Personal laws: India
This is a collection of articles archived for the excellence of their content.
Personal laws in India, in brief
Views of the honourable Supreme Court on various issues related to personal laws in India-
The Supreme Court through its judgments has stressed the precedence of secular laws over personal and religious codes.
The personal laws of the various communities
Indian Constitution among first multicultural ones
From inheritance to marriage and divorce, many laws need a gender-just makeover
After it was codified in the period after Inde pendence, Hindu per sonal law has been gradually maturing and evolving. The Hindu Marriage Act was passed in 1955. Civil laws related to adoption, succession and maintenance were also passed in the following years.The definition of `Hindus' under the Act included Sikhs, Buddhist, Jains, and all those who were not Christians, Muslims, Jews or Parsis.
There have been several improvements in the decades since, the most recent being the amendment of the Hindu Succession Act in 2005, which gave daughters the right to demand partition of parental homes, like their brothers, and made them equal coparceners in property owned by a Hindu undivided family . A coparcenary comprises the eldest member and three generations of a family. This used to mean, for instance, a son, a father, a grandfather, and a greatgrandfather. The amendment allowing the women of the family to be coparceners was welcome. However, a daughter can avail of these benefits only if her father had passed away after September 9, 2005.
The laws still have a long way to go towards gender justice. One recurring issue is the excessive stress on ceremonies. Under Hindu law, it is through solemnization with the requisite rites that the status of husband and wife can be conferred, and if these are not performed, the marriage is null and void (unless custom permits it). If you are Hindu, ask yourself if you are aware of what counts as an essential ceremony for your community -is it the saptapadi, the kanyadana, homa, thali-tying, putting vermillion, exchanging garlands or rings, pad-puja, panigrahanika, or marriage with the sword? These customs and ceremonies vary from place to place and community to community. According to the Hindu Marriage Act, 1955, either the party concerned has to plead customary rites and ceremonies or that the two essentials of the marriage ceremony marriage have been completed, namely , the invocation before the sacred fire and the saptapadi (seven steps around the sacred fire). The burden of proving a custom rests with the party using it.
This is confusing and complex. Many women are not aware of the ceremonies applicable to them. She may happily exchange garlands, put vermillion and have her husband declare her wife with God as witness, without realizing that this is not a valid marriage under law since these are only `mock ceremonies'. This undue stress on ceremonies has let many persons accused of bigamy go scot-free.
Many cases of prosecution for bigamy fail because of the lack of proof that the second marriage was solemnised with requisite rites and ceremonies.To maintain the charge under section 494 IPC, there must be evidence of this, which first wives find hard to produce.These loopholes in the law are exploited by men to defend themselves, in cases where they have duped women into second marriages. The very requirement of monogamy in a Hindu marriage is defeated.
While Hindu marriage is indeed a sacrament and ceremonies may be essential, a single, simple ceremony un derstood by all might be desirable, to avoid such mishaps. Additional ceremonies, of course, can be optionally followed.
Another patently unfair law is the provision on restitution of conjugal rights under Hindu law, which violates the fundamental right to life, privacy and equality. When the petitioner asks the unwilling respondent to cohabit, it tends to harm the relationship rather than repair it.
Discrimination in property is still a prob lem, under Section 15(1) of the Hindu Succession Act. In the event of a woman's death, her husband's heirs get a preference above her own parents. But when a man dies, his relatives get to inherit the property. This is clearly a violation of the equality guaranteed under Article 15(1) of the Constitution of India. In one case, a wife was thrown out of her matrimonial home by her in-laws after the unfortunate death of her husband. She took up a job and acquired some wealth, living with her parents. Later, she died without making a will.Her mother and her in-laws both filed for the grant of a succession certificate under Section 372 of Indian Succession Act. The Supreme Court upheld that in case if the intestate women die issueless, the heirs of her husband are given preference over her parents. May over her parents. May be the outdated notion of daughters as `par aya dhan' was lurking behind this. This anomaly needs to be removed. The 174th Report of the Law Commission also not ed that the rules of devolution of the prop erty of a female who dies intestate reflects patriarchal assumptions.
