Legal pluralism is broadly the existence of multiple legal systems within the same state1, and is a key feature of the Indian legal system. Stemming from historical foundations, this article will argue that it is no longer fit for a modern day, democratic India which prides itself on equality and religious freedom: it discriminates against Muslim women and exacerbates religious divisions, namely between Muslims and Hindus.
India has an official faith-based pluralist system which stems from an attempt to codify existing religious customary practices which occurred for centuries. This pluralist system comprises ‘Mohammedan’ or Shari’a law, the official legal origin of which can be traced back to the Shariat Act, 1937 which codified a proportion of the fiqh (law which has an Islamic basis and is interpreted in Islamic sources), although it was practised long before then. Hindu law also forms part of the wider Indian legal system and is, in particular, applied to family disputes. However, it is arguably more inclusive than Mohammedan law since it includes Sikhs and Buddhists. Since the 2000s, Christian Law has also become recognised as a plural jurisdiction, transforming provisions for Christians on divorce, separation, maintenance, and adoption in the Indian Divorce (Amendment) Act 2001 to become more like those seen in Britain, creating an intensely interwoven system of laws.
The complexity of this legal matrix is only compounded by the fact that certain regions will subscribe to different interpretations of religious law and integrate it into a colonial era framework, such as that seen in Goa. Therefore, the legal remedies available to an individual can vary depending on where they live, their own religion and the predominant religion of their local area. Viewing this set-up from an English legal perspective, this undoubtedly poses rule of law issues, specifically relating to legal certainty and fair warning – people cannot plan their lives accordingly if they are not certain as to which laws to follow.
Although the Indian constitution guarantees gender equality and freedom from gender and religious-based discrimination, the pluralist nature of the Indian legal system has meant this ambition has not been properly realised2. Muslim women in particular have been subject to poor treatment under religious laws. This was particularly highlighted by the Shah Bano Begum3 case where a Muslim woman was denied alimony from her husband under Shari’a law despite the fact had she been a Hindu or Christian and treated under different religious laws, she would have received redress. Although the Indian supreme court overturned the religious court’s decision and the Muslim Women (protection of Rights on Divorce) Act 1986 was passed to protect Muslim women following the collapse of their marriage, their rights under Shari’a law are still minimal.
Indeed, there have been a number of cases where polygamous marriages have been accepted in Shari’a courts, in which men have often denied money to care for children to their first wife on account that they favour their second spouse, something which has not been observed in Christian or Hindu cases. Moreover, the triple Talaq rule has been recognised by Shari’a courts in India – men can divorce their wives by saying the word Talaq – divorce– thrice. By contrast, women must undergo months of lengthy arbitration to achieve the same result, placing her at an inherent disadvantage, particularly if she is in an abusive relationship. Lastly, Shari’a courts have also offered unfavourable property rights to Muslim women, aside from recognising the traditional Mahr –a gift a husband gives to his wife on their marriage. Therefore, the impact of legal pluralism on women is that they afforded fewer rights to other Indian women, creating a ‘stratified citizenry’4where social cohesion is wanting.
Legal pluralism has had two key impacts on religious tensions. The aim of legal pluralism in a faith-based context is to empower religious groups and encourage co-operation between them. However, pluralism has caused the ‘political divide between Hindus and Muslims [to] worsen’5 through placing them into faith-based legal enclaves. Recent surveys have reflected this increase in tensions hence 78% of Indians interviewed insisted that until a uniform civil code is established, there will never be social cohesion between the religions in India. This suggests that legal pluralism has been a central point in cementing the differences between Hindus and Muslims, a view endorsed in interview with Elham Manea who noted that pluralism, by its nature, leverages one group above another and never serves to develop social cohesion, but rather creates harsh swathes within communities6.
Secondly, it has altered many citizens’ perceptions of religion. Indeed, despite the fact that the religious groups in India are richly diverse, pluralism’s unsensitive categorisation of faith groups has turned them into cultural monoliths. This is apparent from a 1993 survey of 481 Hindus conducted by MARG7 in Bombay which found 13% of Hindus would not employ a Muslim in their home, 20% agreed Muslims should not be allowed in the armed forces, and 28% believed Muslims and Hindus are so different that they cannot livetogether. This not only illustrates the religious divisions that have emerged through pluralism, but also that the religious groups now view each other as binary opposites – they are intolerable to one another.
Religious freedom is a hugely controversial issue in India, with a recent survey noting that it is one of the most important values for Indians8. This has been recognised by the courts and politicians, and the Indian Attorney General himself has asserted that the issue is far too political for the courts to decide and should lie with Parliament. Thus, arguably, reform could be achieved by the Indian Parliament abolishing the current legal system and creating a single body of law to be followed – a true ‘one law for all’ approach.
However, many politicians would likely be reluctant to drastically overhaul a legal system which is otherwise workable. Moreover, to face the issue head on may only exacerbate tensions and completely undermine its purpose. This has been noted by jurist John Duncan Martin Derrett who stated that the best way to reform the Indian pluralist system is to let it ‘wither away’9 and gradually replace it with a uniform law,thus avoiding confrontation between religious groups. Although this is a drawn-out process, it would nevertheless achieve the aim of protecting women and reducing religious tension.
In conclusion, legal pluralism is no longer fit for India. A new ‘one law for all’ approach is necessary to end the discrimination experienced by many Indian Muslim women and create religious harmony in the state.
