Wednesday, August 21, 2013

The Changing Debate Over Personal Laws in India



The current issue of the Frontline magazine focuses on the changing debate over personal laws. In the lead story, I argue that the fragmentation of religious authority, greater debate within communities, and growing awareness of women have made the older debates over the Uniform Civil Code largely irrelevant.

The story also follows litigation by Goolrookh Gupta, who has challenged the decision by the local Parsi Panchayat to exclude women married to non-Parsis from entering the fire temple. An interview with Goolrookh provides an insight into how individual litigants take the decision to take on their community leaders.

V.Venkatesan writes on the recent judgments on live-in relationships and its implications for marriage, maintenance and prevention of domestic violence. This is followed by an interview with Justice Karnan who gave the judgement on pre-martial sex.

Another story focuses on the diverse strategies adopted by various Muslim women's groups in Tamil Nadu, including petitioning the High Court to curb the rights of qazis, pushing for greater codification of Muslim law (as opposed to an UCC) and the creation of all-women jamaats to resolve disputes. Finally, I write on the growth of Dar-ul-Qaza's, and draw on recent research by Prof Jeff Redding, to argue that institutional pluralism is compatible with the constitutional order.

2 comments:

Nick Robinson said...

Excellent piece Rohit. I learned a great deal. A question though - is your piece more about means or ends? At one level I read it as being in support for legal pluralism as a good in itself, but then it seems to justify this position only because legal pluralism in the case of India (or perhaps modernity writ large) leads to relative uniformity anyway in a way that a liberal secularist can agree with (or live with). In this way, it's more of an argument about the coercive power of the state - better for groups to come to these conclusions on their own than through dictates by the state. Even there though the criticism against state coercion seems to be against blunt coercive instruments like the UCC or Shah Bano rather than Court or legislative interventions more generally, which as you point out have gently, but importantly shaped the landscape since then. Am I reading this right?

Rohit De said...

Nick, Thanks for engaging with this. As you correctly identify, I was trying to show two things with this article. 1)That legal pluralism in India as lived experience, has led to the achievement of a certain minimum threshold, and codification projects need not lead to equality. Also, I wanted to show that legal pluralism pervades every aspect of life in India (including Bijli adalats and consumer courts), so one needs to look more carefully, why people are so invested in the question of family law.

2) More broadly, I argue that while the role of the state is important, the most effective interventions are driven by members of the community. Even the legislative amendments were a result of sustained pressure by women's groups in case of the HSA and church groups in case of the Christian laws. The state needs to recognize greater pluralism within communities rather than putting a cap on pluralism.

There has been some writing about why the Shahbano judgment led to such an outcry (when very similiar decisions in Bai Tahira five years previously had not). Some has to do with external political factors, but a lot came from what the decision was based upon and incidental remarks that were passed. The Danial Latifi judgement stands in beautiful contrast to that.