Uniformity in a Plural Nation: Rethinking Legal Pluralism and the Personal Law Regime in India
- Hindu College Gazette Web Team
- Sep 26, 2025
- 13 min read
INTRODUCTION
The political discourse on the implementation of the Uniform Civil Code (UCC) has gained momentum in India. The legislative assembly of the northern Indian state of Uttarakhand has already passed their UCC Bill. The north-eastern state of Assam has taken constructive steps towards a uniform civil system for all communities. However, in India, UCC has been a subject of persistent discussion as well as controversy for many years.
Implementation of the Uniform Civil Code will entail a system of rules that apply universally to all individuals regardless of their religious beliefs. With particular attention to the legal system of India, this will mean that the personal concerns of all individuals, including marriage, divorce, inheritance, and adoption, will be regulated by the same law, in contrast to the system of personal laws that exists currently. The legally pluralistic system of laws, which accords special rights to some states and tribal areas in our country, may witness a dramatic change with the implementation of the Uniform Civil Code. In such a situation, a deep analysis of the concept of legal pluralism in general and its manifestations within the Indian Legal system legal pluralism in the Indian constructs of law becomes pertinent.
LEGAL PLURALISM: A BACKGROUND
“Legal Pluralism” generally refers to a situation in which multiple legal systems coexist within a single society or geographical area. Hence, when more than one set of rules exists in a society to regulate different sets or the same set of people, legal pluralism is said to subsist. In this sense, legal pluralism can be said to be an omnipresent character of law in a pluralistic society.
Scholarly Perspectives and Classical Interpretation of Legal Pluralism
In every social arena, we find different jurisdictions exercising distinct powers of governance. There are village, town, or municipal laws; there are national, transnational and international laws of various types. In addition to these, in diverse countries like India, we find more specific forms of laws based on cultural, religious or ethnic lines; customary law, indigenous law, religious law, etc. Such a situation is expected in a country of multiple, overlapping normative communities.
Authoritative voices like John Griffiths and Sally E. Merry have described legal pluralism as those situations in which two or more state and non-state normative systems occupy the same social field and must negotiate the resulting hybrid legal space. This is in consonance with what Thomas Hobbes talks about in his seminal work Leviathan, where Hobbes says that in the natural state, people live by their group norms, which differ from one group to another. A categorisation of legal pluralism has also been done by the above-mentioned luminaries. Griffiths distinguishes between the ‘social science’ view, which discusses the presence of legal orders that do not belong together, and the ‘juristic’ view, which reviews the superimposition and interaction of European legal systems with the indigenous customary laws of the colonies. Sally E. Merry also distinguishes between the approaches to legal pluralism on the same lines, with ‘Classic Legal Pluralism’ dealing with the intersection of indigenous and European law, and ‘The New Legal Pluralism’ affirming that plural normative orders subsist in all societies.
Historical Presence
In pre-modern states, the existence of legal pluralism was most commonly attributed to the presence of multiple classes, castes, ethnic communities or clashing jurisdictions, along with institutions like the monarchy, guilds or religious organisations with a fixed set of rules of conduct. In the ancient era, the Roman Empire was a case in point. The Roman jurist Gaius wrote that “all peoples who are governed by statutes and customs observe partly their own peculiar law and partly the common law of all human beings.” Moreover, the Lycian people of Asia Minor, under the reign of Roman Emperor Claudius, were given a choice (between imperial Roman Law and Egyptian Law) as to the jurisdiction in which they wanted to be tried, a policy for which they expressed their gratitude to Emperor Claudius.
LEGAL PLURALISM IN INDIA
The Indian model of legal pluralism can be connected to ‘The New Legal Pluralism’, as discussed above, and the ‘social science’ view put forth by John Griffiths. This is because of the existence of multiple normative orders catering to different sections of society, which have been drawn from civil law, common law, religious law, as well as customary law, among others. Moreover, the distinctive factor of such a system, differentiating it from the classical conception of legal pluralism, is that these normative systems are commensurate with regard to their status and not hierarchical. Such a diverse and inclusive system marks a departure from the status of such laws in colonial times, existing as “lesser entities” under the British common law if they did not possess the imprimatur thereof.
Institutional Manifestations of Legal Pluralism in India
The legal system of India accommodates and acknowledges the presence of diverse people in the country. Special provisions in the Constitution of India that protect and recognise social heterogeneity are a manifestation of legal pluralism in the country. This can be observed in the federal system, which recognises the geographical, social, linguistic and ethnic differences among the States and accordingly creates special provisions, which limit purchase of land in some states, restrict ownership to inhabitants in some states, along with creating four-year term assemblies in some. Moreover, detailed provisions have been made with respect to tribal areas present in some states, along with predominantly tribal areas.