In many states, laws that govern agricultural land holdings do not grant the same rights to women in inheritance. The land goes to the sons and leaves the daughters with practically nothing.
Another area of disadvantage is the sharing of assets acquired after and during marriage. In Vedic times, there appeared to be a notion of joint ownership. Marriage must be recognised as an equal economic partnership between husband and wife, and due weightage must be given to the wife's contribution to the home and assets after marriage.
Maintenance is not a charity but a right. Yet, maintenance laws are conditional on norms of behaviour. The wife should be chaste and not remarry . Her `character' is invariably brought in during maintenance cases, and the amount is left to the discretion of judge.
Another area that needs urgent attention is the criminalising of marital rape. The legal definition of rape excludes sexual intercourse by a man with a minor girl above the age of 15 if she happens to be his wife. Laws must protect married girls between the ages of 15-18, from forced sexual acts by their spouses.
According to Hindu law, irretrievable breakdown of marriage is not considered a valid ground for divorce. The Law Commission, in its reports in 1978 and 2009, recommended that it should be introduced as a reason. If the marriage has broken down and the two parties cannot live together as husband and wife, it is better to bring closure.
Many laws have a clear patriarchal character -the section on adultery in the IPC, for instance, treats the woman as mere property. Law reform must keep pace with social progress, and promote the constitutional rights of equality .Despite codification, and several reforms of Hindu law, there is still a long way to go.Perhaps a UCC that focuses on rights and gender justice will iron out the discriminations, patriarchal biases, and some of the rituals that persist. Accompanied by mass legal awareness, this would be a victory for women.
Highlights of Hindu, Christian, Parsi, ST personal laws
See graphic, ' The personal laws of the various communities '
‘All communities entitled to own personal laws’
Muslim women need legislative protection. But the UCC is just a bogey, unless all communities are prepared to give up their own personal laws
The reform of person al laws is critical for Indian democracy and citizenship, but it has been neglected too long.On one hand, Muslim women are excluded educationally and socio-economically owing to government neglect, and on the other hand they suffer from the near-absence of any legal framework in matters of family , marriage, divorce, custody of children, and so on. Unlike women from other communities, Muslim women are denied their legal rights in the personal realm despite Quranic injunctions. Practices such as triple talaq and halala persist in our society despite the fact that the Quran does not sanction them.
This situation has arisen because of the way that Muslim personal law is understood and practiced in India.The whole arena is mired in ambiguity, obfuscation and apathy because of the long stranglehold of patriarchal elements. The Quran gave clear rights to women 1,400 years ago in marriage, family, society and public life, but in reality there has been a persistent denial of these rights. So much so that a perception has arisen that in Islam, men have superiority over women. Within several conservative sections, the dominant belief seems to be that Muslim women must live a life of subjugation within the four walls of a home. This hegemony of patriarchal forces has continued even after 1947, till date.Muslim women such as Shayara Bano and others are only calling for a halt to the rampant violations of their rights in family matters, and seeking justice.
The absence of a compre hensive codified personal law in our country has resulted in the Muslim woman suffering in matters of divorce, halala, polygamy , guardianship and custody of children, share in property , and so on. The Shariat Application Act, 1937 is silent on all these matters. It is claimed that Indian Muslims are governed by Shariat.But the Shariat as practiced currently in different parts of the country is undefined and unwritten. It is subject to multiple interpretations and misinterpretations which, more often than not, are unfair to women. Often the injunctions of the Holy Quran are violated in the name of Shariat; the widespread incidence of triple talaq is the most common example. Unfair practices pertaining to age of marriage, mehr, divorce, alimony , child custody, property are all passed off in the name of Shariat. It is anybody's guess as to how many ordinary Muslims understand the spirit of the Holy Quran or its underlying principles of gender justice. It is not difficult to guess as to what is the perspective and understanding of some of those men dispensing justice in Shariat courts across the country . Most times, the verdicts in family matters end up being unfairly pro-men and entirely anti-women. This can hardly be said to be based on Quranic injunctions.
