Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse [1 ed.] 0198077122, 9780198077121

Citation preview

Uniform Civil Code for India

Uniform Civil Code for India Proposed Blueprint for Scholarly Discourse

Shimon Shetreet Hiram E. Chodosh

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries Published in India by Oxford University Press YMCA Library Building, 1 Jai Singh Road, New Delhi 110 001, India © M. K. Nambyar Memorial Trust, 2015 The moral rights of the authors have been asserted First Edition published in 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer ePub ISBN-13: 978-0-19-908947-5 ePub ISBN-10: 0-19-908947-7 Typeset in Bell MT Std 10.5/13 by Tranistics Data Technologies, New Delhi 110 019 Printed in India by Rakmo Press, New Delhi 110 020

CONTENTS

Acknowledgements Preface by Shimon Shetreet Preface by Hiram E. Chodosh Table of Cases Table of Legislation Introduction Part One: The Uniform Civil Code in Comparative Perspective 1 Comparative Analysis of Law, Religion, and Culture 2 Country Studies of Law, Culture, and Religion 3 Comparative Lessons and the Case of India 4 Conclusion to Part One Part Two: Mediating the Uniform Civil Code 5 Conflicting Ideals of Authority 6 Conflicts of Law 7 Conflicts of Reform 8 Social and Political Conflicts 9 Conclusion to Part Two: Institutionalizing Mediation of the Uniform Civil Code Appendices: Supreme Court Judgments Dealing with the Uniform Civil Code Appendix 1 Appendix 2 Appendix 3

Bibliography Index About the Authors

ACKNOWLEDGEMENTS

Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse is based on the 2009 M.K. Nambyar Memorial Lectures which we delivered together in two separate, yet related, lectures. We are grateful to Mr K.K. Venugopal, Senior Advocate of the Supreme Court of India and trustee of the M.K. Nambyar Memorial Trust, for inviting us to deliver these lectures and for the kind hospitality during our visit to this great and wonderful country of India. The first iteration of the 2009 M.K. Nambyar Memorial Lectures was delivered in New Delhi on October 7, 2009. We are very grateful to the former Chief Justice of India, Justice K.G. Balakrishnan, for finding time in his challenging and heavy schedule to preside over the session, and we were deeply honoured to speak under his chairmanship that evening. We wish to thank our colleague and friend, the former Attorney General of India, Mr Soli Sorabjee, for his very kind introduction. The second iteration of the 2009 M.K. Nambyar Memorial Lectures was delivered in Chennai (Madras) on October 11, 2009. We are very grateful to the Chief Justice of the Madras High Court, Justice H.L. Gokhale, for chairing the session. We are also indebted to Mr Vijay Narayan, Senior Advocate, who helped organize the lectures in Chennai on behalf of the M.K. Nambyar Memorial Trust. Shimon Shetreet Mt. Scopus, Jerusalem December 2014 Hiram E. Chodosh

Claremont, California December 2014

PREFACE BY SHIMON SHETREET

44 of India provides that: ‘[t]he State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ Even though over 60 years have passed, this has not been implemented. In the 2009 M.K. Nambyar Memorial Lectures, I attempted together with my colleague, Hiram E. Chodosh, President of Claremont Mckenna College and former Hugh B. Brown Presidential Professor of Law of the University of Utah, S.J. Quinney College of Law, who was a partner in this comparative study, to provide a blueprint for a possible course of action for securing of a uniform civil code for India in a comparative context. Together with President Chodosh, I approached this study with great care and high sensitivity. This sensitivity I acquired in research and in practice. I have conducted research and offered courses on comparative law, culture, and religion in many leading universities in Europe, North America, and Israel. I have held public offices in Israel including cabinet minister of religious affairs and senior deputy mayor of Jerusalem. Over the years, I have done extensive research on issues of law, culture, and religion. My experience includes serving as minister of religious affairs in the Israeli government, a country with a predominant Jewish population and a large Arab minority consisting of Muslims, Christians, as well as a significant Druze community. Furthermore, I have served as Senior Deputy Mayor of Jerusalem, a city with a pluralistic religious population, of central importance to Judaism, Christianity, and Islam. The issues, and sometimes disputes, during my term in both offices had to be handled with a high degree of sensitivity.

I would like to mention two important experiences of intracommunity and intercommunity disputes. The first experience was as minister of religious affairs, when I had to deal with the restructuring and reorganization of the Druze community’s Religious Council, a reorganization that became necessary after the passing away of Sheikh Amin Tarif in 1993. Upon his passing away, the entire Druze religious court system remained with one single Qadi (judge), with no option to appeal. This was due to several events that occurred at the time as well as the historical arrangements in place regarding the Druze court system.1 Several proposals were advanced as to how to deal with the situation, but all met with objections from different groups within the Druze community. The issue was brought before the High Court of Justice, which ruled on the matter and ordered the government to come up with a model regulation that will take into account the needs of different groups. This judgment was delivered three months after I became the minister of religious affairs, and warranted my extensive attention— and called for the allocation of much time and resources to deal with the delicate situation. After consulting with many representatives from the different Druze groups, as well as with experts and public figures, I finally came up with a new proposal. Though this arrangement also met with criticism, the criticism was much softer than the first arrangement, and when brought before the High Court of Justice, the appeal was denied.2 The dire state the Druze court system was in, required a swift yet sensitive solution, and though no single solution had within it the ability to satisfy everyone involved, the one I brought forth made its best attempt at this. The second experience was an intercommunity dispute over the ceremony on the Saturday of Light in Easter of 1995 at the Church of the Holy Sepulchre. As the minister of religious affairs, I had to resolve many disputes that arose surrounding the Church of the Holy Sepulchre. In 1995, my officers at the ministry of religious affairs found out that 16,000 Copt pilgrims had arrived from Egypt for the prayers of Holy Saturday (when usually only 1,000 arrive). It was feared that they would take up all the spaces in the church and so prevent the participation of the Greek Orthodox and other pilgrims from the Christian community. The Greek Orthodox patriarch, being

the sole conductor of the ceremony, threatened that if that were to occur, he would cancel the ceremony, an act which would have serious impact on international and inter-religious affairs. At the time, I was on vacation, but as soon as news of the crisis reached my ears, I returned immediately to Jerusalem to attempt to resolve the situation. In an urgent meeting I called, together with representatives of the Greek Orthodox Church, the Coptic Church, and the Chief of the Jerusalem Police, we finally came to a solution after many hours of discussion. It was agreed that the development of events during the night of Saturday of Light would be monitored, and if need be, the entrance of pilgrims into the compound would be regulated. We agreed on two points of time—the first at 23:00, to determine whether fewer pilgrims should be allowed into the compound, and the second at 01:00, to prepare to remove Copt pilgrims from the common prayer area. It was also agreed that the ceremony would be broadcast on three close circuit television screens in different halls, for the benefit of those who would not be able to enter the church.3 And so a solution was found to please everyone, and the ceremonies of Saturday of Light were conducted with no disturbances. Equipped with the sensitivity I had acquired from my unique experience in my government and other positions, the understanding gained through much research, and a significant measure of humility, I embarked upon the study of this serious issue, the issue of a uniform civil code in India. My reflections, thoughts, and suggestions are addressed to the academic discourse, and intended to make a modest contribution to the scholarly debate on this issue. Hence, this study should be viewed as a proposed blueprint for the scholarly discourse on the issue of the uniform civil code for India. I do not presume that this is the only way in which a uniform civil code should be implemented, but merely to offer my unique experience to suggest one way of how this may be done. The significant contribution of my colleague, President Hiram E. Chodosh, to this volume is the study of mediation as an essential mechanism to promote the adoption of a uniform civil code for India. The first part of the study was to learn from the experience of other nations how they resolved the challenge of introducing a civil

code and keeping continued respect for community laws and social customs and how to formulate the relationship between religion and state. As to the models of the relation between religion and state or church and state, my study shows that we can classify the countries of the world into five models of church-state relations: the theocratic model, the absolute secular model, the separation of state and religion model, the established church model, and the acknowledged religions model. We also studied the reforms introduced in Turkey, a Muslim country, which shifted from a country based on Muslim law to a secular republic with a modem civil code in the broader sense of the term including in personal law. This took place in the 1920s under the initiative and vision of Atatürk. We paid special attention to the study of the civil code in Goa which came under the rule of India in 1961. Likewise, we studied in detail the shift of Nepal from a religious Hindu monarchy state to a secular democracy in dramatic changes in 2006–8. Based on the comparative study and a detailed analysis of the local context of the Indian Constitution, and the social and legal environment, we arrive at a number of conclusions as to the possible recommended course of action to further the constitutional mandate to implement a uniform civil code for India. In order to facilitate the securing of a uniform civil code, we propose a blueprint of guidelines, and proposals that should be followed. We think that these guidelines will make its application as easily acceptable for all the citizens and communities of India, as possible. The first guideline is that the process of preparing and implementing a uniform civil code should be the function of the legislature. The courts can resolve certain specific points but the comprehensive code is a legislative function and not for judicial resolution. The second guideline that we propose is a parallel application of civil and religious law. The securing of a uniform civil code must not negate the possibility of citizens availing themselves of religious law —if they so wish. Moreover, the state must not merely allow for the

existence of a religious law system, but must assist in its enforcement, if such intervention is required, and the circumstances allow for it. The mere existence of a civil law does not nullify the existence of a religious law system. In London, New York, or Toronto people marry first in civil marriage and then marry in a church or a synagogue. Later, if necessary, they receive a judicial remedy for religious aspects of their marriage and divorce. The same should be available in India. The main law will be civil; the parallel law will be religious. The third guideline we suggested is a gradual application of the uniform civil code. Time must be allowed for the citizens of India to grow accustomed to the existence of a civil code. A drastic change in the civil life of the people of India cannot be put into place overnight, but must be implemented over time. The application should be done topic-by-topic and chapter-by-chapter. The fourth proposal put forth is mediation. This mediation should take on two forms—intercommunity mediation and individual mediation. The first of these relates to a dialogue between the communities of India, to advance an agreement upon the substantive provisions of the uniform civil code. The second relates to mediation between individuals, on occasions where disputes arise in the realm of personal law. This set of proposals should alleviate the suspicion of the Muslim community or the Hindu majority community that a uniform civil code will altogether remove their traditions. On the other hand, certain central values must be maintained by all law, whether civil or the parallel religious law, namely to prevent discrimination and practices unfair to women and daughters in a democratic country.

1 See, S

S 361–62 (1998) (Hebrew). 2 Id. at 363. 3 See id. at 360.

, T

G

L

: B

P

R

PREFACE BY HIRAM E. CHODOSH

to give the memorial lectures in a tribute to the late, great constitutional lawyer, M.K. Nambyar. Hegel once observed that history bends towards justice, but it is heroic and brilliant individuals like M.K. Nambyar who help bend history. He was clearly ahead of India’s constitutional curve, and we dedicate ourselves today to that inspiring legacy and ongoing process led by his outstanding son, K.K. Venugopal, one of the great constitutional lawyers of his own time, and the rest of his impressive and dedicated family. Additionally humbling was the topic of these memorial lectures: the unfulfilled, and at times polarizing, constitutional promise of a uniform civil code. We need not inform the reader that the realization of the Directive Principle in Article 44 remains a matter of heated controversy, but we do need to be clear upfront that this is one that will not be resolved by a couple of international academics who are situated at considerable national distance from the seat of that conflict. Although we may have our own normative views on the specific issues of whether, when, or how precisely this promise should be fulfilled, the distance of viewpoint from a position on the ground risks the projection of views that may be naïve or impertinent. We both write from our own national environments and contexts in which we struggle from one degree to another with conflicts over pluralism of law, whether the application of religious exemptions from national military service in Israel or the refusal of certain types of medical treatment to children by parents of a particular religious belief system in the United States (U.S.), questions to which we hardly hold the authoritative answer in our own societies. In the U.S. alone, we have banned polygamy on the basis of sedition with an arguable distinction between belief and practice, and

then with a swing of the historical pendulum allowed an Adventist to recover unemployment benefits when he was fired for not working on Saturday, allowed the Amish to be exempt from compulsory education, and allowed a discrete native Alaskan community to violate hunting laws since killing moose is an integral part of their funeral ceremony. The pendulum has since swung back in the other direction to allow restrictions on religious dress in the military, to reject religious objections to land use law, and to allow exclusions of certain devotional education from public scholarships. Navigating freedom of religion and uniformity of civil behaviour through law follows no straight or easy path, and the path forward in our own societies is far from clear. These are legal questions, to be sure, but they are tied into a dense ball of political string, and it would be sheer folly for us to make any meaningful claim to the unravelling of it. So if you have come to find magic solutions to the uniform civil code controversy in India, we will surely disappoint you. More modestly, what we seek to achieve through the publication of these lectures is to open up some fresh channels of thinking about the nature of the problem and alternative approaches to resolving it. We cannot pretend to advance any dispositive recommendations or decisions on the matter in India, but we can help, with humility, to connect the issue to a more general, shared set of experiences and a series of strategic, conceptual, and process-based approaches to the highly heated conflicts over the uniform civil code. That was our project in this book, but we cannot succeed without the active help of the listening and reading audience. Understandably, we are going to presume that readers come to this conversation with strong views. No one at a bare minimum likes to tolerate the non-implementation of a constitutional principle. Some may be for the promulgation of a uniform civil code—others against it. Some are for it, with conditions. Others are against it, based on presumptions of exactly what such a law would contain or require. Indeed, the underlying disagreements about the code are at the core of why the promise has not been fulfilled for over sixty years. That is, notwithstanding the constitutional directive, uniformity of personal law is in sum a source of great conflict. Without resolving the basic underlying conflict, a uniform civil code is unlikely to become law,

and the non-realization of Article 44 will leave future generations vulnerable to endless chapters of the struggle over India’s personal and family law. This book is about stepping back from the hot kitchen of this conflict without getting out of it entirely. Whereas Shimon Shetreet takes a comparative view of other kitchens, I focus on how to cool the driving heat. Accordingly, we focus our modest contributions on the models, principles, and processes that might help work through this difficult conflict of ideals, laws, reforms, communities, and individuals that strike at the core identity of the individual, the family, the community, and indeed the nation of India.

TABLE OF CASES

Afcons Infrastructure, LTD v. Cherion Varkey Construction Co. (2010)… 166 Avitzur v. Avitzur 58 N.Y.2d 108… 121 Avitzur v. Avitzur, 446 N.E.2d 136, 139 (N.Y. 1983)… 23 B.H. v. Alberta (Director of Child Welfare), 2002 ABCA 109 (1 May 2002), 34 Bruker v. Marcovitz 2007 SCC 54… 121 Dhillon v. British Columbia (Ministry of Transportation and Highways, Motor Vehicle Branch) [1999] B.C.H.R.T.D. 25 (QL)… 34 Dhillon v. British Columbia, 1999 BCHRT 25 (Can.)… 6 HCJ 1000/92 Hava Bavli v. Rabbinical High Court 48(2) PD 221 [1994] (Isr.)… 17 HCJ 10280/01 Dr. Tal Yarus-Hakak v. Attorney General of Israel (published: Nevo 10.01.05)… 88 HCJ 1067/08 ‘Noar-Kahalacha’ Association and Yoav Lelum v. Ministry of Education (published: Nevo 6.8.2009)… 88 HCJ 3045/05 Ben-Ari v. Director of Population Registry (published: Nevo 21.11.2006)… 88 HCJ 4112/99 Adala the Legal Center for Arab Minority Rights in Israel v. Tel-Aviv-Jaffa Municipality… 84 HCJ 721/94 El-Al Israel Airlines v. Johnatan Danilovich and the Labour Courts of Israel (published: Nevo 30.11.1994)… 88 HCJ 746/07 Regen v. Ministry of Public Transport (Published Nevo 5.1.11)… 88 Internationale Handelsgesellschaft MgbH v. Einführ – und Vorratstellefür Getreide und Futtermittel (1970) ECR 1125… 48 Jordan Diengdeh v. Chopra, 1985 AIR 935… 111

Lev v. Grand Rabbinical Court, 48(ii) Piskei Din 457, 461 (1994)… 83 Leyla Sahin v. Turkey [2005] ECtHR (GC) 819 (No. 44774/98)… 52, 53, 54, 55 Marcovitz v. Bruker, [2007] S.C.R. 54 (Can.)… 23 Mohammad Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945… 91, 97, 109, 111, 128 Mohd. Ahmed Khan v. Shah Bano Begum & Ors (1985) 3 S.C.R. (India) 844… 20, 21, 91 Pannalal Bansilal v. State of Andhra Pradesh, AIR 1996 SCW 507… 117 Pannu v. Skeena Cellulose Inc. [2000] B.C.H.R.T.D. 56 (QL)… 34 Pannu v. Skeena Cellulose Inc., 2000 BCHRT 56 (Can.); Dhillon, 1999 BCHRT 25… 6 Ram Prasad v. State of Uttar Pradesh, 1957 AIR all. 411, at para. 8… 93 Sahin, [2005] 44 EUR. CT. H.R. 5… 9 Salem Advocate Bar Ass’n II v. Union of India 6 SCC 344 (2005) … 166 Salem Advocate Bar Ass’n v. Union of India, 35, 146-152 (2002) (8)… 166 Salem Advocate Bar Association v. Union of India, 35 (2002) (8)… 166 Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531 (India)… 21 Sarla Mudgal vs. Union of India, 1995 AIR 1531… 95 Wisconsin v. Yoder, 406 U.S, 205, (1972)… 6, 32

TABLE OF LEGISLATION

Arbitration and Conciliation Act… 170 Canadian Charter of Rights and Freedoms… 33 Canadian Multiculturalism Act (1988)… 51 Conseil d’Etat 1989… 52 Constitution of Turkey… 13, 27, 54, 72, 74, 75 Council of Europe, Directorate General of Human Rights and Legal Affairs, Protection of National Minorities, 1 (2008)… 43 Council of Europe, Framework Convention for the Protection of National Minorities and Explanatory Report, Feb. 1995, H (1995) 010… 6, 43 Declaration of the Establishment of the State of Israel… 81 English Coronation Oath Act… 29 Establishment Clause… 25 Haut Conseil a l’Intergration 1996… 53 India Code of Civil Procedure… 164, 165, 166 India Constitution… 1, 19, 20, 89, 92, 93, 94, 96, 110, 118, 143 Interim Constitution of Nepal… 66 International Covenant on Civil and Political Rights…. 48 Israel Penal Law… 17 Israel’s Basic Law: Freedom of Occupation… 82 Israel’s Basic Law: Human Dignity and Liberty… 81 Israel’s Basic Law: The Knesset… 82 Parsi Marriage and Divorce Act… 119 Slaughterhouses Act, 1974, c. 3 (Eng.)… 5 South African Draft Bill on Islamic Marriages… 62 South Carolina Constitution… 32 The Hindu Adoption and Maintenance Act, India Code… 21, 95

The Hindu Marriage Act, India Code… 20, 21, 93, 95, 119 The Hindu Minority and Guardianship Act, India Code… 21, 95 The Hindu Succession Act, India Code… 21, 95 The Indian Criminal Code of Procedure… 97 The Muslim Personal Law (Shariat) Application Act… 91 The Muslim Women (Protection of Rights on Divorce) Act… 91 The Palestine Order in Council… 83 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340)… 7 Treaty of Lisbon, Amending the Treaty on European Union and the Treaty Establishing the European Communities, Dec. 13, 2007, 2007 O.J. (C 306)… 7 Treaty on European Union, July 29, 1992, 1992 O.J. (C 191)… 7 Treaty on European Union….43 U.N. GAOR, 55th Sess., 81st plen. mtg., U.N. Doc. A/55/602/Add.2, Corr.1 (Dec 4, 2000)… 5

INTRODUCTION*

44 of India provides: ‘[t]he State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’1 Even though over sixty years have passed, such a code has not been implemented. In the 2009 M.K. Nambyar Memorial Lecture, I attempted together with my colleague, Hiram E. Chodosh, the then Dean and Hugh B. Brown Presidential Professor of the University of Utah, S.J. Quinney College of Law, and now President of Claremont McKenna College, to provide a blueprint of a possible model for securing a uniform civil code for India in a comparative context.2 Our study involved learning, based on the experience of other nations, how to resolve the challenge of introducing the civil code while keeping continued respect for community laws and social customs, as well as how to formulate the relationship between religion and state.3 We studied the reforms introduced in Turkey—a Muslim country which shifted from rule based on Muslim law to a secular republic with a modern civil code in the broader sense of the term, including in personal law. This took place in the 1920s under the initiative and vision of Atatürk. Furthermore, we paid special attention to the study of the Civil Code in Goa, which came under the rule of India in 1961. Likewise, we studied in detail the shift of Nepal from a religious Hindu monarchy to a secular democracy in the dramatic changes of 2006 to 2008. Based on the comparative study and a detailed analysis of the local context of the Indian Constitution and the social and legal environment, we arrived at a number of conclusions as to the possible recommended course of action to further the constitutional mandate to implement a uniform civil code for India. In order to

facilitate securing a uniform civil code, we propose four guidelines that we think will make the application of such a code as easily acceptable as possible for all the citizens and communities of India. This set of proposals should alleviate the suspicion of the Muslim community or the Hindu majority community that a uniform civil code will altogether remove their traditions. On the other hand, it should also ensure that certain central values are maintained by all law, whether civil law or the parallel religious law, particularly in order to prevent discrimination and unfair practices against women in a democratic country.4 The first guideline is that the process of preparing and implementing a uniform civil code should be the function of the legislature. The courts can resolve certain specific points, but the development of a comprehensive code is a legislative function and not for judicial resolution. The second guideline is a parallel application of civil and religious law. Securing a uniform civil code must not negate the possibility of citizens availing themselves of religious law if they so wish. Moreover, the state must not merely allow for the existence of a religious-law system, but must assist in its enforcement if such intervention is required and the circumstances allow for it. The mere existence of a civil law does not nullify the existence of a religiouslaw system. In cities like London, New York City, or Toronto, people marry first civilly and then they may marry in a church or a synagogue. Later, if necessary, they receive a judicial remedy for the religious aspects of their marriage and divorce. We propose that the same system should be available in India. The main law will be civil; the parallel law will be religious. The third guideline is a gradual application of the uniform civil code. This process should allow time for the citizens of India to grow accustomed to the existence of a civil code. A drastic change in the civil life of the people of India cannot be made overnight; it must be implemented over time. The application should be done topic-bytopic and chapter-by-chapter. The fourth proposal is mediation. This mediation should take two forms: intercommunity mediation and individual mediation. Intercommunity mediation involves creating a dialogue between the

communities of India in order to advance an agreement upon the substantive provisions of the uniform civil code. Individual mediation involves mediating between individuals on occasions where a dispute arises in the realm of personal law. President Chodosh and I both believe that mediation could be a very useful mechanism to promote the idea of a uniform civil code for India and thus help reach the goal of realizing both implementation of Article 44 and the protection of autonomous, and at times, even inconsistent personal laws (i.e., systems of rules that are determined by reference to a specific religion). President Chodosh has identified five distinctive conflicts and offers his thoughts on how each might be mediated in both conceptual and social terms. First, the issue of uniformity reflects a conflict over competing ideals of authority: hierarchical and coordinate. The hierarchical ideal stresses vertical, top-down arrangements of authority with an emphasis on discipline and national unity and identity. The coordinate ideal emphasizes horizontal, peer-to-peer, even bottom-up structures of authority with the pluralistic purpose of securing freedom and diversity. The choice of ideal has a direct impact on the presumed level of uniformity anticipated in any national code. The hierarchical ideal would tend to project a more invasive level of uniformity (i.e., the same rules to govern marriage, divorce, maintenance, succession, adoption, tax benefits, and so on). The coordinate ideal would favour an interpretation of uniformity that establishes a parallel code, which would simultaneously respect autonomous laws for defined religious communities while also addressing extraordinary provisions considered inconsistent with a constitutional baseline of human rights and dignity. The presumption of a parallel system might itself reduce the initial distrust that must be overcome to mediate the conflict.5 Second, the controversy over uniformity reflects a conflict of laws. Such conflicts emerge as a result of the interaction between separate communities in India, defined by territory or identity, each with a different normative code. Going back millennia, civilizations have utilized several distinctive strategies to deal with conflicts of law —each featuring its own trade-offs. Choice of law doctrines are

based mainly on territorial, personal, and universal principles—giving rise to legal arbitrage and uncertainty in application. Unilaterally pursuing comparative reforms to reduce conflicts at times compromises important local or internal values. Alternatively, using uniformity in an attempt to negate the underlying normative differences often results in generally ambiguous provisions that generate further controversy when they have to be interpreted. Recognizing the benefits and hazards of these competing and non-exclusive strategies can help inform alternative ways to resolve the conflict. These options create a third conflict between the competing reforms themselves and the dilemmas to be faced in the uncertainty about their full consequences. Mediating these hard choices can be pursued effectively through the mitigation of lesser harms; the generation of non-polar alternatives; detailed analysis that disaggregates the cluster of issues into specific, manageable ones; more subtle views comparing values in relative (instead of absolute) terms; and finally, the hard choice among competing risks of failure. Fourth, for the social and political conflicts between and within groups and individuals, mediation offers a social process capable of neutralizing conflict through a series of communication tools and achieving positive sum agreements through creative bargaining strategies. Mediation may help ease tensions and resolve disagreements not only about the code itself but may also provide an alternative process for resolving legal issues under any new provisions. Following amendments to the Civil Procedure Code (CPC) in 1999, implemented in 2002, India shows halting, yet forward signs of internalizing the use of mediation. Led by centres in Chennai, Delhi, and Ahmedabad, this experiment is well underway in resolving family and personal law matters. The successful Indianization of mediation provides an early foundation for the notion of mediating the uniform civil code. Beyond these tools, one larger conflict between commanding, grand principles stands in the way. Those in favour of a uniform civil code tend to stress national unity and identity, human rights, and notions of equality. Those opposed to a uniform civil code tend to stress freedom of religion, the rights of minorities, and diversity (of communities). One alternative principle

that does not prefigure a result is that of comparative harm. President Chodosh advances the view that it is important to determine which of two persons or communities is more injured by application of the other’s rule. Unlike the competing principles, comparative harm does not prefigure any specific outcome because one cannot presume to know what is most important to the opposing viewpoint. By always choosing the lesser harm, social welfare increases. I share the view of President Chodosh, that mediation can offer an alternative to polarization and continuation of the controversy. Before India decides which kind and level of uniformity, if any, to pursue, a fresh commitment to mediating these conceptual, social, and political conflicts (in joint pursuit of the least harm) may provide a promising, possibly even essential, first step out of the divide. The main aim of this book is to provide a blueprint for a course of action to secure a uniform civil code for India in a comparative context. The following section shall deal with different models of church-state relations and minority culture recognition. The exposition offers an example of the different approaches, and different aspects of these relations. The application of these models to several countries, as well as the patterns of the development of civil law in these countries will then be studied. The purpose is to provide the necessary theoretical and practical background in order to analyse the different models that may be prescribed for implementation of a uniform civil code in the Indian context, and to understand the preferred model for India. Once this is achieved, a better understanding can be reached of how securing a uniform civil code can be made possible in India.

