Muslim Personal Law in India:
Colonial Legacy and Current Debates
Dr. Purushottam Bilimoria
Contents: (Click on link to jump to a specific section)
PART I: The colonial ‘Rule of Law’
Independence and After
Matrimonial Obligations and Rights of Spouses
REFERENCES AND BIBLIOGRAPHY
India, we are too often told, is the world's largest democracy, although it has in recent decades been besieged by a number of critical issues in the areas of justice and rights, where tensions between different communities have run dangerously high. Such conflicts challenge the stability of the Indian society and its egalitarian aspirations. But some conflicts, such as the communal rift between Hindus, Muslims and Sikhs have a much longer history. Here we will not be focusing on communalism as such, but only on community as a moral collective and the rights of individuals within such normative communities. Issues about just what these rights are—if ‘rights’ talk as adhikara, haq is at all the correct language to use in this regard? -, and concerns about how far do they go to serve the interest of the individual, arise in the area of ‘Personal Law’, In the narrow form we can simply call this area ‘Family Law’, as Personal Law basically governs matters relating to marriage, divorce, inheritance, succession, adoption, maintenance, guardianship and custody of children – and cover related normative practices, such as child labor, girl child exploitation or prostitution, - but it may extend to religion as well, hence sanction for specific cultural and religious practices, control of religious institutions, like places of worship, or community education facilities, including minority languages. In some countries these would be called traditional textual law, and ‘community or communal law’, perhaps customary law, that underpin certain autonomy of ‘cultural rights’ specific to these communities with which the secular state and other community groups, whether in majority or minority, may not interfere. In a growing multicultural, multilocational and pluralist world, these signs of greater autonomy, marks of distinctive self-identity and sensitivity to the moral heritages of the disparate cultural groups are indeed welcome. Pluralism is the backbone of good and healthy democracy anywhere. In Australia, for example, there is growing movement among the native Aboriginal Black community seeking recognition for its own customary law with its own system of justice, retribution, reconciliation etc, i.e. to say, what is normative to that community, unfettered by the dominant Anglo-Christian and civil system of justice. So a black youth breaking into a store and caught stealing paint for his art work would prefer to be speared in his leg by his elders rather than be thrown into a dingy inhumane jail. (Where he might be tempted to hang himself, as a number of such incidents have brought home this malaise). Also, inheritance through individual claims via written titles and alienation of the same at will is not how clans have passed on or succeeded to land of their forefathers, but British common law changed all that. The Aboriginals want to return to their collective wisdom in these matters. Similar issues have come to light among Native American communities or ‘nations’ within the larger democratic nation-state frameworks of the U.S.A and, especially, Canada. (See Kymlicka, 1995; 1996)
But some people feel that Personal Laws come at a huge price; that, for starters, they encourage proliferation, hence conflict and contradiction between different laws on the same set of practices – e.g. conjugal relations, succession – which result in arbitrariness, relativism and eventually an epidemic of personal laws; 2.) because there is no way of checking and redressing certain discriminatory practices within particular communities against some members of their own kind; 3) the very idea of ‘law’, as kanoon, hukm, dharma, is vague, non-transparent and slippery between textual roots, customary norms, mahajana (learned) consensus, imported regulations, etc. Of course, often it is a matter of perspective or relative judgment: the members themselves may not feel they are being marginalized, victimized or compromised in terms of fair and just outcomes in enclosed practices, such as in the case of marriage, divorce, maintenance entitlements and so on, decided by the terms of Personal law enjoyed by that community. Nevertheless, since these are differentially inscribed for different communities under separate Personal Law provisions they have come increasingly into conflict with civil and criminal procedure codes governing the public space. Behind it is the specter of the Indian Penal Code continuing from the last century as well. The Begum Shah Bano case, which erupted in the late 1980's, focused attention on this particular question of personal law, in one area at least. Previously, such disputations had remained confined within court chambers, government bureaucracies, in the communities themselves and the family. There were some stirrings in the 1970s in the attempt by some activists groups to revive the movement towards codification that women’s groups had argued for way back in the 1930s. But that call also died down. This is rather curious, for a Directive Principle in the Indian Constitution underscored the need to move towards common civil law, and this should itself have provided an incentive for such debates to cut more deeply.
However, with the rise of strong religious and sectarian sentiments, particularly among the northern Indian middle classes, this issue has assumed immense public importance, drawing clerics, community advocates, postcolonial writers and feminist critics into the fray. In the aftermath, one moral community has responded with a sense of horror as it feels singled out for perpetuating a bifurcated system of justice and social-legal dispensations in the name of minority rights. It argues that there is no compulsion within the provisions of the secular Constitution for the country to submit to the belated call for a uniform civil law, sometimes referred to as ‘common civil code’. Some blame the British colonialist for the mess, with its parallel in the Partition, or after the creation of a separate nation for the Muslims. So it is asked: why should Personal law system continue in the ‘secular democratic socialist republic’ that India is committed to being or becoming? This is where the debate has more or less stalled at the present time. In this theoretical discussion we endeavor to present all sides of the debate, and embellish this account with empirical vignettes from a community that appears to be most affected and grieved by the continuation of the Personal Law system half-a-century after the independence.
We would like to begin by sketching a background to the discussion of Personal Law in order to highlight its development in the wider frames of colonial sovereignty, post-Independence constitutional debates on rights and the interests of different communities, and other legal entanglements. In related scholarly essays we have gone further back into pre-colonial history in some detail. (Bilimoria, 1993; 1997). As many commentators have observed, it is difficult to find a conception of law comparable to the liberal, Post-Magna Carta conception or the European canons of civil law in traditional India. There is no central notion of law as presupposed in the idea of Common Law with its bureaucracies, central law courts, formal statutes, and judiciary. In particular, a central policing or enforcing mechanism was conspicuously absent. In its place stood a variety of socially regulative and normative rules, acara, punishments, prayas’citta (generally included in the category of dharma) varying across different regions and peoples. Each caste had its own svadharma (own duties). In fact, an autonomous concept of law was not yet distinguished from ethics and regulative norms. This would have required a theory, albeit abstract, of law and due process, conceivably recognizing the issues of inequality, the disproportionate distribution of privileges and denial of entitlements, legitimacy and the rights of certain classes or groups of people. Not that such recognition was not possible within the framework of dharma itself, but it lacked a mechanism for codification, adjudication and enforcement of punishments. The bulk of the dharmashastras did not actually codify the "law", or dispute, but for the large part devoted themselves to the articulation of religious mores and ethical norms, as Kane has painstakingly demonstrated in his monumental The History of Dharmasastra.
Indeed, the Mughal rulers appeared to have strengthened this differential and preferential process. The Portuguese and French missionaries found that a tradition of rather strict observances of dharmic (for Hindus) and aislamic (for Muslims) and connecting social virtues existed among the judges also, so that they could cultivate the requisite degree of detachment from the personal details of the case before them and exercise a degree of objectivity and fair-mindedness in their judgments. It was clear to them that equity is not something easily reduced to law or entitlements (rights); nor could one detect much concern for equity in custom, nor locate legal abstractions, canons, declarations (of entitlements, rights and claims), or civil case-laws concerning due process or distributive justice generally.
When the British arrived in India, around 1772, the administrators of the East India Company were similarly bewildered by the diversity of customary rules, norms and practices, moral judgments and differential treatments of misdemeanors, as well as the vastly different views on marriage, succession, contract, severance, property and inheritance rights. Each micro-community had its own complex system of village-based juridical hearing courts or panchyats. They were astounded at the absence of an overarching central authority or even ecclesia that would systematically enact and enforce laws, rules of conduct and social imperatives, or monitor unequivocal adherence to the common law of the land. They were further befuddled by the vastly different regional legal systems and configurations of group identity and community membership, as well as by the discretionary, and rather flexible jurisprudential and interpretative schemas in different parts of the country (e.g. the Mitakshara would differ from the Deobargh in the East or Oudh). The Enlightenment sensibilities and expectations were utterly defied and indigenous legal notions were in sharp discord with the expectations of administrators, flowing largely from their acceptance of the Lockean reworking of Natural Law into Common Law.
The then overdriven Governor-General, Warren Hastings, observed that Indian people appeared to be governed by a system of law virtually unchanged “from remotest antiquity”. In the British mind the pressing task of establishing a viable economic base and central political governance in India required more than a heterogeneous native "culture of law" presided over by a despot or the authority of custom. Rather, regulatory authority and power had to be secured in the "Rule of Law", with the declared consistency, clarity, certainty, and finality of statues, "Black Letter Law" or the law books, legal and judicial agencies, bureaucracies, attorneys, judges, police, and so on.
