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Between the Religious and the Secular

The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code by Partha S Ghosh

Between the Religious and the Secular

Sanghamitra Padhy

for and against personal laws on grounds of minority rights, equality of law, cultural rights, appeasement politics, national integration, women’s rights, etc, in India, Pakistan and Bangladesh, while the political space is equally silent in the other south Asian countries. Herein the book

P
ersonal laws are a contested issue, and more so in south Asia, because of its diversities and colonial history. Both diversity and colonialism have interacted in multiple domains in south Asia, and the politics that has developed from this interchange explains how cultural plurality and secular issues have been add ressed in their post-colonial constitutions. In fact, in the case of India, while it inherited the British common law tradition, the boundaries b etween religious and secular could not be addressed in the black letter tradition of the law. The State gave considerable space to personal laws for various cultural and political reasons, and secularisation was limited to certain aspects of the public realm. Nevertheless, this did not necessarily settle the debate on religious rights and there have been multiple contestations to this l egality. The pole mics of this debate has r evolved around the issues of minority rights, religious funda mentalism, national integration, univer sal human rights, and most importantly, the viability of positivist laws in a plural society. The politics that e nsues from each of these questions asks for a plural model of law that can integrate the various notions of rights and justice, from cultural, local and inter national perspective.

Legalisation of Personal Laws

This book by Partha S Ghosh revisits these very questions of legalisation of personal laws by drawing a connection between politics and religion. Writing in the tradition of neo-institutional scholarship, such as David Kairys (1992), Ghosh demonstrates that preferences for continuity or reform of personal laws in plural societies is a question of politics than a judicious choice for a plural model based on religion. Law, as the author argues, is in the essence of politics, exemplified in the discourses on issues of equality, rights and justice b etween cultures in a plural soc i ety. The

book review

The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code by Partha S Ghosh (New Delhi: Routledge), 2007; pp xv + 339, Rs 695.

new institutionalist framework of analysing law is an important contribution to l egal studies in India and to the literature on personal laws, bringing to light the various d imensions of the political contestations over institutionalisation of personal laws.

Comparative Analysis

Taking an interdisciplinary approach that intersects political and legal theory, Ghosh provides a comparative analysis of the evolution of personal laws in the context of political history of south Asia, though from an India-centric perspective. Ghosh asks two important questions: should plural societies adopt uniform civil laws in deference to the equality of all citizens before law or should the integration of the diverse religious and cultural groups be addressed through a pluralist model of law in deference to the concept that a democracy must respect the rights of minorities? Second, he asks how can political systems address the various claims for and against the introduction of a unified civil code (UCC), more particularly, he attempts to explain the implications of coding respective personal laws for minority rights and the equality debate. He addresses these questions from the prism of politics: he claims that the reasons for the legitimi sation of UCC or non-legitimisation rest on the political d ebate than the socio-cultural context.

Ghosh explains, while cultural differences are one reason for acceptance of personal law, the claims for reform or continuity are part of the larger political choices that are reflected in the laws. This is well-demonstrated in the claims made

june 13, 2009

makes a departure from claims to equality of law and centralised legal apparatus and argues for legal pluralism and empowerment as a model to negotiate through the various tensions of religion and rights.

Reasons for Legal Pluralism

Through various examples and case studies of south Asian countries Ghosh explains, the reasons for legal pluralism rest not only on the religious diversity, but on how religion and politics are interlinked. Unlike the secular movement in the west, secularisation in these post-colonial societies has been a product of transplant of western institutions, and hence, it has not been ingrained in social values. Secondly, the imposition of secular model is not independent of certain divide and rule policies of the colonial state and nationalist strategies of appeasing religious sentiments to mobilise politically. As a result, religion has an important place in the public realm, and hence, the institutions of the state and even politics of the region, in colonial and postcolonial context, have been relatively autonomous from vested religious interests. This, as Ghosh explains, has had serious implications. On the one hand, there emerged a political class that engaged with secular politics, and on the other, there were different segments of groups that gave centrality to religious politics, representing both majoritarian and minority interests.

