Not Uniform Civil Code: India's Plural Legal System May Enlighten The World

Pre- and post-colonial India has been debating the abolition of PLI and UCC intending to create ‘one unified family law’, which popularly has known as It seems that debates have shaped Indian societies for ‘millennia’ as Amartya Sen argues in the Argumentative Indian (2007) and an observation recognised by outsider jurist who write on legal pluralism, such as Brian Z. Tamanaha in the Legal Pluralism Explained History, Theory, Consequences (2021).

If the upcoming Law Commission of India gives reports in favour of anticipated UCC and government of India implement it. The impact would be widely felt where already rich native and personal laws are. India's plural legal system should be seen as a highly dynamic reflection of the still contested definitions of law as a globally present phenomenon. It might be India's way of handling this problem that may enlighten the world, but it is also a fact that India is not unique in having a personal law system, which seems part of the DNA of the Global South, while the Global North claims to have overcome such challenges, but is not necessarily securing better justice as a result.

This is contested subject that India has not own law and personal laws are all discriminatory. Some laws may be ‘bad’ and some may be ‘good’. Some intellectual heritage of jurisprudence may also be a symbol of exploitation, and some may be ‘celebrations of inspiration.’ But whatever law remained saved after long struggle; divorcing it from socio-religious-culture aspects and creating positivistic unified family laws will be a great loss for the intellectual heritage and living archives of Asian and African people. In the global context, it will also be a great loss of jurisprudence and laws. As a multicultural society became the reality of all nation-states in the period of globalisation, not only in ‘traditional’ contexts, every state now struggles to maintain some modicum of legal pluralism, often through affirmative action policies, for achieving better justice.

The personal laws developed along with independent struggle, and it is not given in ‘donation’ by the coloniser. In India, something is ‘Indian’ which is represented by personal laws, which co-exist with ‘secular laws’. Post-colonial India also struggled for ‘ideal’ personal law and spent a lot of energy to ‘save’ and reform personal law. The infiltration of common law into India’s PLI was of course part of the colonial agenda.

The history of the PLI recalls that the British intended to interfere for the first time in the ‘official law’ of India, governed at that time by Mughal Administrators, when Warren Hasting introduced his personal law policy in 1772. While this policy recognised the personal laws of India for Hindus and Muslims, a big section of British administrators opposed it in House of Commons on 10 July 1833. However, Indologists, freedom fighters and some intellectuals fought for ‘native law’ and prevented the full imposition of common law into PLI. Afterwards, Hindu law, Muslim, Christian law, Parsi law and also other personal laws have been ‘saved’ and ‘codified’. As known, Hindu law is diverse and plural, and its customary practices are very wide. It was a challenging task to codify Hindu law. Muslim law is known as organised, but the principle of Muslim personal law (MLP) defines that ‘Shariat’ is divine and hence no government or court has the right to make any changes to it. However, the codifications of Muslim law and Hindu Law were challenged on different grounds, earlier belief, and the translation of texts, later gender equality and plurality. It becomes a ‘collective understanding’ that the personal law will be exempted from ‘common civil law,’ and common law will not be imposed on the personal law in the colonial regime. The future of the PLI depended on Constituent Assembly India (CAI) after independence.

The CAI also discussed Hindu Code Bill (HCB) as personal law, and ‘uniformity’ of civil law as a UCC, and inserted article 44 in the Indian constitution (1950) as ‘[T]he State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ It became ‘a headless quest’ in post-colonial India. However, reading this article 44 only and Constituent Assembly Debate (CAD) without going into details of committee reports; is a bit like trying to swim with one arm and one leg. An in-depth study shows that UCC was inserted ‘vaguely,’ and discussion of Hindu Code Bill indicates that the original intention and approaches of CAD were never intended to abolish the PLI rather than reforming in personal laws.

The Hon’ble Judges of Supreme Court of India, directly and indirectly, also explain UCC and personal law in their judgement but responses of the judiciary to UCC have not been uniform and themselves contradictory and conflicting. The Judgements of SCI are not also ‘uniform at all’ on UCC. This is also inculpated that western-trained judges. Academics and commentators, however, grab certain judgments and make them more prominent than they in fact are.

The Law Commission of India (LCI, 2018) was entrusted with the similar task of addressing the issues concerning a UCC in June 2016 through a reference by the Government of India. The commission led by a former Chief Justice of India submitted its report (LCI, 2018:18) and came out with the understanding that India needs reforms in personal law and UCC is ‘neither necessary nor desirable at this stage’, and reforming in personal law is the way to achieve substantive law like UCC.

The ‘stubborn anticipated demand’ of ‘one family system law’ is presented as a ‘childish demand’ of post-colonial India as jurist Werner F. Menski argues in the Comparative Law in a Global Context: The Legal Systems of Asia and Africa (2006). He beautifully gives an example of an ancient Indian story, when ‘Krishna’ adamantly demanded the moon from his mother Yashodha as a toy. Mother Yashodha explain better fleetly gives a distorted version of the moon to her son through a mirror image. If ‘one family law’ will be demanded, India will get a distorted version of the moon, like Krishna did. Then it needs to be cautious. If constitutions and international legal conventions are promising the moon and all that most people get distorted mirror image; something must be seriously wrong. India has already achieved a different kind of UCC, through reforming personal laws through the back door, so to say, gradually developing more uniform family laws for the nation through a combination of legislative interventions and judicial custodian as ‘originally anticipated’.

The author is an lawyer practicing in the Supreme Court of India. Views are personal.