One of the first steps was to separate out judicial punishment from other kinds of sanctions (especially religious, and what we nowadays call civil codes or Code Civil). This supervened on the demarcation between public moral harm, or the potential thereof, and private conduct which the communities could manage themselves. In theory, such a demarcation would warrant considerable debate and could hardly be achieved as an abstract objective. But when we note how the paradigm of English law informed the process, it is not difficult to imagine how swiftly this was achieved. The result was a series of enactments passing the Code of Civil Procedure (1859), the Penal Code (1861), and the Code of Criminal Procedure (1861). Common because they cover public space. Since their jurisdiction covered public morality, the latter Codes were deemed to be uniform regardless of race, caste, religion, and group-affiliation. The Penal Codes have remained on Indian statute books and continue to echo those 18th century ideas of Common Law, and the resistance to local/traditional variety. So ‘lunacy’ is a crime; going insane could lend an Indian citizen or visitor in prison with hardened criminals. So is the attempt to commit suicide, which is punishable by law, even if the suicide is successful! (Bilimoria, 1995)
Under British administration (East India Company) and sovereignty (British Charter for India), the Westminster and Common Law models were introduced. However, the imported “Rule of Law” was rendered almost unworkable by the existence in India of a great diversity of customs, cultural traditions, regional legal systems, group identities and community memberships. Initially colonialists tended to ignore traditional cultural practices, ritual legalism, textual records of moral thinking (Arthashastras, Dharmashastras, Yanjavalkyasmriti, nibandhas, Manusmirti, and so on). The subsequent attempt on the part of the colonialists to accommodate aspects of the ‘personal’ -- or an artificially separated private area morality from the public civil and criminal codes -- under the newly-evolved jurisdiction of Personal Law led to tensions within the system. The British, in consultation with indigenous legal experts, classical jurists, pandits and the ‘ulamas respectively, devised the so-called ‘Anglo-Hindu’ for Hindus and ‘Mohammedan law’ or later Anglo-Muslim Laws for Muslims (Fyzee, 1975: 14), plus separate personal laws for Indian Christians. For example, new acts came into being for them, Native Converts Marriage Dissolution Act 1866, The Indian Divorce Act 1869, and the Indian Christian Marriage Act, 1872. These govern to this day Christians of all denominations even though there are variations on practices within them. There were Personal laws for Parsis as well (but only one or two actual Acts were passed, notably Parsi Marriage and Divorce Act 1937; otherwise Parsis may appeal to general civil law, where such could be identified, or be covered under Hindu Acts, such as the Indian Adoption Act enacted much later to which though the Parsis were initially resistant, and from which the Muslims have been exempt.). (Jains and Sikhs were included under Hindus, although there were some concessions in certain areas of practices for these communities as well.) The history of this process is complicated, and there have been ambivalences over what should prevail: customs, tradition or shastric, i.e. textual law? If the latter, what about groups that do not have shastric or authoritative scriptural tradition or who are discriminated adversely under brahmanical shastras (e.g. Manu’s dismissal of shudras, lowest in the four-poled formal caste hierarchy, and tribals and so-called ‘untouchable’ peoples, who have no citizens’ status in shastras, and customary norms towards them could vary enormously)?
In early 19th century the colonial government set about documenting ‘native’ religious practices so as to bring them closer to the Brahmanic textual tradition, since this fitted best the privileged Western model of consistency and uniformity over variations in indigenous interpretations (Kannabiran, 1995, WS-59)
Likewise, with codification of other Hindu laws in process, such as the Suttee Regulation Act 1829 and the Widow Re-Marriage Act, 1856, due largely to the efforts of social reformers like Raja Ram Mohan Roy [Rai] and Ishwarachandra Vidyasagara, came into force. But Hindu patriarchy still attempted to legitimate Sati (“Suttee”), or widow self-sacrifice, under traditional Hindu dharma or religious law since sati was never considered a ‘crime’ or felony under Hindu customary law; while Muslim men petitioned for recognition of polygamy under Islamic law. The East Indian Company administrators even extended shastric laws laid down by Manu, Yajnavalkya to the Dravidic south as well in the absence of discernible customary law governing any class of people, as though they were all shudras in the eyes of Manu. Devadasis or temple dancing girls were suddenly classified as prostitutes and their adoption as well as rights to succession, inheritance, custodial guardianship, etc., were denied even though traditional Hindu law had recognized these rights. It was the Indian judges and legates who pushed such cases and counter arguments until the British benches would cave in, but not without sovereign censure. After 1868 customs could overwrite the written text of the law if the antiquity of the former was proved. The Privy Council placed shackles toward digging too far back into scriptural sources, as this had proved all along to be an effective strategy for the brahmanical group to legitimate and defend its tight control over the social caste-hierarchy order through an almost ingenious selective literacy process, nonviolently thwarting any tendency towards centralizing statecraft or political hegemony of other competing groups, including warrior-caste kings and their advisors (who comprised mostly ascetics and brahmins anyway).
Gradually, the colonial Codes based on ‘universal principles of the science of legislation’ supplanted Hindu law, both textual and customary. So, for example, temple dancing girls –usually orphans – came to be classified as prostitutes, as Hindu law had permitted extended sexuality but this crossed the threshold of colonial tolerance. The IPC here as elsewhere was essentially privileging the Orientalist construction purely from high caste textual sources of the ideal of Hindu womanhood projected, in the Vedic Aryan woman as the embodiment of Hindu culture, and one devoted to monogamous conjugality (Uma Chakravarti, 1990). Again, of course such rulings did not go unchallenged, and the legitimacy of customary law for Hindus was re-invoked by Indian judges.
For Muslims personal law or Aalim, the colonialists continued largely the Hanafi fiqh or legal literature (which Sunni Muslims follow), notably al-Hidaya or hadiths, the pronouncements and practices of the Prophet Muhammad (m-p-u-h), from which in turn are deduced model and analogue traditions (sunnah), or rule of law, especially under the jurisprudential school of Shafi ‘i, with some admixture of custom and varying juridical sources, (e.g. Fatawa Alamgiri). But the final authority rests with the Qur’an, which for the Muslim is the incontestable revealed ‘Word of God’. It is said that Muslim law in India has signs of being among the oldest continuing form of Muslim law which has not been eroded by excessive reforms, secularization or civil interference. And being Hanafi it is comparatively more liberal and in principle amenable than the literalist Hambali or Hadooth toward which Pakistan’s state-religion or fiqh seems to be moving .
After 1864 indigenous legal advisors were dispensed with and the British judges took it upon themselves to learn Sanskrit or Persian or Urdu, and interpret and pronounce upon Hindu and Muslim laws, while increasingly drawing on English legal principles and procedures to work through these customary law, usage and shastric laws. Often the colonial courts simply ‘interpreted’ for purposes of specific judgments rather than reform existing practices. Precedents and case laws were built up this way. The consequence in practice was that sometimes the laws were stretched too far towards arcane customary practices which even the community found aberrant at the best of times. At other times English common law wisdom subverted indigenous proclivities or preferences on the pretext that ancient usages stand in the way of ‘social progress’ and utilitarian objectives , i.e. greatest happiness for the greatest number.
In any case, critics all along have argued that the Personal Law system as re-invented by the British in India has been “bogus” (Derrett), at best “hybrid” (Galanther), and at worse, an “egregious blunder” (Gandhi), a queer mix of Indian and Western traditional moralism (Nandy), that hardly reflect the coordinates of the lived culture, i.e., They are far from being normative.
And although these have governed a narrower area of personal or ‘private’ community conduct - pertaining to family law, marriage, inheritance, kinship, adoption, succession, collective property title, and so on - they nevertheless have specific implications for thinking on issues of citizenship, rights and obligations (including the duty of the State towards its citizens within varying social and cultural contexts). Prima facie, this tinkering has made room for inequality and preferential treatment depending on the subject's community membership claims and the particular personal law involved. The Indian Divorce Act 1869 put a ceiling on the maintenance amount to be given to the estranged wife (one-fifth of the average husband’s income; and even then Muslim personal law might override this according to its own Qur’anic or al-Hidaya ordinances. The Registration of Mohammedan Marriages and Divorces Act 1876 made registration of Muslim marriages, nikah-nama, voluntary or good enough if records are kept with the Qazi (judge) in the masjid or mosque precinct, etc. And although the marriageable age, originally established at 18 and 15 years have changed to minimum 21 and 18 years for male and female respectively, no provisions are there for dissolution of under-age marriages if contracted under a Qazi’s nose, and so such marriages are not challenged. The Guardians and Wards Act, 1890, recognized only the father as the ‘natural guardian’ of children born or adopted by a couple; woman’s right to guardianship is neglected; and when guardianship is reinstated to her full custodial rights after a certain age remain with the father, locking the kid into the father’s business or income-raking schemes. Even worse for adopted children as Muslim and Parsi religions did not accept adoption since would mess up inheritance lineages.
