Personal law survives in India, died in Turkey, was never born in France

When Indians argue about the Uniform Civil Code, they argue as if accommodation of religious personal law were a transitional anomaly — a debt the Republic owes its own founding promise in Article 44, repayable when political conditions allow. I want to put a different reading on the table. India is not the country that has been slow to do what the rest of the post-colonial world did. India is the country that has, almost alone, declined to do what the rest of the post-colonial world did. Turkey abolished the Mecelle and the Şerî courts in 1926.¹ France never recognised personal law at all; civil status in metropolitan France has been state law since the Code Napoléon, sealed by laïcité in 1905.² Tunisia issued the Code du Statut Personnel in 1956 within a decade of independence.³ Egypt, Iraq, and Syria all moved through mid-century to unify family law in significant measure. India did not. The choice was deliberate, the choice was structural, and the choice cannot be undone by a single legislative act without renegotiating the basic civic compact the Constituent Assembly settled on.

The comparative map nobody draws honestly

The UCC argument as it is conducted in India proceeds as if the comparative landscape were uncontested. It is not. Once you actually lay the post-colonial settlements side by side, India looks less like a laggard and more like a deliberate exception.

Turkey first. The reform was Atatürk's, and it was total. The Ottoman Mecelle — the Hanafi-derived civil code that had governed family and contract for the late empire — was discarded in October 1926, and the Swiss Civil Code of 1907 was adopted, more or less wholesale, by translation. The Şerî courts were abolished. Polygamy was outlawed at one stroke; civil registration of marriage was made mandatory; divorce was judicialised; inheritance was equalised between sons and daughters. A century later, the Turkish reform is the textbook example of state-led legal homogenisation, but it was not consensual: the Kurdish religious establishment resisted, parts of Anatolia continued informal religious marriage well into the 1950s, and the long Turkish argument over the headscarf in state institutions is, in a real sense, an unfinished part of the same 1926 settlement. The price of the unified civil code was the marginalisation of religious authority from civil life — a price the Turkish state was willing to pay because Atatürk's project was to remake the citizen.

France next. France is more often invoked than understood in Indian UCC debates. The mistake is to treat laïcité as the secular equivalent of Indian secularism. It is not. Laïcité, in its 1905 statutory form, is a separation regime that absorbs all civil status into the state.² Marriage in France is a civil ceremony at the mairie; religious solemnisation is private and produces no civil consequence. There is no "Catholic personal law" or "Muslim personal law" recognised by the French state, and there never was, in metropolitan France. (Algeria under French rule is a separate, complicated story; the métropole was always different.) The French model does not unify personal laws. It refuses to recognise the category. That is a stronger move than Atatürk made, and it is grounded in a particular Republican theory of the citizen as standing alone before the state, unmediated by community.

Then Tunisia, which Indian UCC advocates cite most often.³ The Code du Statut Personnel of 1956 was Bourguiba's project, modelled in part on a particular reformist reading of Maliki and Hanafi sources. It abolished polygamy, required judicial divorce, equalised inheritance to a substantial degree. Tunisia is the case where Indian advocates can say: a Muslim-majority post-colonial state did this, drew its authority from Islamic sources, and held the result. They are right about the existence of the example. They are usually quieter about how Bourguiba did it — through a single-party state with limited civil society pluralism, in a country one-thirtieth the size of India, with a comparatively homogeneous Sunni Maliki population and no significant non-Muslim minority to negotiate with. The comparison flatters the reformer's intuition. It does not survive scrutiny of scale.

India sits across this map as the structural exception. The Hindu Code Bills of 1955–56 unified Hindu, Buddhist, Jain, and Sikh personal law within a single statutory framework. The Muslim Personal Law (Shariat) Application Act 1937 — itself a piece of late-colonial statutory consolidation — continued to govern Muslim family matters.¹⁰ Christian, Parsi, and Jewish family laws each had their own statutes. Tribal customary law was constitutionally protected through Schedule V, Schedule VI, and Article 371(A)–(H). Goa retained the Portuguese civil code by a saving provision. The result is not the absence of unification; it is a deliberate plural settlement in which uniformity was pursued where political consent existed and accommodation maintained where it did not.

