The present Union political dispensation is overtly active in developing a single ultranationalist public life that discourages distinctness of the minority communities and tribes. It is generally intolerant to prevailing plurality including the community personal laws and customs of adjudication of issues of social and community life. In particular, the communities that have entrenched history of jurisprudence and customized juridical mechanism are seen as 'unacceptable' to such ultranationalist motives as BJP stands for. These ethos, laws, authorities and philosophies of maintaining community life are seen inimical to this assimilationist national integrity and, thus, a hurdle. Democracies, unlike other regimes, have had a rich practice of respecting 'dissent' and 'difference' and are more open to diversity. Democracy, in fact, tolerates and enriches diversity through various constitutional safeguards and political commitments. We attempt to argue that reforms cannot, and should not, be imposed by the governments rather these must come from serious engagements and deliberations within the community itself. For a matter of a fact, Muslims in India have a long history of reformation that began with a pioneering contribution of Shah Waliullah (1703-62). Apart from producing great reformists, they also witnessed popular movements in response to the challenges that emerged in wake of the British colonialism and the spread of western knowledge systems [though important, this issue cannot be discussed at length here].
Reforming Personal Law and Uniform Civil Code
Unification means the abolition of all personal laws and the establishment of one secular uniform code of family laws for all citizens regardless of religious affiliation (as called for in Article 44 of the constitution.) Substantively, the interference in the personal laws refers to the uniform codification or unification of the personal laws. Procedurally, interference could be gauged by statements and actions of officials in the different policies/ positions of the government including judicial decisions and legislation. The colonial British did not intervene in the personal laws of the different religious communities in India. Unless popularly demanded by the community itself, the colonial government would not change/reform any Personal Law. The government would not of its own accord, initiate or enact any changes to the personal laws that were not widely supported by the community in question. Thus any initiative for change to a community's personal law had to originate from within the community and any changes had to have popular support within the community. Interference would mean expressing views or threatening or taking actions regarding the personal law of a community that were not demanded or supported by the community. Interference, for that matter, can be committed by any institution of the state or by members of another community.
Nehru's ambition of Uniform Civil Code and immediate Withdrawal
For Granville Austin, Nehru and other leaders in the early years after India's independence were mistaken in believing that uniform laws were essential to modern nationalism. Austin found that 'an unrealistic definition of national unity and integrity resulted in unwarranted fear that it was in danger.' He reached the encouraging conclusion that India's national unity and integrity and its future as a secular democracy were not dependent on the Muslim's abandoning their allegiance to Muslim personal law. Yet at the same time, he argued that in India, religion and custom are the first and principle identifiers by which individual and groups distinguish themselves and noted that reform and modernization of Muslim personal law will materialize only, if initiated from within. These two arguments could best be reconciled by recognizing Austin's assumption that personal laws as a matter of religion were analytically separate from the issue of nationalism. Thus he could conclude that Indian nationalism was not in danger from the religious personal laws. Some other opponents also held that without public support in some form, codes of law would be useless, at best, and potentially harmful, at the worst. John Malcolm, Governor of Bombay during British period and the opponent of codification, held that any legal code would have to conform to local circumstances. If we legislate in advance of the community, Malcolm warned, 'all will be doubt and confusion'. Even politicians like C. C. Biswas, who was Union Law Minister, was clear that the demands to reform Muslim Personal Law must pour in from the community itself. Responding to queries about 'not reforming' Muslim Personal Law simultaneously with Hindu Law, he replied: 'the simple answer is that there is not yet any demand from the Muslim community as there has been from the Hindus'. Nehru was far quicker to learn it and affirmed that with regard to the Muslim Personal Law: 'We do not dare to touch the Moslems because they are in a minority and we do not wish the Hindu majority to do it. These are personal laws and so they will remain for the Muslims, unless they do not want to change them. We do not wish to create the impression that we are forcing any particular thing in regard to the Moslems Personal Laws' (see Nehru, in Tibor Mendes Conversations with Mr Nehru. London: Secker and Warburg,1957.
Why Article 44 only?
Article 44, which sets a directive to the State to develop a common personal law, is part of the Chapter IV of the Constitution and, importantly, is one among many constituent articles of Directive Principles of the State Policy. It will not be out of place to refer penetrating questions raised by P. B. Sawant, former judge of the Supreme Court of India. He flags off the deliberate misunderstanding that prevails about the subject and deep rooted rightist politics intended for such a law. He argues that there are 'other more vitally important and crucial Directive principles contained in the chapter which need to be implemented in the interests of all sections of the people and of nation as a whole.' He not only questions the 'timing' and 'urgency', but also stated objective of achieving national integrity:
"which national interests are in danger for want of a law? Which aspect of progress or development is threatened, obstructed or impaired but for the law? Whose welfare is to be secured by the law? Those clamouring for the law are not concerned with the welfare of the minorities or any section of them. Their only concern is the permission given to Muslims men to marry four women by their personal law as practiced in this country. They fear that on that account, the Muslim population in the country may soon outstrip the majority community. If therefore only that license given to the Muslims is withdrawn, they will have no longer any interest in agitating for a common personal law."
Personal laws are intimately tied to religion. For Muslims, the source of religion and law is the same and as such personal laws emanate from the religion itself. Muslim personal law is the part and parcel of the Islam. So any interference in the personal law of Muslims would amount to the interference in religious freedom and, thus, be violative of Article 25 and 29 of the Indian Constitution. It is in this light, Mr Justice Mahmood observed in a case, Govind Dayal V Inayatullah 1885 ALL775, that 'Muslim laws are so intimately connected with the religion that they cannot be readily disserved from it.' According to A A Fyzee, religion, ethics and law are so intermixed in Islam, the source of law and religion being the same (Fyzee, Modern Approach to Islam). Anderson, in his Law Reform in Muslim World, makes the issue aptly clear: 'In Islam, law is religion and religion is law because both have the same source and equal authority being both contained in the Divine revelation.'
Interference in the personal laws of a minority has become a tool of cultural assimilation at the hands of dominant majority in the present day modern nation-state with certain exceptions, of course. It is well within the democratic traditions/practices or norms of a state to respect the distinct customs, ethos, practices, worldviews and practices of jurisprudence. And also the personal laws of a minority reflect its identity; they must be protected and guarded both constitutionally and politically. The cultural, religious or ethical doctrines define the distinctness of a community, and, in the words of philosopher Charles Taylor, are 'sources of self'. The 'community self' asks for space in functioning of political democracy, and it is claim for justice as well.
Toyub Burhan-u-Zaman is pursuing LLM at the Department of Law, and Javid Ahmad is Assistant Professor, Department of Political Science, University of Kashmir.