Despite these contradictions and moral antinomies, however, there were positive outcomes as well, such as blocking alienation of land by individual claimants to what is otherwise a collective or clan title, rightful inheritance of property and share for the widow, easing of divorce provisions and maintenance for the estranged wife, pushing for adoption laws, attempt to free-up devadasis or dancing girls from temple confinements and the rights of orphans to be adopted out, as well as the right to practice one’s own faith and maintain places of worship, and so on. But major contradictions or quiddities were never quite ironed out, and even Muslim judges argued with their British counterpart on points of law, interpretation of Qur’anic or al-Hidaya principles, application of the hybrid Anglo-Muslim law, and the hegemony of the Privy Council sitting at the safe distance of the Westminster. Muslim leaders in the 1930s demanded codification of their laws. Some redress came for the Muslim community with the enactment of the Shari ‘at Act 1937 which declared that Muslims prefer to be governed by their own Shari ‘at or canon law of Islam as interpreted by their imam and ‘ulama (theologists-cleric body) and legal experts (faq’as) who extrapolate hukm or legal codes and injunctions from the extensive moral guide that includes the Qur’an, Sunnah and Hadith. Henceforth this law would apply univocally to all Muslims, their minors and descendants. But just what is Shari ‘at has remained vague, undefined in terms of what a modern nation-state takes law to be with its more pragmatic if not secular nuance; nor did much specific codification on the thorny areas within Personal Law actually take place, and uniformity across the plethora of Islamic sects was not achieved. The Shari ‘at Act was based on interpolated hukms, as duties and obligations, and not on rights of the individual. Is fact, the rights discourse was eschewed or by-passed altogether. The Ismailis or Bohras who follow the Aga Khan heeded to his verdict that the Shari ‘at had already been abrogated and so they would rather be governed by Hindu law. Although the Shari ‘at Act did make some progress. It recognizes inheritance of family property for women, which was not allowed under customary law or Hindu law as understood in colonial times. The Indian Muslim League backed this move and Muslim community saw itself as progressive and pro-women. And it had the support of Muslim women’s organizations. But in 1939 the British administration passed the Dissolution of Muslim Marriage Act, which gave non-Muslim judges the right to dissolve Muslim marriages, which in effect was against the Shari ‘at! (Mahmood, 1975, Baxamusa, 1998:33).
This is a list of the significant legislations in the areas of Personal laws passed during the British presence in India, they would include the following (although these are to be read against the grain of the enormous archival collections of case-law, cunning jurisprudence, precedents, appeal to customs, and various hybrid transcreations of classical and traditional laws on the judges’ benches for each of the communities affected):
· Sutte Regulation, XXVII of 1829.
· Caste Disabilities Removal Act 1865
· Hindu Widow’s Remarriage Act 1856
· The Hindu Gainful Employment Act 1930
· Muslim Personal Law (Shari ‘at) Application Act 1937
· Shari ‘at Act 1937
· Dissolution of Muslim Marriages Act 1939
· Parsi Marriages & Divorce Act 1936
· Native Converts Marriage Dissolution Act 1866
· Indian Divorce Act 1869
· Indian Christian Marriage Act 1872
Coming to the Independence period, how did the Constitutional Assembly deal with this quiddity? What provisions have the Constitution made in a) doing away with Personal Laws?, or, b) preserving the Personal Laws as means of protecting rights of minorities under the Bill of Rights?, or c) why the judicial ambivalence over the status of Personal Law? There are other corollaries and supplementary questions to be explored in the light of recent litigations, court judgments.
The status of the Indian citizen, who was, prior to Independence, also a bona fide British subject, but could also have a dual identity in terms of religious- social (caste/ outcaste) membership, was debated by consultative committees and at imperial conferences in a series of stages leading from Home Rule to Dominion Status, later Self-governance and finally, Independence. The framers of the Constitution, in the aftermath of the bitter and bloody struggle between Hindus and Muslims, were torn between giving universal assent to equality of rights and recognizing that this in itself may not necessarily produce an equitable society, especially if traditional customs, system of hieratic privileges, laws, social conditions, and enshrined community laws, divide the society communally and produce differential treatment.
Either you continue with Anglo-Hindu and Anglo-Mohammedan, plus Indian Christian and Parsi Personal laws or you move to adopting common code. Baba Ambedkar, the leader of the ‘untouchables’ now calling themselves Dalits, was the strongest advocate of this; Jawaharlal Nehru with his secularist agenda was equivocal, while Minoo Masani and K M Munshiji supported the move, arguing that India has achieved a great deal of uniformity in many areas of law barring those governing marriage, succession, adoption, etc. and since there was nothing sacrosanct about Personal Laws (Munshi) they should be brought in line with secular practices and civil procedure. Most significantly, religions should not intrude into processes of secular law. But there was dissension, especially from staunch Hindu and Muslim communities. Hindu nationalist leaders opposed a separate Hindu Code Bill introduced by Nehru in 1948 on parity (but also since the Code would not touch the practice of polygamy among Muslim men, while prohibiting the same for ‘all Indians’, including Hindus, Christians, Buddhists, Jains, Sikhs, Jews, tribals and secularized persons, residents or visitors.) However, the violent communal clashes preceding Independence and Gandhi's gestures of rapprochement towards Muslims led to the project being deferred.
Nevertheless, intense debate and some of this century's most profound constitutional and moral debate took place within the constitutional assembly (which included Sardar Patel, K M Munshi, Jawaharlal Nehru, Baba Ambedkar, Rau (who had studied in great detail the framing of the U.S. Constitution), Gandhi's representatives and also a few women members. Nehru surmised that circumstances were unfavorable at that time for the adoption of common civil law. Nevertheless, the framers of the Constitution struggled to balance the diversity in the people's customs, religions, moral systems and ethical mores on the one hand, and on the other hand the secular impetus imparted by colonial administrators into the Indian legal system which invested greater power in the State to control, intervene and reform these laws. The latter would entail, if not wholesale statutory legislation, then certainly a gradual move towards providing a uniform system of principles and codes overriding or annulling practices which privilege a citizen on the basis of religious identity or community membership, or other parochial and local allegiances. The Constitution on January 26, 1950 gave sanction to the Shari ‘ at Act, 1937, as the prevailing Muslim Personal law. However, as a corrective to the impression that Personal Law, beyond provisional statutory status, should gain absolute and immutable protection of the Constitution, it is worth pointing out that the Fundamental Rights was followed by a section entitled ‘Directive Principles of State Policy’. The Directive Principles were intended as a signal to the state (though not enforceable by the courts or under the purview of the judiciary) to apply constitutionally recognized principles through legislature and governance of the country. The most relevant principle for our purposes is stated as follows:
“Uniform Civil Code for the citizens – the state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”.
But it was also argued that religion, or many different faiths and spiritual orientations, imbue every aspect of Indian life, and that naturally it permeates our law as well. In any case, why should the weighty colonial agenda of “one God, one State, one Law, one People, One King, One color, etc” continue into the post-independent nation? Still, Raj Kumari Amrit Kaur (one of the few women and Punjabi on the Assembly) and R K Sidwa (a Bombay Parsi) exhorted Muslims and renegade Hindus to give up their legal separatism on a par with the Parsis for the sake of national unity. No clear consensus emerged and with the blood from the violent Partition, the epitome of constructed communal fracas, still in the air, the idea of Uniform Civil Code was shelved, and instead relegated to the Directive Principles as Article #44, as stated above in the Constitution (which follows on from its Bill of Rights known as the Fundamental Rights).
However, the adoption of UCC throughout India has of course not happened. Should it, and will it ever be, are questions that are still debated in India. In effect all that the Directive Principle in the Constitution (which follows on from its Bill of Rights known as Fundamental Rights) does is to urge the state to move towards uniform civil code. There is no time-line and no procedures set out, and it is never binding on the state anyway. And in its absence how are the objectives of the Fundamental Rights to be negotiated for the individual as well as the communities, minority or otherwise, and the individuals with these communities, which appear to come in conflict with applications and constraints within Personal law of this or that community, remain largely unresolved?
For example, Articles 14-18 in the Constitution guarantee all citizens equality before the law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in matters of employment.. ; as well as the right of minorities to conserve their culture, language and script and to establish educational institutions of their choice; plus the right to freedom of conscience and free profession, practice and propagation of religion (Art 25-28).