These legislative initiatives and overtures also act as reparative compensation to communities that have been exploited under the colonialist regimes in the pre-independence era. The Santhals, for instance, traditionally living in the hilly regions as hunters and practitioners of shifting agriculture, were forced to lead lives of ‘dispossessed labourers’, clearing forests for cultivation and subject to the oppression of Zamindars, Thikadars and Jagirdars for the extraction of revenue. It is in this context that affirmative statutory practices like the Scheduled Tribes and Other Traditional Forest Dwellers Act, 2006, along with the 5th & 6th Schedules of the Constitution, among other legal entities, grant these communities protected access and special rights with respect to their traditional lands and resources, granting the right to occupy and reside in forest land, access and collect produce, as well as participate in forest management.
In this sense, legal pluralism acts as an agent of inclusivity and assuages the sense of injustice felt and experienced by segments of the population due to past wrongs.
Another evident demonstration of this phenomenon is the existence of personal laws. Personal laws refer to a set of laws that govern an individual or a certain class or group of people with respect to matters relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. India has an official faith-based pluralist system, which stems from an attempt to codify existing religious customary practices that prevailed occurred for centuries. Some of these codifications are patently observable in the form of statutes created by the legislature:
The Indian Christian Marriage Act, 1872, consolidates and amends the law relating to the solemnisation of the marriage of Christians in India.
The Parsi Marriage and Divorce Act, 1936, governs the matrimonial relations of Parsi Zoroastrians.
The Dissolution of Muslim Marriage Act, 1939, provides a Muslim woman with the right to seek divorce on some special grounds.
The above are a few examples of the codifications of personal laws of different communities to govern personal affairs. In such a manner, multiple statutes have been created by the coeval law-making bodies at various times in a bid to codify the customary and traditional law of various communities.
Fragmented Rights due to Disparities Across India’s Personal Laws
With particular attention on the personal laws, which, due to their disparate sources and influences, are bound to be different in nature, some inherent inconsistencies can be observed. Under the Hindu Marriage Act, the parties are eligible to be married upon reaching the age of 21 for males and 18 for females, whereas under Muslim law, parties become eligible to marry after attaining the age of puberty. This stands in clear contradiction to the Protection of Children from Sexual Offences Act, 2012, tangentially and the Prohibition of Child Marriage Act, 2006, directly.
Under the Hindu Adoption and Maintenance Act, 1969, a Hindu couple can adopt a child after fulfilling some essential conditions. This practice finds a theological undergirding in the Manusmriti, which describes adoption as nurturing someone’s child as one’s own. Although a Muslim couple can adopt under the Shariat Act, 1937, by proving any custom or usage of adoption, the primary reliance would be on the concept of ‘Kafala’ or sponsorship, due to the absence of the concept of adoption in Islam.
Likewise, in the aspect of personal law, in Muslim Law, all property is treated as one, with no distinction between ancestral or self-acquired property; whereas in Hindu Law, there is the presence of separate and self-acquired property. Moreover, a joint family does not exist as a legal entity in Muslim Law. This is in contrast to Hindu Law, where a ‘Hindu Undivided Family’ (HUF) is treated as a distinct legal entity for taxation purposes. The two legal systems also differ in the existence of a coparcenary, with Hindu Law recognising and incorporating the concept and Muslim Law conversely not.
Such variance is present in laws dealing with not only the Muslims and Hindus, but also the Parsis, Christians, and in some cases, the Sikh community. Moreover, the tribal population also follows divergent practices and traditions, which have been protected under the 5th and 6th Schedules of the Constitution of India. This is somewhat deleterious to the rights and liberties of a segment of the population, especially women, because these different personal laws and practices are prejudiced towards women.
Personal Laws and Part III of the Constitution
It has been established that India, though a secular country, is legally pluralistic in the context of its personal laws. While the Constitution enshrines the Right to Equality in Article 14 of Part III, and hence implies equality before law and equal protection of law, India’s personal laws apply to individuals differently because they are effectuated based on the religion of such individuals.
Therefore, the constitutional rights of some sections of the populace, especially women, are negatively affected by personal laws. This is rooted in the non-applicability of Article 13 of the Constitution of India on religious personal laws.
Currently, the State of Bombay v. Narasu Appa Mali determines the status quo with respect to the applicability of Article 13 on personal laws. Article 13 of the Constitution of India states that,
“Art. 13 (1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
Art. 13 (2): The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
Hence, while the mandate statutorily recognised in the Constitution delegitimises, both retrospectively and proactively, legislative enactments which are not in tandem with the fundamental rights of the citizens, the personal laws which do derogate from these principles have been categorically excluded from the sanction of Article 13 of the Constitution.
