The Politics of Personal Law in South Asia

Identity, Nationalism and the Uniform Civil Code

Partha S. Ghosh

• Publisher: Routledge India
• Year: 2018
• Print ISBN: 9781138551657
• eBook ISBN: 9780429015472
• Edition: 2
• Topic: Politics & International Relations
• Subtopic: Indian & South Asian History
• Index: Politics & International Relations

The viability of the Uniform Civil Code (UCC) has always been a bone of contention in socially and politically plural South Asia. It is entangled within the polemics of identity politics, minority rights, women's rights, national integration, uniform citizenry and, of late, global Islamic politics and universal human rights. While champions of each category view the issue from their own perspectives, making the debate extremely complex, this book takes up the challenge of providing a holistic political analysis.

As most of the South Asian states today subscribe to a decentralised view and share a common history, this study is an excellent comparative analysis of the applicability of the UCC. In this work, India figures prominently, being the most plural and vibrant democracy, as well as accounting for almost three-fourths of the region's population. This provides the backdrop for an analysis of the other states in the region.

This second edition will be indispensable for scholars, researchers and students of law, political science and South Asian Studies.

1 Introduction: Issues and Concepts

The Law of the Jungle—which is by far the oldest law in the world.

—Rudyard Kipling, The Second Jungle Book

Why this Book?

Ever since the drafting stage of the Indian Constitution, and indirectly even prior to that, there has been a political debate in the country as to whether India, being a democratic and secular state, should have a uniform civil code (hereafter UCC), or, in other words, should it continue to allow its various religious and ethnic minorities to retain their personal and customary laws, which is traditionally the case. The debate picked up momentum in the eighties and nineties when the Hindu nationalists made, for the first time, a serious bid to capture political power. In their pro-Hindutva agenda, their demand for a UCC figured prominently. The way the idea was projected, it tended to suggest that the retention of the Muslim personal law was evidence of the pampering of the community by the Congress Party, an indulgence that was a veritable impediment to national integration. The debate fitted in well into the larger discourse over secularism versus communalism that virtually rent the entire political society asunder. Newspaper columns were replete with the highly opinionated and motivated views of columnists and letter writers to the editors, generating more heat than light. While Muslims in general felt concerned at the possible imposition of UCC, which they considered as brazen Hindu highhandedness, the average Hindu failed to understand why Muslims were so agitated when the move was apparently progressive and modern. That the issue was highly complex both sociologically and jurisprudentially they could seldom appreciate. What they also failed to realise was that all laws, in the ultimate analysis, were political contraptions and a UCC or personal law was no exception. The present study purports to present a dispassionate analysis of the situation from a political perspective with the entire South Asian region as its focus. But India is the largest multi-religious and multiethnic democracy in the region, this kind of political discourse has its relevance for, and reverberations in, the politics of all its neighbours as they too are plural (barring Maldives) and by and large respect minority rights either by action or by default.

India is a predominantly Hindu country. Muslims constitute the largest minority (14 per cent), while Christians and Sikhs each account for about 2 per cent of the population. Buddhists, Jains and Parsis are small in number. For purposes of affirmative action (in Indian parlance, positive discrimination, reservation, or the quota system) and family law application, Buddhists, Jains and Sikhs are treated at par with the Hindus.¹ In 1955–56, all Indians other than Christians, Jews, Muslims and Parsis were given a common civil statute in respect of marriage, divorce, maintenance, minority guardianship, adoption and succession. Although many important provisions of the statute were not based on Hindu shastric tradition, it still came to be known as Hindu law, presumably because the predominant community to be governed by the statute was the Hindu community (Mahmood 1972: 463). There is a plethora of personal, regional and customary laws in India but the one that is most controversial is the Muslim personal law.

Muslim personal law in India is largely uncodified. There are no officially recognised Shari’ah courts either. The state courts generally administer the law on the basis of the Indo-Muslim (earlier ‘Anglo-Mohammadan’) judicial precedents. The most significant enactment governing the application of Islamic law to the Muslims is the Muslim Personal Law (Shari’at) Application Act of 1937. After India’s independence in 1947 the scope of the law was extended to include three South Indian states, namely, Andhra Pradesh, Kerala and Tamil Nadu. There is also the Dissolution of Muslim Marriages Act of 1939. On the basis of this act the state courts can dissolve Muslim women’s marriages, on their request, on grounds specified in the law, which are primarily drawn from the Maliki law. Following the passage of the Muslim Women (Protection of Rights on Divorce) Act in 1986, criminal courts are empowered to enforce some of the rights generally available to divorced Muslim women under the Islamic law (Mahmood 1995b: 87–88).