The framers chose accommodation; they did not stumble into it

The framing reading of the Constituent Assembly debates on Article 44 — what became the UCC directive — is that the framers wanted unification but had to defer it. I read the debates differently. The framers wanted the option of unification preserved for a future legislature; what they refused to do was constitutionally compel it. That refusal is the substantive choice.

Look at where Article 44 sits. It is in Part IV, the Directive Principles. By the architecture the Drafting Committee adopted, Part IV is unenforceable by courts under Article 37. The framers had Part III for what they meant to bind. They had Part IV for what they meant to commend. Putting UCC in Part IV is not a sign of half-heartedness; it is a precisely calibrated decision to leave the timing and the politics of unification to later legislatures, while binding the State to nothing more than aspiration.

Now look at what they did put in Part III. Articles 25 and 26 — freedom of religion and freedom of religious denominations to manage their own affairs in matters of religion — are fundamental rights, judicially enforceable. Article 29 protects the cultural distinctness of minorities. Article 30 gives religious and linguistic minorities the right to administer their own educational institutions. The whole Part III architecture says: religion, in India, is not a private matter that the state will absorb into a uniform civic identity. Religious community is constitutionally recognised as a unit of political life, with claims that can be asserted against the state.

The November 1948 debates make this hard to deny.⁴ When K.M. Munshi pressed for a binding UCC, the Muslim members — Naziruddin Ahmad, Mahboob Ali Baig, B. Pocker Sahib — argued that the Drafting Committee was attempting through a directive principle what it had not dared do through an enforceable provision. Alladi Krishnaswami Ayyar's response was telling: he defended Article 44 as a goal, not a command. Ambedkar, summing up, did not promise that a UCC would be enacted; he said Parliament could enact one if it chose, and that the Article did no more than authorise that choice. The placement in Part IV was the substance of the compromise, not its packaging.

Compare this to Atatürk's Grand National Assembly in 1926, which did not debate accommodation. It did not have to: there were no constitutionally protected religious denominations to negotiate with, because the new Turkish constitutional order did not recognise the category. The Indian framers, drafting in 1947–49, had a choice the Turkish framers in 1923–24 did not give themselves. They had a choice the French Republican founders, in their successive constitutions, had refused to entertain at all. The choice the Indian framers made was: religious community is a constitutional fact, accommodation is the default, unification is an aspiration the State may pursue if it can build consent for it.

That is not the choice of a transitional regime waiting to mature. It is the choice of a constitutional order that has thought about the alternative and rejected it.

The Lily Thomas to Shayara Bano arc shows accommodation evolving, not eroding

The harder question is whether the framers' settlement has held. The standard story — told by both UCC advocates and personal-law defenders, in different keys — is that it has not. Personal law has been progressively cut back by the Supreme Court since Shah Bano in 1985, and the trajectory points toward eventual judicial unification by attrition.

I do not think the cases support that reading. They support a different one: accommodation has evolved — sometimes painfully — but the constitutional architecture of plural personal law has not been displaced.

Take the line of cases the standard story relies on. Mohd. Ahmed Khan v. Shah Bano Begum in 1985 held that Section 125 of the Code of Criminal Procedure — a secular maintenance provision — applied to a divorced Muslim woman regardless of personal law.⁵ The political backlash produced the Muslim Women (Protection of Rights on Divorce) Act 1986, which was widely read as a retreat. Then Danial Latifi v. Union of India in 2001 read the 1986 Act so as to preserve the substantive maintenance right by other means — the husband's lump-sum obligation under Section 3 of the Act was held to extend in real terms to the wife's lifetime needs. The result, after sixteen years, was that the substantive right Shah Bano established survived, mediated through a statute the orthodoxy had forced through. That is not erosion of personal law. That is accommodation working — the State legislating, the Court re-reading, the substantive equality outcome holding.

