Monday, November 16, 2015

Why Legal Pluralism Matters: Between Uniformity and Legal Pluralism, the Latter Is a Superior Value

By Faizan Mustafa
November 16, 2015
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 among close relatives is prohibited in north India but is considered auspicious in the south. This 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.
Faizan Mustafa is vice chancellor, Nalsar University of Law

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