A GENERAL ANALYSIS OF MODELS OF CHURCH-STATE RELATIONS AND MODELS OF MINORITY CULTURE RECOGNITION Models of Church-State Relations This section of the chapter will discuss three democratic models of church-state, or religion-state, relations: the separation of state and

religion model, the established church model, and the acknowledged religions model.6 In the separation of state and religion model, separation is expressed by the principle that the state does not interfere with religious organizations, and religious organizations do not interfere with the state. The state may declare itself a secular state (such as in India and France), neutral concerning matters of religion (such as in Austria and Ireland), or separate from issues of religion (such as in the U.S.). The separation itself does not reflect the attitude the states take toward religion, and states may be either accommodating and friendly towards religion (such as the U.S.), or negative towards religion (such as France and, in the past, Turkey).7 In the established church model, the state designates a certain religion and church as being particularly sanctified by the state. This model is still democratic with regard to freedom of religion. However, preference is given to the state religion—be it in the symbols of the state, funding allocation, or the like.8 In the acknowledged religions model, the country does not recognize one religion, but rather takes a neutral approach toward religions. However, in contrast to the separation of state and religion model, here cooperation exists between the state and the churches, and churches may receive funding, or even representation in governmental and parliamentary activities, such as in the United Kingdom.9 The church-state relations model of a country usually affects the degree and character of recognition of minority cultures in the state. While non-democratic models allow for no such recognition, the three democratic models discussed offer comparative protections— with the exception of the secular non-accommodating sub-model of the separation of state and religion model, which exists in countries such as France and Turkey, and offers a lesser scope of protection of minority religious and cultural rights.

Recognition of Minority Cultures Recognition of minority cultures can be analysed through five models of privileges and exemptions: 1) privileges and exemptions which

relieve direct conflicts between specific laws and religious tenets in cases where adherence to one requires disobedience to the other; 2) privileges and exemptions which relieve indirect conflicts in cases where the law creates an economic loss or social hardship upon those who follow certain religious or conscientious principles; 3) relief from regulation of certain religiously or conscientiously motivated activities; 4) desirable exemptions from the discharge of legal duties, the performance of which would not necessarily create a conflict; and 5) privileges conferred through affirmative action taken by the government to allow for the satisfaction of religious and spiritual needs under circumstances that, without such affirmative government action, would prevent religious fulfilment.10 A separation of state and religion model, with the exception of strictly secular non-accommodating states, often grants exemptions. In the U.S., for example, the Amish community has been granted an exemption from mandatory school attendance past eighth grade.11 In England, the Slaughterhouses Act grants the privilege to slaughter animals, generally forbidden, to Jews and Muslims whose religions forbid the eating of meat unless the animal is slaughtered in accordance with certain rules.12 Even in France, the obligation of a doctor to respect the wish of his patient to refuse a blood transfusion was recognized.13 Canada’s approach to exemptions is based on the balancing of rights. Canada permits exemptions when doing so does not unreasonably infringe upon the rights of others. The British Columbia Human Rights Tribunal held that a law requiring the wearing of a safety helmet in the place of a religious turban for a motorcycle road test discriminated against members of the Sikh religion who wear turbans as a bona fide article of their faith.14 On the other hand, the same tribunal held that it was not religious discrimination to require a Sikh man to shave his beard, another symbol of his religion, if he wished to retain his job—in this case, not being able to be properly fitted with a face mask because of his beard would pose a danger to others, and not just to himself.15 There are also privileges to perform affirmative acts which would otherwise be prohibited by law, such as the practice in the U.S.

permitting members of the Native American Church to smoke peyote.16

The Recognition of Culture and Cultural Rights in the European Union The European Union (EU) has placed an emphasis on the recognition of culture and cultural rights. For the last decade and a half, countries interested in joining the EU have had to demonstrate that they, inter alia, have institutions sufficient to preserve human rights, have respect for and protect minorities, and that they accept the obligations and intent of the EU.17 The draft framework convention submitted by the EU’s committee for the Protection of National Minorities was the first multilateral, legally binding document devoted to minority rights.18 The Amsterdam Treaty of 1997 provides that the EU may take action to combat discrimination based on, amongst other things, racial or ethnic origin.19 The constitutional status of EU citizenship, as well as the EU’s supranational character, crystallized with the 1992 Maastricht Treaty, gives EU treaties and directives the potential to be powerful. The Maastricht Treaty itself, combined with subsequent treaties and directives, introduces to the EU the requirements of human rights and equal dignity, and member states are expected to respect the value of non-discrimination.20 On December 13, 2007, the Treaty of Lisbon was signed, and it came into effect after the approval by Ireland in October 2009. Upon ratification, its effect on the protection of human rights in the EU will be significant as the integration of the human rights into the EU law21. The Treaty of Lisbon effectively incorporates the Charter of Fundamental Rights of the European Union, and grants it the same normative level as the treaties of the EU—supremacy over national laws.22 The EU attitude is that of building a community based on a respect for diversity and distinct populations, combined with a sense of what it means to be ‘European’. This dual strategy has the

objectives of ensuring European integration and cooperation by respecting distinct populations while simultaneously creating more loyalty to the European identity. This strategy can result in EU de facto respect for culture and cultural rights. The Advisory Committee on the Framework Convention for the Protection of National Minorities (AC) can have a similar result, as demonstrated in the case of the Czech Republic. In response to a critical report by the AC on the treatment of minorities, the Czech Republic took remedial actions, including measures intended to encourage interethnic tolerance and dialogue.23 The AC also brought about similar changes in Poland.24 In other ways, the EU is less effective in protecting culture and cultural rights. Although in some ways the European Court of Human Rights (ECtHR) is an excellent vehicle for protecting human rights, one of its shortcomings is that a prerequisite for initiating proceedings before the ECtHR is that national proceedings first be exhausted.25 Furthermore, national judgments must be used as precedents.26 Both of these conditions can pose difficulties. It should be noted that there is a tension between the constitutional requirement of secularism and the value of the personal autonomy of individuals and groups. There are several models which help explain the interrelationship between these two concepts. They are the pluralist vis-à-vis integration models, the majority vis-à-vis minority rule models, and the political reasons model. The integration model is illustrated by France. The value of inclusion in the integration model countries is higher than the value of tolerance in other models, and integration is often achieved through compulsion or absorption. On the other end of the spectrum, there is the pluralist model, seen in Canada, where the government actively recognizes and promotes the interests of cultural and religious minority groups. In the middle of the two models is the melting-pot model, which the U.S. has adopted. In this model, diverse cultural minorities are amalgamated, but not suppressed. This model differs from the integration model in that, rather than minorities adopting the majority culture, the majority culture is created through the assimilation of many groups.27

Intersecting these models is a different axis, on which the suppressed majority model and the suppressed minority model are found. In the suppressed majority model, the minority regulates its own conduct. In the suppressed minority model; however, the majority restricts the activities of the minority.28 The third axis that helps explain the interrelationship of the constitutional requirement of secularism and personal autonomy of individuals and groups is the axis containing the political reasons model, which places the other models in a specific political context.29 Two secularist countries with a secular vision, France and Turkey, are positioned at the integration ends of the spectrum. Both countries have banned the wearing of religious headscarves in certain situations. As such, they are good examples of the interplay of the three models.30 Turkey, a Muslim country and a regional dominating power for many decades, became a secular republic in October 1923 with the proclamation of the Republic of Turkey in the Atatürk era.31 The Turkish ban on headscarves was upheld by the ECtHR, which ruled that the restriction on freedom of religion from banning the wearing of a headscarf was justified in this case by Turkey’s political concerns, which were that an Islamic political party might become popular enough to create a fully Islamic state, which would be a threat to the secular vision enshrined in Turkey’s Constitution.32 France initially justified its ban on the wearing of religious headscarves in the name of laïcité (the French concept of secularism), however, its constitutional court (Conseil d’Etat) distinctly disagreed with this perspective, providing that not only is the wearing of headscarves compatible with laïcité, but that wearing one is also part of a citizen’s right to freedom of religion and expression.33 The Stasi Commission, established in 2003 by President Jacques Chirac, recommended passing a law banning religious symbols, in an effort to ensure secularity and gender equality (headscarf viewed by the feminist approach as a vehicle for suppressing women), and to further the principles of ‘openness to cultural diversity’ and ‘autonomy’ in French public schools.34 Shortly

thereafter, the French government banned headscarves in schools and government facilities.35

The Right of the Democratic Majority to Preserve the National Constitutional Vision One of the central challenging issues faced by many political systems is how to preserve both their constitutional vision and the right of the democratic majority to safeguard the national constitutional vision. Majoritarians believe that democratic majorities should have the power to control all governmental functions— legislative, executive, and even judicial. They believe that any restraint on the will of the majority should be informal, rather than a formal, constitutional restraint that is unchangeable by majorities.36 In contrast, there are systems which include governing institutions not necessarily supported by the majority. For instance, although judicial adjudication has led to greater opportunities for those able to litigate the protection of their rights, its non-majoritarianism can lead to a reduction in legislative authority and an increase in the power of what is, in many cases, an unrepresentative and undemocratic body of judges. This is done to protect minorities in the face of the power of the majority.37 The pure majoritarian form of democracy is the exception rather than the rule. Most democratic countries rely more on nonmajoritarian principles and institutions, such as federal political systems.38 Democracy thus does not require majority rule in order to remain a democracy. Indeed, majority rule democracies face legitimacy problems when a democratic majority rules against minority group interests. To deal with such cases, the democracy should provide a counterbalance, such as constitutional provisions protecting minorities.

Models of Applying Muslim Law The recognition of the need to apply Muslim law is a central issue both in countries with a Muslim majority and Muslim minority. There

are myriad ways of outlining models in which principles of Muslim law apply. Professor Donald Horowitz describes four models of explaining legal change: the evolutionist model, the utilitarian model, the social change model, and the intentionalist model.39 The evolutionist model is a macro-model which ascribes legal change to changes in socioeconomic development. The utilitarian model is a micro-model that ascribes legal change to societal efficiencies. The societal change model views legal change as naturally reflecting societal opinions and social structures. The intentionalist model, also referred to as the instrumentalist model, sees certain leaders as intentionality causing legal change. Of the four models of legal change, the last two, the societal change model and the intentionalist model, are most useful in explaining the application of principles of Muslim law to personal laws. The societal change model, however, arguably comes into play with regard to the application of principles of Muslim law to personal law as well. Due to the centrality of the law in Muslim societies, it is not unusual for legal reforms to follow in the footsteps of an increasingly Muslim society. On the other hand, as all societies are governed by politics, the forceful drive of the intentionalist model also comes into play. To illustrate, the societal change model applies to Aceh, Indonesia. Personal laws have been under the jurisdiction of the religious courts in this area for a long period of time. In contrast, the intentionalism model came more into play with regard to the religious orientation of India’s personal laws. British administrators determined that colonial rule would be made most efficient if laws were standardized: British laws for most matters, and uniform religious laws for personal matters. Personal laws were divided into ‘Hindu’ and ‘Muslim’, imposing on the Muslim populations a standardized Islamic code which replaced the diverse Muslim legal practices which had existed earlier.40

LEARNING FROM THE EXPERIENCE OF OTHER NATIONS: COUNTRY STUDIES After presenting theoretical models of the relations between state, culture, and religion, I wish to focus on a number of country studies. As a conceptual illustration for the application of religious and community law in different countries, and as a background study to the upcoming analysis of the case in India, this book will analyse three model countries—Nepal, Turkey, and Israel.

Nepal: The Shift from Hindu Kingdom to ‘Secular’ State and the Resulting Consequences Nepal is characterized by a plethora of ethnic minorities, with fiftyfive ethnic and caste groups in the country.41 In addition to the importance of ethnic and caste groups, Nepal’s diverse range of religious and language groups play important political roles. From the eighteenth century until 1951, Nepal was a monarchy, with the king’s word being the law.42 In 1951, a democracy replaced the monarchy for a decade.43 However, the Nepalese democracy was plagued by political instability and in 1961, the king dissolved parliament and government, declaring Nepal to be a Hindu state in 1962.44 In 1990, the regime was overthrown and replaced by a multiparty democracy.45 However, a growing separation of social classes and increasing perception of social inequalities led to the rise of the Communist-Maoist Party, founded by Prachanda in 1995, which began an armed struggle in 1996, leading to further political turmoil.46 In June 2001, King Birendra and his family were murdered by a family member,47 which resulted in two significant political ramifications. First, the murders weakened the perception that Nepal’s kings were godly incarnations; and second, due to the death of his older brother, King Gyanendra rose to power.48 As a result of these events, elections were delayed, and the government was overthrown.49 In 2005, Gyanendra assumed absolute powers, thus, the monarchy was de facto restored.50 Popular demonstrations

continued, however, which finally led to an April 2006 uprising, resulting in King Gyanendra reviving the parliament that he had earlier dissolved.51 Half a year later, in November 2006, the Maoists and seven political parties agreed on the twelve-point Comprehensive Peace Agreement, which led to an Interim Constitution.52 The Constitution was a milestone, with declarations that Nepal be a democratic and secular state and a civil society.53 On April 10, 2008, after multiple postponements, parliamentary elections were held; a month later the Constituent Assembly held its first meeting and ultimately decided to abolish the monarchy.54 Several steps transformed Nepal from a Hindu kingdom to a civil society: the provision of citizenship to two million Nepalese living in the areas bordering India; efforts by grassroots organizations to educate the population; the removal of its official Hinduism; and the reinforcement of a federal nature to Nepal, critical due to the diverse ethnic groups composing Nepalese society.55

Turkey: The Application of the Principles of Secularism in an Islamic Society—under the Aggressive Secularism Model Turkey has not been colonized since Roman times, resulting in a political and constitutional culture which is uniquely Turkish. Prior to the twentieth century, the country was ruled by the Ottoman Empire.56 The roots of Turkish secularism first appeared in the 1860s and 1870s with the emergence of the Young Ottomans, who strived to make Europe accept their empire as an equal. They believed that one way to achieve this was to advance secular interests over Islamic ones.57 In 1907, the Committee of Union and Progress, also known as the Young Turks, was created and headed by Mustafa Kemal, later known as Atatürk, or father of Turkey.58 Following World War I, the Ottoman Empire was formally dissolved and a new Constitution was introduced in 1921, which perpetuated the power of religious law.59

The first transformation of Turkey to a secular republic occurred between 1922 and 1923. In 1922, Turkey abolished the sultanate, and the following year, the Republic of Turkey was proclaimed.60 Kemalism refers to the six ideological principles upon which Atatürk’s reform program was built: secularism, republicanism, nationalism, populism, reformism, and etatism (i.e., statism).61 In order to implement the Kemalist principles, Atatürk introduced dramatic reforms. One of the most dramatic was his introduction of a European-modelled secular legal code, which revamped laws affecting marriage, women, and family relations.62 The goal of Atatürk’s reforms was to modernize Turkey by transforming the republic into a secular republic and profoundly altering its selfidentity.63 Secularism was thus accomplished through a deep change to the Turkish psyche, redefining what it meant to be Turkish. ‘Modernism’ and ‘Westernization’ were the ideal. In 1928, the Constitutional provision declaring Islam to be the official religion was deleted.64 In 1960, a military takeover was carried out in order to save the republic from what the military considered an imminent danger of disintegration when the Democratic Party appeared to be trying to eliminate Kemalist principles, including secularism.65 In 1961, a civilian government was reinstalled and its Constitution declared Turkey to be a secular republic.66 There was another military takeover in 1971, again ostensibly to guard Turkey’s secular tradition.67 Civilian rule was reinstated by the 1973 elections, but 1980 brought yet another military intervention.68 The 1980 military takeover was in response to demands for a return to Islamic law and was designed to fortify the secular state.69 The issue of secularism has done anything except disappear. It continues to polarize Turkish society as the Islamic-secularist divide increasingly becomes translated into intolerance of the other in daily life. An example of this is the headscarf debate. Turkey has followed an aggressive model in its introduction and reinforcement of secularism. Atatürk enforced his projects through authoritarian rule prior to introducing democracy, considering such a stage to be necessary in order to stabilize his reforms. Methods of

control included the discontinuance of religious education in 1924, the 1926 dismantlement of religious courts, and the 1933 directive that Islamic calls to worship and public readings of the Quran were to be in Turkish rather than Arabic.70 Democracy was not one of the six Kemalist principles of Turkish republicanism, for it was considered in opposition, and thus secondary, to the value of secularism.71 Atatürk believed that at least the initial sovereignty of the populace would result in a return to a religious state.72 The movement since the 1980s towards a civil society, with its increased democratization and civil organizations, can be seen as a major present-day threat to Turkish secularism. A challenge to the Turkish secular model occurred when peripheral cultures began to question the mandatory republican model imposed on them. Democratization is now taking a firmer hold, primarily due to pressure from the EU. Likewise, globalization has also put pressure on Turkish secularism, as it has provided alternative definitions to Atatürk’s concept of ‘modernity’.73 In general, recent years have seen a quieter military (especially after Turkey began working towards EU membership), and an increase in political power, which supports more friendly approaches to the Islamist traditions in Turkey. This trend of weakening the army has been reinforced by the September 2010 Constitutional Referendum.74 Provisions of the Turkish Constitution that had in the past provided protection to military coup leaders were abolished.75 Further, military officers found to be planning a coup against the civilian government will not have the protection of a military tribunal and will now be tried in civilian courts.76 Dismissed military officers can also appeal to the civilian judiciary in an attempt to have their commissions reinstated.77 The constitutional reforms in Turkey also resulted in the enactment of several new provisions. These reforms address individual freedoms and judicial reforms.78 Individuals’ legal relations with the state have been altered, allowing for ombudsmen to resolve problems and for individuals still dissatisfied to appeal directly to the Constitutional Court. Constitutional protection for individual groups

was recognized as in harmony with the overall principle of equality guaranteed by the Constitution. The Constitutional Court will be expanded and some of its members will be chosen by the Turkish parliament, while the Supreme Board of Judges and Prosecutors will increase in size. Furthermore, all citizens are now able to directly file a petition with the Constitutional Court.

Israel: Pluralistic Application of Religious Law to the Various Communities The 1948 Declaration of the Establishment of the State of Israel declared Israel to be a Jewish state in which all religions would be treated equally.79 These two objectives, a Jewish state and religious equality, have been achieved through the combination of legislation stressing the Jewish character of the state and laws providing freedom to Israel’s recognized religious communities. With regard to the first objective, the Israeli parliament (the Knesset), has passed laws recognizing Israel’s Jewish character.80 Equality of religion is significantly provided for through Israel’s legislation and judge-made law.81 The Israeli legal system confirmed the British and Ottoman structure of allowing each of the country’s recognized religious communities its own religious court system, which applies and adjudicates personal law according to the religious law of each community.82 In Israel today, specific laws exist for each of the recognized Jewish, Muslim, Druze, and Christian communities.83 In addition, although Israel’s majority religion is ‘Jewish’, it de facto includes elements of many other of its composite religions in its social fabric. Hebrew and Arabic, for instance, are both official languages. Even with its religious framework, Israel was founded on secular rather than religious principles and has retained this secular character.84 Israel’s qualified application of religious law has both strengths and weaknesses. An excellent characteristic of the Israeli system is that it cultivates a cultural mosaic, encouraging religious and cultural freedom. However, cultural mosaics can have disintegrating tendencies, especially when philosophies of different cultural groups

are opposed. Hence, rather than fostering increased integration, Israeli Arabs now increasingly self-identify as ‘Palestinian’.85 Thus, one of the issues facing Israel is that any attempt to remove the modified-Ottoman system of different legal religious systems for different religious groups would be interpreted by many as an ‘attempt to reduce the national-cultural identity of the Arab population’.86 A weakness of the Israeli system is the rights and status of women. Another problem is the non-recognition of certain religions. Many secular Israelis, whether Jewish or Arab, resent what they consider to be compulsory implementation of religious law in important matters of personal law, including marriage and divorce.87 The recognition of cultural rights and the application of religious law in matters of personal law do not mean that all provisions of religious law are applicable.88 Israeli law enforces the regime of joint matrimonial property on religious law.89 Further, it also outlaws polygamy and bigamy and bans forcible divorce among Muslims.90 As a former minister of religious affairs in the state of Israel, I am no stranger to the sensitive issues regarding intercultural relations, and I am well acquainted with the need to introduce settlements that will take into account the differences between communities and people. In a country with such diverse cultural and religious characteristics, conflicts between and within these groups constantly arise. An example is the events after the passing away of Sheikh Amin Tarif in 1993 and the resulting conflicts in the Druze community. Due to the structure of the Druze court system at the time, the death of Sheikh Amin Tarif resulted in the dissolution of the Druze Religious Council. This led to there being only one Qadi (judge) for the entire Druze justice system, whose rulings could not be appealed. After several years of attempting to find a solution that would be acceptable to all the Druze groups, the Israeli Supreme Court passed a ruling that required the minister of religious Affairs to promulgate regulations acceptable to all Druze groups for the constitution of a Druze Religious Council.91 This ruling was passed a short while after I began my term in office as minister of religious affairs, and I dedicated much time and

attention to this issue. Under my instruction, an intensive process began to find an appropriate solution. In accordance with the Supreme Court ruling, the members of the Druze community were invited to propose solutions and comments for the establishment of a Druze Religious Council. A solution was arrived at in 1995, with the passing of regulations on the council. These regulations created a Druze Religious Council of sixty members, with each member required to be a person of a lifestyle befitting a member of the council. Thirty of the members are Saisses (the managers of the Druze houses of prayer), a job which passes by inheritance. Fifteen are representatives chosen by the municipalities and the other fifteen are chosen by the minister of religious affairs.92 I elected to leave as little authority as possible in the hands of the minister in issues regarding the Druze Religious Council. While the law permits the minister of religious affairs to appoint up to 45 per cent of the members of any religious council, I elected to limit the number only to 25 per cent of the council. The purpose of this was to have the Druze Religious Council represent the interests of the Druze community as much as possible. Still, many appeals were brought before the Supreme Court, sitting as High Court of Justice, against these regulations. In one such appeal, the Supreme Court offered several changes to the regulations as an attempt to resolve the conflict between the sides. I agreed to these, on the condition that this would end the discussions regarding the regulations. However, the appellants—down to the last one—all refused. Despite this, I agreed to make the changes, and they were inserted in an amendment in 1996. The appeals were all rejected at the end of this year. Following this, the Druze groups compromised to resolve the conflict, and all agreed to form the council which I had proposed.93 Another such example of resolution of conflicts can be seen in the Bright Saturday prayers of 1995. During this time, tens of thousands of pilgrims arrive in order to participate in the ceremonies held at the Church of the Holy Sepulchre in Jerusalem. Of them, there are usually around one thousand Copts. However, this year, 16000 Copts arrived, and it was feared that they would occupy all the places in the church and thus prevent the participation of the Greek

Orthodox pilgrims (who usually number about twenty thousand). The Greek Orthodox Patriarch, who is solely in charge of conducting the Bright Saturday ceremonies, notified the ministry of religious affairs that if the Greek Orthodox pilgrims would not be able to participate, the ceremonies would be cancelled. This action would have had disastrous consequences on both an international and an interreligious scale. This crisis occurred on Wednesday, September 20, 1995, three days before the ceremonies were to be conducted. At the time, I was on vacation in the north of the country and when I was notified of the events I returned immediately to Jerusalem and held an emergency meeting that evening in which several representatives of the Greek Orthodox Church, the head of the Coptic Church, as well as Jerusalem’s Chief of Police, all participated. Following a lengthy night of discussions, an agreement was reached by which the head of the Coptic Church and the police would follow the developments of the arrival of Copt pilgrims at the ceremonies and would attempt to regulate their entrance to the church. It was agreed that more participants would be allowed in the church than was previously authorized. Also, it was agreed that three screens would be installed outside the church to broadcast the ceremonies via closed circuit video stream, in order for those who would not be able to enter the church to still observe the ceremonies. Israel is of central importance to many religions, and is as diverse as a state of only close to eight million people could be. With each religion having its own court system, and with conflicts and crises popping up as often as not, the office of minister of religious affairs demands a constant search for compromises, reconciliations, and mediations, among other things. My experience as minister of religious affairs has made me sensitive to the unique problems that arise in situations of intercultural and inter-religious conflicts, and this experience follows me as I deal with these issues in my academic life, as well as with the particular issue of this research—the challenge of securing a uniform civil code for India.