The Hindu community got their laws codified in 1955. The Christian and Parsi minority communities also have their laws codified.Over a period of time, these laws have been amended to make them more genderjust. For various historical and political reasons, Muslim family law has remained uncodified. The first attempt was made in 1937 with the passing of the Shariat Application Act, followed by Dissolution of Muslim Marriages Act in 1939. After al most four decades, the Muslim Women's Protection on Divorce Act was passed in 1986. These three pieces of legislation are clearly not enough, and have left many personal law issues unaddressed. For instance, there is no legislation on divorce, age of marriage, polygamy, custody of children, inheritance, or the mehr amount.The lack of legal protection in these matters have left the Muslim women at the mercy of community justice mechanisms, which can be regressive and patriarchal.
All communities, minorities and majority, are entitled to their personal laws, a right protected by Article 25 and 26 of the Constitution. The demand for codification of Muslim law stems from this part of the Constitution. When the BMMA asks for codification, we are only asking for what other communities have have, and what is mandated by the Constitution. We are only ask ing for legal protection, which already exists for all other communities. In this context, for the Muslims, a uniform civil code is a long way off, when we don't even have the privilege of a codified personal law. The mention of a UCC is found in the Directive Principles of the Constitution, which do not enjoy the same status as the various Articles enshrined as Fundamental Rights.
In this entire debate where does the issue of UCC fit in? As a Muslim women's organisation, there are many unanswered questions that have to be addressed by all stakeholders, and not just by the Muslim community . For instance, why is the issue of UCC raised only in the context of Muslim women's legal rights? Is the code going to be made applicable only to Muslims? Have the Hindu majority or the other minority communities already expressed their approval?
Even after so many decades of debate around a UCC, why haven't we seen even a single page of this elusive code? Is it not a bogey raised only to strengthen conservative positions? And why have there been no attempts to strengthen and popularise the Special Marriage Act, which, for all practical purposes, is an optional civil code? These challenges, and sev eral others, confront the very conceptual framework of the UCC, and it is everybody's responsibility to address them. To confine the issue and discuss it only within the Muslim context, is to do disservice to the idea of a civil code that is devoid of any reference to religion. Before we even attempt a draft UCC, the moot question is -are all com munities willing to give up their respective religionbased family laws? If the answer is not unambiguous, then we are still far, far away from a Uniform Civil Code. In the meantime, let us allow Muslim women to have a codified personal law which will give them much needed legal protections, on par with their co-citizens. The writers are co-founders of the Bharatiya Muslim Mahila Andolan, which recently fought for triple talaq to be struck down by the Supreme Court
Can Islamic law only be administered by believers?
Believers can keep their customs, but any dispute brought to the Indian courts should be settled on the basis of a civil code
At the time of the passage of the Muslim Marriage Dissolution Act 1939, the Muslim ulema (clerics and scholars) had insisted on a stipulation that cases under this law should only be heard by a Muslim judge. In case the Muslim judge hearing the case was transferred and replaced by a non-Muslim judge, then the case should also be transferred either to the same Muslim judge or to a nearby court with a Muslim judge, they demanded. The government passed the bill, but turned down this demand. The ulema were displeased and said that the bill in its final form was more harmful than useful.
The Jamiatul Ulema issued a statement explaining their opposition: “The Jamiyat would like to make it clear that if a marriage is annulled by a non-Muslim judge, the decree will not be valid in the eyes of the Shariah. If a woman, after obtaining a divorce decree from a non-Muslim judge, marries someone else, she will be committing adultery . Although the court may have dissolved the marriage, she would still be the wife of her first husband.“
In 1952, a Muslim girl, whose husband had gone over to Pakistan and had refused to take her with him or divorce her, filed a petition for divorce which was decreed by a nonMuslim judge. The ulema issued fatwas that the girl was not divorced.