Sarla Mudgal v. Union of India (1995) and Lily Thomas v. Union of India (2000) addressed the bigamy-by-conversion problem: a Hindu man converting to Islam to take a second wife while the first marriage subsisted.⁶ The Court did not strike down Muslim personal law. It held that conversion did not extinguish the prior marital obligations under the Hindu Marriage Act, and that the second marriage was therefore void and the convert liable for bigamy under Section 494 IPC. Sushmita Ghosh's case, which Lily Thomas absorbed, made the point sharply: G.C. Ghosh kept his Hindu name and identity in the electoral roll, in his child's birth certificate, in his Bangladeshi visa application — the conversion was a legal manoeuvre, not a change of belief. Personal law was preserved; what was held inadmissible was using one personal law to escape the obligations of another. That is the constitutional plural settlement at work, not against it.

Shayara Bano v. Union of India in 2017 is the case the standard story makes most of.⁷ Instant triple talaq was struck down 3:2. Read the plurality. The holding rests on Article 14 arbitrariness; the practice was held not to be an essential part of Islam, in part because it had been judicially and theologically condemned within Sunni jurisprudence itself. The Court did not declare Muslim personal law unconstitutional. It declared a particular form of unilateral divorce unconstitutional, drawing on internal Islamic critique as well as constitutional doctrine. Justice Nariman's opinion is careful on this point. Justice Kurian Joseph's concurrence is even more careful: triple talaq, he held, is bad in theology before it is bad in law. The settlement holds.

John Vallamattom v. Union of India in 2003 struck down Section 118 of the Indian Succession Act 1925 — the restriction on Christian charitable bequests — on Article 14 grounds.⁸ The Court's observation in passing — that succession and similar matters of secular character cannot be brought within the guarantee of Articles 25–26 — has been read as a quiet preparation for unification. I read it as the Court holding the line: the Articles 25–26 core protects religion-as-religion, not the secular incidents that have grown up around it. That is precisely the distinction the Constituent Assembly drew when it placed the religious-denominational right in Part III and the unification aspiration in Part IV.

Joseph Shine v. Union of India in 2018 decriminalised adultery on Article 14 and 21 grounds.⁹ The case is relevant here for what it did not do. It did not touch the personal-law incidents of marriage in any community. The Court could have used the occasion to push toward a unified marriage regime. It declined.

Read across, this is not the story of a personal-law regime in retreat. It is the story of a personal-law regime being audited for its compatibility with constitutional equality, with the audit conducted respectfully — through arbitrariness review, through harmonising construction, through internal religious critique — rather than through wholesale displacement.

The counter-argument, taken at its best

The strongest case against my reading is the gender-equality case, and I want to put it as forcefully as I can — because the version that gets aired in op-eds is usually a thin version of it, and an essay of this kind owes its reader the full version.

It runs roughly like this. The Indian Constitution's substantive promise of equality between citizens — Articles 14, 15, 21, the egalitarian preamble — is undermined by a personal-law regime that perpetuates gender hierarchy. A Muslim woman's right to divorce is structurally weaker than her husband's. Hindu coparcenary, even after the 2005 amendment, leaves women's claims on family property contingent and contested. Christian women's grounds for divorce were unequal to their husband's until the 2001 Indian Divorce Act amendment, and that amendment came only after decades of litigation by Christian women's groups. Tribal customary law, in many regions, denies women inheritance entirely; Madhu Kishwar v. State of Bihar (1996) was the Supreme Court's reluctant acknowledgment that it lacked the doctrinal tool to address this directly. The Constitution promises equality to women as citizens; personal law denies it to them as members of religious communities. The Turkish and French models, for all their assimilationist costs, at least guarantee equal civil status to women across communities. To call the Indian accommodation a "structural choice" is to dignify what is, in practice, the inertia of patriarchal community elites who have a stake in the status quo and a louder voice than the women whose rights are at issue.

