch [Civ. Code] of 10 Dec. 1907 (Switz.))

B. Indonesia: Hybrid Harmonization

Indonesia, recognized as having the largest Muslim-majority population in the world, has a complex amalgam. While the formal legal system is national law based, there are Religious Courts for marital disputes. Notably, the Indonesian state has pursued a state-mediated modernization policy. Statutes such as the Marriage Act of 197454 are based on Sharia and, importantly, drafted so as to be distanced from the patriarchal norms of classical Sharia - this is reflective of a state effort to mediate religion and an emerging modern administrative state. Indonesia presents an example of a gradual state-mediated harmonization that avoids full secular substitution - a path for India to consider.

C. Israel: Dual Jurisdiction

Israeli law is based on a common law system, but all family matters (marriage and divorce) can only be resolved by their respective religious courts (Jewish Halakha, Muslim Sharia, etc. ). 55 This is a highly accommodating system regarding religious diversity, but it creates challenges and institutionalized inequality, particularly for women, where religious principles limit individual rights. This is thought to be counterproductive to the objective of achieving constitutional gender equality in India. The comparative analysis suggests that the success of the UCC in India is measured not by the destination of eventually having a uniform law, but by the breadth and consultation used during the drafting and implementation process. India can take a middle path and build on the successful Indonesian model of state-inflected, gender-just reform within the existing democratic constraints.

Discussion: Between Pluralism and Uniformity India's constitutional balancing act, to sustain the pursuit of equality and dignity (Articles 14,

21) and to guarantee religious pluralism (Articles 25, 26) must focus the discussion on framing

UCC as mandated equal outcome rather than as a mandated uniformity. That the 21st Law Commission found that uniformity is not preferable to non-discrimination, manifests the argument that, to be most consistent with constitutional fidelity, personal law must abide to state mandated, non-negotiable standards pertaining to gender-equity in maintenance, divorce, and property. This understanding allows for uniformity in substance - while form can vary - permitting communities to maintain cultural activity (marriage ceremonies in the Parsi Act, for example) while advancing the equal outcomes standard by eliminating any discriminatory legal

54 Undang-Undang Nomor 1 Tahun 1974 tentang Perkawinan [Marriage Law No. 1 of 1974], art. 1 (Indon.)

55 Chuk Beit HaMishpacha, 5741-1981 [Family Courts Law, 1981], § 1 (Isr.)

consequence (in this instance as it is relatives as a woman who may not inherit). Equal outcomes are the primary justification for state intervention in the personal law sphere. Ripples of Reform: Policy and Social Implications A. Policy Pathways for Inclusive and Consultative Reform

A realistic approach to UCC implementation that accords with constitutional democratic norms

of reform requires a gradual and targeted approach:

1. Strengthening the Special Marriage Act (SMA): The best immediate policy option is to

strengthen and promote the SMA as a secular, optional mode of marriage, a path that could include making the SMA the default option for marriage, while citizens would be able to opt in to religious laws.

2. Sector-Specific Harmonization: The state should also prioritize laws designed to provide

homogenous secular laws in select highly economically prioritized areas, such as: a mandatory Matrimonial Property Act which governs the division of property across divorce, a consolidated law regarding adoption and guardianship of children.

3. Consultative Drafting: Most importantly, implementation needs to involve collaborative

drafting with all community stakeholders, including the legal community, groups working for women, etc. This will ensure there is enough consensus, and the code is seen as a step towards inclusive justice, instead of yet another political imposition alien to the community. B. Implications for Governance and Community Trust

If the UCC is seen by individuals or communities as an anti-minority measure, that could heighten tensions and, ultimately, erode trust in the state's neutrality as a community. Along with the legal education that is crucial for making clear that the reformative objectives are purely focused on gender justice, and are separate from religious doctrines, any legislative remedies must be cautious to not create further repressive measures as we saw the law concerning live in relationships, vis a vis moral policing versus constitutionalistic vis a vis constitutional person. The legal simplification of UCC is not to socially simplifying the incredible customary and cultural nature of much of India.

Conclusion and Reflections This paper examines the various ways in which personal laws operate in India through the lenses of three shared principles of civic inclusion, principled pluralistic accommodation and

substantive dignitarian equality. The results of this examination lead to a conclusion that is neither utopic nor defeatist. While the imposition of a universal civil code as a compulsory best practice would be constitutionally problematic, politically treacherous and practically counterproductive, the current state of unreflective pluralism is also untenable in a republic dedicated to guaranteeing equality and due process under Articles 14 and 21. The path that is most constitutionally faithful, politically feasible and that enhances a person’s dignity is to build a reverse default model upon the existing legislative scheme of the Special Marriage Act, 1954 with regard to its application to civil partnerships as well as marriages.

The first step is to convert the SMA from an archaic, underutilized model that perpetuates a stigma into a model that is a more appealing, contemporary and resourced secular model by providing simplified processes, online registration at the national level, eliminating the current 30-day waiting period for interfaith couples and actively promoting its use by the government as the default model for all marriages and civil partnerships. 56 Finally, citizens who wish to utilise religious personal laws (whether they are Hindu, Muslim, Christian, Parsi, or customary) will have the right to do so through a standardised, time-limited declaration to a magistrate or registrar to use the personal law of their choice. The reversal of the default for citizenship, based upon the triad concept, has three objectives that are equally consistent with the concept:

1. A common platform for citizenship establishes as the normative legal context/expectation of

membership in the nation.

2. The protection of true religious freedom rather than an ascriptive obligation to practice the

faith of one's ancestors will allow for the preservation of a true pluralistic society.

3. It establishes meaningful equal regard of every person regardless of their religious beliefs,

so long as people make the intentional and voluntary choice to become members of any particular "religious group." While the Uttarakhand experiment of 2024 demonstrates that imposing blanket sameness through a top-down approach may result in some level of equality, it ultimately offers limited options for true equality since the imposed sameness created a new set of inequalities equal to the previous inequalities.57 An effective reversal of citizenship norms, as observed with the 56 Special Marriage Act, 1954, §§ 4–7 (as they would require amendment for default status and procedural simplification)

57 Uniform Civil Code of Uttarakhand Act, No. 7 of 2024, §§ 4, 37–41, 54 (Utt.)

SMA, would provide an incremental process that maintains the individual choice and could have a nationwide impact without warranting concerns about violations of Articles 25–26. Seventy-five years after the adoption of our Constitution, Article 44 need not remain a "dead letter", nor should it be viewed as an overly simplistic tool to be used against the exercise of genuine rights. Article 44 should be reanticipated through the triadic framework and fulfilled — through establishing a secular foundation to support our pluralistic society and assuming responsibility, above all other inherited entitlements — for establishing the dignity of all citizens, especially our most vulnerable daughters, wives, and partners.