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India’s transition from legal pluralism to uniformity: an extensive history and uncertain future


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An article by Vikram Kochhar


On 6th October 2023, protests from various cultural communities erupted outside the New Delhi BJP Office, criticising the possible implementation of a Uniform Civil Code (UCC) which would be applied across all of India. This protest followed a series of similar rallies across the nation, with every minority group objecting to this policy and its potentially dire social implications. While these protests may be attributed to current affairs and modern politics, the issues being addressed actually stem back centuries deep into the history of the region now known as India.

 

India has, for over a millennium, been home to some of the largest religious communities, holding the largest Hindu population in the world and the third largest Muslim population (over 200 million) despite Islam being a minority religion. In short, with India being home to such a variety of religious communities, an integral part of maintaining order has been accepting and enabling the co-existence of such religions through legal mechanisms and policies such as Akbar’s abolition of the jizya (tax against non-Muslims), or the institution of Sharia Law for Muslims in 1937 [1]. In India, alongside various other third-world nations, such mechanisms work in co-operation to form a system identified as ‘legal pluralism,’ which is academically defined as ‘a situation in which two or more legal systems co-exist in the same social field’ [2]. In the case of India, it could be argued that legal pluralism has been integral to the livelihoods of all communities, with tribal groups and Muslims relying on it to be able to practice their religions freely.

 

The primary reason for such a current uproar amongst Muslim and other ethnic minorities is that the BJP, India’s governing political party, has set out plans to employ a Uniform Civil Code as mentioned previously. UCC refers to a legal system in which all citizens, no matter their class or religion, and including all sectors of the law as opposed to select fields. Implementing a UCC would, in essence, mean removing the presence of Sharia Law and the equivalent personal laws for other prominent minority groups, and forcing all citizens to adhere to one set of laws regardless of their religious and cultural customs. And so, a conflict has now arisen between the leading political party who see the UCC as a means of reaching equality in all aspects, and the religious minority populations, who perceive it as an act of cultural oppression. Many would pose the question of whether large-scale precedent could be utilised in order to find a justified solution to this issue (i.e., identifying a country which has experienced a similarly nuanced situation, and analysing their subsequent actions and how they worked in reality). However, due to India’s unique position with such a significant Muslim minority, there are very few instances in history that can be used as a comparison: as such, both the spheres of law and politics are facing significant difficulty in drawing conclusions regarding the UCC and its compatibility with the Indian state, with reporters and academics now turning to the analysis of specific case law as a means of constructing analogies.

 

Many arguments have been made regarding the potential benefits and, equally, the complications regarding the UCC, however the major dispute boils down to two opposing opinions made respectively by the Hindu majority, and the religious minority: this binary dispute is almost perfectly exemplified in the seemingly insignificant case of Shah Bano Begum v. Mohd. Ahmed Khan (a.k.a Shah Bano Case) which has, rather spectacularly, come to be widely renowned in the legal realm.

 

Shah Bano was a Muslim woman undergoing a divorce with her husband (Mohammed Ahmed Khan) in India and therefore was subject to both the Indian Constitution, and Sharia personal law [3].  Due to her personal financial position, Shah Bano claimed that she was entitled to a maintenance from her husband under the Constitution [4]. However, Sharia Law dictated that she would only be able to receive maintenance after a 90-day period known as iddah. Thus, a direct conflict initiated between two colliding legal systems, with two individuals – Shah Bano and her husband- representing not only opposing sides of the marital dispute itself, but implicitly supporting two contrasting schools of jurisprudence (monism and pluralism) which would eventually become integral to the discussion about a UCC in contemporary India.

 

Daniel Latifi, Shah Bano’s counsel, makes the key argument that the applicable Sharia Law should be interpreted from a modern perspective as its original intention was to protect Muslim women from poverty after divorce; by interpreting relevant Quranic Verses in verbatim, the court would be putting Shah Bano in a position of complete social disadvantage and vulnerability. In fact, this argument remains perfectly pertinent when supporting the implementation of a UCC: with other legal cases having been cited such as Shayara Bano v Union of India, which calls out the problems with the triple talaq system, it has been fundamentally proclaimed by the BJP that the intention of this policy, as evidenced by the Shah Bano Case, is to eliminate social injustice and promote gender and cultural equality [5].

 

However, regardless of the BJP’s intentions with the UCC, many concerns have been raised by minority groups regarding how it would function in actual practice. Mohd. Ahmed Khan, appealing against his spouse’s file for maintenance, claimed that by moulding Sharia Law into a form which unnaturally submits to the Indian constitution, the court would be impeding the rights of Muslim men to practice their religion freely, and would therefore be acting unconstitutionally and oppressively [6]. In essence, the current concern amongst various minority groups in India, akin to Khan’s defence, is that by enforcing a one-law-for-all policy across all of India, a predominantly Hindu state (yet still remarkably diverse), the homogeneity produced would innately be in the interests of Hinduism when it comes to matters of Personal Law. As such, other prominent cultural groups would feel oppressed and forced into (legal and social) assimilation, violating the Indian Constitution’s fundamental principles of democracy and secularism.

 

Ultimately, Shah Bano v. Mohd. Ahmed Khan mirrors the ongoing dispute regarding India’s UCC to a large extent, with arguments being made regarding its potential prospects of improving human rights and societal cohesion, and, conversely, the concern of how it would function in reality, alongside the possibility that it could serve as a mechanism for wider cultural oppression. Indeed, India maintains a history of legal pluralism dating back to the Mughal Empire and so a transition to uniformity, whether accepted or not, would certainly mean a drastic change for India’s political structure, its judicial system, and for the fundamental liberties of its citizens.

 



 

BIBLIOGRAPHY

1.     Merry, S.E. (1988) ‘Legal pluralism’, Law & Society Review, 22(5), p. 869.doi:10.2307/3053638. 

2.     Gragl, P. (2018) ‘Legal monism’, Oxford Scholarship Online [Preprint]. doi:10.1093/oso/9780198796268.001.0001. 

3.     Shah Bano Begum v. Mohd. Ahmed Khan (1985)

4.     Narendra Modi’s Speech (27th June 2023)

5.     Arya, L. (2006) ‘The Uniform Civil Code: The politics of the universal in Postcolonial India’, Feminist Legal Studies, 14(3), pp. 293–328. doi:10.1007/s10691-006-9040-z. 

6.     ‘Uniform civil code: Whether a directive to promote unity? rhetoric and reality’ (2015) Journal of Civil & Legal Sciences, 04(03). doi:10.4172/2169-0170.1000156. 

 


[1] Muslim Personal Law Application Act (1937)

[2] ‘Legal Pluralism’ by Sally Merry Engle (1988)

[3] Shah Bano v. Mohd. Ahmed Khan (1985)

[4] Criminal Procedure Code, Section 125

[5] Narendra Modi’s Speech on 27th June 2023

[6] Article 25, Constitution of India (1950)

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