That argument is right about a great deal. It is right that personal law in India has historically privileged community elites, almost always male. It is right that the Hindu Code Bills, presented as reformist, retained vivaha homa, saptapadi, kanyadan as essential ceremonies — Brahminical rituals that re-encoded the woman as a property to be transferred. It is right that the Muslim Women's Act of 1986 was the political price of Shah Bano, and that the cost was extracted from the very women the Court had just protected. It is right that Madhu Kishwar exposes the limits of the courts' will to intervene in tribal customary law. It is right that the Goan Civil Code's community-of-property regime gives women a stronger claim on matrimonial assets than any religious personal law in India does. Each of these is a real cost.

I accept all of it. What I do not accept is the inference that a unified civil code would deliver the gender-equality outcome the argument promises.

Look at the comparative evidence. Turkish women, after the 1926 Civil Code, did not gain the substantive equality the law promised. Property, custody, social practice, religious marriage outside the registry — all of these continued in patriarchal forms for decades. Inheritance was equal in the Code; in practice, daughters were pressured into renouncing their share. The Code outlawed polygamy; informal religious marriage with second wives continued in conservative regions into the late twentieth century. The lesson Turkey teaches is that a unified code is necessary, perhaps, but not sufficient — and that the political cost of imposing it falls disproportionately on the religious minorities the secular state is least willing to engage. Tunisia's experience is similar. The Code of 1956 outlawed polygamy; women's inheritance equality remains contested today, sixty-eight years on, because Bourguiba could legislate against polygamy more easily than he could legislate against the Quranic two-thirds-to-male inheritance text. The unified code is not a magic instrument.

The harder fact is that gender equality, where it has been won in India in the last thirty years, has been won within the personal-law architecture, not against it. The 2005 amendment to the Hindu Succession Act, granting women coparcenary status, was negotiated with Hindu interests. Danial Latifi was a re-reading of a Muslim-personal-law statute. Shayara Bano was decided drawing on internal Islamic theological critique, which gave the holding a legitimacy a wholesale displacement would have lacked. The Christian Divorce Act amendment of 2001 came after Ammini E.J. v. Union of India (1995) and a string of High Court rulings. The Protection of Women from Domestic Violence Act 2005 and the Prohibition of Child Marriage Act 2006 — which Flavia Agnes treats as the most consequential gender-rights instruments of the last two decades — apply uniformly across communities by their own statutory force, working alongside personal law rather than replacing it. The Indian path to women's equality has been incrementalist and pluralist. It has worked, where it has worked, by harnessing the legitimacy of the religious tradition rather than by overriding it. A UCC that abandoned that approach would not move faster on equality. It would move slower, because the political consent it would forfeit is what makes the existing reforms stick.

The counter-argument is right that the existing architecture has costs. It is wrong about the alternative.

One more honest concession. The version of my argument I am most uncomfortable with is the case of tribal women in regions where customary law denies them inheritance and the State has constitutionally bound its own hands. The Madhu Kishwar Court's reluctance to declare the Chhota Nagpur Tenancy Act discriminatory was not principled forbearance; it was institutional hesitation in the face of a hard problem, and the women in those cases paid for it. I do not have an easy answer to that. The best I can offer is that the same architecture that constrains the Court permits Parliament and the relevant State legislatures to legislate uniform statutory floors — minimum maintenance, minimum inheritance, minimum protection from violence — that operate alongside customary law. The Domestic Violence Act and the Prohibition of Child Marriage Act are proof of concept. More of that, scaled and sharpened, is what the situation calls for, not a UCC that the relevant communities will not accept and the Sixth Schedule will not permit.

What "structural choice" means

I have been using the phrase "structural choice" and I owe a clearer account of it. By structural choice I mean: a constitutional decision, taken at the founding, that shaped the architecture within which subsequent ordinary politics operates. It is not undoable by ordinary legislation. It can only be undone by amending the Constitution, or by the kind of judicial reconstruction that is not really judging at all.

Personal law in India is structural in this sense. Articles 25 and 26 are fundamental rights; the protection they offer to religious denominational autonomy is constitutionally entrenched. Schedule V and Schedule VI carve out tribal customary law as constitutionally protected; this cannot be displaced by Parliament without violating commitments the Constitution made to specific communities at the founding. Article 371(A)–(H) protects Naga, Mizo, and other customary law as a matter of constitutional commitment to particular states. Goa's saving of the Portuguese civil code is statutory, but the political settlement around it has the stickiness of a structural commitment. None of this is the case in Turkey or France, where the state's exclusive jurisdiction over civil status was the founding premise.