COMPARATIVE LESSONS AND THE CASE OF INDIA Based on the theoretical analysis and against this comparative look at the law and practice of other countries, I will now examine the case of India and the role of religious law in personal law in this country. Personal laws are systems of rules that are determined by reference to a specific religion. In India, personal laws govern interpersonal relationships, and are divided according to Hindu law (which applies to Hindus, Sikhs, Jains, and Buddhists) Muslim law, Parsi law, Christian law, and an optional, secular civil law that covers some fields in family law.94 One of the problems with the diverse religious-based personal laws in India95 is seen in other countries with similar personal law structures (such as in Israel): there are difficulties when persons of different religions wish to marry. Muslim law has remained largely unchanged by parliamentary legislation whereas Parsi and Christian laws have undergone legislative alterations over the last decade, and Hindu law has been significantly changed through post-independence laws.96 Personal laws are based on religious texts and have had added to them customary law, which often varies from region to region. Legislation has brought reform to several aspects of personal law, most notably Hindu family law, with Muslim family law hardly being affected at all. Although there are proponents of the role that religion has to play in India’s personal laws, there are also those opposed to the structure, believing that it results in conflict and contradiction between different laws with regard to the same set of personal status practices because of the inherent discriminatory practices contained within certain laws.

India’s Constitutional Provisions The Constitution of India declares India to be a secular state.97 Secularism is not an obvious choice for India due to the plethora of religions and cultures, as well as the deep integration of religion in

societal life in India. Articles 25–28 of the Constitution of India provide for freedom of religion, subject to public order, morality, and health.98 India’s Constitution is somewhat unique in that instead of reflecting India’s society, one of its main aims was, and still is, to shape Indian society and to bring around social reform. Indeed, freedom of religion has been limited in certain cases, when it was deemed to be against the good of the people, such as the outlawing of polygamy for Hindus.99 One of the tools placed at the hands of the state to accomplish the Constitution’s demand for secularism is Article 44 of the Constitution, which states that ‘[t]he State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’100 To this day, a uniform civil code has not been secured; several reasons can be pointed out for this. In multicultural states, minorities are always in fear of the loss of identity.101 Many minorities are naturally concerned that the application of a uniform civil code would take on a Hindu appearance, or at least would not give them an adequate role to express their culture.102 There are several models of states’ attitudes toward multiculturalism. Notable are the assimilationist model and the neutral model. India’s Constitution seems to point toward a neutral model. Another obstacle is the fear many minority groups have that a uniform civil code would be based on the society’s majority Hindu character, which would essentially force Hinduism on the entire population of India. One of the greatest obstacles to creating a uniform civil code is the seemingly necessary impact it will have on the freedom of religion. The main field in which this is problematic, and the one in which most controversies have arisen, is family law. A uniform civil code will apply, by definition, to all areas of civil life, including those currently covered by personal law. Thus, it will create law pertaining to marriage and divorce, inheritance, personal status, and so on. A Muslim who wishes to carry out a Muslim way of life would no longer be able to do so because the personal laws regarding him would be those dictated by the secular state, and not the Shari’a. This is

evident from the response to the Shah Bano case, which held that a divorced Muslim wife is entitled to apply for maintenance under section 125 of the Code of Criminal Procedure (Cr.PC)103—many Muslims were outraged by the court’s ruling and saw it as an attempt to force upon them a uniform code. This is understandable, as the court elaborated much upon Article 44, even though there seemingly was no good reason or need to refer to this Article. Very soon after, the Muslim Women (Protection of Rights on Divorce) Act (MWPRDA), 1986 was passed,104 which overturned the Shah Bano ruling, thus reinstating Muslim personal law as previously understood. The provisions of Article 44 are not enforceable by any court. To some, it seems odd to completely remove an entire section of a nation’s highest law from the nation’s highest court’s review. Article 44’s language bids the state to ‘endeavour to secure for the citizens a uniform civil code’, and though the court may not pass judgment on the actual application of a uniform civil code, it seems that it is entirely within its authority to review the seriousness of the state in endeavouring to secure a uniform civil code. There are several possible approaches to how a uniform code could be secured. Justice Singh’s opinion in Sarla Mudgal105 was that the fact that a codified law already applies to a vast majority of the people of India is a signal that the Indian people are ready for a uniform code, and that this law should be applied to all Indian people. However, there are several deficiencies in this argument. First, the opinion rests on an empirical basis, but there seems to be no evidence to support the correctness of the empirical claim. Second, the codified laws that apply to a majority of Indians, though adopted by the state, are not secular, but represent Hindu interests, while the uniform civil code must be secular. Third, even if a majority of Indians had agreed to a uniform civil code, and even if this majority were a vast one, this majority would have to consist of more than just Hindus, and as Justice Singh points out, it does not. Another approach, also found in Sarla Mudgal, is represented by Justice Sahai.106 His reasoning is that when the different communities are ready, and reform their laws appropriately, only then

can a uniform civil code be secured. However, if the different groups comprising Indian society are left completely to their own devices, there will be no reason for them to change in a direction agreeable with the Constitution of India—one that will allow for the implementation of a uniform civil code. Change from within requires an external force to drive it in the right direction—the direction put forth in the Constitution of India—so it is unlikely that appropriate change will come of its own accord. The aftermath of Shah Bano shows that change not only does not come without external pressure; instead, the ‘old ways’ can become more permanent. Another suggestion has been put forward by Professor S.P. Sathe, by which a uniform civil code should mean uniform principles, rather than a common law.106a Different personal laws should be passed for different religions, but these personal laws would have to comply with the principles set forth in the uniform civil code. This approach, however, would not have much effect. The state of affairs today is that these uniform principles are in existence in the Constitution, and the introduction of legislation for different religions is one that could be made today.107

The Possible Models and the Preferred Model As the Constitution declares India to be a secular state, the model of church-state relations applicable to India is one of separation of state and religion. The aggressive secular model of Turkey and France cannot be applied to India, nor could this have been the intention of the Constituent Assembly in light of the inseparable connection religion has with Indian society. The model applicable to India is a secular separation accommodating model. The provisions of the uniform civil code must be constitutional (and therefore cannot allow polygamy), must secure a settlement for alimony after divorce, and so on. This requires that steps be taken by the communities to change in a democratic direction. However, the state must also take accommodating steps toward the communities. In securing a uniform civil code, a number of guidelines should be put into place in order to make its application as easily acceptable as

possible for all the citizens and communities of India. These guidelines are: implementation by legislation, not by courts; parallel existence of civil and religious law; a gradual application of the uniform civil code; and mediation on the intercommunity as well as the individual level. First, it must be made clear that this chapter does not suggest that a uniform civil code should be introduced by a judicial process. Not only would this be unconstitutional (Article 37 of the Constitution of India states that the provisions of Article 44, amongst others, are not enforceable by any court), but it would bring about a civil code that does not have the support of the citizens. The lesson of Shah Bano is that issues regarding personal law are far too sensitive to be dealt with through the adjudication, which is a non-conciliatory process. The securing of a civil code must be done through legislation. The legislation itself must be achieved through dialogue and mediation, and not by merely imposing the will of the majority upon the minority. Second, we can find examples for the allowance of parallel law systems—both civil and religious—in many secular countries. In the realm of family law for instance, we can find allowance for religious marriage. Thus, though the only marriage recognized by the state is civil marriage, sanctified in accordance with the state’s civil code, there is still allowance for religious marriages. The state does not prevent couples from sanctifying their marriage through religious means as well as civil means. Moreover, in such a model, the state’s civil authorities help enforce religious practice when needed. By this proposition, only marriage sanctified under the uniform civil code shall be recognized by the state, but couples may also marry in accordance with their religious traditions. The civil law will apply uniformly to all citizens of India, regardless of their religion, but citizens may choose to avail themselves of their religious law—if they so choose—and the state shall help enforce religious law if the need arises. In other words, despite the existence of a secular law, the state will not relieve itself of all obligations towards religion. Under this position, courts in the U.S. and Canada have assisted, for example, Jewish wives to compel husbands to enforce the prenuptial obligations to give a geth—the Jewish religious law divorce certificate.108

Third, gradual implementation of the uniform civil code, chapterby-chapter and topic-by-topic, is important for many reasons. A sudden, all-encompassing change to the entire fabric that makes up the civil law of India is not one that should, or can, be thrust upon the state overnight. Time must be allowed for both the citizens and the state to adjust—psychologically and practically—to a new and innovative system. Fourth, two levels of mediation are suggested: intercommunity mediation and individual mediation. With regard to intercommunity mediation, we propose establishing a Parliamentary Special Committee, which will be entrusted with the duty to create a dialogue through mediation between the different groups and communities composing the rich society of India. The purpose of the dialogue is to determine the substantive provisions that shall constitute the uniform civil code. This will provide a framework for steps to be taken toward securing a uniform civil code—such a framework that does not exist today, but must be formed in order to forward the implementation of the provisions of Article 44. The second form of mediation we propose as necessary to the application of a uniform civil code is indirect mediation. This mechanism is to be established after the uniform civil code comes into effect. The purpose of personal mediation shall be to resolve disputes that arise in the domain of personal law—disputes that prior to a uniform civil code, would fall under the domain of each community’s laws. Many people will not feel that the civil law provides answers they can relate to. Mediation provides the means to resolve conflicts of personal law outside of the courts, with the help of a mediator. The mediator could be drawn from among a pool that will reflect Indian society, and in proper cases, the mediator chosen shall have a similar cultural background as the parties to the disputes. Adhering to these four guidelines will allow the legislature to secure a uniform civil code in a manner that will make it as easy as possible for all the citizens and communities of India to accept such a code.

* * * For more than sixty years, Article 44 of the Constitution of India, which requires the implementation of a uniform civil code in India, has been overlooked—if not by words, then by deeds. However, it exists, and must be applied. The guidelines suggested in this book— implementation by the legislature rather than the courts, parallel application of civil and religious law, gradual application of provisions of the code, and both intercommunity mediation and individual mediation—could serve as a blueprint for a scholarly discourse on the implementation of a uniform civil code in India.

* This chapter was published in the Utah Law Review and it was stated that it is

from this book by S S &H E. C ,U C C I :AP B S D . For the article see Shimon Shetreet, Academic Blueprint for the Implementation of a Uniform Civil Code for India, 1 U L R . 97 (2011). 1 I

C . art. 44. See generally H.M. S , C L I : A C C (4th ed. 1991) (offering a general review of the constitutional law of India). 2 In this study, we approached the issues with sensitivity based on my previous

public office and academic research and teaching. 3 As to the models of relations between religion and state, or church and state, the

study shows that we can classify the countries of the world into five models of church-state relations. According to my analysis the theoretical classification of the models of the church and state are the theocratic model, the absolute secular model, the separation of state and religion model, the established church model, and the acknowledged religion model. The last three models are further discussed infra, in the sub-section titled Models of Church-State Relations. 4 See generally M

C. B , S J S B M L review of unfair practices against women). 5 M

C

R. D A

, T

F L

J P

G J : (2010) (offering a general S 23–28 (1991).

A

: A

6 See Shimon Shetreet, The Model of State and Church Relations and Its Impact

on the Protection of Freedom of Conscience and Religion: A Comparative Analysis and a Case Study of Israel, in R P S :AC A G , I , A I L 87 (Winfried

Brugger & Michael Karayanni eds., 2007). While I actually propose a theoretical classification of five models of church-state relations (the theocratic model, the absolute secular model, the separation of state and religion model, the established church model, and the acknowledged religions model), see supra note 3, this chapter will only discuss the last three models. 7 See Alan Schwarz, No Imposition of Religion: The Establishment Clause Value,

77 Y L.J. 692, 735 (1968); Alan Schwarz, The Nonestablishment Principle: A Reply to Professor Giannella, 81 H . L. R . 1465, 1471 (1968). 8 Today, it is accepted that the fact that a state adopted a regime of state religion

separation or of an establishment of a formal religion does not necessarily mean an offence to the freedom of religion or discrimination on a religious basis. See Elimination of All Forms of Religious Intolerance, U.N. GAOR, 55th Sess., 81st plen. mtg., U.N. Doc. A/55/602/Add.2, Corr.1 (Dec. 4, 2000); Robert C. Post, Blasphemy, The First Amendment and the Concept of Intrinsic Harm, 8 T A U. S . L. 293, 312 (1988). 9 Stefan Theil, Tolerating Intolerance: Germany Debates the Headscarf and Finds

It Un-German, A . I . F C . G http://www.aicgs.org/analysis/c/theil030404.aspx.

. S

. (Mar. 4, 2004),

10 Senate Rejects Bill Forcing Pharmacists to Dispense Birth Control, S

C J., Feb. 7, 2008, http://siouxcityjournal.com/news/state-andregional/article_858607c4-ac50-59ba-a2c1-356ba5d96d8c.html. 11 Wisconsin v. Yoder, 406 U.S. 205, 212 (1972). 12 Slaughterhouses Act, 1974, c. 3 (Eng). 13 Osamu Muramoto, Bioethics of the Refusal of Blood by Jehovah’s Witnesses:

Part. 1. Should Bioethical Deliberation Consider Dissidents’ Views?, 24 J. M E 223, 223–230 (1998).

.

14 Dhillon v. British Columbia (Ministry of Transportation and Highways, Motor

Vehicle Branch), [1999] B.C.H.R.T.D. 25 (QL) (Can.). 15 See Pannu v. Skeena Cellulose Inc., [2000] B.C.H.R.T.D. 56 (QL) (Can.);

Dhillon v. British Columbia, id. 16 Nick Nelson, Peyote and Peyote Law, DAILY HERALD, May 22, 2005, at A6. 17 Council of Europe, Framework Convention for the Protection of National

Minorities and Explanatory Report, Feb. 1995, H (1995) 010, at 2. 18 Id. 19 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties

Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340), available at http://eurlex.europa.eu/en/treaties/dat/11997D/htm/11997D.html.

20 Treaty on European Union, Jul. 29, 1992, 1992 O.J. (C 191), available at

http://eur-lex.europa.eu/en/treaties/dat/11992M/htm/11992M.html. 21 For the impact of the Lisbon Treaty of Human Rights in EU see Shimon

Shetreet, ‘Culture of Peace and Human Rights: The Development of Human Rights Protection in the European Union’, in Shimon Shetreet, 2001, The Culture of Judicial Independence: Rule of law and World Peace (Brill, Nijhoff, 2014). 22 Treaty of Lisbon, Amending the Treaty on European Union and the Treaty

Establishing the European Communities, Dec. 13, 2007, 2007 O.J. (C 306), available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:C:2007:306:0001:0010:EN: PDF. 23 Laura Laubeová, The Fiction of Ethnic Homogeneity: Minorities in the Czech

Republic, in D Kovacs eds.,) (2001).

A

,P

II 135, 140–47 (Anna Maria Biro & Petra

24 See Ethnic and National Minorities in Poland, M

O T I A . http://www.mswia.gov.pl/portal/en/10/54/Ethnic_and_national_minorities_in_ Poland.html. 25 See Laurence R. Helfer, Redesigning the European Court of Human Rights:

Embeddedness as a Deep Structural Principle of the European Human Rights Regime, 19 E . J. I ’ L. 125, 128 & n.10 (2008). 26 See id. 27 Ellen Wiles, Headscarves, Human Rights, and Harmonious Multicultural

Society: Implications of the French Ban for Interpretations of Equality, 41 L S ’ R . 699, 712–13 (2007). For a study of assimilation, see generally RIVKA S. LISSAK, P P : H H N I , 1890–1919 (1989) (analysing the liberal progressive concept of assimilation); István T. Kónya, Minorities and Majorities: A Dynamic Model of Assimilation, 38 C J. E . 1 (2005) (analysing the dynamics between a country’s majority and minority ethnic groups); Eric Kurlander, Multicultural and Assimilationist Models of Ethnopolitical Integration in the Context of the German Nordmark, 1890–1933, 1 G R . E 39, 49–50 (2002) (comparing the assimilationist and multicultural models of liberal integration). 28 See generally Wiles, id. 29 See generally id. 30 A L , T —T

M , I P (1999); T , A C S 116–24 (Helen Chapin Metz ed., 5th ed. 1996); Bertil Videt, Civil Society and Democratization in Turkey 7 (Mar. 2006) (Unpublished Masters’ Thesis, University of Copenhagen). For a discussion of the banning of headscarves in Turkey, see Leyla Sahin v. Turkey, [2005] 44774198 EHRR. 5. 31 T

,AC

S

, id. at 36.

32 See generally Sahin v. Turkey, supra note 29, (supporting the legitimate interest

of the State to maintain and ensure its constitutional vision of secularism); see also The Islamists Show Their Hand in Turkey, NEWSWEEK, Feb. 14, 2009, http://www.newsweek.com/2009/02/13/the-islamists-show-their-hand.html. 33 See generally Elisa T. Beller, The Headscarf Affair: The Conseil d’Etat on the

Role of Religion and Culture in French Society, 39 T . I ’ L.J. 581, 581–86 (2004) (explaining the historical background leading up to and regarding the court’s decision). 34 Wiles, supra note 26, at 700–03. 35 See id.; see also Marguerite Cognet, Book Review, 34 C

.E

167 (reviewing L’ R : L’U R (Christian P, Francois Vourch & Veronique De Rudder eds., 2002)).

S À L’É

. J.

36 See generally Eric Chenowith & James P. Young, Majority Rule/Minority Rights:

Essential Principles, D W : C . http://www.democracyweb.org/majority/principles.php.

S

.

F

,

37 Id. 38 Id. 39 Donald L. Horowitz, The Qur’an and the Common Law: Islamic Law Reform

and the Theory of Legal Change, 42 A . J. C 40 See N

C

&Q : A D

G E Horowitz, Id. at 250–52.

J

K

. L. 233, 244–252 (1994). ,P

U

C

L C

R 245 (2006);

41 Harka Gurung, Ethnic Demography of Nepal, Paper presented at a Talk

Program Organized by Nepal Foundation for Advanced Studies (NEFAS) (Jan. 10, 1996) (on file with the author). 42 See J W 43 See Id. at 87–99. 44 See Id. at 99–101.

,

H

N

61–79 (2005).

45 See Id. at 113–21. 46 See Id. at 189–208. 47 Id. at 211. 48 See Charles Haviland, Erasing the ‘Royal’ in Nepal, BBC N

, May 19, 2006,

http://news.bbc.co.uk/2/hi/south_asia/4998666.stm. 49 See W , supra note 41, at 221–23. 50 See Steve Sampson, Nepal’s Re-Return to Democracy, K

file with the Utah Law Review). 51 See Haviland, supra note 47.

N

(on

52 Id. 53 Ben Peterson, Nepal: Republic Begins, Monarchy Ends, G

, May 30,

2008, http://www.greenleft.org.au/node/39636. 54 Id. 55 See Civil Society Spectrum in Nepal: Can NGOs Provide Leadership?, Civ.

Soc’y of Nepal http://www.nepalcivilsociety.org/CivilSocietySpectrumInNepal.pdf; Prakash Bom, Declaration of Nepal a Secular Democratic State 3 (Sept. 30, 2006) (unpublished manuscript) (on file with the Utah Law Review); Prakash Bom, The Self-terminated Feudal Monarchy & The Rise of Federal Democratic Republic Nepal 2 (May 1, 2007) (unpublished manuscript) (on file with the Utah Law Review); see also National Sovereignty, People’s Pride: Foreign Aid, A Universal Right, CIV. SOC’Y OF NEPAL (2004), http://www.nepalcivilsociety.org/Nepal%20Civil%20Society%20Development%20F orum-2004.htm (section entitled ‘Collective Mission of Civil Society Forum’). 56 T ,AC S 57 See Liel, supra note 29. 58 T ,AC S 59 See T C . art. 7 60 T ,AC S

, supra note 29, at 17–28. , supra note 29, at 27–28. (1921). , supra note 29, at 37.

61 Id. 62 Id. 63 Nilüfer Göle, Authoritarian Secularism and Islamist Politics: The Case of Turkey,

in C P 1996).

S

M S

E M

, V T : S , E E 17, 21 (Augustus Richard Norton ed.,

64 T ,AC S , supra note 29, at 105. 65 Binnaz Toprak, Civil Society in Turkey, in C S

V T :S ,E supra note 62, at 87, 91.

P

S

66 Id. at 93. 67 T ,AC S , supra note 29, at 49. 68 Toprak, supra note 64, at 94. 69 Id. 70 Id. at 107. 71 Id. 72 Göle, supra note 62, at 19–20.

M M

E E

, ,

73 See Id. at 21; Ergun Özbudun, Turkey: How Far from Consolidation?, 7 J.

DEMOCRACY 123, 124 (1996); Toprak, supra note 64, at 91; Videt, supra note 29, at 7. 74 See Turkey Backs Constitutional Changes, BBC N

, Sept. 12, 2010, http://www.bbc.co.uk/news/world-europe-11278602; see also Can Erdogan Pull It Off?, T E , Sept. 11, 2010, at 16. 75 See Turkey Backs Constitutional Changes, Id. 76 Id. 77 Id. 78 See Id. 79 Declaration of Establishment of State of Israel, I

.M F A ., http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declara tion+of+Establishment+of+State+of+Israel.htm (reproducing ‘The Declaration of the Establishment of the State of Israel’, May 14, 1948). 80 See Basic Law: The Knesset (Amendment No. 9), 5745-1985, 12 LSI 85, 35

LSI 192, § 7A(1) (Isr.); Basic Law: Human Dignity and Liberty, 5752-1992, SH No. 1391, § 1 (Isr.). 81 See S

S 341–60 (1998) (Hebrew).

, T

82 Id. 83 Id. at 339, 361–72. 84 S S , B

B

R

M

G

L

: B

T R

B I

P

R

G 73–76 (2001).

: T

85 Sammy Smooha, Minority Status in an Ethnic Democracy: The Status of the

Arab Minority in Israel, 13 E

R

S

. 389, 398 (1990).

86 Michael M. Karayanni, The Separate Nature of the Religious Accommodations

for the Palestinian-Arab Minority in Israel, 5 N . U. J. I (2006).

’ H

. R

. 41, 54

87 See generally Michael Karayanni, Jewish and Democratic Ricochets, 9 M

U 461 (2006); Daniel Downs, Is Israel Really a Democracy? Secular or Jewish, T S. O A ., Apr. 7, 2008, http://thestateofamerica.wordpress.com/2008/04/07/isisrael- really-a-democracysecular-or-jewish/. 88 G

J. J ,A G :C I U S 177–182 (1993); Gad Barzilai, Courts as Hegemonic Institutions: The Israeli Supreme Court in a Comparative Perspective, in I : T D C C 15, 18 (David Levi-Faur et al. eds., 1999); Yoav Dotan, Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel, 32 I . L. R . 448, 457–61 (1998); Martin Edelman, A

Portion of Animosity: The Politics of Disestablishment of Religion in S . 204, 206 (2000); Shimon Shetreet, Some Reflections on Conscience and Religion in Israel, in I Y H 195 (Yoram Dinstein ed., 1974); Kenneth D. Wald & Samuel Shye, Conflict in Israel: The Group Basis of Conflicting Visions, 16 P . B (1994).

Israel, 5 I . Freedom of R 194, Interreligious . 157, 160

89 HCJ 1000/92 Hava Bavli v. Rabbinical High Court 48(ii) PD 221 [1994] (Isr.). 90 See Penal Law, 5737-1977, § 181 (Isr.). 91 See SHETREET, supra note 80, at 341–60. 92 Id. 93 Id. 94 See C

K , supra note 39, at 245; Indian Law: Muslim Women Have Right to Maintenance till Remarriage, L G , Aug. 17, 2010, http://www.lawisgreek.com/indian-law-muslim-women-have-right-maintenance-tillremarriage (discussing a Delhi High Court decision establishing that ‘Indian Law: Section 125, Cr.PC is applicable to Divorced Muslim Women’). 95 For a general review of the Hindu-Muslim problem, see C

M

G

:H

L

I

F. A

,

(2010).

96 See Sujata Manohar, Inter-personal Laws in India 2 (undated) (unpublished

manuscript), available http://wwwsoc.nii.ac.jp/jsil/annual_documents/2003/autumn/houkokuabstr/Panel%20E4%20Manohar%20revised.pdf.

at

97 I C . preamble. 98 Id. arts. 25–28. 99 See The Hindu Marriage Act, No. 25 of 1955, INDIA CODE (1993), available at

http://indiacode.nic.in. 100 I C 101 See W

. art. 44.

A H (R.N. Trivedi ed., 2010).

