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On State And Community/Private Lawmaking: Prospectus For Legal Pluralism In India (By- Fasila A K)
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On State And Community/Private Lawmaking:
Prospectus For Legal Pluralism In India
Authored By- Fasila A K
Abstract
This paper analyses the possibilities and challenges of
legal pluralism and how women's bodies have been used as a site of contest
between state and community legal orders. Modern states tend to construct a
physically and legally bounded homogenous unit within their territorial
boundaries. This comparatively recent tendency set by the emergence of
nation-state plays the language of gender equality and protection for its
monopoly over the use of force of law against the other religious, cultural and
tribal legal orders exercising law for centuries. This paper argues that for
three reasons state cannot claim the monopolistic authority of law: the State
is as much Patriarchal as any other community; the language of the law is
limited to comprehending many lives and experiences outside its textual
definitions, and the presence of majoritarian influence in the law-making and
adjudication of the modern state.
Introduction
Territoriality, autonomy and monopoly over the use of
force are considered the key characteristics of the modern State. On the other
hand, communities primarily differentiate themselves from other communities
with their distinct way of life but not with their loyalty to the territory
they occupy, as in the case of a state.[1]
As can be seen in nomadic tribal communities, they identify themselves with a
deity they worship and carry with them wherever they travel. The Arab Muslim
communities also were recognized for their religious faith and practices. Jews
and Christians were allowed to exercise their religious rights under the Millet
system in Ottoman Empire without any interference from the ruler.[2]
However, the modern states, as observed by Bikhu Parekh, give an “unprecedented
moral, political and ontological significance” to the territory. Moreover,
these states construct a physically and legally bounded homogenous unit within
these territorial boundaries. It is known as Lex
terrae, that is to say, whoever comes within this territory has
to be bound by the laws of that particular State despite his/her association
with any other states, communities.
The State communicates to its subject citizens in the
language of Law, which has its sanctioning mechanism for the implementation of
it. Bodin observed that it is a unique feature of the modern State, compared to
all other polities that existed before, that legislation is its primary
function and a legislature is its supreme institution. The State considers the
maintenance of social order based on Law as its primary task, which means the
order results from obedience to the laws that the State makes. That is, State
operates and regulates its citizens only through laws. Modern states are
historically adamant that their subjects should not follow any laws except the
one made or endorsed by the State. Any contrary efforts have been watched
suspiciously as that challenge the rule of Law and sovereignty of the State.
For the same reason, since the emergence of the modern
states, there have been communities -religious, ethnic, tribal- governed by
their own set of rules and practices till then, and these legal orders could
challenge the State. These multi-ethnic, religious, and cultural communities
constituted poly-centres of power, each of which defines and regulates
individual subjects' behaviour and social interactions within the boundaries of
their culture. Therefore as an obvious consequence, Post state formation, the
State's desire to centralize the authority of Law led to conflicts between
these communities and the State.
Public-Private Dichotomy
For the harmonious survival of both entities, there was a
demarcation of the authority of the state and the community. Hence, according
to the public-private divide in the Law and policy-making, the State makes laws
and governs the matters between individuals and State affairs in the public
sphere. Family and religion were concerns of the private sphere and were left
to the respective communities' governance. For example, in India, the
colonizers had to permit the practice of Personal Laws within the religious
communities to govern the private affairs of the individual subjects of each
religion. Tribal communities were allowed to follow their rules and principles
within their boundaries. At the same time, the State retained its authority
over affairs that affect the maintenance of Law and order in society. It does
not mean that thereby ended the negotiation and conflicts between the State and
other communities as their authority and laws overlap, encroach and contradict
each other frequently. This also does not mean that this division of authority
was made equally, as it can
be clearly seen that the State has determined even the
terms of that demarcation of authority. The State, in some way or other,
attempted to define relationships terms among the individuals within the private
sphere despite the devide. As time passes, this divide fades out, and State
extends its arms of Law to the private sphere as though there is a line between
two realms that no longer exist beneath the surface. This makes it difficult to
understand where the boundary of the public sphere begins and where that of the
private sphere ends.