The implication is direct. A genuine UCC — one that displaces personal law across communities — cannot be enacted by Parliament alone. It requires either constitutional amendment to thin out Articles 25, 26, 29, 30, the Fifth and Sixth Schedules, and Article 371; or it requires a judicial doctrine that treats Article 44 as overriding the Part III commitments, which is the kind of doctrinal move that has no foundation in Indian constitutional law and would be a basic-structure violation if attempted. Neither is on offer. What is on offer, in the current political moment, is a series of sub-UCCs at the state level — Uttarakhand has passed one — that operate within the personal-law architecture rather than displacing it. That is exactly what the framers contemplated. It is also exactly why the state-level UCCs do not deliver the dramatic civic-equality outcome their advocates promise.

The deeper point is this: the UCC debate, as it is conducted, treats personal law as a problem the Constitution permits the State to solve. I think personal law is a constitutional commitment the State has to honour while finding gender-equality outcomes within it. The two readings produce different politics. The first produces a politics of imposition — "we will unify; the minorities will adjust" — which is the politics that has driven the visible UCC advocacy of the last decade. The second produces a politics of negotiation — "we will reform from within each tradition, building consent across communities, and the State will hold the floor of fundamental rights as the line nobody crosses." The second is slower. It is also the only one the constitutional architecture authorises.

What follows

If the argument I have made is right, three things follow.

First, the comparative framing of the UCC debate has to change. India is not behind Turkey and Tunisia on a race the rest of us are also running. India is on a different course, and the course is not an accident — it is constitutionally entrenched. The relevant comparison is not with Turkey 1926 or Tunisia 1956. It is with Canada's federal accommodation of Quebec's civil code, or with Israel's millet-style retention of religious personal law for Jews, Muslims, Druze, and Christians, or with South Africa's recognition of customary marriages alongside civil ones. India is closer to those comparisons than to Atatürk. Once the map is drawn this way, the embarrassment vanishes: pluralist accommodation is not a developmental lag; it is one constitutional answer among several to the question of what the state owes religious community, and it is the answer the majority of constitutionally durable plural democracies have chosen.

Second, gender-equality work has to continue inside the personal-law architecture, not outside it. The cases that have moved the needle — Shamim Ara, Danial Latifi, Shayara Bano, Lily Thomas, Vishwa Lochan Madan — did so by re-reading the religious tradition, not by displacing it. The next wave of reform — on Muslim inheritance equalisation, on the codification of Hindu marriage registration, on the recognition of tribal women's inheritance — is going to look the same. Statutes like the Domestic Violence Act and the Prohibition of Child Marriage Act, which apply across communities, are the right model: they hold the floor of substantive equality without displacing the personal-law architecture.

Third, the Article 44 directive should be read for what it is. It commends a UCC to a future legislature. It does not authorise the Court to engineer one. It does not authorise Parliament to ignore the Part III commitments that constrain it. It certainly does not authorise the rhetorical move — common in current political discourse — of treating UCC opposition as anti-constitutional. The framers placed UCC in Part IV precisely because they wanted to leave the politics of it to later generations without binding their hands. To insist now that Article 44 binds Parliament against Articles 25 and 26 is to read the Constitution backward.

I want to land this where I started. The ordinary Indian way of arguing about UCC treats accommodation as the deviation and unification as the norm — as if India had departed from a comparative consensus we are gradually rejoining. That is the wrong map. India is the country that, in 1950, consciously refused to do what Turkey did in 1926 and what France had refused even to consider since 1789. The refusal was not a failure of reformist will. It was a constitutional judgment that religious community is part of the civic compact, that accommodation is the price of pluralist nation-building at the scale we attempted, and that the work of equality has to be done within that frame and not by abolishing it. The framers thought hard about this. They were right. The personal-law settlement they made is not perfect, and it is not finished. It is a constitutional commitment, and we should keep it.

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