R

: S

J. S

, A F

102 Id.; Faizan Uddin, Human Rights and Minorities, in H

16

R

Y

2009, 33 (Pravin H. Parekh ed., 2009). 103 Mohd. Ahmed Khan v. Shah Bano Begum & Ors, (1985) 3 SCR 844 (India). 104 The Muslim Women (Protection of Rights on Divorce) Act, No. 25 of 1986,

INDIACODE (1993), available at http://indiacode.nic.in. 105 Sarla Mudgal v. Union of India, AIR 1995 SC 1531 (India). 106 Id. (Sahai, J.). 106a Dr Satyarajan Purushottam Sathe, Uniform Civil Code: Implications of

Supreme Court Intervention, XXX (35) E

A

P

W

2165

(Sep. 2,1995). 107 See The Hindu Adoption and Maintenance Act, No. 78 of 1956, I

C (1993), available at http://indiacode.nic.in; The Hindu Minority and Guardianship Act, No. 32 of 1956, I C (1993), available at http://indiacode.nic.in; The Hindu Succession Act, No. 30 of 1956, I C (1993), available at http://indiacode.nic.in; The Hindu Marriage Act, No. 25 of 1955, I C (1993), available at http://indiacode.nic.in; Mohd. Ahmed Khan v. Shah Bano Begum, supra note 102. On the implications of the Shah Bano case for national politics in India, see generally V D , C E : A A P C I (1997); Marc Galanter & Jayanth Krishnan, Personal Law Systems and Religious Conflict: A Comparison of India and Israel, in R P L S I :AC J 270, 272–75 (Gerald James Larson ed., 2001); Patricia Jeffery, A Uniform Customary Code? Marital Breakdown and Women’s Economic Entitlements in Rural Bijnor, 25 C I S . 1, 2–3 (2001); Purushottama Bilimoria, Muslim Personal Law in India: Colonial Legacy and Current Debates, E L. S ., available at http://www.law.emory.edu/ifl/index2.html (follow ‘Case Studies’ hyperlink; then follow ‘Muslim Personal Law in India: Past Legacies and Current Voices from the Ground’ hyperlink). 108 See Avitzur v. Avitzur, 446 N.E.2d 136, 139 (N.Y. 1983); Bruker v. Marcovitz,

[2007] SCC 54 (Can.).

PART ONE THE UNIFORM CIVIL CODE IN COMPARATIVE PERSPECTIVE

Part One of this book provides an analysis of the alternative models for resolving conflicts in personal law. It is devoted to the analysis of the experience of other nations in resolving the challenge of introducing a civil code and keeping continued respect for community laws and social customs and how to formulate the relationship between religion and state. We studied the models of the relation between church and state. We analysed the shift in Turkey, a Muslim country, from a country based on Muslim law to a secular republic with a modem civil code in the 1920s under the leadership and vision of Atatürk and noted the increasing Islamic culture in recent decades. We reviewed the civil code in Goa which came under the rule of India in 1961 and the shift of Nepal from a religious Hindu monarchy state to a secular democracy in dramatic changes in 2006–8. Based on the comparative study and a detailed analysis of the local context of the Indian Constitution, and the social and legal environment, we arrived at a number of proposed guidelines for recommended course of action to further the constitutional mandate under Article 44 of the Constitution to implement a uniform civil code in India. In order to facilitate the securing of a uniform civil code, we propose a blueprint of guidelines, and proposals that should be followed. The first guideline is that the process of preparing and implementing a uniform civil code should be the function of the legislature. The courts can resolve certain specific points but the

comprehensive code is a legislative function and not for judicial resolution. The second guideline that we propose is a parallel application of civil and religious law. The securing of a uniform civil code must not negate the possibility of citizens availing themselves of religious law with the assistance of the state in providing a judicial remedy for religious aspects of their marriage and divorce. In London, New York, or Toronto people marry first in civil marriage and then marry in a church or a synagogue. The same should be available in India. The main law will be civil; the parallel law will be religious. The third guideline we suggest is a gradual application of the uniform civil code. Time must be allowed for the citizens of India to grow accustomed to the existence of a civil code. A drastic change in the civil life of the people of India cannot be put into place overnight, but must be implemented over time. The application should be done topic-by-topic. The fourth proposal put forth is mediation. This mediation should take on two forms—intercommunity mediation and individual mediation. The first of these relates to a dialogue between the communities of India, to advance an agreement upon the substantive provisions of the uniform civil code. The second relates to the introduction of mediation between individuals, on occasions where disputes arise in the realm of personal law. This set of proposals should alleviate the suspicion of the Muslim community or the Hindu majority community that a uniform civil code will altogether remove their traditions. On the other hand, certain central values must be maintained by all law, whether civil or the parallel religious law, namely to prevent discrimination and practices unfair to women and daughters in a democratic country.

1 COMPARATIVE ANALYSIS OF LAW, RELIGION, AND CULTURE

GENERAL ANALYSIS OF MODELS OF CHURCHSTATE RELATIONS AND MODELS OF MINORITY CULTURE RECOGNITION There is a relationship between certain models of church-state relations and the level of recognition accorded to minority cultures within that state. To describe this relationship, first the five models of church-state relations will be reviewed, and the relationship between these models and the treatment of minority cultures will be analysed.1 Five models of church-state relations exist: the theocratic model, the absolute-secular model, the separation of state and religion model, the established church model, and the acknowledged religions model. The theocratic model and the absolute secular model are non-democratic in regard to their relationships with religion, in contrast to the remaining three models which are democratic in matters of religion. States imposing the theocratic model are religion-dominated. The theocratic model sees a single officially recognized religion, and forbids other religions. In contrast, the absolute-secular model envisions a formally atheist state, which forbids any religious act.

The Separation of Church and State Model

The first of the three democratic models is the separation of state and religion model. In this model, state legislation is secular, objectives of laws are non-religious, and no religion is preferred over any other. The separation of state and religion is expressed by the principle that the state does not interfere with religious organizations and these organizations do not interfere in the matters of the state. This separation can be created in one of several different ways: the state can declare itself a secular state (as declared in the constitutions of France, Turkey, India, and post-communist Russia), as ‘neutral’ concerning matters of religion (such as in the constitutions of Australia, Ireland, and Spain), or as separate from issues of religion (as declared in the constitution of Catholic Poland, or in the interpretation of the First Amendment of the U.S. Constitution by the Supreme Court of the U.S.2). A secular state in the tradition of the separation of state and religion model is not an absolute-secular model state in that religion is permitted; it is simply that the state, often through constitutional provisions, declares itself secular. A regime of separation of state and religion does not in itself dictate that state’s approach toward religion: the separation may be a result of a positive attitude toward the religion and a need to preserve it (as in the U.S.), or as a consequence of a negative attitude towards religion, stemming from the desire to preserve that state’s secular character (as in France or Turkey). Some states combine various elements of these models, such as is seen in the constitution of Ukraine, which provides for the separation of church and state, and allows for the establishment of places of worship. However, at the same time, non-indigenous religious institutions in Ukraine are subject to governmental restrictions.3 The U.S.’ interpretation of the separation of state and religion model is often used as a classic illustration of the model. The First Amendment of the Federal Constitution provides that: ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof’. Although this clause does not literally demand a strict and total regime of separation,4 it has been interpreted as such due to judicial interpretation of the Establishment

Clause5 and the Free Exercise Clause.6 Thus the U.S. Supreme Court has held in the series of prayer-in-school cases that religious prayers are not permitted in public schools, as allowing them is an intermingling of state and church, which is forbidden.6a Although also based on the separation model, the French attitude is very different from that of the U.S. In France, with the French Revolution came the opinion that the secular is critical to French identity, a sentiment which has led to a vehement anti-religious attitude. This perspective was illustrated by Alain Juppe, the former French Prime Minister, who declared that ‘[w]e must defend secularism—the next step may be separate train compartments for men and women, beaches reserved for one sex.7’ France legislated a separation of religion and state on December 9, 1905 when it passed laws separating church and state. Based on three interlocking precepts: religious freedom, state neutrality, and public church powers, the Law on Secularity is regarded as the basis of the French principle of laïcité, the neutral separation of church and state, done without hostility towards religious beliefs. Under the principle of laïcité, a citizen’s first allegiance is to French society, rather than to a particular group, whether it be religious or otherwise. The 1905 law ended public funding of all religious groups, declared all religious buildings the property of the state, prohibited the attachment of religious signs on public buildings, and prohibited the republic from naming any additional French archbishops or bishops. A highly visible expression of French laïcité was seen in September 2004 when legislation came into effect banning students from wearing ‘conspicuous’ religious items in schools, including Jewish Kippot, Muslim headscarves, Sikh turbans, and large Christian crucifixes. The law, entitled Loi encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics is very straightforward in content, the non-technical provisions providing simply that: In public elementary schools, junior high schools and high schools, students are prohibited from wearing symbols or attire through which they conspicuously

exhibit a religious affiliation. Note that the internal regulations [of the schools] require disciplinary procedures to be preceded by a dialogue with the student.8

The laïcité aspect of the law has been elucidated with the explanation that the law is able to bring about a neutral study environment8 and that banning conspicuous religious symbols is a way of promoting successful cultural integration.9 However, some have also opined that the law is intentioned to ‘combat rising Muslim fundamentalism in France, and to protect the rights of women, widely viewed…as submissive to men if they wear head scarves’.10 A comparable attitude is seen in Turkey. Turkey, which also follows the separation of state and religion model, has followed a strict, sometimes authoritarian policy of a secular state, in the name of Turkish modernity and unity. The separation of church and state is seen in Article 2 of the Constitution, referred to as the ‘Secularism Article’, which states that Turkey is a secular state.11 Turkish laïcité led to the banning of headscarves in public educational institutions many years before the ban was instated in France,12 as well as to the secularization of public education and suppression of Islamic religious orders.13 In 1933, the Turkish republic legislated that that Islamic calls to worship and public readings of the Quran were to be in Turkish rather than Arabic.14 Turkey is an example of how the separation of state and religion model is able to affect not just minority rights, but also majority rights, for Muslims make up 99.8 per cent of the Turkish population.15 Minority ethnic groups in Turkey, specifically Kurds, complain that aggressive Turkish secularism has resulted in a degradation of their rights. They claim that their ethnic and linguistic rights have been subordinated to the ideal of Turkish unity, considered by the government and the secular population as based on the strict separation of church and state.16 The examination of the theoretical foundations of the model of separation between church and state, places the model in the category of the liberal solution. The liberal solution derives from the

concept that the attitude of the liberal state to other groups that live within it, among them non-liberal groups, is that the state should withdraw from direct involvement in cultural matters of its citizens or residents. The separation model should not be viewed as hostile or unfriendly. It should be viewed as an approach which aims at liberating religion from the limitations of government and at protecting religion vis-à-vis the state and protecting the state vis-à-vis religion. Besides the withdrawal of the state from intervention in culture, the liberal solution lies in the establishment of liberal individual freedoms which allow groups to exercise their cultural enterprise in a relatively free manner. The scholar, Will Kymlicka,17 distinguishes between internal restrictions that the group imposes on its members and external restrictions. Kymlicka expresses a position of principle which is hostile to internal restrictions. Individuals must not be under a duty to remain faithful to a permanent cultural charge in the name of the right to culture. According to the liberal idea, the solution to the culture issue is to leave the group culture activity to social level regulation only, while placing limits on this activity, in defined situations such as the prohibition of using violent measures or using internal restrictions. The role of the state is based on two alternatives: the colour awareness model and the colour blindness model. The first alternative—the colour awareness model—is the model which allows the state to recognize the difference between groups. The second alternative—the colour blind model—is the model which ignores the difference between groups. In the colour awareness model, the state is aware of cultural activities and cultural needs. Substantive promotion of cultural enterprise by the state may cause difficult distortions in cultural activities, may cause distortions in the distribution of public resources, and may even cause disintegration of the total social system. In the colour blind model, the state must be neutral regarding the cultural elements of its citizens, and this is a too rigid approach which is not consistent with the duty of the state to promote the welfare of its subjects.

Therefore, when we come to examine a state action, which is offensive to a cultural enterprise, we need to examine two parameters and balance them. The two parameters are internal and external to the group. The internal parameter refers to the scope of the injury to the cultural enterprise. The external parameter refers to the importance of the public interest of the state’s act. When the scope of the injury to the cultural right is not excessive and when the public interest is legitimate and justifiable, public interest should prevail and the right to culture must give in.18

The Established Church Model The second democratic model of church-state relations is the established church model,19 in which the state declares a certain religion and church as being particularly sanctified by it. This can materialize through state financial support to the religion or its church, or through benefits provided to members of the religion. The significant distinction between the established church model and the theocratic model is in the approach towards other religions and non-religious people. While the theocratic model state does not tolerate other religions and non-religious groups, the established church model state is democratic with regard to freedom of religion. Examples of states that have adopted the established church model are England (the Anglican Church is the Church of England), Northern Ireland, Denmark, Norway, Iceland, Finland, Sweden (the Anglo-Lutheran Church), Greece and Bulgaria (the Eastern Orthodox Church). Certain states recognize a church in merely symbolicdeclarative terms, such as the recognition of the Catholic Church in Liechtenstein, Monaco, and Malta. This model is the endorsed church sub-model. The treatment of minorities in the established church model is different from that of the recognized religions model. Whereas the latter recognizes multiple religions, the former gives preference to the state religion. In England, the recognized religion Anglicanism is accorded special treatment: for instance, the monarch must be Anglican in order to rule the kingdom, and cannot convert to a

different religion. In the Coronation Oath, the monarch pledges to maintain the Protestant Reformed Religion established by the law,20 and to be the ‘Defender of the Faith’, interpreted to mean the Protestant-Christian faith. In addition, the Law of Blasphemy provides that ‘to reproach the Christian Religion is to speak in subversion of the law’.21 In the schools, a daily act of collective worship is followed, and the prayers in most of the country schools in England and Wales are of a Christian nature and reflect the basic principles of the Christian tradition (without referring to a specific church). In addition, religious lessons are carried out in the public schools, although parents are allowed to exempt their children from participating in these lessons and in the daily conduct of collective worship. One quarter of the primary schools in England, and one in sixteen English secondary schools, are Church of England schools. In sum, approximately one million students are educated in Church of England schools.22

The Recognized Religions Model The third of the three democratic models is the recognized religions model or the acknowledged religions model. In this model, the country does not recognize one formal religion, and a formal national state church does not exist. Rather, the approach is religion-neutral. This model is reminiscent of the separation of state and religion model in that in both systems the state does not interfere in internal religious matters, such as in appointing priests. However, they differ critically in that in the recognized religions model the state recognizes churches as special corporations or bodies, and the state is responsible for supplying religion-services, such as for financing the foundation and maintenance of churches. Cooperation exists between the state and the acknowledged churches, without the state preferring one of the churches over any other. Germany adopted the recognized religions model, and formally recognizes the Catholic, Protestant, Anglican, Jewish, and Muslim religions as ‘recognized religions’. In Germany, religious affiliations are recorded on income tax forms, with income tax contributions

being directed to support the indicated community.23 In addition, German laws allow certain church officials to sit on local and state government boards and commissions ‘where they help decide everything from how public tax revenue is spent to how public media are run—or which minority faiths are considered “dangerous sects”’.24 A problem with this model is that non-recognized religions, such as Scientology, are relatively disadvantaged, for they do not receive the same funding as recognized religions.25 Latvia also follows the recognized religions model. In Latvia, religious institutions must register with the state if they wish to enjoy certain privileges and rights.26 Hungary also adopts this model, albeit in a more liberal way.27 The difference in the treatment of minority attitudes between the separation of state and religion model and the recognized religions model states can be illustrated by comparing the treatment of the headscarf issue in France and Turkey (separation of state and religion model countries following the secular state system) and in Germany (a recognized religion model country). Whereas wearing this religious symbol was outlawed in France and Turkey on the basis of secularism, in contrast, the German Federal Constitutional Court ruled in September 2003 that unless prohibited by state laws, Muslim teachers could not be forbidden from wearing headscarves for religious reasons. Although legislators subsequently attempted to circumvent this ruling by outlawing the wearing of headscarves due to their political symbolism, it is important to note that religious discrimination was not constitutionally permitted.28

Models of Recognition of Minority Cultures The recognition of minority cultures is partially dependent on the model of church-state relations that has been adopted by the state. The theocratic model and the absolute-secular model do not accord recognition to minority religious cultures, due to their undemocratic forced religiosity or atheism. With regard to the remaining three democratic models, they offer comparative protections, with the exception of the secular sub-model of the

separation of state and religion model which can be seen as providing fewer rights to minority cultures. The recognition of minority cultures can be analysed through five models of exemptions and privileges: 1. Privileges and exemptions which relieve direct conflicts between specific laws and religious tenets in cases where adherence to one requires disobedience to the other For instance, permitting citizens not to serve in the army, doctors not to perform certain operations (such as abortion), or to allow for exceptions to legislated days of rest, all on the basis of religion. 2. Privileges and exemptions which relieve indirect conflicts in cases where the law creates an economic loss or social hardship upon those who follow certain religious or conscientious principles An example of indirect conflict arises in fluoridation cases. Where individuals are religiously opposed to the use of any drugs, fluoridation of water supplies forces them to choose between their religion, and the expense and inconvenience of seeking a pure water supply. 3. Relief from regulation of certain religiously or conscientiously motivated activities For instance, exemptions from zoning regulations for churches. 4. Desirable exemptions from the discharge of legal duties, the performance of which would not necessarily create a conflict For example, tax exemptions for churches, including exemptions from income tax, property tax, estate and gift tax, and inheritance tax. 5. Privileges conferred through affirmative action taken by government to allow satisfaction of religious and spiritual needs under circumstances that, without such affirmative government action, would prevent religious fulfilment For instance, providing worship and pastoral care in state hospitals.

The analysis suggests that in general, considerations regarding the granting of exemptions are not predominantly dependent on the nature of the relationship between church and state, and are instead based on broader considerations applicable to all systems. However, in some cases a relationship exists. In these cases, it can sometimes be observed that states with provisions commanding secularism may be less friendly to religions than states following other models of church-state relations, as can be seen in the exclusion of religious head coverings in France and Turkey.

With the exception of strictly secular systems, the separation of state and religion model state often does grant exemptions. The U.S. Supreme Court has granted exemptions to the Amish community on the basis of their unique culture and religion, such as exemptions from mandatory school attendance past eighth grade, on the basis of the freedom of religion.29 The U.S. has also considered whether pharmacists should be permitted to refuse to dispense birth control pills on the basis of religious beliefs.30 The U.S. has also legislated indirect exemptions, exemplified by a South Carolina statute which resolved a problem in favour of concerned individuals by providing that ‘if any employee should refuse to work on Sunday on account of conscientious...objections, he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner.’31 This legislation prevented the situation where employees who do not work on Sundays due to religious reasons jeopardize their seniority or other rights by their objection to Sunday work. Notably this legislation does not provide for non-Christian workers, with its reference to ‘Sunday’ as the day of rest. Even in France, a strongly secular country, minority religious rights are considered. In a 2001 case, a patient’s widow sued a hospital for giving her late husband blood transfusions against his religious wishes. In that case the court held that a doctor’s obligations to respect the will of a patient, and that same doctor’s obligation to successfully treat that patient, are equal in importance. In other words, a doctor has neither ‘a legally predefined obligation to treat the patient, nor…a legally predefined obligation to abide by the patient’s wishes’.32 Although this decision was made on the basis of the doctor-patient relationship rather than due to the explicit protection of minority rights, the end result is the same, just as a banning of headscarves due to ‘political’ rather than ‘religious’ reasons also had the same consequence on minority cultures. However, France also offers examples of exemptions that are unquestionably religious. For example, associations cultuelles (religious-supporting organizations) can request an exemption from various taxes, including taxes on donations, as long as the

organization’s purpose is limited to organizing religious worship, and the organization does not infringe on public order.33 England, an example of the established church model, also provides examples of exemptions granted to minority cultures. One of these examples is the Slaughter of Animals Act, which grants the privilege to perform an act, otherwise prohibited, in order to resolve an indirect conflict between law and religion. In this case, the Act grants the privilege to slaughter animals, generally forbidden, to Jews and Muslims whose religions forbid the eating of meat unless the animal is slaughtered in accordance with certain rules. Canada is a hybrid system, combining the separation of state and religion model and the established church model—on the one hand, her constitution provides for religious education whereas on the other hand her political culture strives to be religiously neutral. In Canada, although there is no recognized state religion, separate religious school systems (Catholic and Protestant) were constitutionally established and are funded by the state, and the ‘supremacy of God’ is constitutionally recognized, but without reference to the religion over which this God reigns.34 Canada’s approach to exemptions tends to be to permit first category exemptions when doing so does not unreasonably infringe upon the rights of others. Examples of this attitude can be seen in administrative board rulings regarding the wearing of Sikh turbans. As previously stated, In Dhillon, the British Columbia Human Rights Tribunal held that a law requiring the wearing of a safety helmet in the place of a religious turban for a motorcycle road test discriminated against members of the Sikh religion who wear turbans as a bona fide article of their faith.35 On the other hand, in Pannu v. Skeena Cellulose Inc., the same tribunal held that it was not religious discrimination to require a Sikh man to shave his beard, another symbol of his religion, if he wished to retain his job. In that case, the tribunal held that the consequences of not being clean-shaven, that is, not being able to be properly fitted with a facemask to protect against poisonous gases, would pose a danger for other workers and not just to Mr Pannu. The tribunal explained in Mr. Pannu’s case that if he succumbed to poisonous gases due to an improperly fitting

gas mask, other workers would have to put themselves in danger in an attempt to assist him. This situation was contrasted with the set of circumstances in Dhillon, where not wearing a motorcycle helmet posed a danger only to the rider.36 Dhillon demonstrates an exemption from legal duties; in this first category of exemptions and privileges there are also privileges to perform affirmative acts which would otherwise be prohibited by law. For example, the members of the Native American Church, situated in a separation of church and state model country, have been granted the privilege of using peyote (a controlled drug) in religious ceremonies.37 Canada has been less forthcoming with exemptions when they are seen as parents’ religious leanings which potentially endanger their children, such as in blood transfusion cases involving Jehovah’s Witnesses. In B.H. v. Alberta (Director of Child Welfare) a sixteen year old girl was made ward of the state and forced to endure blood transfusions to treat her leukaemia despite the wishes of both her and her mother, both Jehovah’s Witnesses, that she not receive them. The Supreme Court of Canada held that as the girl was not a ‘mature minor’ she was incompetent to refuse treatment.38 In this case no exemption was granted due to the age of the child involved. Germany, a recognized religions model state, offers a disturbing example of an exemption: a successful cultural defence to a number of ‘honour killings’ carried out by minority group Turkish, Kurdish, and Afghani Muslims, with their claim that killing a woman who has caused her family dishonour is a cultural obligation. A number of perpetrators of such ‘honour killings’ have been given reduced sentences, sometimes for manslaughter rather than premeditated murder.39

Theories of Multiculturalism The classical view of liberalism, which places individuals, and individual rights and freedoms at its centre—has long been the target of criticism for its inability to cope with the phenomena of group loyalty and cultural reassertion.40 When viewing a nation such as

India, the problems of classical liberalism are obvious, due to the central role that the group that an individual belongs to plays in the life of most Indians. To claim that individual rights are the only rights worthy of protection seems to be unrealistic. Several different theories have developed, attempting to deal with the problems that arise due to the conflict between the classical view of liberalism, and the seeming need to regard group rights. Some, the leading view being that of Will Kymlicka, attempt to reconcile the two, others claim that liberalism should be abandoned, whilst still others persist with the classical view of liberalism, and claim that there should be no place for group rights. The main objections to recognition of group rights concerns the fact that such recognition would provide protection of illiberal practices of cultures, usually practices which discriminate against women, children, and homosexuals. The philosophy underlying the Constitution of India is liberal, and is based on the liberal philosophy of democracy, equality, and nondiscrimination. The analysis we shall offer here shall be derived from the standpoint of the philosophy of liberal democracies, and I therefore do not intend here to examine the view that favours abandoning liberalism.41 The purpose of the democratic liberal state is to protect individuals as individuals, for individuals comprise a state, and not groups. If protecting the individuals requires protecting the groups they belong to, so be it, but these groups should not be extended protection merely due to the fact that they are groups. Will Kymlicka, in his book Multicultural Citizenship: A Liberal Theory of Minority Rights, outlines several justifications for recognition of group rights within a liberal framework. One of the central justifications is that an individual’s cultural identity is inseparable from his personal liberty. In other words, one of the characteristics that allow an individual to attain self-fulfilment, and that liberalism ought to protect, is that individual’s feeling of belonging to a certain cultural group within society.42 Therefore, if a liberal state must allow the individuals living in it to develop as individuals, it must also protect the cultural groups that individuals belong to. In contrast to this theory, it is claimed that culture is not in fact fundamental for the constitution of one’s group identity. This is

because cultural groups and ethnic status are not static but are affected by many variables. Chandran Kukathas gives the example of the former Indian state of Madras, in which differences within the Telugu population were of minor importance.43 However, once a separate Telugu state was formed, Telugu subgroups emerged as national identities. This theory claims that groups have no special moral primacy but are merely associations of individuals, open to ethical evaluation. Therefore, though not unimportant, cultural groups should not be afforded rights as groups.44 Another objection to according rights to groups is that of minorities within minorities. Since most cultural groups, especially illiberal ones, are patriarchal by nature, women within those groups tend to be discriminated against. This is also true regarding children and homosexuals. By according rights to groups, we are de facto limiting the rights of these minorities within minorities. How then can a liberal, for whom the rights of the minorities within the groups, as individuals, are also important, defend an approach that protects group rights?45 One attempt to answer this dilemma is to claim that only liberal minority groups can be accorded group rights, however this approach returns to classic liberalism, which ignores the importance of the group to individuals. If the group is fundamental to the individual, why do we distinguish between one that is liberal one that is not? For those who would maintain that a group’s rights should be protected within a liberal framework, two answers are given to the objection raised above. The first is the right of exit—individuals within the group who feel that their situation is intolerable can leave the group they belong to. This argument is true only so long as individuals truly can leave their groups. In some cases, though an individual may leave the group, the group will not view the individual as having left it. In others, it may be that life for the individual would be intolerable were he or she to leave the group.46 However, a more powerful argument is the theoretical one; if the purpose of giving group rights was to allow for individuals to fulfil themselves, with the view of the group as fundamentally important to

the individual, what is left of this right if we demand that people choose between one liberty and another? The right of exit claim does not provide a good enough protection to liberties, for it creates a contradiction of liberties. This is not something we are unfamiliar with, for an individual’s liberties contradict with other individual’s liberties on a daily basis. In contrast to the ordinary conflict, here we are creating a contradiction of an individual’s liberties with his own liberties—his freedom of culture, against other personal freedoms and rights (sexual identity, for instance, or wholeness of body or women’s rights). Perhaps these contradictions were in place before, as part of one’s day-to-day life, but once we provide groups rights, we compel the individual to choose. The second claim is that group rights are accorded to protect minorities. Within a state, minority groups have less power than majority groups, and are relatively powerless to protect themselves, and therefore we want to protect them. On the other hand, by giving rights to minorities within the minority groups, we are effectively weakening the group. This will result because providing protection to individuals will strengthen the minorities within the group vis-à-vis the group, necessarily weakening the group itself. This will run counter to our original aim, of strengthening the group. This claim is far from being obvious. Firstly, it is not clear that this indeed does occur. Does the minority group truly become weaker vis-à-vis the majority if we strengthen the minorities within it?47 Secondly, the purpose of group rights is to protect individuals, not groups. My basic claim is that group rights should only be accorded so long as they advance individual liberties. Removing the focus from the individual and placing it on the group, in an effort to solve this dilemma, is incoherent and does not truly solve the problem. The problem of minorities within minorities is truly a difficult one. I do believe that group rights should be accorded, and we cannot shake the fundamental importance that cultural groups have for individuals. Even if groups are dynamic, it is obvious that they are not so dynamic as to be indefinable. All groups have boundaries, some more clearly defined than others, and even if practices and beliefs—and even political outlook and self-definition of the groups—

are in constant flux, this is not such that it does not allow for a single group identity. How then do we protect minorities within minorities? This seems to me to be a question of utility—we protect group rights only so long as the benefit to the individuals belonging to that group is greater than the harm caused to the individual whose freedom or right is infringed upon. Where this point lies exactly is, of course, a question of judgement and value. It would seem, however, that certain practices should clearly be forbidden, and not gain protection as part of a group right. Such, for instance, are practices which cause bodily harm or violate the right to life, or practices which seriously infringe on human dignity, such as polygamy. Whereas issues of polygamy, bodily harm, and the like can easily be answered, there are a number of issues which are borderline, and will depend on value judgment. Such, for instance is the issue of separation between men and women at social events, on public transport, or at educational institutions. Such also are issues regarding the wearing of headscarves in public places. And such is the issue of religious marriage, the practice may infringe on the rights of women, in many cases. These are issues that each society dealing with these questions must give answers to, and which must be solved. In these questions, the regulation of each society should be accepted on the basis of cultural relativism.