The purpose of this book is to analyse why, after so many decades of the constitutional directive to the effect that the Government of India should make efforts to replace all personal and customary laws by one UCC, it has not yet been achieved and why, in other countries of the region, with the notable exception of Bangladesh, there is not even a debate on the subject. Why, whenever such an effort is made, for example in India or Bangladesh, it is opposed at various levels, making the exercise futile? These questions have been carefully examined here, keeping the focus primarily on India, which is most critical, while devoting a detailed chapter on the experiences of all the other six countries of the South Asian Association for Regional Cooperation (SAARC). (Afghanistan is not part of our discussion although it has become the eighth member of the SAARC.) Besides analysing the individual experiences of all the South Asian states, this book puts the discourse in a conceptual framework, referring to all relevant theoretical issues, without an understanding of which the essential elements of the debate cannot be adequately appreciated. Since law, as noted above, is essentially a political subject, the answers to our questions have to be found in the politics of the respective countries. It follows, therefore, that the sociopolitical climate of a country has to be conducive before it enacts a UCC for its people. Also, such an enactment hinges on the basic question of whether a country should have a uniform civil code in deference to the concept of equality of all citizens before law, or whether it should allow the respective communities that form the nation to enjoy their personal laws in deference to the concept that a democracy or any modern state system must respect minority rights and group identities of which personal law forms an important marker. Though these two concepts are apparently mutually irreconcilable, most nations across the globe have reconciled themselves to allowing both to coexist, with variance in degree only. Another point that has figured in the discourse, and which has also been discussed in the book, is whether codification of respective personal laws contributes to the eventual introduction of a uniform civil code or whether, on the contrary, it delays, if not completely destroys, the process by rigidifying a community’s attachment to its personal law.

Research Questions

From the above standpoint, several broad questions have been raised and their answers attempted, which are as follows:

• Why is law a political question?

• Does the legal system, which includes personal and family laws, necessarily have its origin in religion?

• Can there be legal pluralism just like there is political pluralism?

• Is it true that a majority community is more willing to modernise its personal law because neither is its cultural identity in question nor is it under threat, perceived or otherwise?

• Are Hindus intrinsically in favour of a secular civil code while Muslims pathologically opposed to it, or are their positions much more nuanced than what appears?

• Would the introduction of a UCC mean the end of all religious and customary practices when even the Indian Penal Code (IPC) has not always been able to prevent the criminal justice system from being interfered with by such custom? For example, in spite of the fact that inter-caste marriages are legal, lower caste people who marry upper castes are sometimes victims of violence and even murder, usually sanctioned by village panchayats.

• What is the texture of the discourse in other South Asian countries?

• How do the South Asian communities respond to the family laws operative in the western democracies where they have settled in large numbers?

• Should personal law reforms wait indefinitely for community desires, or should the state be proactive to facilitate the process?

The above questions do not exhaust all the possible questions pertaining to the discourse. They are in way of sensitising readers to the types of issues that societies in South Asia confront while dealing with the subject. Broadly, all these issues can be viewed from four essentially interrelated perspectives, namely, the centrality versus the plurality of law, individual rights versus group rights, communal versus territorial identities of groups, and the relevance of giving primacy to women’s rights. These and other related issues have been discussed here to make the discussion as comprehensive as possible, with the central point being that it is politics that guides all, more so in a democracy but even in non-democracies.

Politics and Law

Law has both written and unwritten sources. The written sources are the constitution, the law code and the court judgements. The unwritten sources are the so-called natural justice, cultural and family values and so on. Diversity of legal norms and practices is, therefore, inherent in the situation particularly in the realm of family laws, for each society has a different evolutionary experience. The very fact that each country has its own constitution and no two countries have exactly identical laws underscores the point. Since laws are made by people who rule either at the political or at the societal level, the essence of law is politics.

One may argue that while giving a verdict in a court case the judge refers either to a legal provision or to a previous judgement and is, therefore, bound by a precedent. Where does politics come into the picture in such a situation? But is not the very choice of a precedent a subjective decision and, in making that choice, is not the judge influenced by several factors around him and the case? In the American context it has been empirically found that the notion stare decisis, meaning that judges defer the precedents and are bound by them thereby restricting their domain to law rather than politics, is rarely universally applicable. Not only do the same types of cases have the potential to draw different judgements depending upon their time and locale but even the choice of precedents is often motivated or is simply subjective. David Kairys, an American constitutional lawyer, writes in the introduction to his edited volume The Politics of Law:

While seeming to limit discretion and to require objective and rational analysis, stare decisis in fact provides and serves to disguise enormous discretion. This discretion is somewhat broader in the higher courts, but it exists at all levels. Lower courts have an added institutional concern, since their decision can be reviewed, but they also have added discretion stemming from their relatively larger control over the facts and the credibility of witnesses. Functionally, stare decisis is not a process of decision making or a mechanism that ensures continuity, predictability, rationality, or objectivity. Precedents are largely reduced to rationalizations, not factors meaningfully contributing to the result; they support rather than determine the principles and outcomes adopted by judges…. Courts determine the meaning and applicability of the pertinent language; similar arguments and distinctions are available; and the ultimate basis is a social and political judgments…. Law is simply politics by other means.

