“Treat equals equally and un- equals unequally” (Aristotle)
The composite fabric and enormous social heterogeneity of India makes it a land of “Unity in diversity”. With this reality, India is often boastfully referred to as a classic example of pluralistic society and through this very mechanism of plurality Indian society inculcates it distinctive feature of “unity in diversity”. While having the natural state of diversity, India could not have been indifferent from what is called legal pluralism which was in –turn a natural need of Indian society.
Even in the views of the legal theorists it appears that legal centralism is a myth while legal pluralism is the reality. The British followed the policy of ‘minimal state’ and ‘political neutrality’ in matters of religion and customs of its subjects. Hence, the first state recognition of legal pluralism in India can be traced out through the Warren Hasting’s regulation of 1772 which maintains that “In all suits regarding marriage, caste, and other religious usages and institutions the law of the Koran with respect to the Mohammedans and of the Shaster with respect to the Gentoos shall be adhered to.”
Fortunately, the members of the Constituent Assembly were convinced that India as a composite whole would have to make sense of its own plurality-conscious heritage in the light of new socio-legal realities and would quite clearly have to live with legal pluralism. Notwithstanding the heated arguments and debates, the proceedings of the Assembly goes to a farther extent in protecting the minority rights with the justification that an individual citizen besides his allegiance to the state also has equal duty towards his faith and traditions.
A man must honour his duties to his God and to his conscience, and if these conflict with his duty to the state, then he is entitled, in the end, to do what he judges to be rightRonald Dworkin
Despising the religious-cultural distinctions in the name of “national unity” is more an antithetical parallelism. The progress and achievement of any nation is directly proportional to the contribution of individual members of different communities, and individual members cannot continue ahead unless they would be given equal chance to adhere their own ideals and beliefs.
Therefore, besides civil and criminal laws the constitution safeguards the personal laws to be governed by the respective traditional and religious laws. But after fierce debates the Constituent Assembly eventually comes to a compromise by inserting Article 44 in the Indian Constitution, a non-justiciable Directive Principle of State Policy which over-arches a Uniform Civil Code to be a future ambition. Being in gross miss-match of the pluralistic idea of India and further in conflict with some fundamental rights provided in the constitution, the said Article becomes the bone of contentious.
The resentment showed by the minority community against the Uniform Civil Code was on the ground that the attempts of introducing UCC would eventually result in enforcing a “majority code” on a composite whole.
These voices of resentment were raised not only by the minority community but the members from the majority Hindu community itself were against the uniformity in civil code. Guru Golwalker of R.S.S, notably among them was of the view that the Indian Constitution is a hotchpotch of foreign Constitutions and a negation of Indian experience.
The recent brawl of “triple talaq” is in fact a matter to be dealt within the framework of personal law. Reforms in the sphere of personal law have to be carried out in accordance with the interpretations of Quranic verses and also keeping in mind circumstances and receptivity of respective community to such reforms.
The different schools of Shariah law came into existence as a result of different human interpretations of Quranic injections and to that extent there are always scopes for changes and new interpretations in keeping with changed circumstances. But skewing the issues of deeper concerns and fuelling “triple talaq” raises a number of questions in a skeptical mind.
The idea of homogeneity in laws on the cost of personal laws does not sense good as it would pose a potential threat to the religious and cultural heterogeneity of nation. Minorities should be accorded the freedom to abide by their faiths and traditions without compromising the criterion of equal citizenship. It is argued that culture of any country or state is the key of a broader assimilation of the religious cultural orders of both the majority and minority groups for years of co-existence; and India is no exception to such phenomenon. Hence, suppressing and muzzling religious-cultural rights of minorities would be a hazardous to the better cultural health of a state.
Besides personal laws, Indian Constitution provides a number of provisions including special safeguards to Schedule Castes, Schedule Tribes, and small minorities like Anglo Indians, special representation in Parliament, State legislatures, village Panchayats, municipalities and cooperative societies, recognising and protecting social and legal pluralism, enacts the unity and integrity of the nation in its Preamble along with endorsing and ensuring the idea of pluralism.
MA Mufazzal is Research Fellow at the Centre for Arabic and African Studies, JNU, New Delhi