Issue of Recognition of Other Cultures Ayelet Shachar: In today’s day and age, most countries recognize the value of protecting and preserving the diversity of the different groups in society. As a result of this, states have begun changing social and political norms to better suit the system to these divergent communities. The goal is that the Law encourage pluralism and enable different communities and groups to independently run their institutions and cultures. The main question that arises in this context is how to distribute the administrative authority in a multicultural state in a just and fair way so that there is enough room for the minorities’ cultures on the one hand, and there is protection of civil liberties on the other.

It would be prudent to avoid a phenomenon that Ayelet Shachar calls the ‘paradox of multicultural vulnerability’. This paradox points out that individual rights of members of certain communities are infringed upon as a consequence of protecting the communal rights of that group, and by the constitutional reforms created to advance the community. This paradox lies in the balance between promoting the differences of communities and protecting the rights of weaker individuals within them. As an example, one can note the status of women in different religious communities, and the danger that lies in giving absolute autonomy to the communities in implementing their customs, which infringes on women’s rights. Such autonomy can preserve violence against women which is acceptable in certain such societies. The most common practices in this context are female genital mutilation, forced marriages, and violence against women. The main challenge lies, therefore, in finding a way to minimize the gaps between the different groups in such a way that the relation between them be more just and so that there be more room for group rights, while expanding the principle of justice within the communities and maintaining the rights of individuals within them. Shachar, in her book, Multicultural Jurisdiction, presents a new way of dealing with this issue. She calls it ‘joint governance’. This approach calls for the expansion of religious and cultural group autonomy, while at the same time finding ways to protect the rights of individuals within those communities. Shachar proposes giving self-governance authority to certain minorities, but not all to the governmental authorities. Some of the authority will be given to an alternative state judicial system. The idea behind this is not to let any of the parties attain exclusivity on any of the factors; neither the state nor the minority. Will Kymlicka presents a multicultural theory which states that belonging to a community with an abundant history, and affinity between the individuals of the community is a necessary condition for the development of dignity and self-appreciation in any human. Culture allows the individual to preserve his dignity, determines his association with society and the community, and therefore gives him confidence in the social system around him. These enable the

individual to make autonomous decisions that can affect all walks of life. Culture is a commodity that gives humans their freedom. The right to culture is an inseparable part of the right to freedom and therefore is one of the core principles of liberalism. As long as one’s real choices stem from his or her cultural belonging, there can be no protection of an individual’s freedom without protecting his or her culture. This leads to the conclusion that minorities are entitled to special rights that will enable them to maintain their culture and thereby the self-respect of the individuals within them. According to Kymlicka, each human must be entitled the freedom and possibility to belong to his culture. This analysis determines that each culture must be developed and supported. This support must include: language laws, regional autonomy, slots earmarked for their delegates in government, and a veto right on issues having to do with them. Different researchers sort the different communal rights of minorities in different ways. Kymlicka suggests distinguishing between three models: self-governing rights, multi-ethnic rights, and special representation rights. Self-governing rights vary between full autonomy over different fields of society (education, culture, law) to demands to succeed from the state to a separate entity. Multi-ethnic rights are based primarily on budgetary support by the state and preserving cultural practices, including schools. A different type of multi-ethnic rights enable minorities to avoid settlements in the state that contradict their culture, conscience, and religious beliefs. The exemption of religious groups from military service can be seen as an example of this. Special representation rights expand the representation of the minorities in governmental authorities, state institutions, and especially in the legislature in liberal democracies, since these groups are usually underrepresented. This may include arrangements guaranteeing proper representation of minorities in state authorities. Kymlicka distinguishes between a dissimilarity in resources stemming from choice, and dissimilarity stemming from circumstances that individuals cannot control. As a rule, inequality caused by choice is legitimate. However, inequality that stems from circumstances that are not under an individual’s control is

illegitimate. Therefore, discrimination of the basis of religion, gender, or race is illegitimate. * * * Seyla Benhabib: Today, culture has become synonymous with identity, a characteristic of identity which distinguishes the individual. Culture was always a distinguishing characteristic, but the new trend is that cultural groups that form around common characteristics demand legal recognition and allocation of state funds in order to preserve their cultural uniqueness. Benhabib grapples with the stalemate that exists in dealing with the multiculturalism in democratic states. In her opinion, the relations between groups of different backgrounds can grow only on the basis of resolving the conflicts between them in the political sphere, where it is accessible to all. Susan Moller Okin refers to the fact that the discourse on culture identity and multiculturalism dealt with the issue of the relations between culture groups without giving due regard and sometimes in total disregard of the issue of the relations which exist within the group. Okin argues that the discourse must include the issue of the situation and the position of the weaker sub-groups who live within the culture groups. According to Okin, the state must refrain from steps which allow non-liberal groups to preserve their culture and allow them to continue to violate the rights of weaker sub-groups such as women and children.48 Brian Barry argues that while the state should allow groups to live according to their culture, it must ensure that the basic liberal rights and freedoms, such as the right to equality, will be maintained in the lives of all its citizens. In addition, Barry suggests that great significance should be attached to the need to ensure that persons who belong to a certain group could withdraw from it. Nevertheless, he recognizes that the exercise of liberal values should be subject to pragmatic considerations.49 Chandran Kukathas holds a radical view, regarding the restriction of the state from intervention in practices of non-liberal groups. According to him, a liberal state should not be concerned with what

is taking place in the life of its citizens, and the state is not supposed to promote common goals or any values. The freedom of persons to be part of groups of their choice must be strictly maintained and their freedom to withdraw from such groups should be preserved.50 William Galston believes that liberalism derives from a starting point of pluralistic values, and the central value in this liberal concept is freedom, a creation of conditions which will allow any person to live in a way reflecting his or her deep belief regarding what gives meaning and value to life, without being restricted by others. The basic value that the state should ensure is personal security of the citizens, and practices which endanger security will be prohibited.51 Jeff Spinner-Halev argues that the state does not need to ensure that every one of the culture groups that lives in the state should respect autonomy, because this will interfere in the value of liberalism. Minimum conditions are required for the existence of autonomy, and people who live in groups who do not enshrine this value are aware that the mainstream of society recognizes the value of autonomy and pluralism. Nevertheless, Spinner-Halev emphasizes the right of the members of groups to withdraw from the group, and also recognizes the right of the state to intervene in situations of violation of basic human rights.52 The Theory of Kymlicka: Culture in the Context of Choice Kymlicka53 puts at the centre the value of autonomy, the main value of culture being the connection to a choice of exercising autonomy of the person. Kymlicka argues that collective rights are based on individual rights, and the ability of a person to reach autonomous choices as to his preferred way of life is dependent on culture. Therefore, the existence of a supporting cultural environment is a precondition for the exercise of individual life of free choice of autonomy. It follows that the liberal multiculturalism of Kymlicka recognizes the right of cultures which are pre-modern and nonwestern to protection, and not only to tolerance within the general framework of liberal societies. Kymlicka is willing to grant rights of three classes to groups which he views as national minorities. These rights includes: self-

determination, poly-ethnic rights, and representation rights. The first class of rights is self-determination that is government autonomy or jurisdiction of some kind, including veto power on legislation regarding essential interest. Kymlicka also argues that poly-ethnic rights should be granted. Government support for educational institutions, associations, and special festivals should be given. Also, special representation rights should be granted such as special mechanisms for group representation to minorities.54 This approach of Kymlicka was criticized for a number of reasons. First, according to Kymlicka, the right to culture is in fact part of the right of freedom, and therefore is consistent with the liberal idea regarding the right of freedom. The additional cultural dimension is not a value in and of itself but a derivative of the right of freedom. However, another view suggests that the individual right to culture derives from the fact that the identity of the person stands at the top of the wishes of every person, and therefore a high priority should be given to the right of the individual to maintain the way of life of his choice. That means that according to Kymlicka, the individual has a right to culture, not necessarily his own culture. Therefore, the interpretation that Kymlicka gives to liberalism, protects the right to cultural context and not the right to a specific culture.55 The second criticism that was levelled at the theory of Kymlicka, is that Kymlicka placed the autonomy of the individual at the heart of liberal multiculturalism, and therefore in his approach there is no place for the idea of culture as it is perceived in non-liberal cultures. According to Kymlicka, a cultural right should only be granted when it contributes to the autonomy of the individual. It follows that these rights should not be granted to groups which violate the autonomy. That is they should not be granted to most of the minority groups in our world. A Theory of the Market Model as a Basis for Treating Different Groups According to the market model, the liberal idea brings about situations of radicalization. The approach of the market model explains the result of the liberal approach. According to this model,

the adjustment of religious groups to modernity that is the deviation from traditions reflects adjustment to market conditions. This is in fact giving due consideration to the position of the potential clients. Also, the reverse phenomenon, the radical conservatism and the religious fundamentalism was made possible because of the transition to modern secular society, within which the communities develop to selective and voluntary communities.56 The definition of Jewish communities as voluntary and not territorial organizations facilitated voluntary organization according to strict religious norms and allowed the Rabbis to rule in a differential way according to the character of the homogenous community facing them.57 The Issue of Balancing of Interests Aharon Barak: The basic balancing rule establishes a general criterion for deciding between the marginal benefit to the public good and the marginal limit to human rights.58 The proportionality is a more disciplined and structured test of balancing. It requires that the benefit from the limit imposed is greater than the harm and burden on the individual right by the limitation. The test requires an appropriate relationship—a balance, between the benefit gained by the law limiting a human right and the harm caused to the right by its limitation. The balance creates a solution that reflects the principles of society and the limitation it imposes upon the power to limit the human rights.59 In balancing, you consider on one side the goals to be achieved and on the other the limitation on the right.60 The weight of each side of the scale is determined by the importance attached to each of the conflicting principles or interests at the point of the conflict. This criterion assesses the importance to society of the benefit gained by realization of the law’s goal as opposed to the importance to society of preventing the limitation of human rights. The comparison is not between the advantages gained by realizing the goal in contrast to the effect brought by limiting the right, but rather between the marginal benefit to the goal of law and the

marginal harm to the right caused by the restricting law. As such the comparison is concerned with the marginal and the incremental.61 If there is a proportionate alternative, which achieves only part of the goals and only partly limits the right, the comparison between the marginal benefit and the marginal limitation would have to consider the proportionate alternative also.62 Bearing in mind the importance of the realization of the goal that the law purports to realize, and the importance of preventing the limitation of the right, the basic balancing rule can be expressed as follows: to the extent that greater importance is attached to preventing the marginal limit to a human right, and to the extent that the probability of the right being limited is higher, the marginal benefit to the public interest brought about by the limitation must be of greater importance, of greater urgency, and possessing a greater probability of materializing.63 Robert Alexy: The analysis of the formal structure of balancing shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis endangers neither the power nor the force of constitutional rights. The Recognition of Culture and Cultural Rights in the EU Ever since 1949, the Council of Europe has recognized the importance of protecting national minority rights.64 However, it was not until many years later that such protection became part of the criteria for joining the EU. For the last decade and a half, countries interested in joining the EU have had to demonstrate that they, inter alia, have institutions sufficient to preserve human rights and have respect for and protect minorities,65 and that they accept the obligations and intent of the EU.66 Today, the Council of Europe considers the protection of national minorities to be one of its most important priorities.67

The 1993 Copenhagen criteria outlines the requirement of minority protection and respect as a condition for joining the EU.68 Hence, EU discussions with Slovakia regarding possible entry into the EU included discussions on minority language rights,69 including the situation of Hungarian minorities and the Roma,70 Slovakia’s general policies and provisions protecting minority rights,71 and Slovakia’s adherence to human rights treaties to which she is signatory.72 In that same year, in November 1993, the ad hoc Committee for the Protection of National Minorities was created by the Committee of Ministers. The Committee submitted its draft framework convention to the Committee of Ministers in October 1994, and the document was opened for signature in February 1995.73 The Framework Convention was a milestone in that it was the first multilateral, legally binding instrument which was devoted to national minority protection.74 In 1997, the non-discrimination framework was enlarged to include prohibitions against ethnic and racial discrimination. Article 13 of the 1997 Amsterdam Treaty provides that the EU ‘may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’75 Following the Amsterdam Treaty, the Race Equality Directive was issued in 2000. The directive …constitutes the cornerstone of Community law in the area of minority protection. It features detailed and in certain areas innovative provisions, such as a definition of direct and indirect discrimination, the legal concepts of harassment, victimization, and instruction to discriminate, provisions regarding the reversal of the burden of proof, and the establishment of specialized equality bodies.76

These documents have the potential to be powerful due to the constitutional status of EU citizenship, as well as the EU’s supranational character, crystallized with the 1992 Maastricht Treaty on European Union.77 The treaty includes a general reference to culture, providing that the EU has the dual obligations of promoting the ‘common cultural heritage’ and contributing ‘to the flowering of

the cultures of the Member States while respecting their national and regional diversity.’78 A very significant component of the Maastricht Treaty was its reference to Article 6 of the European Convention on Human Rights (ECHR). It provides that, ‘the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and since they result from the constitutional tradition common to the Member States, as general principles of Community law’. The Maastricht Treaty further provided that violations of Article 6 could be brought before the European Community Court of Justice. The Maastricht Treaty, combined with subsequent treaties and directives, introduces to the EU the requirements of human rights and equal dignity.79 These core values have been reiterated on numerous occasions, and member states are expected to respect the value of non-discrimination.80 Efforts towards the building of a more integrated union have also resulted in the stressing of culture. Culture was first introduced in the 1992 Treaty on European Union.81 The European Parliament noted that ‘[c]ooperation among the Member States of the Community in the field of education and culture is inherent to the process of the construction of Europe, and reflects the spirit of the Treaties, since there is no doubt that it promotes closer relations between peoples.’82 On December 13, 2007, the Treaty of Lisbon was signed. The treaty of Lisbon represents an attempt by the EU to form a constitutional document. Amongst other things, this treaty deals directly with the issue of human rights. The treaty has been ratified and has come into effect. The Treaty of Lisbon effectively incorporates the Charter of Fundamental Rights of the European Union, and grants it the same legal value as the treaties of the EU— supremacy over national laws. The EU attitude is that of the building of a community based on a respect for diversity83 and distinct populations,84 combined with a sense of what it means to be ‘European’.85 This dual strategy has the objectives of ensuring European integration and cooperation by

respecting distinct populations while simultaneously creating more loyalty to the European identity.86 The end result includes that of protecting culture and cultural rights. In Western Europe, being ‘European’ implies not only a geographical orientation, but also a set of values, including the respect for human rights.87 The EU generally views the integration of EU workers and their families into the social fabric of host states, and the granting to them of political rights including the right to vote, not as assimilating them into the values and culture of that state, but rather as creating an equal environment.88 Article 21(1) of the Charter of Fundamental Rights of the European Union provides that: Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.89 (emphasis mine.)

The question is whether this framework results in EU de facto respect for culture and cultural rights. In some cases, it does. One example of an effective institution in the EU’s protection of culture and cultural rights is the above-mentioned Framework Convention for the Protection of National Minorities. The Framework Convention was adopted in November 1994 by the Committee of Ministers of the Council of Europe, and opened for signature a few months later, in February 1995. The Committee of Ministers has the authority to invite non-Member states to become party to the Framework Convention.90 The Framework Convention protects the rights of ‘persons belonging to national minorities’, including the rights of men, women, children, adults, citizens, and non-citizens, and of minority groups within minority groups.91 It establishes principles regarding the media, education, and other fields.92 The AC assists in the monitoring of adherence to the Framework Convention. This monitoring has often led to implementation and

enforcement of legislation improving the situation of national minorities.93 An example of the effectiveness of the AC can be seen in the case of the Czech Republic, which took remedial actions in response to AC reports on the situation of its minority, specifically Roma, populations. In its first report on the Czech Republic, the AC noted that it was ‘particularly concerned about the discrimination faced by the Roma in various fields, and the manner in which this minority is treated by the police’. It suggested that ‘appropriate measures should be adopted in order to improve the situation of numerically small minorities in areas such as the education system, access to the media and the use of minority languages in relations with authorities’.94 In response to this report, the Czech Republic took remedial actions, which were commented on in the AC’s second report on the country. In this second report the AC indicated the ‘positive development’ that the Czech Republic had pursued and diversified its action to protect persons belonging to national minorities, including the enactment of measures intended to encourage interethnic tolerance and dialogue.95 The AC’s reports on Poland also brought about changes in that country’s treatment of minorities. In a critical report, the AC expressed concerns with regard to ‘inherent shortcomings’ in the legal and institutional framework protecting persons belonging to national minorities, as well as issues with regard to cemeteries and national monuments affecting many national minorities, and problems facing the education of certain minority groups, including Roma and Lithuanians. The changes occurred following the Polish government’s acceptance of many of the AC’s criticisms of its treatment of national minorities, including issues regarding cemeteries and monuments, the use of minority languages with regard to contact with administrative authorities, and educational difficulties.96 The AC has made other observations about member states: that minority languages are sometimes treated as ‘foreign’ languages by the state authorities, leading to the disregard of their cultural and

historical links with the member state;97 and that residency requirements for social rights and employment can discriminate against national minorities with nomadic lifestyles.98 In other ways, the EU is less effective in protecting culture and cultural rights. For instance, although in some ways the ECtHR is an excellent vehicle for protecting human rights, in other ways it is less effective. One of the court’s shortcomings is that it is subsidiary to national courts,99 meaning that one of the prerequisites for initiating proceedings before the ECtHR is that national proceedings be exhausted. Furthermore, national judgments must be used as precedents. Both of these conditions, notwithstanding their logic, can pose difficulties—what happens when national infrastructures create impediments to pursuing national judicial remedies? And what is the situation when national precedents are structurally flawed? The court has stated that fundamental rights form part of the general principles based on the constitutional traditions of member states.100 There is also the issue of victims of discrimination and oppression not even knowing what their rights or remedies are. In many countries there are scant cases of discrimination brought before the courts due to victims being unaware that they are even able to do something to change the situation.101 Reservation is an additional issue to consider. Turkey and France, for instance, have reserved Article 27 of the International Covenant on Civil and Political Rights (ICCPR),102 which provides that: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.103

Connected to this is institutionalized racism, characterized by the refusal of authorities to prosecute instances of discrimination, which often comes hand-in-hand with the discouragement of victims from pursuing their claims.104 Similar to this is structural discrimination. Turkey, for instance, recognizes only non-Muslim religious communities as official minorities,105 and France is suspicious of potential threats to the notion of the homogeneity of French national

identity.106 This is despite the increase in European minority communities which have been ever-more increasing their demands for greater political recognition.107 Challenges of Multiculturalism in Europe It seems that the challenges arising from the growing Islamic communities in Europe changed the pattern of recognizing community rights and created a new consensus that multiculturalism must be limited, and must not violate a democratic and liberal foundation of human rights. No freedom should be given to freedom violators and no tolerance should be allowed to intolerance.108 The presence of populations very different from the country’s majority requires that we develop a culture of peace that will be based on mutual respect but will still allow for healthy constructive criticism. This type of ‘critical’ respect means that in engaging in dialogue with other cultures, one may find it necessary to address problems or criticize certain practices. For example, if a certain cultural group advocates discrimination against women, or barring women from the work force, society should not turn a blind eye to it. In recent times, the negative aspects of migrating populations that refuse to integrate into the communities that host them have received considerable publicity in Europe. German Chancellor Angela Merkel recently stated that multiculturalism has failed and that immigrants must make more effort to integrate into German culture and society. British Prime Minister David Cameron expressed the same sentiment. In February 2011, in a speech in Munich, he questioned the success of state multiculturalism. This new attitude toward immigrants is not without foundation and must be taken into consideration in discussions on immigration. Recent studies have dealt with additional facets of this issue. Some scholars, for example, claim that there is no connection between human rights issues and immigration. Moreover, they maintain that the issue of immigrants who arrive in search of employment should be dealt with by regular labour law, rather than in the context of any human rights discussion. They further maintain, and rightly so, that every country has the right to control the inflow of

immigrants. These studies have posited that multiculturalism is not necessarily a value to which we should strive but that by preventing discrimination, a country upholds multiculturalism.109 Kymlicka110 and most scholars writing on multiculturalism have limited the right to culture, only to cultures which respect the rights of others. The approach of Kymlicka is consistent with the policies accepted today by the political leadership in Europe and finds its support in the statements of Prime Minister Cameroon of the UK and Chancellor Merkel of Germany, that is subjecting the right to multiculturalism to conditions of the host community: knowledge of the language, maintaining the values common to the receiving community such as respecting monogamy, democracy, and gender equality.

THE CONSTITUTIONAL REQUIREMENT OF SECULARISM VERSUS INDIVIDUAL AND GROUP PERSONAL AUTONOMY There is a tension between the constitutional requirement of secularism, and the value of the personal autonomy of individuals and groups. Included in this tension are the questions of how far the constitutional requirement of secularism is permitted to encroach into private spaces, and under what circumstances it is even acceptable to demand secularism. As secularism can be viewed as the process by which sectors of society and culture are removed from the domination of religious institutions and symbols,111 it comes into conflict with the personal autonomy of those who wish to lead a life guided by religion. There are several related models which help explain the interrelationship of the constitutional requirement of secularism and personal autonomy of individuals and groups. They are the pluralist or assimilationist models; the majority or minority rule models; and the political reasons model. The assimilationist model is optimized by France, a country that demands that its citizens be ‘French’, that disapproves of cultural differences, and that expects that its immigrants refrain from defining

themselves as members of minority groups.112 The value of inclusion in assimilationist model countries is higher than the value of tolerance for others,113 and integration is often achieved through coerced suppression or absorption.114 On the other end of the spectrum, there is the pluralist model, seen in Canada where the government actively recognizes and promotes the interests of cultural and religious minority groups and the principle of the ‘cultural mosaic’ is an important national value of which Canadians are proud.115 For instance, the Canadian Multiculturalism Act, 1988, states in its preamble that: ‘…the Constitution of Canada recognizes the importance of preserving and enhancing the multicultural heritage of Canadians’.116 The 2006 Canadian census recognized over 200 different ethnic origins within the country.117 In the middle of the two models is the melting pot model, which the U.S. has adopted. In this model, diverse cultural minorities are amalgamated, but not suppressed.118 This model differs from the assimilationist model in that rather than minorities adopting the majority identity, the majority identity is created through the fusion of many groups.119 Intersecting these models is a different axis, on which is found the suppressed majority model and the suppressed minority model. These models take place when restrictions are put on elements of society. In the suppressed majority model, it is the minority which regulates its own behaviour. In the suppressed minority model, the majority restricts the activities of the minority. Actions regulated by the suppressed majority model have more legitimacy than those by the suppressed minority model.120 The third axis that helps explain the interrelationship of the constitutional requirement of secularism and personal autonomy of individuals and groups is the axis containing the political reasons model. This model places the other models in a specific political context, and helps explain the reasons for their implementation. The models taken together help explain at what point the obligations of secularism end and the rights of individualism begin.