The ulema have not changed their stance even today , and that is the reason they keep demanding that institutions like Darul Qaza (parallel Muslim courts) be vested with judicial powers. In an Urdu book published in 2011 titled `Divorce by the Courts of nonMuslim Countries', M a u l a n a K h a l i d Saifullah Rahmani, the secretary of the MPLB, explains the position in detail. After quoting from the Quran, he refers to a classic Hanafi scholar Isa bin Usman to conclude: “In this matter the guardianship of a disbeliever over a Muslim is not right because judicial authority is guardianship, and a disbeliever cannot be the guardian of a Muslim even in small matters. The judicial power is guardianship of the highest order because the judge enforces the laws of God“.
This explains why the Muslim personal law board always challenges the authority of the courts to test the constitutional validity of religious laws. Admittedly, the authority to hear cases under personal laws rests with the lower courts and the power to test these laws on the anvil of Chapter 3 of the Constitution is vested in the higher courts of India.So, as long as religion-based laws are in operation, this conflict will remain unresolved. Whenever the courts give a verdict that is not approved by the clergy, they will accuse the courts of interference in religion.
UCC will replace Hindu Civil Code, all Hindu laws as well
Madhu Purnima Kishwar, Why Hindu and Muslim attitudes to personal law can't be compared, Sep 16 2017: The Times of India One is based on custom and community, the other on sacred texts. Can a Uniform Civil Code work for all?
A common response to the unjust provisions of Muslim personal law in India is: `Hin du law is more discriminatory. Why target Muslims?' This attempt to force an equivalence between Hindu and Muslim practices and prescriptions is absurd. This is not to suggest that harmful social practices do not exist among Hindus, but to point out that Hindus do not block reform in the name of a god or sacred text, though they may resist it citing other reasons.
The prescriptions of Islam and Hindu moral codes belong to irreconcilable world views. Muslim personal law or Sharia derives from the religious precepts of Islam, the Quran and the Hadith.Both Quran and Sharia claim divine sanction, and unconditional obedience to the Quran's commandments are a prerequisite for being considered a Muslim.
Hindus do not have a commandment-giving sacred text like the Quran or Bible. Nor do Hindus have a single body of canonical law or a Pope whose writ reigns supreme. Neither the Vedas nor dharmashastras or the two sacred epics, the Rama yana and the Mahabharata, lay down a fixed code of conduct. Daily life is to be lived by dharmic codes specific to different life situations, roles and relationships.
When a Hindu individual or a group seeks to defend a particular practice, the common statement is, “hamari biradari mein to yeh hi chalta hai“ (This is how we do things in our community), rather than quotations from any sacred texts. Every jati or community has been free to regulate its own internal affairs through biradari panchayats, without seeking permission or validation from any higher authority .
Social reform measures can be initiated with relative ease among Hindus because there is no centralised authority that has the right to obstruct it. This tradition of selfgovernance and adaptation is what accounts for the vast diversity of cultural practices within the subcontinent.
In many places, this tradition encompassed the Muslim community as well. Kerala Muslims used to share many practices with Hindus, dress and food habits as well as the matrilineal family system in some parts. Malayali Muslim women never observed purdah until as late as 1980s, though that has changed now.Similarly , Hindu and Muslim Jats of pre-Partition Punjab shared a lot -language, food, dress code, family structure and inheritance practices.
Sadly, in recent decades, Islamists have been forcing Muslims to build walls of separation from other faith groups. Ever since petrodollar Islam has come to dominate the global scene, ordinary followers of Islam cannot take such liberties. Selfappointed guardians of Muslim personal law in India have begun to take rigid positions regarding what they claim are Quran and sharia sanctioned practices.