On the face of it, the articles guaranteeing equality before the law could come into conflict with a community’s right to practice its own religion, where the community builds in (or continues an erstwhile) maxims of inequality between its sub-groups, distinguished along gender and age lines, as well a ‘no exit’ clause for the affected members to seek redress elsewhere without risking internal censure and possibly adverse back-lashes. Would the State address and mitigate the net effects arising out of this ethical antimony? This process has required judicial intervention as the State has often defaulted in its Constitutional responsibilities. In short, the founding members of the nation were more circumspect and left the matter in something of a limbo, but the program for a uniform civil law hovered just above the collective horizon or in the newly chartered national conscience. The general consensus was that Personal Laws are appropriate only for the specific areas to which they apply, such as family law (governing marriage, inheritance, succession, adoption, gifts, divorce, guardianship, and maintenance) and in law relating to religious institutions, so long as they work and until such time as the State can find effective ways of either ironing out the differences in customary practices or codifying them under one system of the Rule of Law. The Hindu Code Bill of 1948 was the first of such endeavors to codify the vast array of Hindu customs and rules (revised in 1957, 1976), followed by several others dealing with succession, adoption, guardianship of minors, maintenance and so on. However, the Hindu Code Bill has not been very successful, as it adopts items from the earlier shastras and Anglo-Hindu law without substantially transforming them. Although its synthetic genius, as I show below, has been remarkable in other ways. Through technical loopholes in the Code Bill, a daughter can still be given away much below the legal marriageable age (as the story of Phoolen Devi reveals). Likewise, the persistence of the practice of dowry, bride-harassment, even burning by the in-laws without much preventive or post-mortem redress, and bigamy among Hindu men is rife. When you actually consider it, there have been very few Acts that have addressed issues of conscience, equality of the citizens before law, or discrimination on grounds of sex, religion, and caste that might continue or be implicit in Personal law provisions, especially within Muslim and Christian communities. As a contrast take the case of Hindu laws, which have gradually and systematically been reformed over the past 50 years. In traditional Hindu custom still prevalent in places like Bangladesh, there is no divorce or widow re-marriage for caste Hindus. Inter-caste marriage is not permitted either. Bigamy and polygamy are discouraged but possibly still practiced. Adoption can only be of male child (boy) within the same caste or ‘gotra’ (for fear of inheritance going to other castes). A married man can adopt a boy without his wife’s consent (his bother’s son, for example, or undisclosed out-of-wedlock child of his own). An unmarried orphan daughter has to be married off by the relatives; she cannot be adopted out, etc. But after the Hindu Code Bill of 1956 and amendments and various other ‘Hindu’ bills, the laws have been brought closer to common civil code in secular countries: inter-caste marriage is legal; sapinda or propinquity, affinal, marriages discontinued; nor is kanyadana required under Hindu Marriage Act, 1956. Male and female heirs inherit equally in self-acquired property if the dead father has not willed it away. By the norms of patrilineal inheritance, the sons alone were entitled to coparcenary rights in the property of the undivided Hindu family. Daughters did not acquire an interest in ancestral property by birth (let alone by adoption). Imagine the fate of the surviving mother with an adopted daughter! Now the wife, daughter and son inherit equally in the father’s share of the coparcenary estate; and the adopted child also has claim to inheritance. This share cannot be willed away. In customary law such provisions were absent; although Mitakshara could be stretched to allow substantially equal coparcener rights for the wife with the son. Saptapadi (seven steps around the fire) and ‘homa’ are required to sanctify Hindu marriages – Hindu marriage by the way is still recognized as a sacramental union sanctioned by the gods; child marriage is not permitted. Special Marriage Act of 1956, amended 1976, has changed its former incarnation since 1872. Indian Succession Act both improved for Hindus and made things more difficult for mixed marriages, or where the Hindu or another caste partner converts to the religion of the other partner, say Christianity, it is more in favor of women than men converting. There are nonetheless a number of glaring weaknesses but these are being dealt with piecemeal. (needs clarification). While these Acts do not recognize bigamy and rights of contracted partners under bigamy nor of the offspring (not in the same measure), it is said that there is a higher rate of bigamy and adulterous practices among Hindus compared to Muslims. But the practice of bigamy was not exactly banned in customary practices (although traditional law-makers recorded official proscription, although Manu exempted penalty for a high caste man lured by a virgin); and it seems sectors of Hindu men wish to continue this practice despite laws to the contrary. Incidentally, although called ‘Hindu this-and-that laws’ these govern all Indians who are not Muslims, or Christians, and in that respect are more or less fairly common civil codes across all sects of Hindu community (even though their intent was to reform older Hindu laws and acts to bring them in line with civil code). Some have argued that Hindu Marriage and other such Acts are drawn from Anglo common law; that Adoption Act has been secularized, and the Hindu Succession Act, 1956, adopted the principle of simultaneous heirship – a principle of Muslim Law. Further that the amendment to the Hindu Marriage Act, 1976, introduced the Muslim law principle of “option of puberty”. (NCUCC 61). Thus the codification of Hindu law has been an eclectic legal experiment; at least this shows the model of common civil code as distinct from Uniform Civil Code in operation which does not sideline religion nor gives over non-negotiably to secular law. (I am using Secular here in the post-Enlightenment, Western sense of absolute separation of state and religion, although in India secularism also means reconciling equal status to all religion (sarvadharmasamanvaya) , but secular can mean, securing welfare for all citizens. The last two senses are more significant to the Indian context and the any debate over the status of personal laws, must give reassurances that these principles do not become the sacrificial goat in the process. Or the model of synthesis as Krishna Iyer, the prominent Supreme Court judge-retired has often remarked.
Arguably the debate over Personal Law has become almost exclusively a debate about Islamic Family Law, and I find this disingenuous, as Christian and Sikh Family laws or existing practices have not been reviewed in the process, and in other tribal or civilized communities as well (e.g. father-in-law and the eldest son raping a rebellious or ‘fallen’ daughter-in-law to stamp her dishonor before discarding her outside the village). Divorce remains almost impossible within Parsi Marriage & Divorce Act, 1936, surviving from the colonial days; ditto for Christian women seeking restraint and redress from her harassing husband.
In contrast to Hindu Law, Muslim Personal law has not been reformed to that extent. As I said earlier, MPL reflects a very old form of Muslim Law, Hanafi within Shari’ at law. Muslims have the protection of their personal law, which has socially (not necessarily legally) binding jurisdiction over the Muslim persons. Unless Muslims choose otherwise, they are governed for all family related matters by the broadly Shari’ at and narrowly rulings of the representative jurists in their local zillas (location) maulvis, muftis, and qazis (the latter only the authority to pronounce fatawas, legal pronouncements, which are considered as sacrosanct, or near-divine, hukm—law by the Muslims. Unless the affected or grieved member seeks redress or alternative legal help outside this framework, no agency of the state has a right to interfere with this process. So if a marriage or its dissolution is decreed by the Qazi then it is divorce. This is “good in law”, whatever a secular Indian might think of the theology behind it.
But if there are problems within MPL, such as compromises to the dignity of its members, particularly in the light of constitutional guarantees and mandates against discrimination on grounds of sex, age, region of birth and so on, then these need to be aired and tested under those jurisdictions best able to deal with such broader issues. There have been many cases, and examples recorded by active groups, both Muslim and non-Muslim such as Women’s and NGO movements, decrying certain norms and rulings within the framework of MPL or Aalim, but they never draw much public attention until these disputes end up in higher courts, or when government steps in to calm the storm.
Guardianship, custody of children and adoption has fallen under the domain of Personal Laws, but it has such harrowing implications for the children and young persons. You will see some comments on this in the case study from the video in a while. Adoption is another thorny issue, as I remarked earlier, among Muslims. While Parsis and Scheduled Tribes expressed disquiet over the Adoption Bill, Muslims sought to be exempted from its jurisdiction, but none to the Scheduled Tribes, and that is how the Act stands. One objection to it was that the Qur’an forbids adoption; the other argument was that if adoption is considered legal then the adopted child has rights to succession as though he/she were a biological child. But suppose the adopting parents give birth to a child as their own biological progeny in later years – or the husband produces a child through another of his wives he has brought into the household through nikahnama – which child has succession right to the family inheritance? This would disturb succession and do injustice to the apparent heirs. But the child’s interest is not how they are thinking about this issue, rather the worry is about patrilineal continuity. Human rights discourse would place the stakes on the former, and this is how secularism needs to work without eroding the role if religion and cultural identity in the broader horizon.
In Islam marriage is not considered a sacrosanct union as in Christianity (‘made in heaven’) or Hinduism (‘sanctified by the fire and gods) – bindingly till death or HMO do us apart – but a contract, on a par with Hobbesian social contract, or like bonding with your primary care dentist, and there is no compulsion to a perpetual bondage: i.e. marriage is treated as a dissoluble union; and after the dissolution the community does not intend to keep the former spouses tied down to each other for any purpose, financial, children, property or whatever. (NCUCC p 29): ‘Take your mehr, if lucky, and run’ is perhaps the motto. But traditional Islamic law, every Muslim advocate and imam has argued, makes provisions for adequate protection, financial and social, to the separated couple; and they are both free to marry again, which they almost invariably do unless past a certain age or capability.
While I think too much has already been made of the Begum Shah Bano case (almost become a mantra among budding feminist lawyers in India), this is in many ways a historic and instructive case worthy of some discussion, not because it unleashed one more call towards adoption of UCC, - although that momentum has died down now– but because of the way it has opened up processes of reform within MPL without rushing to UCC. Bear in mind that Shah Bano case only deals with an issue arising after dissolution of marriage, not really addressing issues of the rights and obligations within conjugal relationships which can be easily eroded (such as neglect to provide food and welfare to the family, domestic violence, harassment, drinking problem, use of children from former or second-third contracted marriages, etc).