Two examples of secular countries, France and Turkey, are located at the assimilationist ends of the spectrum. As mentioned above, both countries have also banned the wearing of religious headscarves in certain situations. As such, they are good examples of the interplay of the three axes of models.

General Background Turkey became a secular republic in October 1923 with the proclamation of the Republic of Turkey. Turkish modernity and secularism are two of the six principles upon which the Republic was based, and were reactions to the Ottoman legacy.121 They were in part achieved through laws governing dress.122 Leyla Sahin brought the issue of the Turkish ban to the ECtHR in 2005, after she was forbidden from writing her exams while wearing a headscarf. The ban was upheld by the court, which ruled that freedom of religion in this case was justified by Turkey’s political concerns, which included the possibility that an Islamic political party might become popular enough to create a fully Islamic state.123 In February 2006, the Turkish Constitutional Court went even further, and began traipsing in the realm of the private when it upheld the decision to revoke a nursery school teacher’s promotion on the basis that she regularly wore a headscarf outside of school. In the same month a second decision rejected a religious education teacher’s application; he had been refused a public position because his wife wore a headscarf.124 These are extreme examples of a prohibition of headscarves, for they verge into the private sphere, into that of personal autonomy, and are in contrast to the general situation which is that religious individualism in the private sphere goes virtually unchallenged.125 It is contrary to the principle of individualism, which among other things, emphasizes personal autonomy.126 The French experience is slightly different. France initially justified its ban on the wearing of religious headscarves in the name of laïcité, however, its constitutional top court (Conseil d’Etat) disagreed with this perspective, providing in 1989 that not only is the wearing of

headscarves compatible with laïcité, but that wearing one is also part of a citizen’s right to freedom of religion and expression. The Conseil d’Etat noted that this freedom of religion and expression could be abrogated were the headscarf wearing ‘ostentatious or provocative’ in a way that would constitute an act of proselytism or propaganda, or disrupt order in a school.127 Following this decision, in 1993, French president François Mitterrand set up a High Commission on Integration, which, in its first report, mirrored the government’s attitude towards immigration and cultural diversity:128 The French conception of integration should obey a logic of equality and not a logic of minorities. The principles of identity and equality which go back to the Revolution and the Declaration of the Rights of Man impregnate our conception, thus founded on equality of individuals before the law, whether their origin, race or religion...to the exclusion of an institutional recognition of minorities.129

The Stasi Commission, established in 2003 by President Jacques Chirac, recommended the passing of a law banning religious symbols, in an effort to ensure secularity and gender equality, and to further the principles of ‘openness to cultural diversity’ and ‘autonomy’ in French public schools. The headscarf, as a symbol of gender inequality, did not fit with this vision.130 Following the report, the French government banned the wearing of headscarves in schools. Although many students complied, many others moved to religious private schools or to distance learning, and over fifty students were expelled.131 Headscarves have been banned in more places in Turkey than in France: not only in schools, but also in universities and driving courses.132

First Model—Assimilationist or Pluralist France follows an aggressive assimilationist model in that it expects its immigrants to become ‘French’, and that the ‘common republican identity must take precedence over any divergent aspect of an individual’s identity that is religious, ethnic, or linguistic’.133 France does not officially recognize the concepts of ‘ethnicity’ or ‘race’,134

and its attitude is that inclusion in the French identity is determined neither by ethnic origins, race, nor culture.135 France’s secular character is drawn from this attitude of sameness. Hence there is no official ‘Muslim community’ in France; rather, Muslims identifying themselves as belonging to such an ethnic, cultural, or religious minority are portrayed by the French as ‘casualties of the integration process’ and an attitude that works against the common good.136 Turkey also subscribes to the assimilationist model.137 Turks are expected to conform to the six principles on which the republic was built, including secularism. Secularism is constitutionally protected in Turkey by Article 2 of the Constitution (1937), which provides that: The Republic of Turkey is a democratic, secular, and social State governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble.138

Second Model—Suppressed Majority Model or Suppressed Minority Model In the headscarf banning case, France acted from the suppressed minority model. Although there is no accurate data listing the percentage of French Muslims, due to the country’s assimilationist leanings, they are a minority in the country. As many Muslims are in a disadvantaged position economically, the ban on headscarves is socially sensitive as it can be viewed as merely adding to the situation.139 In contrast, the Turkish ban was a situation of the suppressed majority model, for approximately 99.8 per cent of its population positively identify themselves as Muslim.140 Indeed, the majority is so strong that many Muslim Turks do not even consider non-Muslim citizens to be ‘Turks’.141

Third Model—The Political Reasons Model

In the French case, the ban on religious headscarves was carried out in order to further the French value of laïcité and assimilation. In the Turkish case, the ban was explained as a way of blocking extremist religious forces that could potentially turn the country from a democracy to a dictatorship. The Sahin judgment states, in paragraph 115, that: [a]s the Turkish courts state...this religious symbol has taken on political significance in Turkey in recent years... The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts.142

It goes on to say: [i]t is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. Moreover, the Convention is a living instrument which must be interpreted in the light of present-day conditions.143

This third model came heavily into play in the Turkish case. Therefore, although the ECtHR ultimately validated Turkey’s ban on headscarves, it emphasized that this approval was highly contextspecific, leaving the door open for a different conclusion in different political circumstances, such as in the case in France.144 Thus the interplay between the three models: the pluralist or assimilationist models; the majority or minority rule models; and the political reasons model, all factor into the equation of what the balance shall be between the constitutional requirement of secularism and personal autonomy of individuals and groups.

The Right of the Democratic Majority to Preserve the National Constitutional Vision An issue facing many political systems is how to preserve their constitutional vision. Many depend on the democratic majority for this task: for instance, the distribution of power and consequent system for adopting decisions in the European Council and Council

of Ministers has been defined in Article 1-25 of the Constitutional Treaty:145 1. A qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained. 2. By way of derogation from paragraph 1, when the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the qualified majority shall be defined as at least 72% of the members of the Council, representing Member States comprising at least 65% of the population of the Union. 3. Paragraphs 1 and 2 shall apply to the European Council when it is acting by a qualified majority. 4. Within the European Council, its President and the President of the Commission shall not take part in the vote.

Majoritans, adherents to the purest form of the majoritarian model, believe that democratic majorities should have the power to ‘control all of government—legislative, executive and, if they have a mind to, judicial—and thus to control everything politics can touch. Nothing clarifies the total sway of majorities more than their ability to alter and adjust the standards of legitimacy.’146 Majoritans are suspicious of any institution without direct accountability to their representatives, including courts and regulatory agencies.147 They believe that any restraint on the will of the majority should be informal, rather than in a formal-constitutional manner unchangeable by majorities.148 In contrast, there are systems which include governing institutions not necessarily supported by the majority. For instance, although judicial adjudication has lead to greater opportunities for those able to litigate the protection of their rights, its non-majoritarianism can lead to a reduction in legislative authority and increase the power of what is in many cases an unrepresentative and undemocratic body of judges.149 Indeed, the judicial adjudication dynamic can lead to a blurring between administrative and constitutional review.150

The non-democratic nature of judicial adjudication is perhaps most evident on the international level, with ECtHR judgments being the catalyst for the dismantlement of many national state institutions, notwithstanding national opposition.151 Although the end results can be considered just, the present issue is the means, which is through a shift of power away from majority democratic rule.152 It is indeed possible to rethink the entire concept of majority rule, and to argue that despite, or because of, the frequency with which the term is used, the original meaning of the Greek demokratia has been lost. In classical Athens, demos referred to the ‘whole of the citizenry’.153 Demokratia was given the meaning ‘the rule of one group over another’ not by democracy’s original drafters, but rather by critics of popular rule.154 ‘Majority rule’ was an intentionally pejorative diminution, urged by democracy’s Greek critics whereas the true meaning was closer to ‘power’ in the sense of ‘capacity to do things’.155 Hence the ambiguity of the word ‘democracy’ and the correctness of scholars who are reticent to use the term without descriptive qualifiers.156 Indeed, the pure majoritarian form of democracy is the exception rather than the rule.157 Most democratic countries, aside from Britain and those countries heavily influenced by Britain, rely more strongly on non-majoritarian principles and institutions, such as federal political systems and their components of separation of powers, checks and balances, overrepresentation of small jurisdictions, a written constitution unable to be amended by a simple majority vote, and judicial review.158 It has been said that ‘[t]he true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved, and the state governments by the powers they have ceded.’159 Democracy thus does not require majority rule in order to remain democracy.160 Indeed, majority rule democracies face legitimacy problems when numbers meet intensities,161 that is, when a democratic majority rules against minority group interests, particularly the interests of threatened ethnic or cultural groups. In such cases, a counter-balance should be provided, such as a

constitutional provision, the requirement that there be a majority in several different constituencies, or that there be coalitions incorporating all parties, or that there be the right of a veto.162 The veto power was an early legitimating element in the EU, and the shift to majority voting since the Single European Act has been seen as one of the greatest causes of the legitimacy issue due to the weakening of national parliamentary control without a concurrent increase in the power of the European Parliament.163 Counter-balances are important not only in federal countries and systems, but also in those with distinct cultural or ethnic minority groups.164 Non-majoritarian features in a political system become more critical as the need to bring together diverse groups within a society increases.165 Thompson argues that the fundamental premise of ‘deliberative’ democracy is that prior to a law or policy being imposed, the individuals on whom the law or policy will create an effect must reasonably accept the imposition.166

THE MODELS OF APPLYING PRINCIPLES OF ISLAMIC RELIGION TO PERSONAL LAW From the analysis of theories and of the models of church and state relations, and the analysis of the attitude toward different cultures and religions, it emerges that unqualified autonomy should not be given to religious or cultural groups. In general, respect must be given to groups who maintain differences. This is based on the concept of freedom of choice and respect for culture. However, the respect for cultures is qualified by the principle that basic and fundamental values will be respected by the cultures which request recognition and consideration of their customs and the standards of conduct. These qualifications include respect for human rights, gender equality, monogamy of marriage, and refraining from customs which involve inflicting of bodily harm or deprivation of rights of members of the community that seeks recognition. In the framework of protecting gender equality, the claim of community to exercise forced divorce without reasonable cause shall be rejected.

Likewise, the deprivation of alimony and maintenance to divorced women or the restriction of the period of eligibility to such rights by the religious law must also be rejected. Based on this approach which is supported by scholars as well as by political leadership in Europe and elsewhere, it is possible to shape liberal models of implementing customs and laws in personal law of Muslim communities. Professor Donald Horowitz describes four models of explaining legal change: the evolutionist model, the utilitarian model, the social change model, and the intentionalist model.167 The evolutionist model is a macro-model which ascribes legal change to changes in socio-economic development. Property and contract law, for instance, are able to be developed only upon the creation of an agricultural society, and not in a hunting tribe.168 A characteristic of the evolutionist model is that its dependence on economic and cultural characteristics makes it not easily amenable to human intervention, and borrowing across cultures is minimal or non-existent.169 Modern law is seen to progress through a series of evolutionary states: from hierarchy and command, to professionalization and elaborate procedure, to participatory responsiveness.170 In contrast, the utilitarian model is a micro-model that ascribes legal change to societal efficiencies.171 Change, although formalized through legal means, originates from non-legal sources.172 Professor Horowitz provides the example of changes in legal rules regarding the civil law rules affecting patent protection or limited corporate liability due to their promotion of private rates of return.173 Douglass North and Robert Thomas make a similar argument, stating that business organization innovations were responsible for the West’s escape from poverty and famine.174 The societal change model views legal change as naturally reflecting societal opinions and social structures.175 This view is similar to the evolutionary model, for both models see legal change as naturally following societal changes.176 It is different from the utilitarian model which argues differently that legal change is a

voluntary response to social change rather than an automatic reaction. Mary Ann Glendon describes changes in family law in the language of the societal change model: as views on the family underwent transformation, family laws also changed, 177 accommodating these new views. The intentionalist model, also referred to as the instrumentalist model,178 sees certain leaders as intentionality causing legal change.179 In the intentionalist model it is the culture of the local elite which specifically determines the nature, timing, and extent of legal change.180 This perspective can exist in the social change model, where specific individuals can be accredited with bringing about change, but it is absent from the evolutionist and the utilitarian models which view legal change as inevitably following societal shifts.181 However, the intentionalist model differs from the societal change model for whereas the latter views legal change as filling in gaps created by societal shifts, the intentionalist model disregards the notion of legal change following any pre-determined path. Rather, it argues that it is possible that new legal innovations are inappropriate for the current cultural climate, having been introduced to suit personal and individual needs. It is the traditions, knowledge, and interests of political leaders and lawyers, who make up the legal elite, which will determine the form of legal change.182 Institutions play an important role, becoming symbols of legitimacy of the new legal order.183 Of the four models of legal change, the last two, the societal change model and the intentionalist model, are most useful in explaining the application of principles of Islam to personal laws. On the one hand, the societal change model arguably comes into play with regard to the application of the principles of the Islamic religion into personal law. This is so as due to law’s centrality in Islamic societies,184 it is not unusual for legal reforms to follow on the footsteps of an increasingly Islamic society.185 The Shari’a is believed to be unquestionable, due to its status as divine law.186 Monshipouri writes that Islamic states are under an obligation to

promulgate laws in accordance with the Shari’a, and the population under the duty to follow these laws.187 On the other hand, as all societies are governed by politics, the forceful drive of the intentionalist model also comes into play. The societal change model is able to be seen as a model for Aceh, Indonesia. Personal laws have been under the jurisdiction of the religious courts in this area for a long period of time. These personal laws include inheritance, marriage, divorce, and pious endowments (awqaf).188 This characteristic of the law can be seen as reflecting Indonesia’s Muslim population, and Aceh’s very short period of colonization, and thus its only brief introduction to alternative legal systems.189 Law No. 18/2001 granted special autonomy to Aceh, giving it the status of a special region and the legal basis upon which to apply Shari’a in a comprehensive manner.190 Indeed, the entire Indonesian legal system is a combination of Islamic customary law, Western law, and indigenous customary norms.191 The Indonesian Constitution emphasizes that Indonesia is ruled by the Rule of Law.192 In contrast, the intentionalist model came more into play with regard to the religious orientation of India’s personal laws. British administrators determined that colonial rule would be made most efficient were laws to be standardized: British laws for most matters, and uniform religious laws for personal matters. Personal laws were divided into ‘Hindu’ and ‘Muslim’ personal laws, imposing on the Muslim populations a standardized Islamic code which replaced the diverse Muslim legal practices which had existed earlier.193 In other words, the standardized Islamic laws were applied primarily for political reasons, without consideration to the good of the population. Although Muslims make up only between fifteen and thirty per cent of the population in Kenya, they are governed by Islamic laws with regard to personal status. Personal status includes marriage, divorce, and inheritance.194 The religious courts are provided for in the Constitution, on the basis of the intentionalist model: in order to ‘serve the rights of the subjects of the Sultan of Zanzibar’.195 As in

the case of India, British colonial administrators retained pockets of religious personal laws for the sake of promoting local buy-in to their rule.196 It is possible to view at least parts of the South African experience with religious personal laws through the utilitarianism model lens. The Muslim community in South Africa has long governed portions of its personal laws through its own set of informal religious tribunals, which are not subject to review by the South African civil court system. This system has caused hardship to sections of the population. Consider a Muslim woman who wishes to divorce: not only may she be unable to by way of the religious tribunals, but the South African civil courts may also not hear her case, as they might consider the underlying marriage to be invalid, having been consecrated outside of the South African civil system.197 In response to this situation, the South African Law Reform Commission published Discussion Paper 101 in 2001 which contained a Draft Bill on Islamic Marriages,198 which includes provisions regarding the recognition of and dissolution of Muslim marriages in South Africa, the status and capacity of spouses in these marriages, custody of and access to minor children, maintenance, and proprietary consequences. The purpose of the draft Bill is to relieve the hardship caused by the non-recognition of Muslim marriages in South Africa. Admittedly it has limitations, including being applicable to a marriage only upon the election of the parties.199 The general consensus is that the Bill will bring more certainty to South African Muslim marriages.200 In a different vein, as its history shows the elimination rather than addition of religion from personal laws, intentionalism was a strong force with regard to Turkish personal laws. As the ‘modernization’ of the republic was politically motivated, it can be seen as an example of the intentionalist model, for the transformation of the Ottoman Empire to the Republic of Turkey was the end result of a war between two parties of elites: the religious ‘traditionalists’ and the secular ‘modernists’, of whom the modernists triumphed.201

1 See Shimon Shetreet, The Model of State and Church Relations and its Impact

on the Protection of Freedom of Conscience and Religion: A Comparative Analysis and a Case Study of Israel, A Paper Submitted to the University of Heidelberg Conference on ‘Religious Symbols, Constitutional Law and Human Rights’, July 2005, at the Internaltionales Wissenschaftsforum, Heidelberg. 2 The ‘Establishment Clause’. See discussion that follows. 3 International Coalition for Religious Freedom, Religious Freedom World Report:

Ukraine (updated Apr. 3, 2004). 4 See, Alan Schwarz, No Imposition of Religion: The Establishment Value, 77 Y

L.J. 692 (1968); Alan Schwarz, The Nonestablishment Principle: A Reply to Professor Giannella, 81 H . L. R 1465 (1968). 5 The Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof. 6 Its purpose is to protect the churches from the interference of the State and to

maintain the freedom of religion and belief. Engel v. Vitale 370 US421 (1962); Abington School District v Schempp 374 U.S> 203 (1963) (scholl-sponsored bible reading unconstitutional). 6a Engel v. Vitale 370 U.S. 421 (1962); Abington School District v. Schempp, 374

U.S. 203 (1963); 7 BBC News, World Edition, Dec. 11, 2003. 8 Tony Wilson, Handling the Headscarf Issue: The French Headscarf Ban in a

European Context, available at: http://www.google.co.il/url? sa=t&source=web&ct=res&cd=1&ved=0CAgQFjAA&url=http%3A%2F%2Fwww.art s.auckland.ac.nz%2FFileGet.cfm%3FID%3Dc79b0d70-0cc5-407e-87e2c818f64e06a8&ei=WxfES-LHYGZOMKmgLMP&usg=AFQjCNGpURxZsi73S6zL5GpavegbFSZoZg&sig2=X2 n0eRhH_6p2pb7gCTa3EA . 9 D. Williams, In France, Students Observe Scarf Ban: Hostage Takers in Iraq had

called for Repeal, WASHINGTON POST FOREIGN SERVICE, Sep. 3, 2004, at A 11. 10 French Head Scarf Ban Underway, CBS N , Oct. 20, 2004. 11 T C . art. 2. 12 Ülkü Azrak, Controversial Headscarf Law: Attack on the Turkish Constitution,

Q . (2008). Available on qantara.de/content/controversialheadscarf-laattack-on–the-turkish-constitution 13 T ,AC S , (Helen Chapin Metz ed., 5th ed. 1996). 14 Binnaz Toprak, Civil Society in Turkey, in C S M

E , V T : S , E P S M E 107–08 (Augustus Richard Norton ed., 1996); Kurtulus Cengiz, Civil Society at the

Boundaries of Public and Private Spheres: The Internal Dynamics of Three CSOs in Turkey 49 (May 2005) (Thesis Submitted to the Graduate School of Social Sciences of Middle East Technical University). 15 CIA, World Factbook: Turkey, updated Dec. 18, 2008. 16 BBC News, Country Profile: Turkey; T , A C

S

, supra note

13. 17 W

R

K ,M 52 (1995).

C

:AL

T

M

18 Gershon Gontobnik, The Right to Culture in the Liberal Society and in Israel 27

(1) I

M

23, 46–49 (2003) (Hebrew).

19 Today it is accepted that the fact that a state adopted a regime of state religion

separation or of an establishment of a formal religion, does not necessarily mean an offence to the freedom of religion or discrimination on a religious basis. See, International Draft Convention on the Elimination of All Forms of Religious Intolerance, Art. I(d). 20 Coronation Oath Act, 1688. 21 See, R. Post, Blasphemy, the First Amendment and the Concept of Intrinsic

Harm, 8 T

A

U. S

. L. 293 (1988).

22

Church of England http://www.cofe.anglican.org/about/thechurchofenglandtoday/. 23 German Embassy, Washington D.C., available at

Website, http://www.germany-

info.org/relaunch/culture/life/religion.html. 24 Stefan Theil, Tolerating Intolerance: Germany Debates the Headscarf and Finds

It Un-German, A . I . F C . G http://www.aicgs.org/analysis/c/theil030404.aspx.

. S

. (Mar. 4, 2004),

25 U.S. Department of State, Country Reports on Human Rights Practices, 2005,

Mar. 8, 2006. 26 International Coalition for Religious Freedom, Religious Freedom World Report:

Latvia, updated Jun. 26, 2004. 27 For the differences between the Hungarian system and the German System,

see Neuberger supra note 27, at 15. 28 Theil, supra note 24. 29 Wisconsin v. Yoder, 406 U.S, 205 (1972). 30 Senate Rejects Bill Forcing Pharmacists to Dispense Birth Control, S

J

C

, Feb.7, 2008.

31 S.C.C. § 64-4.1 (1960 Supp.): ‘no employee shall be required to work on

Sunday…who is conscientiously opposed to Sunday work’ falls within the first category of exemptions; it resolves a direct conflict.

32 Available at http://www.conseil-etat.fr/ce/actual/index_ac_lc0115.shtml. 33 The application of this law has been subject to criticism, with the Association

Les Témoins de Jéhovah (a French Jehovah’s Witnesses association) complaining that they are not awarded the same tax-exemption privileges as other groups. 34 C C R F . 35 Dhillon v. British Columbia (Ministry of Transportation and Highways, Motor

Vehicle Branch), [1999] B.C.H.R.T.D. 25 (QL) (Can). 36 Pannu v. Skeena Cellulose Inc., [2000] B.C.H.R.T.D. 56 (QL) (Can). 37 Nick Nelson, Peyote and Peyote Law, THE DAILY HERALD, May 22, 2005. 38 B.H. v. Alberta (Director of Child Welfare), 2002 ABCA 109 (May 1, 2002).

Leave to appeal to the Supreme Court of Canada denied S.C. No. 29174, Jul. 2, 2002. 39 Sylvia Maier, ‘Honor Killings’ and the Cultural Defense in Germany and the

United States, Paper presented at the annual meeting of the American Studies Association, Dec. 1, 2008. 40 Chandran Kukathas, Are There Any Cultural Rights?, in T

M

C

228, 229 (Will Kymlicka ed., 1995).

41 For a more in-depth analysis of this theory, see J

E

R

P

P

G

, L

:

217 (1989).

42 K , supra note 17, at 52. 43 Kukathas, supra note 40, at 232. 44 Id. at 234. 45 Leslie Green, Internal Minorities and Their Rights, in T

C

R

M

, supra note 40, at 262.

46 Id. at 264–66. 47 For a further discussion of this point, see id. at 267–68. 48 Susan M. Okin, Is Multiculturalism Bad for Women?, in I

B 1999). 49 B

M

M ? (Joshua Cohen, Matthew Howard & Martha C. Nussbaum eds.,

W B

, C 134 (2001).

E

—A

E

50 Chandran Kukathas, Are There Any Cultural Rights, 20 P

C . T

105

(1992). 51 W

P

A. G P

, L T

P P

—T I (2002).

V

52 Jeff Spinner-Halev, Feminism, Multiculturalism, Oppression and the State 112

(1) E

84, 112 (2001).

53 Shlomi Segall, Will in the World: Kymlicka’s Global Odyssey, 2 J

. R . L S . 55 (2010); Chaim Gans, On Kymlicka’s Multicultural Odysseys, 2 J . R . L S . 64 (2010); Ruth Gavison, Kymlicka’s Multicultural Odysseys—A Comment, 2 J . R . L S . 71 (2010); Will Kymlicka, Reply, 2 J .R .L S . 91 (2010). 54 Will Kymlicka, supra note 42 at 52. 55 Joje Broner & Yoav Peled, On Autonomy Abilities and Democracy: A Criticism

of Liberal Multiculturalism, in M D J S :B M A R -Z 107, 112–13 (Menahem Mautner, Ronen Shamir & Avi Sagi eds., 1998) (Hebrew). 56 Menahem Fridman, The Market Model and Religious Radicalization: A

Collection of Papers Kahan, ed., B (Hebrew).

M

U

, 91, 105 (1990)

57 Id. at 108–09. 58 Aharon Barak, Proportionality and Principled Balancing, L

H

R

E

, 4 (2010).