At the end of it, from the general understanding of Law,
it can be said it is the State who determines which rules within territorial
boundaries qualify to be the Law. The dominant narrative of the state Law
generally disregards the alternative legal traditions that existed. Formally
the term law is understood as the set of rules enacted by the State-backed by a
formal adjudicative system operated with the assistance of judges and lawyers.
Most societies across the world have more than one legal orders exist within
other than that of the State.[3]
These legal orders prescribe their own rules and derive their authority from
any particular religion, caste, tradition or tribe. Upendra Baxi called such a
legal set-up a Non-state Legal system (NSLS).[4]
Most of these informal legal systems also have forums to adjudicate the
disputes arising within these communities. The existence of multiple legal
orders side by side in a society is known by the term legal pluralism and about
which a wide range of theoretical and field studies are available. If we look
at the case of India, legal pluralism is explicitly visible here, as nobody
denies that India is a multicultural society with a long-standing history.
There are Hindu Muslim Christian religious communities governed by their
Personal laws (with the approval of the State), and there are also other
informal legal systems in the form of Khap
Panjayats and different forms of adults
in various tribal villages in the country.
Indian Responses To Multiculturalism
Indian Constitution appreciates and recognizes this
diversity. The Indian Constitution determines the validity of laws in force
before the commencement of the Constitution within the territory of India,
including customs and usages as valid as long as those are consistent with the
provisions of the Constitution.[5]
It was an attempt to accommodate the multiple legal orders of the Indian State
to an extent. The Part III of the Constitution guarantees the right to
freedom of religion[6]
and minority sections of Indian society have a right to conserve their
language, script and culture[7].
Moreover, no specific laws were made to nullify the existence and effects of
these informal legal orders. At the same, there are laws such as the Shariat
Application Act of 1937 [8]which
authorizes Muslim individuals to reside in India to be governed by the
principles of Sharia in their personal affairs that are specifically mentioned
in the Act, such as marriage, divorce, succession. There were also incidents in
judicial history in which some of these informal adjudicative sites were
challenged on the basis that they violated the basic principles of the Indian
Constitution. However, the Judiciary did not declare them unconstitutional.
Even then, these above measures and actions do not indicate that there were no
frictions between the state and community laws. The State's unease to go hand
in hand with the other legal orders was expressed, and attempts have been made
to overcome these informal systems in multiple ways.
These non-state legal systems have been criticized, and
state intervention was demanded mainly on two grounds: firstly, the coexistence
of other legal orders with the State is a challenge to the rule of Law. The
rule of Law is the backbone of a democratic society which ensures equality and
basic principles of human dignity are followed. Many of these communities'
practices were considered in violation of the basic principles of human rights
and therefore demanded state intervention to abolish those. Secondly, another
major criticism against legal pluralism and private-public dichotomy arose from
the feminist movements across the border. They demand state intervention in the
private sphere as the religious and ethnic cultural rules are arbitrary and
discriminatory to women.[9]
It is considered a milestone in the history of the feminist movement when the
State takes into account the personal experience of women within the family and
community structure for lawmaking. In India, the case of Muslim women has been
frequently raised as the Muslim Personal Law against gender equality. There
were multiple cases fought by the women or NGOs on their behalf because certain
rules and practices of Personal Laws as they contravened the provisions of the
Indian Constitution. A few sections of these Personal laws were codified and
amended due to these legal battles and feminist debates, such as in the case of
The Muslim Women (Protection of Rights on Divorce) Act,
1986. The Parliament made this Law to
reverse the effect of the judgment of the famous Shahbano Begum case[10]
on the question of maintenance of divorced Muslim women. An amendment to the
Law of Hindu Succession in 2005 was also the result of criticism by feminist
movements.