Staying with the issue of maintenance after dissolution of marriage, back in 1973 the Supreme Court recognized the obligation of a husband to pay maintenance where the sum from mehr or allowances decreed by custom was insufficient for the estranged wife’s upkeep plus the children she might be caring for. S.125 of Cr Pr Code (recommended 1970) was being invoked. Krishan Iyer observed that the sum paid to Bai Tahira was not enough to keep neither her body in this world nor soul in the next. But this was exploded in the aftermath of the Shah Bano judgment. (NCUCC, 1986.)
Shah Bano was a deserted first wife in her sixties, divorced two years later by triple talaq from her husband after 40 years of marriage. She filed a complaint under S . 125 in the district court which increased her awarded amount to 180 rupees a month. Her husband, a lawyer himself, appealed against her move arguing that according to Muslim Personal Law Shah Bano was entitled to maintenance only for the period of Iddat, that is, for three months following divorce. Indirectly the jurisdiction of the CPC was been challenged. Shah Bano had the backing of a Muslim Women's Welfare association and several other activist groups eager to see reform in this particular area. However, the Supreme Court dismissed the husband’s appeal, and upheld the High Court’s judgment that the CPC was applicable where Personal Law failed to make adequate provisions. Technically, the court was not suggesting that civil code does not apply simpliciter to the case, as would be in order if, say, the case involved corporate theft or willful injury to another person. It was arguing that Personal Law governing the ‘dispositions’ of the parties in dispute, have been deemed to have failed to provide the redress appropriate to the context. And, one can only suppose that, in the absence of a governing common civil code for all citizens right across the board, or the communal-caste divide, there was no other recourse but to prevail on statutory criminal code to determine and obtain justice in the matter. The ensuing deliberations of the Supreme Court bench is instructive in this regard as the carefully articulated reasoning adds immensely to the on-going debate on the status of Personal Law. N.B. This is not a callous attempt at ‘criminalizing’ an aspect of (neglected) family care; a codification of this kind is always suspect as was the case with criminal codification of sati, ‘lunacy’, jauhar or collective suicide, etc., as the affected community can always retaliate that by the sanctioned or protected customary/textual, moral-Personal Law understanding these practices had never been considered to be criminal and may even have some significant basis in religion. The courts might themselves want to recognize and invoke such a troupe only to set it aside as being ‘dated’ or not consistent with current, somewhat altered circumstances. (For example, a brahmin would never ride or have his horse-drawn cart ride on the left-hand side of the road, for perceived religious reasons; but with the advent of the motor vehicle and regulations governing traffic on the paved streets, he has no choice. The court tried to persuade him with this reasoning.) However, in the absence of a parallel civil code governing such demanding matters, the Law Commission Committee on Maintenance felt it had but little choice – perhaps in the interim – to move its (maintenance) juridical concern under the Criminal Procedure Code. This was in 1970; and while the legislature of the day ignored these recommendations, the Apex Bench eagerly bided its time and trumped it in this Shah Bano case. But it did more, which shows that ‘criminalization’ was not really the intent, rather the CrPC was a safe cover under which the judiciary could fire a salvo at the State and send a clear message to the aggrieved community.
Hence, in an interesting twist to the case, and much to the chagrin of the appellant, the Supreme Court interpreted the Muslim Personal Law injunction to mean that the position would be true only if the estranged wife was able to maintain herself, but not true if she was not able to maintain herself. The apex bench here felt it legitimate to extend its deliberations to an interpretation of the scriptural sources of Muslim Personal Law, including the Hanafi, Shari ‘at Act of 1937, Hadith, the Qur'an, in regard to the different circumstances of dissolution that were recognized. The judgment underlined the following concerns:
· A destitute wife's claim to maintenance after divorce is a moral claim, not a religious claim; it is governed by the Code of Criminal Procedure (CrPC), and not by the Civil Laws that govern the rights and obligations of the parties belonging to particular religions, like the Hindu Adoption and Maintenance Act, the Shari ‘at Act 1937 or the Parsi Marriage and Divorce Act 1936.
· Neglect of a spouse's need cannot be denied in law - what difference does religious affiliation make?
In any event, the judges conceded that the Personal Law of the parties should not be supplanted, especially if the Constitution did protect interests of such religious groups or classes in certain restricted matters. In other words, the court was neither arguing for abolishing Personal Law (i.e. setting aside Personal Law matters pertaining to family and private space) nor the extension of uniform civil codes in this particular matter (which, in any case, the judiciary is not empowered to do under the Directive Principles). What the court was arguing for was simply a deliberative and transformative interpretation of a customary practice which would be consistent with current ethical and moral thinking, and it would also respect certain other provisions and rights made accessible to the citizen in the Constitution (especially in respect of the Articles in Fundamental (Bill of) Rights). Just as the courts are obliged to "interpret" the Constitution (although some judges in the U.S. reject this judicial "intervention"), the courts should be able to interpret Personal Law as well.
But this latter claim - which implied that the court could place itself in the boots of the clergy, the ‘ulama and interpret the Islamic scriptural sources, sent an unsavory signal to the Muslim community, or some quarters thereof. The All India Muslim Personal Law Board along with the ‘ulama could not countenance the secular court's temerity to pronounce on the intent of the Holy Book against the verdict of the hadith and judgment of the community elders. The court had clearly stepped on the sensitive toes of an already beleaguered moral community. The Qur’an makes all the necessary provisions but not to the extent the court’s rulings has stretched it. And as Ratna Kapur remarks, ‘Shah Bano’s attempt to assert that the traditions of her religion discriminated against her, and thus violated her gift to gender equality guaranteed by the Constitution, met with outcries of ‘religion in danger’ (1997, p 65). Although the Court vindicated Shah Bano’s right, she was effectively forced to back down by her own community, which seemed to exert an extraordinary influence upon her to give up her claim. In the ensuing debates, Shah Bano denounced the Supreme Court decision in a letter’ pointing out that the SC judgment was contrary to the injunctions of the Qur’an and hadith and was thus tantamount to an obiter dicta or an unnecessarily interference in the dictates of Muslim Personal Law.
The Legislature, then under Prime Minister Rajiv Gandhi, while originally committed to such transformative moves as per the Nehruvian legacy even received warmly this large recommendation prepared by law teachers, (albeit with no Muslims on it, hence self-destructively biased), intervened in the matter and responded favorably to the Muslim fraternity's outcry against intervention in the affairs of the religious community. An independent member of Parliament, a Muslim, introduced a bill to save Muslim Personal Law, at least on this particular issue. Having reversed its position, the Parliament passed the bill in May 1986. Thus The Muslim Women (Protection of Rights in Divorce) Act effectively struck down the Supreme Court's judgment, reinstating the legitimacy of the Personal Law under the Shari ‘at Act, 1937. It decreed that section 125 of the CPC does not apply to the divorced Muslim woman. Her former husband is only obliged to return the mehr (dowry, or marriage settlement) and pay her maintenance during the period of iddat . With that also went into abeyance the very astute observation registering a telos, indeed a long-anticipated signal to the Legislature, to institute the requirements of the Directive Principles. The Muslim Women Protection Act has been challenged as violating the right to gender equality, but is still pending for consideration by the Supreme Court. (Kapur, 1997, p. 60). In a separate case (Hindu man converting to Islam to avail himself of lawful bigamy) the courts again emphasized the need for common civil law.
Krishna Iyer, the eminent judge on the bench, made this pertinent plea:
‘At present, we are a distance away from a common Civil Code for all religions, since first things first; let us tackle the job of modernizing the Islamic law first, preserving its genius and great principles but approximating the law to the general system and eventually enriching the latter in many respects’. (NUCC Working Papers p 32).
Hence codification of personal law as the first step, and that too at the initiative of the concerned community; i.e, the affected community has to ask for legislation; or as S S Nigam had put it, “the respective areas in which religious influence is still strong have to be demarcated with sympathy, understanding and vision”. (ibid p 30) I don’t read this “vision” as translating into on-ward Manohar Joshi-Advani march towards Uniform Civil Code (which they have lifted from this discredited document). I take common civil code to be common within the respective and culture-specific or religious community, after all the arguments for and against consistency with Constitutional rights, human rights agenda, gender-based feminist concerns, etc have been placed before the community, precisely by highlighting grievances and suffering brought to the public by affected members and representatives of their own community. (I will show shortly how this is done.)