59 Id. 60 See Frank Coffin, Judicial Balancing: The Protean Scales of Justice, 63 N

L. R . 16, 19 (1988); Richard Fallon, Individual Rights and the Power of Government, 27 G . L. R . 343 (1993); William Winslade, Adjudication and Balancing Metaphor, in L R 403 (Hubert Hubien ed., 1971) (discussing the virtues and disadvantages of the balancing metaphor); Dennis Curtis & Judith Resnik, Images of Justice, 96 Y L.J. 1727 (1987); Iddo Porat, The Dual Model of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law, 27 C L. R . 1393, 1398 (2006); G L & M J ,M W L B (1980) (examining metaphoric speech). 61 See Dieter Grimm, Proportionality in Canadian and German Constitutional

Jurisprudence, 57 U. T S H D

L.J 383, 396 (2007); S 70 (2008).

J. H

, F

62 See HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel

(2004) IseSC 58(5) 807, an English translation, available at 38 I (2005).

. L. R

. 83

63 Barak supra note 58; R

A , A T O C R 102 (Julian Rivers trans. 2002). For a further analysis of proportionality, See A B ,P (2002). 64 Council of Europe, Framework Convention for the Protection of National

Minorities and Explanatory Report, 11 (1995). 65 European Council in Copenhagen, Conclusions of the Presidency (1993), para.

7(A)(iii).

66 See, Article 49, Article 6(1) of the Lisbon Treaty on European Union. 67 Council of Europe, Directorate General of Human Rights and Legal Affairs,

Protection of National Minorities, 1 (2008). 68 Kyriaki Topidi, The Limits of EU Conditionality: Minority Rights in Slovakia, 1

J

1 (2003).

69 Id. at 5. 70 Id. at 6. 71 Id. at 7. 72 Id. at 20. 73 Council of Europe, supra note 64, at 12. 74 Id. at 13. 75 Guido Schwellnus, Anti-Discrimination Legislation, in M

C

E

76 Id. at 33. 77 T

E

E

33 (Bernd Rechel ed., 2009).

K

U

,C :B

R

P

, I F

I 53 (2001).

78 Maurice Roche, Citizenship, Popular Culture and Europe, in C

C

84 (Nick Stevenson ed., 2001).

79 Grainne DeBurca, The Constitutional Challenge of New Governance in the

European Union, 28 E

. L. R

. 814, 822 (2003).

80 John Erik Fossum, Still a Union of Deep Diversity? The Convention and the

Constitution for Europe, A

Working Paper 21/03, 12–13.

81 Clive Barnett, Culture, Policy, and Subsidiarity in the European Union: From

Symbolic Identity to the Governmentalisation of Culture, 20 P 406 (2001).

.G

405,

82 Antje Wiener, European Citizenship Practice, 27, Paper prepared for

presentation at the European Union Studies Association (EUSA) Tenth Biennial International Conference, May 17–19, 2007, in Montreal, Quebec, Canada. 83 John Erik Fossum, The European Union: In Search of an Identity, 2 E

P

.T

. J.

319, 325 (2003).

84 Id. at 5. 85 Barnett, supra note 81, at 409. 86 Fossum, supra note 83, at 14; Barnett, id. at 409. 87 A.J. Menendez, Chartering Europe: Legal Status and Policy Implications of the

Charter of Fundamental Rights of the European Union, 40

481 (2002).

88 Wiener, supra note 82, at 28; K , supra note 77, at 71. 89 Charter of Fundamental Rights of the European Union, art. 21(1).

90 Council of Europe, supra note 64 at 2. 91 Council of Europe, Advisory Committee on the Framework Convention for the

Protection of National Minorities, Commentary on Education under the Framework Convention for the Protection of National Minorities, 7 (2006). 92 Council of Europe, Directorate General of Human Rights and Legal Affairs,

Protection of National Minorities, 1 (2008). 93 Id. at 1. 94 Raine Hofmann, The Framework Convention for the Protection of National

Minorities, in M at 51.

R

C

E

E

, supra note 75,

95 Id. at 51–52. 96 Id. at 55. 97 Council of Europe, supra note 91, at 20. 98 Council of Europe, Advisory Committee on the Framework Convention for the

Protection of National Minorities, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, 19 (2008). 99 H. Petzold, The Convention and the Principle of Subsidiarity, in T

S P & H. Petzold eds., 1993).

H

R

E 41 (R. Macdonald, F. Matscher

100 Internationale Handelsgesellschaft MgbH v. Einführ – und Vorratstelle für

Getreide und Futtermittel (1970) ECR 1125. 101 Schwellnus, supra note 75, at 40. 102 Seyla Benhabib & Türküler Isiksel, Ancient Battles, New Prejudices, and

Future Perspectives: Turkey and the EU, 13 (2) C

218, 228 (2006).

103 International Covenant on Civil and Political Rights, Adopted and opened for

signature, ratification and accession by General Assembly Resolution 2200A (XXI) of Dec. 16, 1966, entry into force Mar. 23, 1976, in accordance with art. 49, art. 27. 104 Schwellnus, supra note 75, at 41. 105 See e.g., European Commission, Regular Report 48 (2004). 106 Benhabib & Isiksel, supra note 102, at 219. 107 Catherine Wihtol de Wenden, Immigration and Cultural Rights: Political

Recognition and Cultural Acceptance, 59 M

I

’ 1, 25 (2007).

108 Amnon Rubinstein, The Fall But Not the Death of Multiculturalism, 49 (1)

H

47, 81–84 (2006) (Hebrew).

109 Shimon Shetreet, On Citizenship and National Identity in Europe and Israel,

T

I

.J

F

.A

115 (2011).

110 K 111 P

, supra note 17 at 4. B R

T

, T S 107 (1969).

C

: E

A S

112 Ellen Wiles, Headscarves, Human Rights, and Harmonious Multicultural

Society: Implications of the French Ban for Interpretations of Equality, 41(3) L S ’ R . 699, 712 (2007). 113 Eric Kurlander, Multicultural and Assimilationist Models of Ethnopolitical

Integration in the Context of the German Nordmark, 1890–1933, 1(3) G E 39, 49 (2002).

R

.

114 Wiles, supra note 112, at 712; for a study of assimilation, see generally, I

K

,AD

M

C

A

(2002).

115 Wiles, supra note 112, at 712. 116 Canadian Multiculturalism Act (1988), c. 31, assented to Jul. 21, 1988,

preamble. 117 Statistics Canada, Canada’s Ethnocultural Mosaic, 2006 Census: Highlights,

available http://www12.statcan.ca/english/census06/analysis/ethnicorigin/highlights.cfm. 118 Wiles, supra note 112, at 712. 119 Talcott Parsons, Evolutionary Universals in Society, 29 A . S

353–56 (1964); See also, R H T N I

L , P , 1890–1919 (1989).

. R

P

at

. 339, : H

120 See Wiles, supra note 112, at 712. 121 Bertil Videt, Civil Society and Democratization in Turkey 7 (Mar. 2006)

(Unpublished Masters’ Thesis, University of Copenhagen); T S (Helen Chapin Metz ed., 5th ed. 1996).

, A C

122 T ,AC S , id. 123 Leyla Sahin v. Turkey, [2005] ECtHR (GC) 819 (No. 44774/98). 124 Wiles, supra note 112, at 710. 125 Madhavi Sunder, Piercing the Veil, 112 Y L.J. 1422 (2003). 126 Ronald Inglehart & Daphna Oyserman, Individualism, Autonomy and Self-

Expression: The Human Development Syndrome, in C C , D C C P 5 (H. Vinken, J. Soeters & P. Ester eds., forthcoming). 127 Conseil d’Etat 1989. Elisa T. Beller, The Headscarf Affair: The Conseil d’Etat

on the Role of Religion and Culture in French Society, 39 T . I on http://www.tilj.org/content/journal/39/num4/Beller581.pdf). 128 Wiles, supra note 112, at 702. 129 Haut Conseil a l’Intergration 35 (1996). See supra note 127.

’ L.J. (available

130 Wiles, supra note 112, at 702–03. 131 Id. at 703. 132 Id. at 710; see also Sahin v. Turkey, supra note 123. 133 Wiles, supra note 112, at 702. 134 Marguerite Cognet, Book Review, 34 C

. E S . J. 167 (2002) (reviewing L’I R : L’U R À L’É (Christian P, Francois Vourch & Veronique De Rudder eds., 2002)). 135 Khou Xiong, Hmong in France: Assimilation and Adaptation, VII UW-L J.

U

R

. 2 (2004).

136 Wiles, supra note 112, at 703–04. 137 See e.g., Erol Ülker, Assimilation, Security and Geographical Nationalization in

Interwar Turkey: The Settlement Law of 1934, 7 E

. J. T

.S

. (2008).

138 T C . art. 2, 1982. 139 Wiles, supra note 112, at 711. 140 Id. at 709. 141 Haldun Gulalp, Whatever Happened to Secularization? The Multiple Islams in

Turkey, 102 S. A

381, 382 (2003).

142 Sahin v. Turkey, supra note 123. 143 Id. 144 Wiles, supra note 112 at 711. 145 Juan Fernando Lopez Aguilar, The Balance of Power Between the European

Council, the Council and the Commission in the Draft European Constitution, in G E U C : T H R F E T E C T 438 (Josef Blanke & Stelio Mangiameli eds., 2006). 146 Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of

Standards, 4 E 147 M.J. P 148 Id.

. L. J. 5, 10 (1998). ,T

C

,T

C

H

R

(1982).

149 See Shimon Shetreet, Models of Constitutional Adjudication: A Comparative

Analysis, in P P C P (Ada Pellegrini Grinovner & Petronio Calmon eds., 2007); see also A S ,G J (2000).

L

769 S

150 Rachel A. Cichowski, Courts, Rights, and Democratic Participation, 39 C

P

.S

. 50, 71 (2006).

151 Id. at 70. 152 Id.

.

153 And the ‘whole’ of the citizenry as the free native male population of a national

territory: Josiah Ober, The Original Meaning of ‘Democracy’: Capacity to Do Things, not Majority Rule, 15(1) C 3, 8 (2008). 154 Ober, id. at 8. 155 Kurt Raaflaub, Democracy, Oligarchy, and the Concept of the ‘Free Citizen’ in

Late Fifth-Century Athens, 11 P

.T

517 (1983).

156 Numerous attempts have been made to codify and quantify the existence of

democracy across political systems. The best known is probably Freedom House’s Freedom in the World: Political Rights and Civil Liberties, published since 1973 by Greenwood Press and since 1988 by University Press of America. See also, C H ,W H R G (1986). 157 Majone, supra note 146, at 11. 158 Dennis Thompson, Democratic Theory and Global Society, 7(2) J. P

.P

.

111, 120 (1999); Majone, supra note 146, at 11. 159 Lord Acton, in E

L

I

H

393

(William H. McNeill ed., 1967). 160 Philippe C. Schmitter & Terry Lynn Karl, What Democracy is…and is Not, 2(3)

J. D

75, 84 (Summer 1991).

161 Id. at 79. 162 Id. 163 J.H.H. Weiler, The Transformation of Europe, 100 Y 164 Majone, supra note 146, at 11.

L. J. 2403 (1991).

165 Id. 166 Thompson, supra note 158, at 120. 167 See Donald Horowitz, The Qur’an and the Common Law: Islamic Law Reform

and the Theory of Legal Change, 42 A . J. C 168 Id. at 244, 246. 169 Id. at 245–46; See also J

R (1806), quoted in P 47 (1980).

M S

. L. 233 (1994).

, T ,L

O E

D :T

S

I

170 See G. Teubner, Substantive and Reflexive Elements in Modern Law, 17 L

S S

’ R

. 239 (1983); see also P T :T R

N L

&P (1978).

S

,L

171 Horowitz, supra note 167, at 247; see also Robert Clark, The Interdisciplinary

Study of Legal Evolution, 90, T 172 Horowitz, id. at 248. 173 Id. at 247.

Y

L

J

5 (1981) at 1238–1274.

174 D

W

C. N

&R

P

T

,T

R

W

(1973).

175 Horowitz, supra note 167 at 249. 176 See W G. S ,F 177 M A G ,T T

381 (1906).

178 See E

N

L :S ,L , F U S W E (1989); see also Peter H. Schuck, The Politics of Rapid Legal Change: Immigration Policy in the 1980s, 6 S . A . P . D . 37 (1992). C

G N

,N (2000).

F

(1983); M

H

,

179 Horowitz, supra note 167, at 250. 180 Alan Watson, Legal Change: Sources of Law and Legal Culture, 131 U. P . L.

R

. 1121, 1153 (1983).

181 Horowitz, supra note 167, at 250. 182 Id. at 251–52; see also Terence C. Halliday & Bruce G. Carruthers, The State,

Professions, and Legal Change: Reform of the English Insolvency Act, 1977–1986 (American Bar Foundation Working Paper No. 9019, 1990). 183 Zafer M Çetin, Tales of Past, Present, and Future: Mythmaking and Nationalist

Discourse in Turkish Politics, 24(2) J. M 184 M.B. H

,I

L

S

M

A . 347, 352 (2004). A

(1984): ‘[law] lies at the very

heart of Islam.’ 185 See Ghassan Salame, Islam and the West, 90 F P ’ 22, 25 (1993). 186 Shabnam Ishaque, Islamic Principles on Adoption: Examining the Impact of

Illegitimacy and Inheritance Related Concerns in Context of a Child’s Right to an Identity, 22 I ’ J. L. P ’ F . 393, 397 (2008). 187 M. Monshipouri, The Muslim World Half a Century After the Universal

Declaration of Human Rights: Progress and Obstacles, 16 N 287 (1998).

. Q. H

. R

.

188 Hasnil Basri Siregar, Islamic Law in a National Legal System: A Study on the

Implementation of Shari’ah in Aceh, Indonesia, 3(1) A

J. C

. L. 20 (2008).

189 Id. at 6. 190 Arskal Salim, Epilogue: Shari’a in Indonesia’s Current Transition: An Update, in

S ’ P M eds., 2003); Siregar, id. at 5.

I

225 (Arskal Salim & Azyumardi Azra

191 Siregar, id. at 3. 192 id. at 4. 193 Amina Jamal, Gender, Citizenship, and the Nation-State in Pakistan: Willful

Daughters or Free Citizens?, 31(2) J. W

C

S

’ 283, 292 (2006);

see also R

M

,T

I

L

P

(1994).

194 Anne Cussac, Muslims and Politics in Kenya: The Issue of the Kadhis’ Courts

in the Constitutional Review Process, 28(2) J. M (August 2008).

M

A

. 289, 289

195 id. at 289–90. 196 id. at 291–93. 197 C. Rautenbach, Some Comments on the Current (and Future) Status of

Muslim Personal Law in South Africa P E L J 1–2 (2004), available at http://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/per/issues/2004_2 _rautenbach_sum.pdf. 198 Islamic Marriages and Related Matters, South African Law Commission, 49

(Discussion Paper 101). 199 Cl 2(1). Cl 5 lists the requirements for a valid Muslim marriage. 200 Rautenbach, supra note 197. 201 Çetin, supra note 183.

2 COUNTRY STUDIES OF LAW, CULTURE, AND RELIGION

NEPAL: DRAMATIC SHIFT FROM HINDU STATE TO SECULAR STATE History of a Civil Society Civil society is defined as the individual and collective efforts for the common public good. Therefore, is could be said that civil society is not just association of the people, but the action of the people to promote the rights of the common men and women.1 Nepal is characterized by a plethora of ethnic minorities, with fiftyfive ethnic/caste groups in the country. In addition to the importance of ethnic/caste groups, Nepal’s diverse range of religious and language groups play important political roles.2 From the eighteenth century until 1951, Nepal was a monarchy, with the king’s word, law. In 1951 a democracy replaced the monarchy for a brief decade. However, the democracy was plagued by political instability, evidenced by the fact that general elections were held only in 1959. These elections led to Nepal’s first elected government. However, less than two years after the elections, the period of the partyless Panchayat rule began when the king dissolved parliament and the government.3 In 1962, the Panchayat regime declared Nepal to be Hindu. Opponents of the declaration claimed that the Hinduization of Nepal was done in order to suppress the people of Nepal and to reinforce Panchayat rule, as it held the king in a revered position, as the

reincarnation of the Hindu god Vishnu, upholding dharma on earth.4 During Hindu festivals he would bestow blessings.5 Hindu power was also seen in the regime through the proliferation of feudal elites from upper Hindu castes and ethnic groups.6 Thus, during the thirty-year Panchayat rule, Hindu religion and culture, as well as the regime’s Bahun-Chhetri caste and Khas Nepali language, became politically dominant in Nepal’s otherwise multi-religious, multicultural, multi-caste, and multilingual country.7 As a result of the Panchayat’s imposition of Hinduism, many Nepalese found themselves trapped in the rigid caste system imposed on them. Prakash Bom writes that the caste system marginalized the lives of Hindu Vaisyas, Sudhras, Dalits, and other indigenous communities, and that the worst off of all were lower Hindu caste members and women.8 In order to keep control, the Panchayat government attempted to suppress political unrest during its rule. However, in 1980, as a result of a major student political movement that was not able to be quieted, King Birendra announced a referendum in order to allow the populace to select either a multi-party democracy or a revised Panchayat system. Voters selected a revised system.9 Notwithstanding its results, the Panchayat system was weakened by the referendum. In 1990, the regime was overthrown, and replaced by a multi-party democracy. For the first time the people were made sovereign, and a new constitution was introduced within a year.10 Democracy brought with it the emergence of a liberal social middle class in the Kathmandu Valley. However, poverty in rural areas continued.11 This growing separation of social classes and increasing perception of social inequalities led to the rise of the CommunistMaoist party, founded by Prachanda in 1995.12 The Maoists began their armed struggle in 1996, claiming that the Nepalese required justice. The next decade was characterized by political turmoil, with over 13,000 Nepalese dying, and an even greater number being subjected to forced relocations.13 Both the government and the

Maoists were perpetrators of torture and atrocities during this period.14 In June 2001, King Birendra and his family were murdered by a family member in a palace shooting, the details of which remain unclear to this day.15 There were two significant political ramifications of the killings: one, was that the murders weakened the perception that Nepal’s kings were godly incarnations,16 and the second was that due to the death of his older brother, King Gyanendra rose to power, elections were delayed, and the government overthrown. Following the overthrow, King Gyanendra formed his own government, which failed to hold elections. Unsuccessful peace talks were held with the Maoists, violence continued, and Nepalese political instability increased.17 Protests and unrest stemmed from the belief by many ethnic groups that they were being discriminated against on the basis of ethnicity or caste or gender. The Dalits protested against castebased discrimination, including caste-based untouchability (‘descent based discrimination’), in both the private and public realms. They also protested against violence against Dalit women and against regional discrimination, and for equal language rights.18 In turn, the Madhesis complained of regional discrimination and their inability to receive citizenship. They demanded their own federal state with regional autonomy, proportional representation, equal access to government employment, affirmative action, and equal cultural and language rights.19 Indigenous groups had their own stipulations: demands for regional, linguistic, and ethnic autonomy, secularism, customary and collective rights, equal language rights, rights to land, forest, water, pasture, mines, proportional representation, and special measures.20 And so the list went on. In February 2005, the monarchy was de facto restored when King Gyanendra assumed absolute powers, nominated a Cabinet, of which he appointed himself Chair.21 This move was a turning point, for the first time uniting the opposition in their common goal of overthrowing the king. Popular demonstrations finally led to an April

2006 uprising which resulted in King Gyanendra reviving the parliament he had earlier dissolved. After a process of violence, inner struggle and even armed conflict in Nepal, in November 2006, the Maoists and seven political parties agreed on the twelve-point Comprehensive Peace Agreement. The first article in the agreement provided for an end to violent conflict and a restoration of peace, resulting in the Maoists suspending their armed resistance and participating in the democratic process. This agreement led to the Interim Constitution of Nepal on December 10, 2006, which institutionalized the parties’ agreement.22 Women’s groups in Nepal played a role in the shift to a secular state. These groups joined in protests, demanding the end to all forms of gender discrimination, as well as 33–50 per cent representation in all public positions, and equal rights to parental property.23 The Interim Constitution was promulgated on January 15, 2007. The Constitution was a milestone, with declarations that Nepal be a democratic and secular state, and a civil society: Part I (Preliminary) 4. State of Nepal: (1) Nepal is an independent, indivisible, sovereign, secular, inclusive and a fully democratic State.24 PART 4 (Responsibilities, Directive Principles and Policies of the State) 33. Responsibilities of the State: The State shall have the following[sic] responsibilities: … (c) To adopt a political system which fully abides by the universally accepted concept of fundamental human rights, multi-party competitive democratic system, sovereign authority inherent in the people and supremacy of the people, constitutional balance and check, rule of law, social justice and equality, independence of judiciary, periodical election, monitoring by the civil society, full independence of press, right to information of the people, transparency and accountability in the activities of political parties, people’s participation, neutral, competent and clean administration and to maintain good governance by eliminating corruption and impunity.25

(emphasis mine)

Constitutionalism was also entrenched: Part I 1. Constitution as the Fundamental Law: (1) This Constitution is the fundamental law of Nepal. All laws inconsistent with this constitution shall, to the extent of such inconsistency, be void.26

Furthermore, the rights of all elements of Nepal’s multicultural nature were recognized and constitutionalized: Part I 3. Nation: Having common aspiration of multiethnic, multilingual, multi religious, multi cultural characteristics and having committed and united by a bond of allegiance to national independence, integrity, national interest and prosperity of Nepal, the Nepalese people collectively constitute the nation.27

Other significant elements of the new constitution included a new national anthem, new coat-of-arms, minimum representation for women in parliament, maximum sitting time for the first parliament, and a provision declaring that human rights would be Nepal’s guiding principle.28 A June 13, 2007 amendment provided that should the interim parliament find that King Gyanendra was interfering with elections, Nepal could be instantly made a republic. Other amendments included permitting parliamentary removals of the Prime Minister and the ability to subject Supreme Court Justices and ambassadors to parliamentary hearings prior to their appointments.29 On December 28, 2007, Nepal’s interim legislature passed a hugely significant third constitutional amendment, in which it was declared that Nepal would be a federal democratic republic.30 There was tremendous support for this amendment, with voting 270 to three with forty-eight abstentions, and with 321 of 330 members attending the legislature during voting. The amendment was promulgated in January 2008.31 Other December 2007 amendments included changes to the way in which members of the Constituent Assembly would be elected:

240 in the first-past-the-post system, and 335 according to proportional representation.32 After multiple postponements, on April 10, 2008 parliamentary elections were held in which the Maoists won 220 seats in the 601member Constituent Assembly.33 The next-largest party was the Nepali Congress, with 110 seats.34 On May 27, 2008, just over a month after the elections, newly elected members of the twenty-five-party, almost-601-member Constituent Assembly took oaths of office.35 A day later, on May 28, 2008, the Constituent Assembly held its first meeting, during which it voted to abolish the monarchy, which had been entrenched in Nepal for 240 years. During the May 2008 vote, all but four of the 564 members voted in favour of officially creating the Democratic Republic of Nepal.36 The king was reduced to a figurehead and the parliament given the right to promulgate and amend laws regarding the royal succession.37 Thus the monarchy was dismissed through a democratic vote, and King Gyanendra given two weeks to vacate his palace, which he did on June 11, 2008.38 He was stripped of his tax and legal immunity, and provided with no privileges over and beyond that of a normal citizen.39 Former King Gyanendra apologized for ‘unintended steps’ that led to human rights violations during his rule.40 The next day, on May 29, 2008, the monarchy came to a symbolic end and the republic rose when the royal flag was lowered at 8:00, and the national flag was raised that same evening at approximately 19:30.41 On July 10, 2008, Nepal elected Dr Ram Baran Yadav as its first President, followed by the election of Prachanda as first Prime Minister on August 15, 2008.42 Prachanda was sworn in a few days later, on August 18, 2008.43 [Nepal] is a [sic] land of people of different ethnicity, religion, belief, tradition, culture, and language. For all to exist in a nation of diverse communities the declaration of the secular state is the most pragmatic and humanist decision of [the] people of Nepal.44

Steps to a Civil Society What were the steps which transformed Nepal from a Hindu kingdom to a civil society? There are many who believe that one of the roots of Nepal’s problems was poorly directed foreign aid, which perpetuated the cycle of dependency and poverty.45 These voices thus called for development, rather than military, assistance.46 Tied in with foreign aid was the issue of foreign political control. Even as late as 2007, some members of coalition party stated that foreign control was affecting Nepal’s ability to develop into a civil republic.47 Therefore, when the Nepal Civil Society Development Forum 2004 drafted its civic declaration, it called for, among other things, a demonstration of ‘immediate returns and long-term impacts of the investment to ensure transparency and accountability on the part of foreign donor agencies’,48 and ‘[t]o implement programs through Nepalese governmental and non-governmental agencies rather than through the donors’ own formal institutional set-ups’.49 Members of the Nepal Civil Society Development Forum 2004 were diverse, and included the NGO Federation of Nepal as Coordinator, and thirty groups as members, including the Nepal Bar Association, journalist groups, feminist groups, minority groups, rural groups, human rights groups, child rights groups, and groups for the disabled.50 Providing citizenship to two million Nepalese living in the areas bordering India was another step towards a civil society.51 It must be noted that this right of citizenship was not extended to the Madhesis, Badi Dalits, and some indigenous peoples including Chepangs, as well as Nepalese women married to foreign citizens.52 There were also attempts by grassroots organizations to educate the public. As late as 2006, it was believed that approximately 75 per cent of the Nepalese population did not understand the meaning of ‘constituent assembly’, and suggestions were made regarding how to remedy this situation:53

■ Door to door awareness raising program about the meaning and process of constituent assembly; ■ Door to door awareness raising program about peoples’ voting rights; ■ Door to door campaign about the rights of women, Dalits, Madhesis, and indigenous peoples; ■ Development of relevant IEC materials should be in different languages; and ■ Broadcasting of awareness raising advertisements and radio and TV programs in different languages.