The political contingencies of these equivocal claims resulted in a highly fragmented political will in favour of personal laws for different religious groups. For instance, in Pakistan, the development of Shariah Act ensured the continuing process of bringing civil law into conformity with Islamic injunctions, despite the political interest to secularise the laws. Even though the Muslims Family Laws Ordinance of 1961 (MFLO) was passed in Pakistan, it could not be effective because of the strong undercurrents in Islamic p olitics

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BOOK REVIEW

and the traditional nature of society. In theory, it undercuts the authority of civil courts. This authenticates how legal reforms in the personal realm are conditioned by: both in terms of those who claim for reforms and those who restrain reforms.

In the case of India, this is further more complicated by the politics that has emerged post-Shah Bano as varied groups have made claims based on certain conceptions of justice. The debate that has ensued is not only about how to reconcile religious interests with women’s rights issues, but also a politics of religious fundamentalism supported by the Hindutva parties, who demanded a uniform civil code, appeasement politics by some others to gain support of the vested Islamic groups claiming protection of their personal laws and r eformists. The end result, being a politics of various sorts and law, is constituted by the political choices of the elite.

State’s Mediation

The second question that Ghosh explores is how states can mediate between the acceptance of religious laws and universal human rights. While the acceptance of religious laws legitimised the legal space of minority/religious communities as law is in conformity with religious injunctions, it has led to many discriminatory practices against women given that the interpretation of rights has been left to the vested religious leaders. For instance, the case of Shah Bano in India, the rights of Muslim women to maintenance are trampled by patriarchic notions of rights legitimised through invocation of a certain interpretation of Islam. Legal scholars and practitioners have hypothesised many possible alternatives to balance these interests and one probable alternative that is gaining support is the codification of personal laws. Ghosh, however, is rightly critical of the imminent dangers inherent in this practice. The process of codification undermines the whole question of giving space to minority rights and also delegitimises the meaning and purpose of laws. Human rights scholars such as those of Abdullahi Ahmed An-Naim (1992) have argued that law is a process informed by the social needs. Law and society scholars such as Werner Menski (2006), Alison D Renteln (1990), Sally Engle Merry (2005) and o thers have demonstrated that legal standards need to evolve through negotiation with socio-cultural values; an argument that is increasingly seeing light in the context of interaction between global and local norms. This conceptualisation of the law is important to the human rights discourse as rights cannot be treated as entitlements that can be transported and transplanted in cultures, but each of these has to evolve within the cultures. The codification of law, therefore, undermines the meanings of indigenous justice by reducing law to a set of defined rules.

Ghosh provides certain solutions to counter these challenges, primarily f ocusing on empowerment and education. How ever, his approach towards the tensions between individual and group rights hinges on institutional responses, and hence, is limited in broadening the debate to explore social-state engagements and social action beyond the law. While institutional initiatives are important, the agenda of recognition to women’s rights also needs to focus on women’s local initatives in this direction. This is where I think the frontier of this examination needs to e xpand, to identify the works of social activists in the field. This network is important to the advancement of the debate on women’s rights and personal law.

Even though Ghosh seems to have slightly overlooked the point of law being socially constituted, through his attention to the trajectories in the politics of personal laws, he seems to have arrived at a position of recognising the personal realm in religious norms and a plural notion of right that develops in conjunction with its social and political context. This notion of law in context is exceedingly vital to the diverse range of challenges. The study, therefore, makes important additions to the literature on new institutionalism and to legal pluralism. It will be interesting to expand this study to examine the campaign from a bottom-up perspective as well. This perspective will be important to bringing in effective solutions to altering social hierarchies. The book is an excellent contribution in the fields of p olitical theory, legal pluralism, law and s ociety, minority rights, human rights, comparative politics and south Asian studies.

Email: spadhy15@hotmail.com

References

Abdullahi Ahmed An-Naim (1992): Human Rights in Cross-Cultural Perspectives: A Quest for Consensus

(Philadelphia, PA: University of Pennsylvania

Press).

Kairys, David (1992): “Legal Reasoning” in The Politics of Law: A Progressive Critique (New York: P antheon Books), 11-17.

Menski, F Werner (2006): Comparative Law in a G lobal Context: The Legal Systems of Asia and A frica (Cambridge: Cambridge University Press).

Merry, Sally Engle (2005): Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press).

Renteln, D Alison (1990): International Human
Rights: Universalism versus Relativism
(L ondon: Sage).

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