Although there are flaws in the rules and practices that
are followed within the cultural, and religious communities, in the following
paragraphs, I would like to argue that an absolute state intervention of the
State cannot be an answer to it. There are serious dangers in giving the
complete state authority to interfere in the rule-making of a community despite
their opposition as much as dangers in following the rules and priciples of
cultural and religious community.
1.
The State is as much
Patriarchal as the community.
Discriminatory practices and laws against vulnerable
individuals, especially women, are the major reason for criticism of the
Non-state legal systems. Therefore they ask for a state intervention to offer a
better position for these vulnerable groups of that particular community,
eradicating such patriarchal discriminatory practices. However, it is well explained by
Prof. Upendra Baxi that both the State Legal System and Non-State Legal System
create subjection: The State with its meta-powers of great general prohibitions
and the latter with all its paraphernalia of "polymorphous techniques of
subjugation".[11] If Practices such as polygamy and triple talaq of Muslim
personal Law are considered, for example, these are criticized as these give a
Muslim man arbitrary power over his wife. There is a constant cry for a Muslim
personal law codification and to bring in a Uniform Civil Code as these
Personal Law rules get interpreted in the hands of the ulema of the community to the detriment of Muslim women.
At the same time state also cannot escape its inherently
discriminatory public laws. Until it is scraped in 2018 in Joseph Shine v Union Of India
Section 497 in the IPC, which penalized 'adultery', considered the woman
involved as a mere chattel in the ownership of her husband as it defines the
offence as sexual intercourse between a married or unmarried man and the wife
of another person. It does not affect a sexual link between widowed, divorced,
or unmarried women. To give another illustration, marital rape is still not a
crime under the provision of IPC though it may cover domestic violence. In the
same way succession law of
the Hindu Personal law is highly discriminatory towards
women. Moreover, it remains the same way even after the State codified and amended
the Hindu Succession law.
Another major criticism arises against the cultural
community adjudicative sites such as Khap panchayat, Sharia Courts. There are
cases of a few brutal sanctions imposed by these forums that have been widely
criticized, like sanctioned honour killing of couples in inter-caste marriages.
They adjudicate disputes on a subjective case-to-case basis as there are no
rules and principles to discipline most of these informal sites. In such
contexts, the State judiciary is presented as a saviour for women and other
vulnerable sections of society. In that case, it is considered inherently
objective and well-disciplined and delivers just, fair and reasonable
decisions. However, an analysis of even a few most celebrated judgments, which
are known for their feminist stands, gives the idea that the state judiciary is
also not free from utilizing the same subjugation techniques of patriarchy. For
example, in Shah Bano and Daniel Latifi[12]
judgments, the Supreme Court of India determines the right of a divorced Muslim
woman to obtain her rightful maintenance from her husband in highlighting her
‘qualities’ as a ‘good wife and a sacrificing mother’, which are irrelevant
considerations under the personal Law to get her that right. Although they adjudicate
in favour of women, in doing so, they legitimize the inherently patriarchal
nature by reinforcing the gender norms that underlie women’s inequality. Hence
the State illustrates assumptions about women's role and identity in a family
that are embedded in Law.[13]
Since the Law is perceived as a tool for the legitimacy of
the State, a discriminative practice at the hands of the State legitimizes that
discrimination, whatever it may be. As it has a greater role in shaping social
behaviour at larger levels, it is the greater evil.
2.
Language of Law is limited.
The modern State's imagination of its subjects is that of
a liberal individualistic figure. The State presumes that its subjects know how
to write and read in certain languages. That is why all citizens are presumed
to be aware of the Law of the State, and written documents form a significant
part of the state adjudication. These presumptions disregard the fact that
there are tribal communities which do not speak or write in the same way as
modern state citizens do. In the same way, there are experiences of individuals
from various cultural communities which the State cannot measure or document
with the modern tools that we have.
3.
Majoritarian influence in
the lawmaking and adjudication process of a democratic state.
