Why Legal Pluralism Matters

The government’s version of the uniform civil code must be debated publicly.

Written by Faizan Mustafa | Updated: November 16, 2015 2:15 am
Supreme court, National Judicial Appointments Commission, NJAC, CJI, unconstitutional law, law making, indian law, indian unconstituional law, K. Subba Rao, express opinion, indian express Supreme Court of India.

The best way to reform Mohammedan law is not to reform it at all. Let its inconvenient and archaic features wither away. Once it is accepted that this is the policy, it will wither away fast enough. If there is a frontal attack on personal law, it will survive with a tenacity it has been unable to show in countries where the majority of the population are and always have been Muslims,” said the eminent jurist John Duncan Martin Derrett. The Supreme Court judges should pay heed to these words. In an unprecedented move, a two-judge bench has suo moto ordered the registration of a PIL to examine the constitutionality of discriminatory Muslim law. The attorney general has asserted that it is not a matter for the court to decide, but for Parliament to debate.

There is a state of confusion on the uniform civil code (UCC). A few months ago, while a Central government appointed committee advocated uniformity in civil laws, the Kerala High Court refused to even examine the discriminatory nature of Muslim personal law (MPL) on the issue of inheritance and opined that these questions, including the UCC, should be best left to the legislature. Surprisingly, the Central government in paragraph 13 of its counter-affidavit before the Kerala HC explicitly stated, “it is the consistent policy of the Central government not to interfere in the personal laws of minorities, unless necessary initiative for such changes comes from a sizeable cross sections of such communities”. The Narendra Modi government would find it extremely difficult to take a different position in the apex court.

It is an erroneous perception that we in India have different personal laws because of religious diversity. As a matter of fact, the laws differ from state to state. It seems 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 the state legislative assemblies.

Similarly, it is a myth that Hindus are governed by one law. For instance, marriage am-ong close relatives is prohibited in north India but is considered auspicious in the south. Th-is is also true of Muslims and Christians. The Constitution itself protects the local customs of Nagaland, Meghalaya and Mizoram.

Goa is another example. It is repeatedly mentioned that Goa already has a UCC. But the truth is that the Hindus of Goa are still governed by Portuguese family and succession laws. The reformed Hindu law of 1955-56 is still not applicable to them. The unreformed shastric Hindu law on marriage, divorce, adoption and the joint family is very much valid. This also holds true for Goan Muslims, as The Muslim Personal Law (Shariat) Application Act, 1937 has not been extended to Goa. Thus, Goan Muslims are governed by Portuguese law as well as the shastric Hindu law, and not by Muslim personal Law. Even in Jammu & Kashmir, the local statutes governing Hindus differ from the Central enactments.

The ulema must come forward and remove the un-Islamic elements from Muslim personal law. Second, they must develop some consensus on controversial issues such as polygamy and triple divorce, which the apex court has specifically noted as discriminatory and arbitrary. In fact, the acceptance of modern nikahnama in itself can solve most problems. Why can’t the ulema settle the issue of polygamy using the analogy of slavery, which too is permitted by the Quran, but is no longer acceptable today? Second and subsequent Muslim wives certainly stand on a much higher and secure place than their counterparts in the Hindu community. Similarly, the ulema need to agree in respect to the triple divorce issue as well.

Between uniformity and legal pluralism, the latter is a superior value. History contains many instances of pluralistic legal systems in which multiple sources of law existed.

If the UCC is the goal, then the courts should first ask the government to prepare a blueprint for public debate.

The writer is vice chancellor, Nalsar University of Law

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  1. V
    Vijay Oak
    Jan 19, 2017 at 6:19 pm
    Sir in the beginning you have stated that the best way to reform the Mohammedan law is not to reform it. But later on you have suggested that Ulema should agree upon issues like polygamy and triple talaq. Don't you think this self contradictory?
    Reply
    1. S
      Sirius
      Nov 16, 2015 at 2:33 pm
      In my opinion, NDA at centre should avoid the UCC trap being suggested by the author. Instead, stay focused on the economy, infrastructure, business and agriculture as it pes the test of "Sabka saath sabka vikas" and may also fetch it votes of minorities . Let the clergy decide on the contours of personal law reform, till which time courts can give appropriate judgements. Let the litigants who feel let down by justice system approach people like the author, who can then comment on improvements on their own personal law, instead of drawing comparison with the progressivly reformed Hindu law. Maybe, such improvements will find a place in the UCC when it is rolled out in next millenia ...
      Reply
      1. S
        Sirius
        Nov 16, 2015 at 9:44 am
        The author also says that the debate must first happen within the ulema. Is that happening ? What the author is suggesting is pure mischief," first debate the contours of UCC, then we will agitate that it is a contravention of our right to religious freedom guaranteed by consution". The NDA govt. should avoid this trap. Let the ulema recognize need to reform, without any comparison to other communities. Other communities have done so.
        Reply
        1. K
          K SHESHU
          Nov 16, 2015 at 11:36 am
          When the phrase 'uniform civil code' itself takes a communal overtones, it is useful to rename it as 'marriage code' and the proposals should be above any religion or community. The prosals must come from public domain and not from either executive or judiciary. Questionnaire must be on the subject in the public for discussion.
          Reply
          1. K
            Khandar Chandresh
            Nov 16, 2015 at 1:18 pm
            AUthor has nicely put forward his views and seems nice as well..it must be debated...as many laws, declared as Islamic...but are actually un-islamic. And those who are simply saying "get out of India" ... better understand..dia kisike baap ka nahin hai... all have given their blood... and there are good muslims and bad...on the same line there are good non-muslims and bad as well... every coin has two sides. If BJP is truly dedicated to bringing UCC, then make it a good and healthy platform of debate.... dont impose it on others ...neither dictate it.
            Reply
            1. K
              Khandar Chandresh
              Nov 16, 2015 at 1:20 pm
              Also... those similar laws must be removed from non-muslim laws as well. as many bad thigs you will find in hindu law OR Christian law etc. Why to single out only Muslim personal law ???? If we are debating...lets sort out all together...why to keep one law behind for future politicians to take un-due advantage of it ?
              Reply
              1. R
                Raghu Panjala
                Nov 16, 2015 at 11:48 am
                Lets tell this to all chaddis and Bhatks who got drilled down with ideology that Hindus have common civil law. its total falsity. Its for India to know the real truth and drive out this hatred ideology of Sanghis.
                Reply
                1. G
                  GSY
                  Nov 16, 2015 at 7:37 am
                  Mr Mustafa is factually incorrect when he says that Hindus are not allowed to marry in close relatives in north India but can do so in south India. I think it's not law which prescribes such provisions. Rather, these are different customs of people living in different places. At another place he says that status of second and subsequent wives is better in Muslims than Hindus. Where the question arises when polygamy is illegal as per Hindu marriage act. This is the problem with Muslim intellectuals ,specially men, that they do not show guts to do away with highly discriminatory nature of their personal laws. As the polygamy and triple talaq is very convenient for Muslim men , they want to perpetuate these highly regressive and discriminatory laws. Govt should go ahead and engage with the progressive sections of Muslim society and do away with the regressive nature of the Muslim law and codify it. This is in larger interest of Muslims as well as Indian society.
                  Reply
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