Ironically, they were led in this direction by the government of Jawaharlal Nehru, which assured Muslim politicians that the practices for which they claim “Islamic“ sanction -no matter how unjust -stand above the promise of fundamental rights, including the right to equality . However, Nehru's government did not hesitate to roadroller out of existence the vast diversity among Hindu groups with the poorly-crafted Hindu code bills in the 1950s, followed by sev eral amendments by successive Congress governments. And while these governments at least had a clear, if somewhat misguided agenda, the current BJP government seems to have no clear vision regarding genderjust laws. All they know is that they want to banish Muslim personal law and introduce a Uniform Civil Code -never mind if it is uniformly bad for all.
Muslims leaders need not panic on account of the UCC, though. They should draw courage from the fact that Hindus continued to live by customary practices in several areas, even while they accepted the jurisdiction of government-enacted laws when their customary systems fail to resolve disputes.For instance, Hindu marriage law does not prohibit intercaste or intra-gotra marriage.But most Hindus, especially among the poorer strata, cling to marry ing within their jati and avoid marrying in the same gotra be cause that is consid ered equivalent to in cest.
If Hindus don't ex pect the state to enforce their culture-specific customs and tradi tions, why should Muslims insist that judges of secular courts in India act like qazis and deliver judgments based on the sharia? Muslims who are happy with their religious law can continue with their existing practices even if a Uniform Civil Code is enacted, because it will apply only to those who are dissatisfied with their community's lawor practices.
But UCC zealots among Hindus better realize that the Uniform Civil Code mandates junking of the Hindu Civil Code and all laws that carry the Hindu tag. No group will be allowed to approach the court to demand adjudication of family disputes on the basis of religious or customary law of any faith group whether Hindu, Christian or Muslim. Those who hold their customary practices as sacrosanct will have to go to the chosen leaders of that community be they caste panchayats, gurus, maulvis, priests or gurudwara heads.The courts will only adjudicate on the basis of Indian Marriage and Divorce Act, Indian Succession and Guardianship acts.
The diversity of personal laws between, and within, communities
The Constitution did not envisage `one nation, one law'. All communities would have to give up their distinctive practices to achieve uniformity
It is time we put the Uniform Civil Code debate in context, with constitutional intentions as well as India's lived experience.
First, we need to appreciate the distinction between `justiciable' and `non-justiciable rights'. The former are enforceable in the court of law while later are not. Even in the triple talaq case, the majority bench of the Supreme Court held that freedom of religion, subject to restrictions, under Articles 25 and 26 is absolute. The right to follow personal law has been elevated to the highest status of fundamental rights. Article 26 is wider in scope than Article 25, as it guarantees freedom to “religious denominations or any sect thereof to manage its own affairs in matters of religion“. This freedom is not even subject to the `right to equality'. The Supreme Court rightly held in Minerva Mills (1980) that “to destroy the guarantees given by Par t III (Fundamental Rights) in order purportedly to achieve the goals of Part IV( Directive Principles) is plainly to subvert the Constitution by destroying its basic structure... to give absolute primacy to one over the other is to disturb the harmony of the Constitution.“
Of the 19 Directive Principles, why is that only two are a matter of public discussion now: cow protection and the Uniform Civil Code? No one is talking about living wages, removal of inequalities in income, equal pay for equal work, early childhood care, raising level of nutrition and public health and so on. In fact, everyone opposed the apex court's order on mere prohibition of sale (not consumption) of liquor within 500 metres of a highway, even though Article 47 provides for the prohibition of intoxicating drinks, in language identical to Article 44.Is this not hypocrisy? It is an erroneous perception that we have different personal laws because of religious diversity . As a matter of fact, law may differ from state to state. It appears that the framers of the Constitution did not intend total uniformity in the sense of one law for the whole country , because the power to legislate in respect of personal laws has been given to both Parliament as well as state assemblies. Thus, personal laws can differ at least within 29 states and the Union. The preservation of legal diversity seems to be the reason that personal laws were included in the Concurrent List. Thus, `one nation, one law' is not what our Constitution really envisages.States have made more than a hundred amendments to even the Criminal Procedure Code and the Indian Penal Code. It is also a myth that we have uniform criminal law. Even in the US, for instance, criminal law differs from state to state.
