The offensive and reactionary position taken by the All India Muslim Personal Law Board against reform of triple talaq is a reminder of the institutional cul de sac we have driven ourselves into on issues of personal law reform and common civil code. The All India Muslim Personal Law Board’s authority is itself dubious, and antithetical to the values and modes of reasoning of a progressive democracy. It represents the worst combination of a patriarchal, non-representative institution, shored up by the contingencies of electoral politics that often caves in to the most reactionary elements within communities. It marginalises other voices in the community, seems to have open contempt for women, and is, frankly, a political liability. It could, over the years, have been an instrument for progressive change, responding to demands from below within the community. Instead, it has chosen to act as a fossilised bulwark against justice.
Majoritarianism is a real issue. It is hard to discuss these issues when the risks of majoritarian intimidation are high. But the fear that discussions of personal law reform, or a common civil code, are nothing but majoritarian ruses to intimidate minorities, has now become an intellectually disabling and politically self-fulfilling argument. Often, arguments for a common civil code are made under false pretences of nationalism rather than justice. But that is, in part, because secular and progressive forces vacated that space. No one should underestimate the complexity of the issues involved in working towards a common civil code or equal rights.
Reactionary socially conservative positions of successive governments on a range of legal issues should give us pause on just how long the road to justice will be. The constant appeals by government to “our ethos” rather than public reason (most recently on the surrogacy bill), undermine confidence in the possibility of clear-headed normative arguments. But the AIMPLB’s recourse to specious religious arguments reinforces the legitimacy of ethos-based majoritarian arguments.
One conceptual move necessary to combat communal constructions is this. Every community, majority or minority, often appeals to the thought that something must not be imposed on them if they do not consent to it. The problem is that communities do not often extend the same courtesy to individuals within them. We have tied ourselves in knots trying to distinguish Indian secularism from its other variants, in castigating liberalism as a foreign ideology. But all that liberalism requires to get started is extending the courtesy of the very same argument that communities use to keep other communities out, to individuals within them. The freedom from another community cannot be the freedom to oppress within. As far as possible, we want to live under social arrangements that honour our standing as free and equal individuals. The battle in India is not between majorities and minorities. It is between forces and institutions in each community that want to bend the arc of history away from freedom and equality in the personal space, and forces that want to claim those rights. This is a contest that cuts across communities with varying degrees of intensity. But it is something of an own goal when secularists, rather than reconfiguring the debate as one between freedom and equality on the one hand and coercion and subordination on the other, also come to be invested in the contest of compulsory identities. The only way the long-term threat of majoritarianism can be dissolved is by moving the axis of contest away from the majority-minority distinction, to equal protection of individual rights, freedom and dignity. It is hard to imagine authorities like the AIMPLB even understanding this idea.
As Flavia Agnes, one of the most thoughtful and grounded contributors to this debate has pointed out, we must be wary of a lot of communal myth-making in this area. It is not only minorities who have been advocates of personal law. The Hindu Code Bill, with all its reform elements, was a sectarian reform aimed as much at consolidating a unified Hindu legal identity, as it was aimed at progressive social reform. Arguably the contractual framework for marriage in Islam can be more easily adapted to modern marriage laws than sacramental conceptions. Muslim personal law has also been subject to reform. Despite the cowardly abdication by the Congress in the Shah Bano affair, the Supreme Court has incrementally introduced reform, without opposition, it has to be said. (most notably in the Daniel Latifi case). So, arguably, there is propitious ground for serious, good faith conversation on the issue.
The conversation has to be oriented to the future. For this reason, its sole concern has to be freedom, equality and justice, not nationalism or selective narratives of which community was more oppressive in the past. It is high time we rescued that conversation from being held hostage by three forces: Bodies like the Muslim Personal Law Board that are non-representative and reactionary, Hindutva ideologies that are interested in using the issue to demonise minorities than to expand the space for freedom, and some secularists whose politics of fear has given them an investment in the war of identities rather than the expansion of rights.
The real challenge we should focus on is not the interplay between religion and law. No religious conception can have a veto over the transformative promise of the constitution. The challenge is crafting laws that in addition to being principled, are practical in the context of our state capacities and sociological realities. For instance, as Flavia Agnes has pointed out in her tour d’ force essay in the Oxford Handbook to the Indian Constitution, often reformed laws can have unintended consequences. Outlawing does not seem to have had as much effect on the actual practice of bigamy among Hindus as was hoped, for instance; indeed, the law perversely fails to give protection to people in these relationships because it does not recognise them. In other areas of law, we have also seen the limits of law induced change; often expecting the law to do too much can be counterproductive. Law is effective only when society meets it at least half-way. The real reform debate should not be over one community’s virtues versus the others; it should be about closing the gap between the demands of freedom and equality and social practice.
Whether equal rights within different laws responds to this challenge better than a common civil code, can be debated. But the goal of freedom for all individuals is the best antidote to majoritarianism. We need conversations, institutions, processes that move us in that direction, not trap us in suffocating constructs of majority and minority.