Law in Postcolonial Times
colonial and postcolonial Indian state toPostcolonial Politics and Personal intervene or not according to its own whimsLaws: Colonial Legal Legacies and and interests – a theme developed in the the Indian State latter part of the book. by Rina Verma Williams; The book’s early theoretical section, Oxford University Press, New Delhi; while offering a useful and interesting pp 190, Rs 595. review of the literature on law, society and
state, does little to support the author’s
central claims about the role of politics inCHANDRA MALLAMPALLI relation to the law in India. The section
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The early section of the book discusses the role of law within western theories of nation and state. Here, law serves to legitimate state power, consolidate national identity, and facilitate transitions from tradition to modernity. In the Indian context, though, the operative framework is that of legal pluralism, i e, applying different laws for different “communities”. On its face, legal pluralism seems to affirm the values of tolerance and inclusiveness, which were the hallmark of Indian nationhood, as envisioned by Gandhi and Nehru. Personal laws purport to honour the distinctiveness of each cultural system and offer protection from the hegemonic aims of any single religion. More recent critiques of colonial legal pluralism, Verma Williams observes, describe the policy more as a vehicle of domination than as a recognition of pluralism (p 49). Legal pluralism (and its cousin concepts, secularism and noninterference) provided a back door for the would have been strengthened by a discussion of a cluster of court cases, which illustrate her important observations about how such “non-interference” actually works. Some discussion of the exact meaning of “non-interference” would also have been helpful. When some sections of the population wanted the state to interfere in personal laws, did state action cease to constitute interference?
“Generalised policies of non-interference” in areas of family law, Verma Williams says, “could be construed as reflecting the colonisers’ desire to save effort and expense on a field of law not perceived to be critical to their interests and also one that was potentially troublesome” (p 43). Specific instances detailing the hesitancy of the government to intervene in matters of family would have nicely illustrated insights of this kind. Still, the significant body of colonial case law dealing with marriage and inheritance suggests that more was at stake for the Raj within these domains than what is often assumed.
What the theoretical section does offer is a way of connecting the historiography of modern south Asia with the questions asked by legal specialists and political scientists. These include the hugely debated subject of just how deeply the colonial state penetrated the social structure of India; and what role the law played in disrupting or solidifying social practices, especially those affecting women. Verma Williams deftly places the discussion of personal laws in dialogue with modernisation theory of the 1960s and 1970s, the Cambridge School of Indian History (which stressed the continuities of colonial policies with pre-existing social practice) and questions about racial difference raised by scholars of Subaltern Studies. Much more work could be done which integrates the literatures of law,
Economic and Political Weekly July 28, 2007 political science and history towards common lines of inquiry.
Formulating a Legal Policy
Instead of relying on a body of case law to illustrate her claims, Verma Williams discusses critical debates surrounding the formulation of legal policy. The reform and codification of Hindu personal law becomes a venue for exploring the relationship between state and society. Here, the author makes two points: First, that the postcolonial Indian state maintained the colonial rhetoric of noninterference. Second, that this commitment to non-interference was a façade that had little to do with public interests or opinions. The decision of the government to reform Hindu law in the end was chiefly driven by its own administrative considerations.
While the 1921 debates about Hindu personal law focused on codification, the 1943-44 debates focused both on the codification and reform. In both contexts, public opinion was divided, though along starkly contrasting lines. Advocates for codification in 1921 advanced what were essentially conservative arguments, stressing the value of codification for the preservation of Hindu textual law. Piecemeal legislation would fragment and confuse an already complex system of law (p 76). Opponents were concerned about the cost and feasibility of codification and also argued that it would enhance legal rigidity and militate against local customs. In light of this divergence of opinion, the government decided not to move forward.
During the 1943-44 debates, public opinion was equally if not more divided than before. This time, opponents of the bill voiced conservative arguments. They feared that the proposed legislation, by extending inheritance rights to wives and daughters, would threaten the Hindu joint family and the very foundations of Hindu society. Appealing to the language of non-interference, they insisted that reform of Hindu or Muslim personal law was not the place of government. Advocates of the legislation, on the other hand, stressed the need of Hindu society to liberalise itself and adhere to a code that would enhance its cohesiveness (p 80).
In the end, the government claimed that public opinion sufficiently warranted the codification and reform of Hindu law; but in reality, Verma Williams notes, Hindu opinion was “at best inconclusive, and at worst overwhelmingly against” the proposed measures (p 82). Like the British who preceded them, the postcolonial state exploited the discourse of noninterference in order to advance an agenda driven by its own political and administrative priorities. But what exactly were those priorities? Here, the author’s analysis is a bit thin. The government, she states, wanted to avoid a piecemeal approach to reform, preferring to devise a more comprehensively integrated legal system. From this, she asserts (somewhat redundantly) that “sheer administrative necessity” devoid of any real engagement of public opinion drove the reforms (pp 69, 82, 89).
What her analysis does not fully explain is why the government would assume the burden of reform if doing so would contradict public opinion, threaten existing social practices and perhaps even undermine its own base of support. Was the government pursuing a progressive agenda, acting on behalf of a “common good,” above and beyond what most Hindus could appreciate? Or, like the colonial regime that preceded it, was it driven fundamentally by a desire for political control and stability? The author’s realist approach could do a better job of explaining the political objectives that were actually achieved through one approach to legal reform or another. To achieve this, the book would have to move beyond a study of mere discourse; it would have to delineate those political forces that exerted themselves on a particular regime and how they influenced approaches to the law.
The concluding sections of the book discuss more recent controversies surrounding the Shah Bano case and the BJP’s push for a uniform civil code. While much has been written on these topics, Verma Williams is perhaps the first to view them through the lenses of colonial and postcolonial notions of non-interference. Her analysis develops the Shah Bano case with greater insight and detail than other renditions. Her discussion of recent trends also illustrates how the most defining moments of legal policy in India have been steered by politics over principle.
The book’s strongest contribution lies in its poignant questions about the connected domains of law and politics before and after colonialism. It moves from a theoretical discussion about the functions of law in general to an analysis of the shaping of Indian law. While tracing continuities from the colonial to the Nehruvian to the BJP era, the author also outlines the distinct discursive frameworks adopted by each regime. Upon examining the different snapshots the book provides of the politics surrounding personal laws, one is left with questions about its central line of critique. Is the book chiefly concerned that the government of India has not sufficiently departed from colonial policies? Does it lament the isolation of the law from real social practices and opinions? Or does it critique the proximity of law to politics and the failure of the government to secure an independent judiciary? By articulating such questions in relation to key moments in India’s recent and colonial past, the book makes an important contribution to existing scholarship.
EPWEmail: mallampa@westmont.edu
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Economic and Political Weekly July 28, 2007