All Hindus in the country are not governed by one law either. Marriage amongst either. Marriage am close relatives is prohibited by Hindu Marriage Act,1955, but it is considered customary in parts of south India. The Hindu Code Bill does recognise these different practices.There is no uniform applicability of personal laws amongst Muslims and Christians either. The Constitution itself protects the local customs of Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Take the example of Goa, which is often lauded for having a Uniform Civil Code --Hindus there are still governed by the Portuguese family and succession laws, and limited polygamy is permissible for them, but not for other communities. The refor med Hindu law of 1955-56 is still not applicable to them. The Shariat Act of 1937 is not applicable to Jammu & Kashmir, and so Muslims continue to be governed by custom governed by customary law, which in many ways is at variance with Muslim personal law.
And why talk of discriminatory personal laws, when even land laws enacted after 1950 in many states are gender unjust? These laws have been exempted from judi cial scrutiny by including them in the IX schedule. Advocates of gender justice must revisit these laws too.
Hindu law has not been fully reformed after more than 70 years and despite several amendments. If this reform could not be achieved in one go, despite Hindus being a majority community , then taking up reforms in the minority communities in the absence of a conducive environment would be unwise.Like the Hindu Law Reforms Committee which was formed in 1941, the Modi government should constitute, as a first step, a Muslim Law Reforms Committee, Tribal and Indigenous Law Reform Committee, Christian and Parsi Law Reforms Committees, and based on their recommendations, take the reform process forward. We would then need a Hindu Law Committee as well, as some of the existing provisions of codified Hindu law such as the solemnisation of marriage, saptapadi, kanyadaan, the sacramental na ture of marriage, joint family and tax benefits, testamentary powers and so on may not find a place in the Uniform Civil Code, and provisions like dower or nikahnama (prenuptial contracts) might have to be incorporated. Are Hindus ready for these reforms? When the Hindu Code Bill was opposed, the Nehru government did concede on several key issues. And as far as this government is concerned, its commitment to gender justice is clear from its stand on marital rape.
The goal of a Uniform Civil Code should be achieved in a piecemeal manner, and with a commitment to justice and a respect for diversity.Legal pluralism is widely respected. We should remember that mere normative changes are not likely to bring social reforms.The author is vice-chancellor of NALSAR University of Law, Hyderabad. Views are personal Next|Why nobody is sincere about UCC
Easier to remove gender bias within existing laws than to create uniform code
It is easier to remove gender bias within existing laws than to create a uniform code to overrule them
Curiously, almost all discussions on a gen der-equal civil code in India revolve around marriage, carefully sidestepping inheritance. Yet, it is inheritance (especially of land) that affects millions of Indian women who depend on agriculture for survival, or who seek protection from domestic violence. Inheritance of immovable property remains deeply gender unequal, especially in practice but also in law. Removing gendered anomalies within existing personal laws is quite feasible, and already in process. It is creating a uniform genderequal inheritance law for all communities that presents a conundrum.
Fifteen years have gone by since the last major reform of inheritance law, namely the passing of the 2005 Hindu Succession (Amendment) Act (HSAA). The HSAA gave Hindu women equal coparcenary rights in joint family property and deleted the discriminatory clause on agricultural land. These were major steps forward. But for Muslim and tribal women, disabilities continue. Muslims are still governed by the Muslim Personal Law (Shariat) Application Act, 1937. Under this Act, the Shariat superseded “custom or usage to the contrary“ for all property, except agricultural land. Earlier, Muslims (like most Hindus) were governed by a mosaic of local customs, some in sync with the Shariat, most at variance with it. By abrogating custom, the '37 Act enhanced Muslim women's rights, since most customs are highly gender exclusionary, while under the Shariat, key female heirs such as daughters and widows cannot be excluded by other heirs, although their shares are smaller than men's.