—(Kairys 1982: 15–17)

In the context of family laws in South Asia, as we will see in the succeeding chapters, the connection between politics and personal law, either in its continuity or in its reforms, is evident. In this regard religion plays an important role, particularly in those nations where Muslims form the majority. Even in other countries where Buddhism or Hinduism is the dominant religion, with or without secularism as their state policy, the relevance of religion in determining family law patterns is no less. If India, which is a constitutionally secular country, has failed to introduce a UCC, it is on account of political hurdles.

Legal Traditions

Broadly, the whole legal structure can be divided into two segments—civil law and common law. The most important distinction between the two is that, whereas in civil law importance is given to legislation and theories of law, in common law precedents in judgements receive priority. Common law is thus a case based law. As such, there is an essential similarity, in most situations, between common law and customary law as both are case based and not legislated. This is true of the British experience and hence the American as well, for American law was largely borrowed from England. Since the South Asian legal systems are largely the legacy of British rule a better understanding of the history of common law would be useful because, as we will see in Chapter II, India inherited the Roman law twice.

Europe is the source of the present legal systems of almost all modern nations. Within Europe it was first Greece and then Rome, more effectively the latter, which contributed the most to the evolution of law and, through European colonial expansions, to the growth of legal systems in large parts of the developing world. Within Europe, however, two major parallel patterns emerged—one, civil law, and the other, common law, besides a few other smaller patterns. Civil law represents the sets of laws comprising Roman and Germanic traditions together with ecclesiastical, feudal and local experiences. Between the seventh and nineteenth centuries most of the continental European nations, which belonged to this system of law, undertook massive codification drives. Subsequently these laws spread to other parts of the world through colonialism and other forms of influence. The countries which subscribed to the model were Japan (1890–98), China (1929–31), Thailand (1925), Turkey (1926), and Ethiopia (1958–60). It was also introduced, together with local religious and customary laws, in the colonies, protectorates or trust territories of France (Algeria, Guinea, Mali, Morocco, Tunisia and other territories in Africa, the West Indies and Oceania), Belgium (the Congo, Rwanda-Burundi), the Netherlands (Indonesia, the Dutch West Indies), Portugal (Goa in India) and Italy (Somalia). The system also migrated to the Balkans and West Asia but there it was supplemented by Islamic law.

The system of common law is constituted by the law of England and that of those countries to which it migrated and, in the process, included the local religious and customary features. The most notable English common law countries are the United States, Canada, Australia, New Zealand, the Republic of Ireland and the West Indies. The modified version of English common law prevails in India, Pakistan, Bangladesh, Sri Lanka, Myanmar, Malaysia and Singapore, besides Liberia and those parts of Africa and Oceania where the British ruled.

Besides the above two major patterns, the Nordic countries, namely, Sweden, Finland, Denmark, Norway, and Ireland, had their own system of law which was close to civil law but also had the characteristics of common law. Following the Bolshevik victory in Russia, the country introduced major innovations in its legal structure but its pre-revolution civil law structure was not completely replaced. In Poland it was more so.

The conceptual distinction between civil and common law notwithstanding, no watertight compartmentalisation between the two structures is possible. Even where legislation may seem to be the dominant influence, if one goes into the fine print, one would find that there is considerable scope for subjectivity of judges, which is bound to be based on societal influences. Lon Fuller in his book Morality and Law underlines this connection most tellingly.

In the civil law countries the codes from which courts purport to derive their principles often provide little beyond a vocabulary for stating legal results. They are filled with clauses referring to ‘good faith,’ ‘equity,’ ‘fair practice,’ and the like—standards that any court could apply without the aid of a code. One of the best modern codes, the Swiss Code of Obligations, lays down very few rules and contents itself largely with charting the range of judicial discretion and with setting forth what might be called checklists for the judge to consult to make certain that he has overlooked no factor properly bearing on the exercise of his discretion.

—(Quoted in Barnett 1998: 115)

The demand for codification, in India and other South Asian countries, of their personal and customary laws as well as the importance attached to their actual or potential interpretations by learned judges prove the coexistence of both civil and common law traditions in this region, to...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Preface to the Second Edition
• Preface to the First Edition
• Acknowledgements
• 1 Introduction: Issues and Concepts
• 2 The Evolution of the Indian Discourse
• 3 It is Politics, Stupid!
• 4 On the Fringe: The Tribal Laws
• 5 The South Asian Mosaic
• 6 The Wider Context
• 7 Conclusion
• 8 Old Wine in the Old Bottle
• Appendices
• Glossary
• Bibliography
• Index