This landmark judgement held that personal laws are immune from applicability of Article 13, as Personal Laws are neither “laws” under Article 13(3)(a) of the Constitution, nor “laws in force” under Article 13(3)(b) of the Constitution.
Chagla CJ expounded that the definition clause in Article 13 was worded consciously in a manner in which it is postured to exclude personal laws from its ambit, while the explicit use of the expression “customs and usages” is demonstrative of the intention of the Constituent Assembly to have these provisions tested against the rigours of Part III of the Constitution. If, on the other hand, personal laws were deemed to be included in the definition of “laws” in Article 13, then along with the personal laws, it would also render ineffectual Articles 17, 25, 26 and 372 as well, since these manifest as restrictions to certain practices in Hindu Personal Laws. Hence, by introducing restrictions in some parts of Hindu Personal Laws, it can be reasonably construed that the Constituent Assembly indirectly gave its assent to other Personal Laws and did not contemplate subjecting personal laws to the qualifying nature of Article 13. This interpretation of the Court is not without challenge as the Court, in more recent cases such as Mary Roy v. State of Kerala and Daniel Latifi v. Union of India, has followed the “scrutinising approach”, and tested the personal laws against the Fundamental Rights. This symbolises an explicit shift from the Narasu Appa Mali judgement and is emblematic of a dynamic situation.
Reform Vs New Law: Seeking Alternatives To Statutorily Imposed Uniformity In Personal Laws
An important aspect in this discussion is the exploration of the scope of legislative reforms in ensuring the normative concurrence of personal laws of every community with the constitutional mandate of personal liberty. The Muslim Women (Protection of Rights on Marriage) Act, 2019, exhibited the alternative intervention by the legislature, which abrogated the discriminatory practice of triple-talaq within the Indian Muslim community, making the marital laws more egalitarian.
The benefits of such modicum changes instead of a uniform systematic overhaul of the legal system have a two-fold advantage, viz, firstly, the heterogenous communities become the curator of their own changes, while having the space to adjust and acclimatise to such changes by collaborating with the government to reform particularly problematic aspect of their personal laws. Secondly, neither community feelsfeel alienated from the legal system by the apprehension of selective suspension and suppression of laws targeted towards specific groups. Therefore, it becomes essential for us to adequately map out a constructive blueprint for implementation of a homogenised system, if needed at all, and weigh prudentially the advantages and possible alternatives to bringing the customary personal laws closer to the constitutional framework of rights and liberties.
REIMAGINING LEGAL PLURALISM THROUGH A CONSTITUTIONAL PRISM
The current Indian pluralist framework offers the debate in binary terms, i.e., either preserve the existing religious personal laws or adopt a Uniform Civil Code. This binary trap, however, avoids considering the reality of a rights-based legal pluralism that respects cultural diversity without compromising constitutional morality. What is called for is not an easy harmonisation of law but a principled transformation of the normative architecture of legal pluralism that reinterprets state-community relationships in terms of a constitutional democracy.
Existing practice allows different communities to be governed by legal regimes within them, which in some instances are extremely patriarchal and exclusivist. But one-dimensional imposition of uniformity risks homogenising the diversity that is India's social fabric. The alternative is to create a constitutional threshold model of pluralism, in which the personal laws are not done away with, but rather subjected to constitutional assessments to ensure conformity with basic constitutional principles, specifically Articles 14, 15, and 21.
Instead of outrightly seeking UCC or abolishing personal laws, the government can enforce constitutional pluralism in an independent rights-based structure, which would review and evaluate personal law provisions among religious communities. Additionally, recommendations can be solicited from civil society, women's associations, and community leaders, ensuring democratic participation in regularly updating evolving norms. Personal laws can also be viewed from the lens of sunset clauses, wherein provisions that fail the constitutional benchmark would automatically be delegitimised unless re-legislated on grounds that could survive constitutional challenge.
This would entrench a living constitutionalism, allowing legal norms to adapt dynamically with the flow of time, without compromising group identity and upholding the preeminence of human dignity. This would recast legal pluralism as not a religious exemption model, but a convergent-rights model, which strikes a balance between both pluralism and constitutionalism without weakening it. Further, the attention must be shifted from tolerating pluralism to democratising it. In such a vision, plurality is neither a token of grace extended by a secular state but a created normative order that writes the margins into the law. For instance, many tribal usages might be less subject to gendered hierarchies than the majority’s personal laws. By putting them at the centre of constitutional scrutiny rather than leaving them to a homogenising UCC, the state can facilitate pluralism as well as fairness.
