Walking the Tightrope: the Paradoxical Relationship between Religion and Law in India
It cannot be contested that the modern, internationally-accepted norm of governance is that of a democracy, of a state that allows for elected representation through the voice of all its citizens and which participates in free trade. Inherent to this concept of democracy are several defining aspects of government that we seem to take for granted and often mistakenly assume apply to all democratic states.
Secularism, a concept that has its roots in ancient Hellenistic politics, is one such concept that is commonly associated with a true democracy. The term, however, is interpreted differently by different states, and the implications of this disparity have become particularly relevant today, in a world of religious diversity and conflict.
France, in particular, has been in the spotlight for its take on secularist civil codes with the recent controversy over the ‘burkini ban’, which sparked outrage both within and without the Muslim community worldwide. Nicolas Sarkozy’s 2009 pronouncement that “the burqa is not welcome in France” highlights the strategy that France has undertaken to govern its religiously diverse population: absolute uniformity of civil life with no exceptions. In its attempt to maintain a deeply-rooted secularist tradition, the French state has effectively compromised the right of a marginalized group to practise their religion freely.
How, then, can one avoid this conundrum? Is it necessary that, in order to preserve equal civil standards, a state must sacrifice its citizens’ right to practise their faith openly? An interesting contemporary case that clearly represents the tension between the ideals of uniform freedom and religious tolerance is that of India.
The republic of India is the world’s largest democratic state with a growing population of 1.26 billion. The subcontinent has a rich history of religious diversity and is home today to Hindus, Muslims, Sikhs, Christians, Jains, Buddhists, Zoroastrians, and a small Jewish population. The largest religious minority in India are the Muslims, who form approximately 14.2 percent of the total population, followed by the Christians at 2.3 percent of the population. While the country is overwhelmingly Hindu (79.8 percent), Indian politics have been defined by religious divides since the birth of the secular federal republic in 1947. The deep-set religious conflict culminated in the disastrous process of Partition, the scars of which are still borne by both India and Pakistan. Therefore, we can easily see that India is no stranger to religious turbulence. A longstanding history of colonial divide-and-rule politics is reflected in the highly complex civil code that attempts to broker a compromise between the principles mentioned earlier: universality and tolerance.
India does not have a uniform civil code. What it does have is a public legal code, as well as a set of personal laws that interact and, sometimes, even contradict one another. The personal law codes are religiously specific and cover matters such as marriage, inheritance, and divorce and are specialized to cover Hindu, Muslim, and Christian personal law. As of today, such personal laws include the Indian Christian Marriage Act (1872), the Anand Marriage Act (1909), the Muslim Shariat Act (1937), the Wakf Act (1954), the Parsi Marriage and Divorce Act (1937), and the Hindu Marriage Act (1955). Needless to say, while these personal laws allow religious communities the freedom to exercise their own customs, these varied laws present several issues. Firstly, their contradictory nature poses an issue when the legitimacy of an institution needs to be transferred across communities, such as in the case of interreligious marriages. Secondly, various political and social justice groups have heavily contested some of these laws over the years, on the grounds that they allow for archaic practises, such as polygamy. Thirdly, these laws can be (and have been in several cases) manipulated and abused for criminal purposes by citizens who use conversion to avoid legal consequences of acts that are illegal under one set of laws but permissible under another. The cause for the establishment of a uniform civil code is not championed only by multiple political factions and NGOs, as there exists a Directives section in the Indian constitution itself, under which Article 44 declares, “The state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” The Supreme Court, through its rulings on several cases which brought up the question of personal versus general law, has also publicized its support for the creation of a uniform civil code. The question remains: why, even after more than 50 years of independence, has India not put a uniform civil code in place?
In order to understand how and why such a convoluted, and somewhat problematic, system has emerged, one must look back to the British rule that lasted over a century. British governance over India was characterized by laws such as the Lex Loci report of 1844 and the Queen’s Proclamation of 1859. These laws emphasized non-interference in religious practise and set in place the idea that, while criminal codes ought to be uniform, other civil codes could be adapted to fit different religions. As the maintenance of social stability grew increasingly crucial to the Empire—especially following the turmoil of the World Wars—the work of several social reform movements culminated in laws, such as the Widow Remarriage Act of 1856, that aimed to protect women’s rights. Several analysts accuse the British of using religious freedom as a smokescreen to divide the population, pitting Hindus against Muslims so that they could frame themselves as an objective third party. Regardless of British motivations for allowing a varied civil code, the Indian struggle for independence that followed ended in a state of affairs charged with religious conflict; it was not long until this led to the violent upheaval of the Partition. Considering that the new republic was borne of such acute religious struggle, it makes perfect sense that legislation at the time would seek to appease religious communities by allowing them to preserve their personal laws. This would, therefore, maintain social stability. Directive 44 of the Constitution, mentioned above, was included due to the efforts of the first Prime Minister Nehru and his supporters, but it was met with vehement opposition at the time.
In the years since Indian Independence, the case for a uniform civil code has been raised time and again, with citizens claiming that their basic rights have been abused under the mandate of archaic religious law. Many of these citizens are, unsurprisingly, women. The uniform civil code became a flashpoint for the administration in the highly publicized Shah Bano case of 1985. In this case, a Muslim woman approached the Court to secure compensation from her husband, who had divorced her through Shariat triple talaq law (the pronouncement of divorce three times by the man). The Court granted her request under the purview of the Indian Criminal Code, sparking a fresh debate across the nation about the problems of personal law.
The Bano case was in no way an isolated incident. The matter of uniform codification was brought up once again this year by the government of the present Prime Minister, Narendra Modi, through a direct request to the Law Commission. The Commission was asked to determine what steps could be taken to establish a uniform legal framework. This does not mean that such a framework is anywhere in sight, however. Modi’s party, the BJP, supports the formulation of a new code, but their opposition in Congress has rejected their efforts. Modi’s government has received much criticism for its being linked to Hindu nationalist movements, and many see the uniform code as a primarily Hindu framework that will now be forced upon religious minorities. While protecting the right to religious freedom is of utmost importance, India struggles with social evils that are condoned by some of these personal laws, due to their allowance of discrimination based on religion and sex. Political, religious and social groups are caught in a deadlock, and, ultimately, the fate of a uniform Indian civil code remains unclear to this day.