So taking the highlight from the two above cases: Section 125 Cr Pc, 1973 is used a foil for a common civil law on the maintenance of destitute wives, but the 1986 MPP exploded that foil at least in respect of MPL with the consequence of excluding Muslim women from the purview of S. 125 Cr Pc. Although by the late 1990s (i.e. presently) The All India Muslim Personal Law Board has agreed from pressures within Muslim women’s activists groups, to codify matrimonial contracts (with details about exactly the amount and extent transactions and exchanges, mehr, dower, ancestral property rights, etc), issue injunctions towards more reasonable maintenance provisions, custodial rights of estranged mothers over their children, and so on. That is a sign of reform from within which indeed is consistent with the Shah Bano dicta that the Muslim community should assume the onus and responsibility of transforming from within Muslim Personal Law. This is a salutary gesture, which some activists, academics and NGO groups have heeded to. Imtiaz Ahmed, for instance, has been organizing large consultative "meets" of Muslim folks to discuss and rationally deliberate on the virtues and vices of the Muslim Personal Law. The "meets" have had some success.
The prominent Muslim commentator, Asghar Ali Engineer has made similar pleas, that there is noting sacrosanct about Personal laws and that they have changed according to context over the period of Islamic history, or that normativity should not be confused with custom in all cases - although he is wary of any wholescale attempt to introduce or enforce uniform civil codes anxious that such a move would a.) undermine the historically attested pluralist base of the Indian society, and b.) privilege the legal process over community development of practices in accordance with evolving values and changing perceptions of the social members concerned. (Engineer,1995). Engineer has gone on record as arguing that the Qur’an’s mandate of justice, benevolence and compassion although inviolable as values they nevertheless undergo changes in expression and application from one age to another. While in medieval times discrimination – along the line of serfdom and slavery – were thought natural (even Aristotle much earlier succumbed to this hubris – the concept of justice has varied from feudal ages to the democratic era. ‘However, in religious traditions, including in those of Islam, give more importance (sic) to the expression of justice in a particular age then to the notion of justice itself. It is because of this that the expression of justice in the hadith literature is more important than the notion of justice as a fundamental value in Qur’an (Engineer 1999). Personal law of Muslims, in his strong reading, must be aligned to the concept of justice itself rather than to its variant expressions in temporal shifts within and between cultures where Islam travels.
However, there is also the stronger countervailing tendency in some quarters of the Muslim community. This reaction calls for a complete and total protection of Muslim Personal Law with its own Shari’at courts so that matters arising from and concerning Muslim Personal Law are not left to the judgment or at the behest of secular courts and agencies of the state. In other words, they demand Shari’at law courts of their own, just as Muslims enjoy these in theocratic Muslim states, in Pakistan, Iran, and elsewhere.
The counterblasts to these two trends, and against the federal government's soft-peddling in this contentious area which now spills into the public space, comes from Hindu groups who vehemently decry any kind of protection afforded to Muslims under Personal Law and they urge for uniform civil codes. The government of the state of Maharashtra recently declared that it will introduce uniform civil codes. (Engineer, 1995) Apparently, a draft bill of the uniform civil codes looks rather more ‘secular’ in intent than one might have suspected; it may even be an advance on the traumatized Hindu Code Bill. There are some Muslims, of rank and file, who it is reported have given their approval to the new codes as being acceptable for the Muslim community (i.e. good enough to replace without much difficulty the fiercely defended Muslim Personal Law). However, notwithstanding Article 44 of the Constitution, the federal government has not responded favorably and judges in the Mumbai High Court have expressed grave concerns about this move. And there are other concerns that a number of groups have expressed, and these echo the concerns by Ali Asghar Engineer, which we noted a little earlier. Basically, those critical of the Maharashtra government's efforts argue that the operation should not assume that uniform civil codes can be arrived at by waving the magic wand of one party, groups or government or political agency (as would seem to be the case in this instance). A system of ethical practices informed by religious predilections of the diverse peoples of the land has indeed a far longer history than of the political-judiciary processes in place. Such a system, unless it is inexorably evil in all its parts and for all its subjects, cannot be struck down tout court by an act that comes essentially from outside of its own framework. In tolerant, democratic politics, transformations have to be sought through discourse, i.e. moral discourse, which ironically is the defining characteristic of a pluralist society, which India undeniably is. Hence for total human flourishing, which should be the goal of any society, "a deliberative, transformative politics (as distinct from a politics that is merely manipulative and self-serving) - a politics in which questions of human good, of what way or ways of life human good consists in, are not marginalized or privatized but, instead, [must] have a central place." (M. Perry, 1990, p. 103). Otherwise, one would be returning to or recalling the universalizing tendencies that plagued the earlier colonial/orientalist attempt to infuse Indian law with Common Law. Or, to use a metaphor, it would be like insisting on a moral theory "that looks characteristically for considerations that are very general and have as little distinctive content as possible, because it is trying to systematize and because it wants to represent as many reasons as possible as applications of other reasons". (Williams, 1985, p. 117). A moral community, unlike a theory, is not a finished product: it is growing and open and may even be interested in evolving in different ways. Shared critical reflections, would seem to be the need of the day.
Another sort of plea comes from feminist positions, articulated most cogently by Kumkum Sangari (1994; se her EPW article for over-taxed line of argument). It begins by trenchantly subjecting the Personal Law system to meta-theoretic scrutiny.
Sangari has argued that the unresolved quiddity in the 1950 Constitution has had a number of consequences. First, it has meant that members of denominational groupings, or those whose identities can be linked to such communities, continue to be governed by the Personal Law of that community. This is a definitional matter. (Sangari, 1994) Second, since a Hindu is anyone who is not a Christian, Muslim, or perhaps a secular atheist, the dominant Hindu Personal Law governs Jains, Sikhs and Buddhists. Exceptions are made in some areas, such as dissolution of marriage and other family issues which are governed by separate Personal Laws for Parsis and Christians, and by default or complete judicial silence in respect of the Jaina custom of terminal fasting (sallekhana) and variant inheritance practice.
Third, since Personal Law pertains to family, marriage, adoption and inheritance, the subjects - real as against virtual - of these laws are mostly women and girls. In other words, a specific religious identity coupled with gender and community affiliation ultimately determines the outcome. Religion, gender and community define one's family interests and status.
Fourth, patriarchy is heavily and inexorably imbued into the structure of Personal Law, whether Hindu or Muslim. Most traditional systems were thoroughly patriarchal in the both the pre-colonial and colonial periods, and therefore feminists arguing, in the 1960s and 1970s, for greater scope for Personal Law found themselves in the invidious position of supporting patriarchal structures and interests. (vide. Sangari, 1995).
All four elements combine to articulate an ideological disequilibrium weighed against the common factor of gender, regardless of whether Hindu or Muslim Personal Law is at issue. And this has been the brunt of both Indian feminist and sociological critiques in the post-Independence era.
The following is a condensed argument from Sangari in the above disquisition:
i) If there is to be real diversity in India, why is it made to rest only in the area of family law qua Personal Law? Large areas of social life has been homogenized - tenancy, landholding, criminal procedures, commerce, and so on.
ii) Why does the state privilege diversity only in the supposedly private areas when they do impinge on public space - as family, marriage, adoption, inheritance, surely do?
iii) Religion is put in the domain of the private and shifts the onus of maintaining community identity onto marriage, family, women - which raises the question: the bracketing of marriage and so on to Personal Law produces a gendered definition of Personal Law that oppresses women more than it oppresses men; relatedly,
iv) the categorization of Personal Law in a religious frame acts to fossilize both Personal Law and Hindu Code Bill for the view of religion used is an immutable one and inexorable, more or less, in its application to all citizens. This belies the history of religion. Denominational affiliation determines which group one belongs to before deciding which Personal Law applies to her.
The latter is an incredibly constraining concept for the effective the operation of Personal Law, for consider what would happen if Personal Law itself as a category was altered? E.g. if inheritance and issues of property-relations were taken out of family law and the aligned continuum of religion, and concepts such as denomination, personal, community, family, inheritance, marriage, etc, were broken down and given new definitions, so that some of these no longer were perceived to be matters of Personal Law as we currently have it (or inherited it in the form given shape to it under colonial sovereignty)?
It can be surmised that religion becomes the primary determinant of primordial community identity rather than caste, class, region, and economic operators, with the effect that injustices in these areas have no protection, or are of less of a concern than those secured under Personal Law.
Should therefore there not be a cause or a prima facie case for moving towards uniform civil codes while doing away with Personal Law and the idea of community-citizenship (cf. Larson, 1995)?