By excluding agricultural land from its purview, however, the '37 Act left a major gender inequality intact. Section(2) provides that: “Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift ... the rule of decision ...where the parties are Muslims shall be the Muslim Personal Law (Shariat).“ Later, Tamil Nadu and Andhra Pradesh amended the Act in 1949, and Kerala in 1963 to in clude agricultural land, by deleting “save questions relating to agricultural land“. But elsewhere, land inheritance continues to depend on gender discriminatory customs and tenurial laws, which, in many states, virtually exclude Muslim women from rights in agricultural land, contrary to their rights under the Shariat.
To change this, in late 2005, I submitted a petition to the then Prime Minister, for deleting the discriminatory clause on land in the '37 Act, signed by 465 persons and 46 organisations (mostly Muslim women, reformers and groups). The Muslim Personal Law Board also strongly supported this reform in writing, since it would come within the Shariat. However, the Law Ministry's response was: “it is the consistent policy of the central govt not to interfere with the personal law of the country until the proposal comes from a sizeable portion of society.“ Yet, just five months earlier, the same central govt had amended Hindu law, a process initiated by a similar petition that a few of us had jointly drafted and campaigned for. The suggested reform is still doable and has precedence in southern states.
Similarly, most tribal women are governed by discriminatory customs and need genderequal codification of their inheritance rights. One way forward could be for tribal re formers to adapt the Indian Succession Act, as done by Christians and Parsis.
Such reforms, however, elide the question of a uni form gender-equal inherit ance law, applicable to all. Is converg ence, requiring changes in all the personal laws, feasible? For illustra tion, consider five notable points of divergence: first, Hindu law retains the concept of coparcenary joint family property. No other personal law has an equivalent. Second, Muslim personal law under the Shariat has very specific rules of succession. Women's shares are less than men's generically, and these shares can change in the presence or absence of particular categories of other heirs. No other inheritance law has such a complex architecture of rules. And this is spelt out in the Koran, leaving little room for interpretation in a gender-equal direction. Third, per sonal laws differ on the right to will. Hindus, Christians and Parsis face no restrictions, but Muslim law restricts wills to one-third of property, with Sunni and Shia differences on who can get such property and with whose consent. Fourth, Hindu law itself varies by state: for example, in 1976 Kerala abolished joint family property altogether while the HSAA retained it, and matrilineal Hindus have separate rules. Fifth, cultural ideas about who deserves to inherit differ: Hindus emphasise sapinda (“shared body particles“ in Mitakshara, religious efficacy in Dayabhaga); other communities focus on various blood & marital ties, or proximity of residence, etc.
Given such divergence, the idea that we can cherrypick bits from different personal laws and graft them onto some new “uniform“ law does not appear realistic. A possible alternative could be to create a separate secular law, based on constitutional principles of gender equality , which either supersedes existing inheritance laws, or which people can “opt for“ when they reach adulthood.
Reforming Hindu personal law
Decades before multiculturalism emerged in the West, India recognised group rights for dalits, adivasis and minorities within liberal democracy
India's Constitution can be seen as a prescient model of political pluralism. Sev eral decades before multiculturalism emerged in Western democracies, our Constitution instituted group rights for dalits, adivasis and minorities within a broadly liberal democratic framework.