Indian legal pluralism must be reimagined from a domain of exemption to a domain of constitutional innovation. In this way, India would not merely fit its diversity into the contemporary language of rights, it would blaze new paths in a novel jurisprudence of plural modernity, with implications for other similarly diverse constitutional democracies abroad
CONCLUSION
Fostering an understanding of the actual meaning of legal pluralism gives rise to the logical inference that every society or country, in some respects, is legally plural. As a concept and practice, it stands as an acknowledgement of diversity, as well as a symbol of the accommodative stance taken by lawmakers to instil a sense of inclusivity and respect for varying traditions and practices. On the other hand, legally pluralistic systems may be seen as reinforcing division, while also persisting in a tedious and inefficient form of governance, where citizens are subject to widely disparate laws. In India, legal pluralism is manifested as special protections for the tribal population and distinct provisions for the states, a recognition of the unique histories and belief systems of the population. Moreover, personal customs, traditions and practices have been given legal sanctity through their codification and enactment as personal laws governing marriage, divorce, adoption, etc. Due to some of these beliefs being prejudiced and discriminatory, personal laws stand in friction with the Fundamental Rights enshrined by the Constitution, challenging the notions of inclusivity associated with a legally pluralistic construct.
By Devdeep Ahirwal and Shivansh Singh
Devdeep Ahirwal and Shivansh Singh are second year students pursuing B.A.LL.B. Hons. at Five-Year Integrated Law Course, Faculty of Law, University of Delhi. They write about diverse domains of legal study, focusing on legal aid, corporate and constitutional law.
References:
‘No Muslim woman wants husband to bring home three wives’: Assam CM on Uniform Civil Code. (n.d.). India Today. Retrieved 27 June 2025, from https://www.indiatoday.in/india/video/himanta-biswas-shows-support-for-uniform-civil-code-no-polygamy-muslim-women-rights-1944316-2022-05-02
Adoption under Indian Law by Hindu and Muslim Parents. (2023, February 28). Free Law. https://www.freelaw.in/legalarticles/Adoption-under-Indian-Law-by-Hindu-and-Muslim-Parents
Explained: What Are Personal Laws? How Is It Different From Special Marriage Act? (2023, April 19). Outlook India. https://www.outlookindia.com/national/explained-what-are-personal-laws-how-is-it-different-from-special-marriage-act--news-279747
Hindu and Muslim Law of Succession: Key Differences—Legal Articles—Free Law. (2023, September 8). Free Law. https://www.freelaw.in/legalarticles/Hindu-and-Muslim-Law-of-Succession-Key-Differences
Ando, C. (2014). Pluralism and Empire: From Rome to Robert Cover. Critical Analysis of Law, 1(1), Article 1. https://doi.org/10.33137/cal.v1i1.20917
Berman, P. (2009). New Legal Pluralism. Annual Review of Law and Social Science, https://doi.org/10.1146/annurev.lawsocsci.093008.131539
Engle Merry, S. (1988). Legal Pluralism. Law & Society Review, 22(5), 869–896. https://doi.org/10.2307/3053638
India Const. art. 13
India Const. art. 14
India Const. art. 15
India Const. art. 21
John Griffiths. (1986). What is Legal Pluralism? The Journal of Legal Pluralism and Unofficial Law, 18(24), 1–55. https://doi.org/10.1080/07329113.1986.10756387
Khusbhu Dev. (2021, March 19). Personal Laws vis-à-vis Fundamental Rights, Part III of the Constitution. CJP. https://cjp.org.in/personal-laws-vis-a-vis-fundamental-rights-part-iii-of-the-constitution/
Lakshmi, P. (2012). Personal Laws and the Rights of Women. Christ ULJ, 1, 91.
Legal Pluralism in India – divisive and discriminatory? - Poppy Kemp (Per Incuriam) | Cambridge University Law Society (CULS). (n.d.). Retrieved 27 June 2025, from https://www.culs.org.uk/per-incuriam/legal-pluralism-in-india-divisive-and-discriminatory
Lubin, T., Davis Jr, D. R., & Krishnan, J. K. (Eds.). (2010). Hinduism and law: An introduction. Cambridge University Press.
Mishra, I. (2024, February 7). Uttarakhand Assembly ‘creates history’ by passing Uniform Civil Code: Pushkar Dhami. The Hindu. https://www.thehindu.com/news/national/uttarakhand-assembly-passed-the-uniform-civil-code-bill/article67821740.ece
State of Bombay v. Narasu Appa Mali, AIR 1952 BOM 84.
Thomas Hobbes. (1651). Chapter 13. The natural condition of mankind as concerning their happiness and misery. In Leviathan (1st ed.). https://www.plato-philosophy.org/wp-content/uploads/Thomas-Hobbes-Leviathan-Chapter-13.pdf
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