I want to make two quick responses to Kumkum Sangari’s questions, as I think there are presuppositions that recall too great a confidence in Enlightenment-universalism. Sangari is trading with an incredibly constricted analysis, both in respect both of the narrow nineteenth century idea of religion she reinscribes (Nandy’s comment) and the highly ‘statist’ or ‘centrist’ notion of ‘rule of law’ she invokes as the guiding alternative. In fact, she has no sympathy for or sensitivity to just those markers and fabric of the Indian society that moved and, alas! Arrested the best minds over the past three hundred years to radically trans/re/form the structures of Indian society. The practical and pragmatic challenges are at far higher stake than the ease with which a manifesto without much grassroots linkage can be penned in the secure gardens of Nehru Memorial Library (unless it is intended as cenotaph to Mr. Nehru). Secondly, how effectively homogenized are Indian laws? There is surely a great deal of variation from state to state on even penal matters (via case law and jurisprudential precedents: the rulings on suicide between Bombay and Andhra courts, and overturning of the reasoning in both by the Supreme Court, brought that out; lunacy ). Local practices do interfere or intervene to change outcomes often in unexpected ways. Add to this the differential practices and policies adopted, over time and in different states, on the reservation, special allocation and provisions for Scheduled Castes/Scheduled Tribes and OBCs (Other Backward Castes, who are actually non-regular-caste groups), and how these impinge on minority identities, religious included. (The Succession Act was already referred to.) Those very laws we take to be uniform (within the nation-state) do not cash out in quite that way in the different regions, which accounts for different kinds and degrees of oppression of women, caste and non-caste groups from state to state, and perhaps also in part contributes to the emigration of vast numbers of people, Bahias for example, from Bihar towards the west.
Secondly, the so-called personal matters covered under Personal Law, especially family issues, may be in a value-based moral sense of far greater importance and significance than some of the other civil transactions negotiable in the public space. These values, for a number of reasons, may not be as negotiable and malleable in the perceptions of the people concerned as those other matters Kumkum Sangari is referring to. The sources for these may well be derived from religion; but religion might be the foregrounding constituents of values and ensuing practices that cannot be set aside in the interest of a pragmatic or expedient and instrumentalist political re-structuring of the society. From this a third question follows: when we talk about changing the categories and working up new definitions, of family, marriage, contract, and so on, what authority are we invoking and what language is going to the basis of these re-definitions and so on? Leela Gandhi made this point in her response to Kumkum Sangari (1994) and I accept this Gandhian query: it is a serious one. Are the history, aesthetics, socio-moral significance of religion which informed these categories now to be replaced by arid sociological contents, or Marxist, or by categories from secularist discursive formations which themselves leave open the same set of questions as one wishes to ask of the former formations and epistemes. These are hard questions, they are in this sense subaltern, and we cannot afford to wash under other seemingly more "contemporary" or post-modern or post-colonial or whatever other questions that might haunt us at this crisis point in Indian history and historiography.
However, proponents of this position, i.e. Kumkum Sangari's critical position, while they convincingly point to the problems that reek through the system of maintaining distinct Personal Law, are far from arguing that the customary rules should be codified and all the codes should be unified under a secular rule of law or an ethos that no longer makes reference to traditional morality, etc. At best, as we urged earlier, the matter requires further deliberations and consultations intra- and inter-communities affected by the practice. Simply achieving uniform civil codes pushed through a legislature, or on the other hand a moral community stubbornly holding on to its Personal Law regardless of the defects and issues of social justice, inequities that come increasingly to light in the public sphere and in ethical discourse, are both cul-de-sacs and in the long run cannot hope to serve the goal of human flourishing.
There is a curious ambivalence in the Constitution of India which has found echoes in just about every major case falling under its jurisdiction. Judicial equivocation has only echoed that of the Constitution and has in turn been exploited by moral communities to further their own ends, usually in orthodox rather than liberal directions. The Constitutional right to freedom of conscience, religious observance and practice enshrined in the Fundamental Rights charter (Articles 13, 25-28) has also helped to safeguard conservative interests. But, as already noted, this specific right also comes into conflict with Articles of the Constitution guaranteeing equality to all, including sex-equality, and prohibiting all forms of discrimination based on sex (or gender, in its more inclusive sense). Yet discriminatory practices continue to occur under existing Personal Laws, while the State persists in an uneven treatment of women and also fails to institute widespread reforms in areas of public and private life where discrimination persists. This inconsistent approach is also contrary to the spirit of the Constitution, which, as noted earlier, urges the State to instigate such reforms. Although attempts have been made to reform Hindu Personal Law regarding the issue of legal rights for Hindu women (certain lacunae and worrying lapses notwithstanding), the Personal Laws of other communities, as Archana Parashar (1992, p.18) has pointed out, “have been virtually untouched, ostensibly because the leaders of these communities claim their religious laws are inviolate and also because there is said to be no demand for change from within their communities.” She continues, “That the Constitution is ambiguous about the nature of religious personal laws is indicated by the fact that arguments in favor of their reform as well as those against any reform are both based on the provisions of the Constitution... The Constitution does not resolve the difficult questions as to whether the religious nature of these laws prevent a secular State from interfering with them or whether the personal nature of these laws as distinct from territorial laws makes them immune to State control. Such ambiguity in the Constitution permits contradictory claims and permits the State to act discrepantly with respect to essentially similar claims of different communities.” (ibid, p 19). Thus the situation at the present time augurs poorly for women of minority groups, as equal legal rights are withheld from them, and also for majority community groups, who have yet to gain formal equality in all aspects of Personal Law governing daily life.
Several case studies demonstrate this essentializing trend, notably a landmark case in twentieth-century Personal Law. It may be apposite to comment on the State’s attitude towards religion as reflected in its commitment to secularity, which still however retains some religious tones in the Indian context, and to the achievement of equality for all, regardless of religion, community, sex or age. The State indeed recognizes the importance of religion in the lives of its citizens, and strives to foster a sort of ‘communal ecumenism’ among the disparate, often mutually suspicious (at least since the colonial period), moral communities, which are also, by virtue of the peculiarly Indian census categorization, ‘religious’ communities, in particular between Hindus and Muslims, but also between upper and lower or non-caste groups alike (such as Scheduled Castes and Tribes, and Other Backward Castes). At the same time the State treats the religious allegiance which marks these moral communities (and serving to divide them along communal lines) with some suspicion, if not also as an emergent rival to its own power base; and as with the Hobbesian law of the jungle, all rivals are dealt with by a degree of apprehension and caution.
This situation might be traced back to the nationalist ideology, which offered, as one of its solutions against continuing colonial domination, the separation of the domain of culture into two spheres - the material and the spiritual. Since the material domain was located in Western civilization, its antithesis, the spiritual, for the purposes of a strategy of resistance, had to be located in the colonized people. They would learn from the West for purposes of organizing their external material life, but would internalize, or ‘privatize’ the spiritual life away from the public space. Thus the material and spiritual domains relate in this way to a dichotomy of outer and inner spheres. (Chatterjee, 1989: p. 238) Ultimately, what is important in terms of a sustainable identity and redemptive recovery of culture is the spiritual domain, and since this is differently marked for the distinctive ethnic, communal groups - indeed the ‘imagined communities’ of Hindus, Muslims, Parsis, Christians, Sikhs, Buddhists, Jains, Tribal and Backward Castes peoples - a respect for this diversity is essential for “India that is Bharat”.
Certain social practices of greater spiritual or inner significance are better preserved and fostered under the provisions of Personal Law than by collapsing them into Common Law civil codes and criminal procedures (Penal Codes). The sensibilities of women, who tend to veer towards the introverted, domestic domain as the spiritual heads of the household, are more likely to be catered for under Personal Law provisions. Such a confused and ambiguous identity politics has tended to uphold an inner core of religion in the life of the nation-state, lest the fledgling India become a soul-less materialistic-technocratic state against which stand the testimonies of Krishna, Rama, Buddha, and the pantheon of national leaders down to Gandhi.
As we move towards the dawning of the twenty-first century, the situation has been exacerbated by the rise in popularity of religious fundamentalism, whether Hindu, Muslim, Christian, or Parsi. Nationalism, which pitted itself against the colonial regime and imperialism for close to a century, had used religion as a powerful ally and source of legitimation for its activism. After Independence, however, the national leaders opted to challenge the sway of religious sentiments over human affairs and did not seek to legitimate its programs through the ruse of religion or tradition. (Bilimoria, 1993) Thus, as aptly put by Parashar, “although religion continues to be a potent source of ideals and rules for social interaction, of personal and communal comfort in times of hardship, and gives meaning to the lives of the majority of people, the Constitution makers opted for declaring India as a secular State. The imperatives of present day society too, demanded that the Constitution rather than religion provide the governing ideology of the State.” (Parashar, 1992, p. 269) And so too with the instruments of the State, notably the legislature, judiciary, bureaucracy, state educational institutions, and various other functioning or governing bodies right down to the panchayats and adalats at the village level. In keeping with this imperative the courts have, on more than one occasion, ordered religious bodies to open the doors of their temples to members of the lower castes and other previously debarred groups. Paradoxically, the State has also permitted religious organizations to govern their own affairs without interference from local bodies, taxation offices, and other actuary bodies. The permission granted by the Utter Pradesh government for Hindu zealots to erect a quasi-shrine to Lord Rama in Ayodhya for pilgrims to pay homage to the alleged birth-place of Rama, in the proximity of the controversial Babri (Muslim) mosque, is a case in point. The Central government was informed of the political motives underlying this act, and was implored to intervene by non-aligned activist groups. The respective governments also received directive notices from the judiciary to show cause for their apparently partisan stance (in the case of the State government dominated by Hindutva groups) and for the concomitant neglect (by both State and Central governments) in controlling the escalating tension in the disputes, skirmishes, and violence at the site of contestation between the communally-riven factions. Despite all these preventive measures, no State action was forthcoming. (Rajiv Dhavan, 1993) As a consequence, Hindu zealots were able to orchestrate and successfully, indeed triumphantly, carryout a well-planned destruction of the Babri mosque without so much as a shy demur from the State or its representatives, until it was all too late.
