The Mirage Of Uniformity: Why Internal Reform Must Precede A Common Code

The 1937 Act: A Watershed for Identity

It is a common historical fallacy to view the Shariat Application Act of 1937 as a regressive instrument. On the contrary, its enactment was a watershed moment in the recognition of the religious identity of Muslims in British India. It provided a statutory right to be governed by personal laws, replacing a chaotic and often contradictory regime of local customs that varied from region to region. To dismantle this Act today, in a climate thick with the "gross suspicion of majoritarianism" practiced by the present ruling dispensation, is fraught with danger. For minorities, the push for a UCC is frequently perceived not as a pursuit of gender justice, but as a project of cultural assimilation and the marginalization of distinct identities.

The Myth of Universal Archaism

The current pitch for a UCC, bolstered by the recent legislation in Uttarakhand, assumes that a singular code can somehow "fix" the perceived flaws of various communities. However, the Uttarakhand model itself is riddled with imperfections and reveals a fundamental misunderstanding of India's diverse fabric (Frontline, "Uttarkhand's Uniform Civil Code: Unifying laws or dividing communities?" by this author).There is a persistent, false assumption in these debates that all personal or tribal laws of succession are inherently archaic or prejudicial to women. This narrative collapses when one looks at the Northeast.

The customary laws of succession among the Khasis and Garos in Meghalaya, for instance, vest the right to manage and inherit property in the youngest female member of the family. The economic and social empowerment of women in these societies is not a theoretical goal; it is a living, breathing reality that often surpasses the "reformed" standards of the mainland. Integrating such vibrant, matrilineal systems into a common code designed around patrilineal majoritarian norms would be a step backward for gender justice, not forward.

Reform Must Begin at Home

If the state is truly committed to the constitutional goal of equality, the first step must be a rigorous "internal hygiene" within respective personal laws. This reform must begin at home—specifically, with a radical overhaul of Hindu law. Despite the 2005 amendments, the Hindu Succession Act continues to recognize the "right by birth" familiar to the Mitakshara school. This concept of coparcenary is a legal anachronism that privileges male lineage and maintains a patriarchal grip on ancestral property.

Even the heralded progress of making a woman a "deemed coparcener" remains a half-measure. It has not yet fully recognized her right to be a Karta—the manager of the family property—in a way that overrides traditional resistance. Furthermore, the law still fails to take stock of the prevailing social conditions where a woman, upon marriage, relocates to her husband's house and not the other way around. This patrilocal reality often renders her "equal" share in ancestral property practically inaccessible or subject to the whims of male relatives (Times of India, "For credible Uniform Civil Code, Hindu law must first be reformed" by this author).

A genuine move toward a common code must involve the absolute abolition of the right by birth and the dissolution of the Hindu Undivided Family (HUF) as a legal entity for succession. We must move toward a secular system where property is held individually or as matrimonial property shared between spouses.

The Wisdom of the Law Commission

The rush to legislate a UCC also ignores the sage counsel provided by the 21st Law Commission of India. In its 2018 consultation paper, chaired by Justice B.S. Chauhan, the Commission stated with stout reasons that a Uniform Civil Code is "neither necessary nor desirable at this stage." The Commission rightly identified that the preservation of reflexive diversity should not be sacrificed for a stilted uniformity. Instead, it advocated for the reform of discriminatory practices within personal laws as the more immediate and sustainable path to equality. To bypass this considered recommendation in favor of a hasty, top-down code is to ignore the nuanced sociological reality of the Indian state.

The Propitious Path: Voluntary Evolution

We must allow minorities the space and agency to bring about their own changes before we attempt to cement them through a common code. History proves that reforms are most resilient when they are "voluntarily undertaken" from within a community. We have seen that when the courts interpreted the Juvenile Justice Act to allow Christians and Muslims to adopt, there was no protest. It was a seamless transition through a secular law that prioritized welfare without appearing as a frontal assault on religious identity.

The Supreme Court's observation that "the answer is UCC" fails to address the crucial question: at what cost and at what time? As I have previously argued, the timing of such a radical shift is paramount, and given the current atmosphere of trust deficits, "Now is not the moment" (The Hindu). A UCC should be the destination of a long journey of progressive assimilation, not a starting point imposed by legislative fiat. The issue is not UCC at all costs, but ensuring that the time is propitious and the reform is inclusive.

True reform requires the state to be an "enabler" rather than an "enforcer." We must first perfect the laws of the majority to reflect true gender parity—purging the Mitakshara relics and addressing the social reality of the married woman—before we demand that other communities surrender their identity to a singular mould. Let us prioritize the reform of personal laws as the essential first step. Only when each community has moved toward internal equity can we hope to weave those threads into a common code that is truly uniform, not just in name, but in its commitment to justice for all.

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