Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities

Abstract

This paper takes up one of the most perplexing questions of our time that how should Indian Republic deal with the situation of creating a public domain of personal laws, particularly for Muslims. In personal laws, personal is mere verbatim. Personal Laws are product of larger social framework of society, and accordingly, it develops customary practices. Needless to say, society appears as a factory and produces culture, and this production cycle is not neutral to power. In this space, the central argument appears that it is no other but God that makes personal laws. Therefore, God is the final legislator, and his commands, as personal laws shall not be challenged. Needless to say, this is the central theme for even public laws in theocratic countries. It is a question to examine that whether merely one’s belief of the sacrosanctity of personal laws should lead to their being not challenged. If this is the case, then what is the commitment and demands or arguments of different groups, that they seek legal intervention in the domain of personal laws to fill the legal vacuum and surgically examine some anti-women practices? Such practices range from the right to divorce, alimony, question of maintenance, inheritance, and qualification for witness etc. So, these demands create a situation of binaries, where one group seeks to protect practices relating to personal laws based on the cultural rights or even minority rights, to preserve and protect, practice and propagate their culture. On the other hand, a group seeks to revisit the unsettled question of past, and give them their adequate due to entitlement for citizenship.

However, this debate takes an interesting turn when cultural groups from Hindu background argue, not on the ground of persuasive logic, but others’ personal laws as breach of equality for themselves, such as their incapacity to perform polygamy, and link personal laws as lubricant for personal growth. With these motives in mind, these groups argue to regulate the personal laws so that Muslim’s male privilege could not be there. This argument is rooted in prejudice than anywhere remotely linked with rationality and sex equality. This underpinning views women as product and tools of reproduction. Resultantly, fundamentalist groups’ arguments run opposite to the females’ emancipation movements.

In light of the aforementioned issues and concerns, both historical and topical, this paper attempts to present an analysis and evaluation of personal laws in India. It begins with the investigation of history of personal laws in the context of Republican idea of India. Thereafter, it moves towards the constitutional, ideological and philosophical deliberations over personal laws, including those in the Constituent Assembly. In the third part, the paper looks at the judicialisation and politicisation of personal laws by all the three pillars of the world’s largest democracy. Lastly, the paper delves into the current political developments and debates on the decades old issue of unification of personal laws of different religious communities in India, and concludes by arguing that the unification shall be thought of in the direction of rationalisation of all personal laws and from the perspective of unifying the form rather than the substance of the laws. A feminist perspective in this direction may serve as a boon for tilting the scales of codifying personal laws from a nationalistic idea towards an idea of gender justice by making a case for optional application of cluster of reformed legislations as per women’s consent.

Keywords: Personal Laws, Muslim Personal Laws, Uniform Civil Code, Gender Justice