A case on ‘triple talaq’ divorce entered into by a Muslim couple but challenged by the local shire/county authority on grounds of illegal means of disposal of inherited property (divided equally among the separated partners) was brought to the Allahabad High Court (Lucknow bench). A maverick judge, Justice Tilhari’s issued his judgment on Triple Talaq under Article 372 of Shari’at Act 1936 as being illegal and unconstitutional. (15 April 1994; ‘Times of India’ 19-4-94; 21-4-94). Muslim leaders challenged this pronouncement and the issue was hotly debated (See Appendix). The judge himself had days earlier been transferred to another court elsewhere, and this procedural alibi was used an excuse to shelve his judgment. The situation has to date not been properly addressed or resolved. It is not clear what is the legal or statutory status of this verdict. Presumably ‘triple talaq’ remains on the law book as a legal sanction under the erstwhile Shari’at Act.
VIDEO: case studies from fieldwork and on site interviews; Hyderabad and vicinities
(We have edited 15 minutes from some seven hours of recording, video and audio)
i.) A regional Imam representing unmitigated patriarchal position on haq (‘rights’) and role of women (in Urdu);
ii) Three women plus supporting social worker in slum, depressed, embattled area on the outskirts of Hyderabad, being interviewed by Dr Renuka Sharma on their plights as separated, abandoned and divorced (by talaq) women, left to care the children without maintenance and compromised guardianship rights over the son who works for the father in one case. Rather revealing scenario.
iii) Two women in burkha working for COVA, a voluntary organization helping grieved Muslim women mostly, and educating women and youths about their rights and obligation within a more reasonable re-interpretation of Islamic ideals.
iv) A very senior Pir of Hyderabad, who is also linked well with the city’s police executives and political leaders, offering prayer during Ramzaan before razaa.
v) Rehana Sultana, PhD. Prominent, solo Muslim Women’s advocate, educationist, academic consultant, activist in great eloquence (good English) and forceful narration, speaks about the situation on Personal Law and her attempts to reform aspects of it, via her own challenges in Andhra Pradesh High Court, women’s clerical and re-reading Qur’an and Islamic law from the perspective of All India Muslim Women’s Network, which also demands and meets with National Islamic organizations, notably the Personal Law Board to iron out Muslim Women’s Conference recommendations on codification of Personal Law provisions. Very powerful insights here.
See commentarial notes by Dr R Sharma with field reports (Part II of the presentation.).
These cases are highly illuminative, and a closer overview of the religious, legal and critical literature of legal experts, feminists and other commentators, including the pronouncements of the judges of the Apex bench, has shown that certain basic dilemmas and contradictions are not likely to be swiftly resolved. More positive are the arguments against abolishing separate Personal Laws, but rather codification and reform from within at the requests of the affected communities, especially in respect of gender justice and equity, as highlighted by the Shah Bano and other cases we have looked at. The Hindu Codes Bill moved Hindu jurisdiction closer to common civil law in keeping with the secular ethos of the Constitution, leaving few convincing reasons, other than appeal to ‘minority’ security, to continue Personal Laws for other communities. A less persuasive case is made by critics such as Kumkum Sangari that matters relating to the family should be moved into those codes governing other forms of social and public conduct. In other words, a greater degree of homogeneity across the codes governing the affairs of citizens is required. However, there are also drawbacks to moving in this direction, not least the threat to the pluralist and heterogeneous basis of Indian society, and the erosion of historical community-based ethics. That it something of common civil law has been achieved for the Hindu community [which is in ineluctable or enviable majority] does not mean that this rule of the thumb should apply unequivocally to all communities, especially minority communities who have other sorts of fears (such as the unshared power-structures in the upper echelons of the society, and the constant threat to religion in a secular society [even in the Indian sense of the term, which of late has shown signs of hegemonic intentions on the part of the majoritarian religious community]. On this basis, it would seem that, in the interest of equity, fair education, justice and enhanced opportunities for members of moral communities, reform of personal law codes is necessary, and perhaps even pressing in the case of Muslim Personal Law given its current anomalies and questionable record on gender issues. Codification has been the strongest scenario suggested, but arguably education, alignment of traditional Islamic practices with contemporary sensibilities in the consciousness and perception of the concerned community leaders and members, all and sundry, would be a major supplemental direction. The socio-economic condition of the Muslim community is partly responsible for a firm move in the latter direction, and here the State has neglected its responsibilities in other areas underwritten in the Constitution.
Secondly, until recently courts had refrained from raising too explicitly issues of human rights and their universal applicability in testing the jurisdiction of Personal laws. But in a landmark 1996 case – as recent, or as late as that – (see appended photocopy # SCHR #1), and related clippings on the increasing use of human rights discourse in India to address these issues. (C Masilamani Mudaliar v. Idol of Sri Swaminathanswami and others SSC 525 (1996) 8.)
15. It is seen that if after the Constitution came into force, the right to equality and dignity of person enshrined in the Preamble of the Constitution, Fundamental Rights and Directive Principles which are a trinity intended to remove discrimination or disability on grounds of social status or gender, removed the pre-existing impediments that stood in the way of female or weaker segments of the society. In S.R. Bommai v. Union of India (SCC 3 (1994),1) this Court (SC) held that the Preamble is part of the basic structure of the Constitution. Handicaps should be removed only under rule of law to enliven the trinity of justice, equality and liberty with dignity of person. The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women are anathema to equality. Personal laws are not derived from the Constitution but from religion scriptures. The laws thus derived must be consistent with the rights. Right to equality is a fundamental right. Parliament, therefore, has enacted Section 14 to remove pre-existing disabilities fastened on the Hindu female limiting her right to property without full ownership thereof. The discrimination is sought to be remedied by Section 14 (1) enlarging the scope of acquisition of the property by a Hindu female appending an explanation with it.
The judgment goes on to cite India’s ratification of the United Nations charter for human rights, along with CEDAW (Convention for Elimination of all forms of Discrimination Against Women (in 1993), and even Ambedkar’s plea to have the directive principles effected in legislature towards full empowerment of women, which would be consistent with Articles 13,14,15 and 16 of the Constitution of India. In short, the Court invokes human rights in its more global or modern understanding to question the continuing sway of personal laws and to undermine the sanction accorded to it in custom. Although the particular involved petition by a Hindu woman against her own religious community, the judgment by parity is applicable to all personal laws in India as the obiter dicta appeal by the judges makes clear.
In the context, then, of the history and politics of British India and a communally-riven modern India, debates within the Commonwealth on the desirability of greater autonomy of cultural rights, and also indigenous challenges to modernist Lockean-derived models for individualist claims over native property rights and other customary practices, the significance of this project is emphatically underscored. It provides one framework within which to reflect on the key issues facing a modern nation-state with a pluralist or multicultural character. I should like to leave you with these philosophical reflections.
Constitution of India, January 1950 with Amendments
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* I wish to express deep gratitude to Dr Renuka Sharma for her part in the research, formulation and completion of this paper. But for her immense help and personal library I would remained ignorant of the seriousness of this issue, beyond my academic interest. My thanks also to Kumkum Sanghari for stimulating concern and further research in this area.
 . I will be discussing the views of colonial observers as reported by Duncan Derrett and comments by other writers shortly in the text.
 For instance, in a recent case the Madras High Court upheld a woman's pleading under Hindu Mitakshara law for coparcener’s share with the eldest son, as would be the case were the husband to be living, and consequentially forbid alienation of the land in her share. But in effect what the judges had done, as in earlier cases, was to adjudicate on the principle of equity, which, whatever else the motivation underlying the Mitakshara rule, was by no means universally part of the traditional nyaya or legal reasoning. The pretext is derived from customary law, but the reasoning is adduced from Common Law which informs the charter or Bill of Rights. (Derrett, 1977, III: pp. 154-156).
 Ratna Kapur (1997) , p. 60 note 3, letter cited on p. 79.
 Curiously, widows belonging to the Scheduled Tribes have rights of succession denied under S.31 of the Hindu Succession Act of 1956 which repealed the Women’s Right to Property Act, 1937, and the jurisdiction for the Scheduled Tribes is to be thrown back to the old Hindu law which does not provide the same rights to S.T. widows and female heirs as the 1937 Act had. (A.I.R. 1985: 59).