Reform Before Uniformity: Case For Repairing Personal Laws Rather Than Replacing Them

The recent proceedings before the Supreme Court of India, seeking the Union's response to a challenge against aspects of Muslim inheritance law as discriminatory to women, have predictably reignited the call for a Uniform Civil Code (UCC). The instinct is familiar: when confronted with inequity within a system, replace the system altogether. When the Court expressed a poignant concern: that merely striking down the 1937 Act might create a "legal vacuum," leaving Muslim women without the protection of any statutory law, the response was that the Indian Succession Act (ISA) could be made applicable as though the law is perfect. This reflex for UCC risks confusing uniformity with justice; pitching for ISA as an ideal replacement buries under carpet several serious deficits in the existing legislation that is yet to adopt several salutary amendments suggested in 247^th report of Law Commission recommendations for alteration of the scheme of inheritance and class of heirs in several situations. The present moment instead demands a more difficult, but ultimately more durable, path—systematic internal reform of personal laws across communities.

The Shariat Act: A Nationalist Affirmation, Not a Sectarian Relic

The current challenge to the Muslim Personal Law (Shariat) Application Act, 1937 must be approached with historical sobriety. The Act did not emerge in isolation; it was part of a broader nationalist moment in which Indian leaders across communities recognised the importance of legal pluralism as an element of unity, not division.

Mahatma Gandhi consistently maintained that true national unity could not be built by erasing religious identities, but by respecting them. His support for Muslim demands to be governed by their own personal law was rooted in his larger philosophy that swaraj meant not merely political independence, but also cultural and religious autonomy. For Gandhi, compelling a community to abandon its personal law would have been antithetical to both democracy and conscience.

This position was not his alone. Leaders such as Jawaharlal Nehru, even while personally inclined toward secular codification, accepted the political and social necessity of allowing communities space for internal evolution. B. R. Ambedkar himself, often invoked as a champion of uniformity, did not force a UCC into the Constitution but placed it within the Directive Principles—recognising the limits of immediate enforceability in a deeply plural society.

The debates leading to the 1937 Act reveal that Muslim representatives sought to escape a fragmented regime where customs—sometimes derived from Hindu law such as Mitakshara principles applied to groups like Cutchi Memons—governed them inconsistently. The Act was therefore a reformist consolidation, not a regression. It replaced uncertainty with a coherent system grounded in religious identity, and was widely seen as a legitimate accommodation within the freedom movement.

To dismantle such a statute today without acknowledging its historical role risks mischaracterising it as an anachronism, when it was in fact a product of progressive legal consciousness in its time.

The Misplaced Confidence in Uniformity

The assumption that a UCC will automatically secure gender equality rests on a fragile premise—that the existing statutory framework outside personal laws is itself just. The Indian Succession Act, 1925 demonstrates otherwise. It does not adequately recognise illegitimate children; it privileges the father over the mother in certain intestate situations; and it excludes the husband of a predeceased daughter while including the widow of a predeceased son.

Replacing personal laws with such a framework is not reform—it is displacement of one imperfect system by another.

Hindu Law: Reform Still Incomplete

If reform is to be the touchstone, Hindu law must be the starting point. Despite the 2005 amendment to the Hindu Succession Act, 1956, the concept of coparcenary remains structurally confused.

The daughter is declared a coparcener by birth, yet critical consequences remain undefined. Can she create a fresh stock of descent? Can a coparcenary exist exclusively among women? These unresolved questions undermine the very reform the amendment sought to achieve. Indeed, the placement of a provision for right by birth and modifying Hindu law of joint family in succession law is incongruous and absurd. Preference to a Hindu son was rooted a social structure of the son remaining in the family and offering pindas to his father and mother on their death. Probably, these religious significances have diminished, and the changes have been made. We should have proceeded to abolish the coparcenary interest of providing for right by birth. B.S.Chauhan, the Chairman of the 22^nd Law Commission, said in his consultation paper that scrapping the HUF tax benefits was imperative because, they were often used for tax evasion. Again, why is mother a heir and not a father, on death of a male Hindu?

Further, while testamentary disposition of coparcenary interest is permitted, gifting of joint family property remains void—an inconsistency that reflects incomplete doctrinal reform.

Section 15: Language and Injustice

Section 15 exposes deeper structural bias. A woman's heirs are not recognised independently but are described relationally—through husband, father, or mother. Even her siblings are mediated through parental identity.

This produces unjust outcomes, as seen in Om Prakash v. Radhacharan (2008), where a widowed daughter who rebuilt her life with her parents had her estate pass instead to her estranged husband's family. The law privileges formal ties over lived relationships.

Across Communities: No Law is Above Reform

The impulse to single out Muslim law ignores deficiencies across systems:

• Under the Indian Succession Act, key familial relationships remain unrecognised.
• Parsi law continues to grapple with exclusionary consequences for women marrying outside the faith.
• Christian succession law reflects internal inconsistencies.

The point is not to relativise inequality, but to emphasise that no system is internally perfect—and therefore no single system can serve as a flawless template for all.

Pluralism as Strength, Not Obstacle

India's diversity is foundational. Religious traditions shape not only belief but social organisation, including succession practices tied to rituals surrounding birth and death.

Even within India, matrilineal systems in the Northeast demonstrate that gender justice can emerge organically within cultural frameworks—often more effectively than through imposed uniformity.

Reform Must Be Bottom-Up

The Law Commission of India has already cautioned that a UCC is neither necessary nor desirable at present. See my article, 'K. Kannan on Uniform Civil Code: Now is not the moment - The Hindu. Reform must instead proceed within communities, through dialogue and internal acceptance.

Judicial experience confirms this. The fractured opinions in Indian Young Lawyers Association v. State of Kerala (The Sabarimala case) show that even constitutional courts cannot easily reconcile faith-based differences through uniform mandates.

The Right Sequence Matters

The leaders of India's freedom movement understood something that contemporary discourse risks forgetting: unity does not require uniformity. The Shariat Act itself stands as evidence of a constitutional culture that valued accommodation over assimilation. See the author's article in the Times of India, For credible Uniform Civil Code, Hindu law must first be reformed | Chennai News - The Times of India

To move toward a Uniform Civil Code without first addressing the inequities within each personal law is to mistake destination for journey. If Uttarkhand Civil Code is any template for other States to follow, we are blinded by a priori assumption that UCC is the only way (Read the author's article: Uttarakhand's Uniform Civil Code: Unifying laws or dividing communities?

Reform must come first—careful, participatory, and rooted in the lived realities of each community. Only then can any conversation about uniformity be meaningful. Until that point, the wiser course is not replacement, but repair.

The Author Justice K. Kannan (Retd.) is a former judge of the Punjab & Haryana High Court and Madras High Court. Views are personal