Law making and the adjudicative process with the State are
influenced negatively by multiple factors such as political, communal. So, the
State may help eliminate one violation at the hand of the cultural or religious
community. However, there are multiple experiences of the process of the
legislature and the Judiciary of the Indian democracy distorted and diluted by
political and communal pressures. Despite the active role that the Indian Judiciary
has played in the struggle to end communal violence and related crimes, several
court decisions evince the influence of identity politics on judicial thinking.
These decisions undermine the Judiciary's independence and commitment to the
civil liberties of majority and minority communities. The communal thinking in
these decisions has taken several forms. First, courts have fueled communal
sentiment by holding certain religious practices of minorities
"un-Indian," thus unconstitutional.[14] These courts define the
Indian identity in monolithic terms or terms of the culture of the Hindu
majority and, therefore, implicitly grant less than full rights and recognition
to persons of "un-Indian" (i.e., non-Hindu) communities.[15] In
addition, they reinforce stereotypical notions of membership in the majority
and minority communities and destroy awareness of the multiple identities
Indians have as political, social and religious actors. Second, some courts
have adjudicated claims implicating the relationship between secular Law and
Religious Law in favour of secular Law, not out of concern for minorities under
their religious Law but in the interest of national integration.[16] The
decision of Shahbano also implied
that a uniform code would require that minority groups forego "disparate
loyalties" to their religion. In this manner, the language of its decision
undermined the Court's concern with the supremacy of secular Law and justice
for women. The enactment after the Shahbano
verdict was to nullify its effect due to the pressure of the Muslim ulemas on the government, although the Daniel Latifi interpretation gave it a
strong double impact later on.
Conclusion
From the discussions above, it is well settled that an
exclusive authority with the State to make laws for communities will not bring
good as in the opposite case. Beyond that, a constant contest for authority
must also be settled on clear terms because it creates insecurity in the
subject's minds. Such contests often raise question of loyalty to the community
or State, as we have seen in the past. It would be difficult and time-consuming
to reach a mutual understanding between the communities and the State on the
authority of Lawmaking as India is a multi cultural society in various levels.
Nevertheless it is necessary to be done taking the socio-political experiences
of subjects of each community. Not only for cultural and religious communities but also State
woman's bodies is the site for fixing its boundaries. Therefore, the state and
communities contest for the authority over regulating women as it is extremely
visible from the contest on the body of Muslim women. Therefore she has
experiences being within the multiple layers of identities produced by gender,
religion, member of a minority community within a majoritarian nation.
Therefore it is a relevant analysis to check how this simultaneous authority of
State and religion impacted her access to justice. Otherwise, the victims may suffer in the middle of the
two systems, as happened to Shahbano. She had to renounce claim for maintenance
though the Court had allowed it due to questions of her loyalty to the
community.
In this regard, the State needs to take the initiative to
begin a dialogue with an inclusive policy with the community authorities. In Vishwa Locha Madan v. Union of India, Muslim
adjudicative such as qazi and Sharia courts were challenged. However, Judiciary
failed to use the opportunity to have a dialogue to determine the terms of
their engagement with these religious authorities. Also, the dispute settlement
sites of these private communities can compensate for the limitations of the
formal judicial system as they are overburdened with the number of cases before
them. A well-regulated informal court system can contribute to dispute
settlements, as in the case of Alternative dispute redressal mechanisms in the
country.
As nationalist theorists of State envisions a properly
constituted state as a homogenous community, by all means, the Indian
democratic State has shown that tendency to be a homogenous community through
standardization and unification, doing away with its diversities in multiple ways.
Therefore there are dangers of nationalist views creeping into the state
perspective.
Hence, in these
dialogues, the State should be able to convince the communities that its
legislative attempts will not erase their cultural and religious identities and
will not restrict their freedom of religion. Despite the disapproval of the
particular community, state interference in community rule-making has to be
considered as the symptom of changing the nature of a democratic State
committed to the unity in diversity of the Indian society into a nation which
is exclusive and chauvinistic.
Article Information
On State And Community/Private Lawmaking: Prospectus For Legal Pluralism In India (By- Fasila A K)
Authors: Fasila A K
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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