The Indian Constitution recognises multiple groups defined by religion, language, caste and tribe. It also offers different approaches to the accommodation of the same group (for example, Scheduled Tribes have reservations as a disadvantaged group, as well as self-government rights for cultural protection).Group rights in the Indian Constitution include self-gover nment rights for linguistic and tribal groups, legal pluralism in personal law for some religious groups (Hindus, Muslims, Christians, Parsis), as well as reservations in legislatures, government jobs and educa tional institutions for dalits and tribal groups.
The Indian Constitution was framed in the backdrop of the violence of Partition. Several obstacles that have prevented the adoption of pluralist policies in other postcolonial countries were also present in India. Minority rights were associated with colonial divide and rule. Minorities were seen as a potential threat to security on account of supposed loyalty to an enemy state. Yet, although minority rights came to be restricted during constitution-making, key provisions were retained.
How did India come to have a pluralist Constitution? The presence in key positions of power of leaders such as the Prime Minister Jawaharlal Nehru and the Chair of the Drafting Committee Dr. B.R. Ambedkar, who were strongly committed to the rights of minorities and dalits, played a key role. However, the ideological legacy of India's national movement, and its commit ment to decision making by consen sus rather than ma jority-rule, were as important. Public discussion of con flicting views, the willingness of pow erful leaders to con cede on crucial points to achieve consensus (reserva tions were not the first preference of either Nehru or Ambedkar), to avoid majority decision-making in order to secure agreement of affected parties, underpin the enduring achievement of the Indian Constitution.
Conflicting views regarding the recognition of religious difference existed within the Constituent Assembly as well as the Congress party , which were expressed and publicly debated. On the question of religious personal laws, for instance, the majority view in the Assembly was that these detracted from national unity and conflicted with the state's commitment to eliminate discriminatory socio-religious practices against women and `untouchables'.
Nationalist concerns regarding unity were paramount in this period. Staunch advocates of a uniform civil code Rajkumari Amrit Kaur, Hansa Mehta and Minoo Masani argued in their note of 1947 that that the existence of religious personal laws had kept `the nation divided into watertight compartments in many aspects of life'. Alladi Krishnaswamy Aiyar, KM Munshi and Babasaheb Ambedkar all argued for restricting the scope of religion. Nevertheless, Muslim leaders argued that a secular state implied religious freedom for citizens of different communities to follow their personal law, that doing so would advance national unity . In forging a broad-based national movement, the Congress had earlier promised that minority personal laws would be accommodated.
In the end, the constitutional provisions that were adopted represented a compromise. On the one hand, in keeping with the concerns of minority leaders, Hindu, Muslim, Christian and Parsi reli gious laws were retained. A broad definition of the right to religious freedom was adopted, which included the right to practice and propagate religion for all residents, not just citizens. On the other hand, proposals for constitu tional guarantees for religious personal law were rejected.State intervention in religion was explicitly permitted, for reasons among others, of upholding fundamental rights such as those of non-discrimination and equality for all individuals. A uniform civil code was recognised as an aspiration in the non-justiciable Directive Principles.
Liberals are rightly concerned about protecting vulnerable individuals from oppression by the society and the state. Religious personal laws, including the reformed Hindu law, discriminate against women. From this it does not follow that a uniform civil code would provide a just or lasting solution. In any society , the norms and practices that prevail are those of the majority .Minorities are at a disadvantage relative to citizens from the majority in terms of the protection of their culture, which is not supported by state and social practices. As such, treating minorities as equals requires differential treatment in some areas. Muslims in India today routinely face harassment and discrimination in employment, education, housing to mention a few areas, as well as violations of their rights to life and liberty by state agencies. A uniform civil code if imposed by the state on minorities would compound these injustices.
The recent Supreme Court verdict against triple talaq that endorsed the reform initiative led by Muslim women, without pushing for a uniform civil code, is therefore a step in the right direction. With regard to legislation for protecting vulnerable individuals, the anti-discrimination bill tabled by Shashi Tharoor in March addresses an important lacuna where Indian practice lags behind liberal democracies.Without government support, however, it is unlikely to be enacted into law.