It was critical to remove official Hinduism from Nepal, for as a Hindu state it was not inclusive of all of its rich ethnicities and castes, due to the instatement by Nepalese leaders of a Hindu caste system and hierarchical religious supremacy.54 Hand-in-hand with this was the reinforcement of a federal system important to better embrace the ethnicity of Nepal’s ethnic groups. A unitary government, even a unitary republic, could not be responsive enough to the diverse needs of all of its citizens. As was noted:55 Unlike [the] Madisonean principle of federalism, “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens”; Nepal has unique geographical and cultural or ethnic demographics. Such demographics need a proportionate unit on [a] smaller scale to sustain ethnic culture, language, custom, and religion under [the] electoral democratic process that accelerates the overall development at the [sic] grass roots level. The unitary system failed because it tried to encompass all in one basket by giving no chance to other ethnic communities.

Connected with the removal of the monarchy was the eradication of monarchical symbols: the expressions ‘His Majesty’s Government of Nepal’ and ‘Royal Nepalese Army’ were removed, and plans made to change the first line of the national anthem, which read: ‘May glory crown you, courageous Sovereign’.56 Control of the army was also moved from the monarch to the cabinet. No less importantly, the army itself was declared to be newly open to inclusiveness, and not to control by top Hindu castes.57

TURKEY: THE APPLICATION OF THE PRINCIPLES OF SECULARISM IN A MUSLIM SOCIETY—THE AGGRESSIVE SECULARISM MODEL The History of Turkish Secularism Since Roman times, Turkey has not been colonized, resulting in a political and constitutional culture which is uniquely Turkish. Prior to the twentieth century, the country was ruled by the Ottoman Empire, which, at its apex in the sixteenth century, was one of the most powerful empires in history and controlled most of the eastern Mediterranean. Heading the empire was the sultan, accountable only to god and to god’s law, the Shari’a.58 During the early sixteenth century the sultan was considered the universal Muslim ruler.59 The roots of Turkish secularism first appeared in the 1860s and 1870s with the emergence of the Young Ottomans, who strived to make Europe accept their empire as an equal.60 The Young Ottomans believed that one way of achieving this goal was to make secular interests predominant over the Islamic religious interests, and to include non-Muslims in representative parliamentary institutions.61 The sultan created a constitution which responded to many of the Young Ottomans’ demands, however, the sultan’s continuing repressive policies perpetuated opposition to his rule.62 In 1907, the Committee of Union and Progress, also known as the Young Turks, was created, headed by Mustafa Kemal, later known as Atatürk, or father of Turkey.63 Among other demands, the Young Turks sought a parliamentary system of government in order to unify the empire’s diverse elements.64 There was a revolution in 1908, and in its wake civil and social reforms were introduced, and parliamentary elections held.65 Following World War I, the Ottoman Empire was formally dissolved, on account of its alliance with Germany.

Partly in an attempt to appease opposition forces, a new constitution was introduced in 1921. The constitution introduced a parliamentary system of government; however, Article 7 perpetuated the power of religious law: The basic rights of the application of the ordinances of the sacred law; the promulgation, amendment, and abrogation of all laws; the concluding of treaties and peace; the promulgation of the defence of the fatherland (i.e., the declaration of war) belong to the Grand National Assembly. The preparation of laws and regulations will be guided by juridical and religious provisions, which best conform to the modus operandi of the people and the needs of the times, as well as established customs. The functions and responsibilities of the Council of Ministers shall be fixed by a special law.66

The first transformation of Turkey to a secular republic occurred between 1922 and 1923. The year 1922 saw the abolition of the sultanate, and Turkey’s full independence.67 In November 1922, the National Assembly became the Turkish government, and the state was renamed the ‘Turkish State’.68 A year later, in October 1923, the Republic of Turkey was proclaimed. Kemalism refers to the six ideological principles upon which Atatürk’s reform program was built: secularism, republicanism, nationalism, populism, reformism, and etatism (statism). This platform was in stark contrast to the Ottoman legacy,69 and was an attempt to distance the Turkish republic from all that was Ottoman. It remains the ideological foundation of Turkey to this day. In order to actualize the Kemalist principles, Atatürk introduced dramatic reforms. One of the most influential was his introduction of a European-modelled secular legal code which revamped laws affecting marriage, women, and family relations.70 This law inter alia outlawed polygamy and Muslim divorce by renunciation, and introduced civil marriage.71 Secularism was achieved in other areas as well, for instance, by excluding Islam from any official role in Turkey, secularizing public education, and suppressing Islamic religious orders.72 Other changes, aimed at the remodelling Turkish societal fabric, included encouraging the wearing of Western-styled clothing,

outlawing the Fez (as it was regarded as a symbol of the Ottoman empire), discouraging women from wearing veils, declaring Sunday the day of rest, introducing the Western calendar, changing Turkey’s Arabic script to a Roman alphabet and number system, and giving women greater rights. The goal of Atatürk’s reforms was to modernize Turkey by transforming the republic into a secular republic and profoundly altering Turkish self-identity.73 The ‘cause of national independence came to be associated with the necessity of completely divorcing Turkey from Constantinople and it’s Byzantinism, from the Sultan and its dependence upon foreign support, from the Caliphate and it’s internal Islamic embarrassments, and from the monarchy and it’s essential conservatism’.74 Ironically, in order for Atatürk to have been able to install his reforms, he had to use elements of the despised Ottoman empire: a powerful, centralized, and bureaucratic regime.75 Secularism was thus accomplished through a deep change in the Turkish psyche, by a re-shifting of what it meant to be Turkish. ‘Modernism’ and ‘Westernization’ were the ideal, and ...secular elites scrutinized and praised the distinction between a ‘civilized’ and an ‘uncivilized’ manner, the ‘a la franca’ (European way) at the expense and at the detriment of everything ‘a la turca’ (the Turkish way). Hence, the ideal attributes of a “progressive and civilized” Republican individual included wearing neckties, shaving beards and moustaches, going to the theatre, eating with a fork, husband and wife walking hand-in-hand in the streets, dancing at balls, shaking hands, wearing hats in the street, writing from left to right, and listening to classical western music.76

In 1924, the Grand National Assembly ratified a new constitution. The constitution declared Turkey to be a Republic in Article 1,77 but retained the religious character of the country in Article 2.78 This provision declaring Islam the official religion was deleted in 1928 when Turkey became a secular state.79 The 1924 Constitution also laid the basis for constitutionalism with Article 102,80 which provided for the process of constitutional amendments:

Amendments to or modification of this Constitution may be made only upon the following conditions: the proposal to amend must be signed by at least onethird of the total number of deputies. The proposed amendment must be thereafter discussed by the Assembly and adopted by vote of two-thirds of the total number of deputies.

and with Article 103,81 which provided that: None of the provisions of this Constitution may be arbitrarily modified on any pretext; neither may the enforcement of any provision be suspended. No law shall be in contradiction to the Constitution.

Article 10282 also ensured that republicanism could not be eliminated by constitutional amendment: No proposal to alter or amend Article I of this Constitution, specifying that the form of government is a Republic, shall be entertained.

Atatürk’s party, the Republican People’s Party, remained in power until 1950, with a multi-party political system being introduced only in 1945. From 1950 until the 1960 military coup, the Democratic Party was in power. The military coup was partly as a result of the attitude of Turkey’s military, which has long regarded itself as the guardian of the secular system.83 The 1960 coup was carried out in order to save the republic from what the military considered an imminent danger of disintegration when the Democratic Party appeared to be trying to eliminate the Republican People’s Party and turning away from Kemalist principles, including secularism.84 Thus, the coup in many ways was a result of the power struggle between old and new.85 Following the coup, in 1961, a civilian government was reinstalled and a new constitution introduced. Constitutional and political changes took place in 1960 following these changes. Article 1 of the 1961 Constitution declared Turkey to be a republic, and Article 2, that it be a ‘secular state ruled by the rule of law’.86 The 1961 Constitution also created new legal organs of state intended to control the legislative branch, including a Constitutional Court modelled on the German and Italian courts. The Constitutional Court was intended to use judicial review as a tool to

guarantee constitutional rights. The 1961 Constitution reacted to Turkey’s authoritarian history by stressing that constitutionality be the governing force, and not rule of the legislature, with its provision that: ‘[t]he Turkish nation shall exercise its sovereignty through the authorized organs according to the principles laid down in the Constitution.’87 This wording was repeated in the 1982 Constitution,88 continuing to grant the judiciary, in particular the Constitutional Court, the meaningful ability to hold the legislature in reign. Many provisions in the 1961 Constitution were in response to what was considered to be a weakness of the Turkish democracy: the lack of effective constitutional controls over the tyranny of the majority.”89 Following increasing violence in the late 1960s,90 there was another military coup in 1971, again ostensibly to guard Turkey’s secular tradition. Civilian rule was reinstated by the 1973 elections, but 1980 brought yet another military coup. The 1980 coup was in response to demands for a return to Islamic law, and demonstrations which included disrespect to the Turkish national anthem and flag.91 The 1980 coup was philosophically different from the 1960 and 1971 coups, for rather than being a route of introducing a new political order, the 1980 coup was designed to fortify the current secular state, and to take power from social forces whose violence was resulting in approximately twenty deaths a day.92 The 1982 Turkish Constitution retained Article 1 from the 1961 constitution, stating that Turkey is a republic.93 Article 2 was expanded upon, providing that: The Republic of Turkey is a democratic, secular and social State governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble.94

The Constitution was ratified following a national referendum in which it enjoyed tremendous support, save from areas with large Kurdish populations.95 The Kurdish ethnic minority, which makes up approximately 20 per cent of the country’s population, continued to

pose challenges to the Turkish republic with protests against forced Turkish secularism. The Kurdish minority complained of government attempts to destroy its identity, on the basis that recognition of Kurdish linguistic and cultural rights would threaten Turkish unity. Kurdish guerrilla organizations also became active, resulting in thousands of deaths during the 1980s and 1990s.96 Turkey’s reservation with regard to Article 27 of the ICCPR emphasizes these problems with regard to Turkey’s Kurdish minority, as well with certain restrictions on the property of Catholic and Protestant religious institutions, and the training of priests.97 Article 27 protects ethnic, religious, and linguistic minorities by granting them the right to pursue their culture, religion, and language. Islamists posed a challenge to Turkish secularism, with their protests, increasing since the 1980s, against republicanism.98 Elections were held again in 1983, a year after the current constitution was ratified. Turkey saw her first female Prime Minister in 1993, when Tansu Çiller entered office. With the exception of 1997, when the military was central in removing Turkey’s coalition government,99 recent years have in general seen a quieter military, especially after Turkey began working towards EU membership.100 A brief exception occurred in 2007 when it stated that it would defend Turkey’s secular system when the government was seen as demonstrating questionable loyalty to secularism ‘amid a stand-off between the Islamist-rooted administration and secularists’.101 However, the issue of secularism is still a central item on the public agenda. It continues to polarize Turkish society as ‘the Islamic-secularist divide increasingly becomes translated into intolerance of the other in daily life’.102 The divide is also seen in state infrastructures, such as the law providing that graduates from prayer leader and preacher schools require higher grades in order to enter secular higher education institutes than admittees from other schools. The reasoning for this was to place more barriers before religious Turks who might ultimately wish to enter the Turkish bureaucracy, in order to prevent them from gaining political power and perhaps ultimately ushering in a new religious state.103

An example of this increasing gulf is the June 2008 Turkish Constitutional Court decision confirming the ban on headscarves at universities, as the ban upholds Turkey’s constitutional principle of secularism. This decision was in tandem with the 2005 ECtHR decision, the Sahin case, which held that a headscarf ban did not violate the ECHR. The court held that: Under the Constitutional Court’s case-law, secularism in Turkey was, among other things, the guarantor of: democratic values; the principle that freedom of religion was inviolable, to the extent that it stemmed from individual conscience; and, the principle that citizens were equal before the law. Restrictions could be placed on freedom to manifest one’s religion in order to defend those values and principles. That notion of secularism appeared to the Court to be consistent with the values underpinning the Convention and it noted that upholding that principle could be regarded as necessary for the protection of the democratic system in Turkey. It further noted the emphasis placed in the Turkish constitutional system on the protection of the rights of women. Gender equality—recognised by the European Court as one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe—was also regarded by the Turkish Constitutional Court as a principle implicit in the values underlying the Constitution.103a

Like the Constitutional Court, the ECtHR considered that, when examining the question of the Islamic headscarf in the Turkish context, there had to be borne in mind the impact which wearing such a symbol, which was presented or perceived as a compulsory religious duty, could have on those who chose not to wear it. The issues at stake included the protection of the ‘rights and freedoms of others’ and the ‘maintenance of public order’ in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhered to the Islamic faith. Imposing limitations on freedom to wear the Islamic headscarf could, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since that religious symbol had taken on political significance in Turkey in recent years. The court did not lose sight of the fact that there were extremist political movements in Turkey which sought to impose on society as a whole their religious symbols and conception

of a society founded on religious precepts. It considered that the regulations concerned were also intended to preserve pluralism in the university.104 Another contentious issue arose in March 2008, when a petition by Turkey’s chief prosecutor to ban the governing party and seventyone of its officials, including the Prime Minister and the President, for allegedly seeking to establish an Islamic state was narrowly defeated by the Constitutional Court.105 Ergun Özbudun argues that these issues will likely become more volatile in time, with the increase in political Islamism.106

The Turkish Aggressive Secularism Model Turkey has followed an aggressive model in its introduction and fortification of secularism. Atatürk enforced his projects through authoritarian rule prior to introducing democracy, considering such a stage to be necessary in order to stabilize his reforms.107 Turkish secularism was a form of state control over religion, and not the separation of the state from religion as is seen in some societies.108 Secularism was thus neither neutral nor value-free; it was a reaction against other controlling powers, including those of Islam, Kurdish identity, leftist ideology, and liberalism.109 Methods of control included the discontinuance of religious education in 1924, the 1926 dismantlement of religious courts, and the 1933 directive that Islamic calls to worship and public readings of the Quran were to be in Turkish rather than Arabic.110 In order to reinforce these values, there was intolerance to alternative developments.111 ‘None of Turkey’s three democratic transitions (in 1946, 1961, and 1983) involved an elite settlement. Instead, each followed the ‘reform’ (or ‘transaction’) path under the strict control of authoritarian rulers.’112 For these reasons, democracy was not one of the six Kemalist principles of Turkish republicanism, for it was considered in opposition, and thus secondary, to the value of secularism.113

Atatürk believed that at least the initial sovereignty of the populace would result in a return to a religious state.114 Secularism is strongly opposed by many sectors of Turkey’s religious population. In particular, for etatist Muslims, ‘the concepts of belief and political rule are fused through the unity of din ve devlet...the prophet having both revealed a religion and founded a state. Predicated on this statement is an assumed resistance to secularism.’115 The movement since the 1980s towards a civil society, with its increased democratization and civil organizations,116 can be seen as a major present-day threat to Turkish secularism. With its emphasis on giving voice to discrete interests, civil society and democratization are counterfoils to historical aggressive forced secularism whereby ethnic interests were silenced for the sake of Turkish modernization and unity. Providing special rights to specific interest groups, especially those of a religious or cultural nature, contrasts with secular society in which the same set of civil laws are used for all citizens, regardless of ethnicity or religion. An interesting point is that while Turkey grants non-Muslim religious communities recognition as official minorities it does not accord the same recognition to Muslim ethnic minorities.117 The Turkish secular model was challenged when peripheral cultures began to question the mandatory republican model imposed on them.118 Democratization is now taking a firmer hold, primarily due to pressure from the EU, which demands from its members adherence to its social, political, and economic policies, including its policy of civil society implementation and maintenance.119 For instance, Kurdish finally began being taught in Turkish schools, as consequence of ongoing EU pressures.120 Globalization has also put pressures on Turkish secularism, as it has provided alternative definitions to Atatürk’s concept of ‘modernity’,121 which included the necessity of secularism. It will be interesting to see how secularism fares in the future, given these changes. As mentioned, recent years have seen a quieter military (especially after Turkey began working towards EU membership),

and an increase in political power, which supports more friendly approaches to the Islamist traditions in Turkey. This trend of weakening the army has been reinforced by the September 2010 Constitutional Referendum.122 Provisions of the Turkish Constitution that had in the past provided protection to military coup leaders were abolished.123 Further, military officers found to be planning a coup against the civilian government will not have the protection of a military tribunal and will now be tried in civilian courts.124 Dismissed military officers can also appeal to the civilian judiciary in an attempt to have their commissions reinstated.125 The constitutional reforms in Turkey led to the enactment of several new provisions. These reforms address individual freedoms and judicial reforms.126 Individuals’ legal relations with the state have been altered, allowing for ombudsmen to resolve problems and for individuals still dissatisfied to appeal directly to the Constitutional Court. Constitutional protection for individual groups was recognized as in harmony with the overall principle of equality guaranteed by the Constitution. The Constitutional Court will be expanded and some of its members will be chosen by the Turkish parliament, while the Supreme Board of Judges and Prosecutors will increase in size. Furthermore, all citizens are now able to directly file a petition with the Constitutional Court.

ISRAEL: QUALIFIED APPLICATION OF RELIGIOUS LAW TO THE VARIOUS COMMUNITIES The Framework: Rooted in History The modern state of Israel was created through the vision of Zionism, the nineteenth century political movement developed towards the creation of a Jewish state, a vision which was bolstered by British and American convictions that a Jewish state was necessary as a foil to anti-Semitism and the threat of genocide.127

Zionists Theodor Herzl and Chaim Weizmann viewed the creation of a Jewish state as a necessary solution for the anti-Semitism that was ravaging the world. Their vision of the Jewish state was that of a secular country, created through legal means, and recognized worldwide. Following World War I, the League of Nations assigned Palestine to the United Kingdom as a mandated territory. The document establishing the Palestinian Mandate promised the development of a Jewish state within the mandated territory. Although many Arab leaders initially agreed with creation of a Jewish state, this agreement changed to opposition when the Arabs living in Palestine voiced their opposition. It is close to this time that the concept of Palestinian nationality, distinct from general Arab nationality, first began to arise. Following revolts and riots, the British began to believe that the conflicting claims were irreconcilable, and recommended in 1937 the partition of Palestine. Ten years later, after none of its suggested solutions regarding Palestine were accepted, the British turned to the United Nations, which developed a partition plan dividing Palestine into Jewish and Arab portions. In November 1947, the plan was ratified. When its mandate expired on May 14, 1948, the British evacuated Palestine, and the state of Israel was declared. The 1948 Declaration of the Establishment of the State of Israel declared Israel a Jewish state in which all religions would be treated equally:128 Accordingly we...hereby declare the establishment of a Jewish State...to be known as the State of Israel. The State of Israel...will ensure complete equality of social and political rights to all of its inhabitants irrespective of religion, race, or sex; it will guarantee freedom of religion, conscience, language, education and culture...129

The Declaration was an expression of the general call to the Arabs made before the war of independence: ...we want to see you as good neighbours….The Hebrew government [to be established] will give you full, equal rights...we stretch out our hand to you in

peace and brotherly love...130

These two objectives of a Jewish state and religious equality have been achieved through the combination of legislation stressing the Jewish character of the state, and laws providing freedom to Israel’s recognized religious communities, in a situation analogous to the U.S. model, which is a religiously free country which follows Christian principles.131 The Israeli arrangement was considered a compromise, allowing for Jewish laws in an otherwise secular framework.132 With regard to the first of the two objectives, the Israeli parliament, the Knesset, has passed laws recognizing Israel’s Jewish character. For example, the Foundations of Law, 5740-1980 provides that in cases of gaps in law, the court ‘shall decide [the legal issue] in the light of the principles of freedom, justice, equity and peace of Israel’s heritage’. Similarly, the Law of Return, 1950, grants special immigration rights to Jews, and to some individuals with Jewish ancestors. In addition, several of Israel’s Basic Laws, the country’s piecemeal constitutional documents, refer to the Jewish nature of the state. One of these Basic Laws, the Basic Law: Human Dignity and Liberty133 provides that: The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

In addition, the Basic Law: Freedom of Occupation134 states that: The purpose of this Basic Law is to protect freedom of occupation, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

The Basic Law: The Knesset (Amendment No. 9)135 provides that it is forbidden to run for a seat in the Knesset if one is part of the list of candidates that supports, expressly or by implication, a ‘negation of the existence of the State of Israel as the state of the Jewish people’. The same section prohibits candidates who, expressly or by implication, incite racism.

The second of the two branches of Israel’s character, that of equality of religion, is significantly provided for through Israel’s court system. The Israeli court system has created for each of the country’s recognized religious communities its own judicial framework which applies and adjudicates personal status rules according to religious precepts.136 Thus, by continuing, in a modified form, the Ottoman millet system137 of separate courts for specific religious communities, Israel has been able to allow religious freedom for minority communities within the context of a religious state.138 Indeed, Israeli law provides that every person belongs to a religious community, and that this religious community is responsible for matters relating to that person’s personal status, including marriage, divorce, and burial.139 The Palestine Order in Council, as amended in 1939, provides a list of recognized religious communities granted similar degrees of autonomy and jurisdiction over matters of personal status law.140 The recognized religions were the Jewish, Eastern (Orthodox), Latin (Catholic), Gregorian Armenian, Armenian (Catholic), Syrian (Catholic), Chaldean (Uniate), Greek Catholic Melkite, Maronite, and Syrian Orthodox religions. Protestant and Anglican Christianity were not recognized. The Druze religion received recognition by way of a statute which also established Druze religious courts. In 1970, Israel recognized the Evangelical Episcopal Church and in 1971, the Bahai religion.141 In Israel today, specific laws exist for each of the recognized Jewish, Muslim, Druze, and Christian communities. Each community’s religious court system has jurisdiction over slightly different matters of personal status, with the Muslim (Shari’a) courts having the broadest jurisdictional scope, and the Jewish, Druze, and Christian courts having similar breadths of jurisdiction.142 Religious courts are granted exclusive jurisdiction in matters of marriage and divorce, and have shared jurisdiction in other family matters, including maintenance, child custody, and division of assets following divorce.143 Although the Palestine Order in Council 1922 granted to religious courts exclusive jurisdiction on matters of family and probate issues,144 some of these areas of jurisdiction, such as

inheritance and adoption, have now been put under the umbrella of the civil Jewish courts,145 and property settlements in divorce cases must now use the criteria developed and used by civil courts.146 Muslim religious courts still have jurisdiction over adoption and inheritance upon the consent of the parties.147 Religious courts may decide other issues with the consent of both parties. In such cases, the courts operate as arbitrators under the law that regulates arbitration procedures.148 In addition, although Israel’s official religion is ‘Jewish’, it de facto includes elements of many other of its composite religions in its social fabric. Israel’s weekend, for instance, is both Friday and Saturday, reflecting the holy days of Muslims149 and Jews. Both Hebrew and Arabic are official languages, and there is Arabic programming on public television and radio,150 and both Hebrew and Arabic can be used in the courts and the bureaucracy.151 Israel’s Supreme Court, often viewed as one of the West’s most activist courts,152 tends to follow liberal-democratic tenets of human rights protection, thus protecting Israeli cultural minorities. Even with its religious framework, Israel was founded on secular rather than religious principles,153 and has retained many of these secular trappings. The Judaism of the founding Zionists was based on biblical history, including the paradigm of exile and return to the Jewish Promised Land, rather than on religious rites.154 The beginning of the multicultural approach in Israel was in the decision of the state of Israel to continue the tradition from Ottoman practice and later the mandatory practice of applying separate law and separate courts for matters of personal law i.e. marriage and divorce. This approach finds its expression in separate education systems for different groups including Muslim, Christian, and Jewish religious groups, as well as the use of Arabic language in road and street signs.155 Unlike the policy vis-à-vis Arab minority allowing separate education and recognition of the Arabic language, the attitude towards Jewish immigrants in Israel emphasized the need to create an integrated Jewish society in the state of Israel. The melting pot

theory of the 1950s and 1960s toward Jewish immigration was moderated in the approach toward Jewish immigration in the 1990s, in which the Israeli culture was promoted, together with recognition of the cultural background of the Jewish immigration. The historical Judaism was characterized by collective identity that emphasized the Jewish religious faith. This identity was not homogenous and one may discern five phases in which Jewish identity received emphasis of different kinds: the Bible, the Talmud, political philosophy, the Chassidic movement, and the Rabbinical culture. However, the deep controversies did not succeed in weakening the common foundations of the collective traditional identity, which is the belief in God and the commitment to the Torah of Israel, the people of Israel and the land of Israel.156 The emancipation process in Europe created a crisis in Jewish identity and many Jews selected to express their Jewish culture in new ways. The developments which took place in the nineteenth century led to a radical change between Jews and non-Jews. On the one hand they created familiarity between them, but at the same time brought about modern anti-Semitism. The transformation in the life of the Jews was shaped by the challenge of meeting such dilemmas as integration into society, or continuing in strict observance of all the rules of Halacha. In this process, a number of schools developed which shaped the public space of Jewish identities: the modern Jewish Orthodoxy, the Ultra-Orthodox community, the Reform movement, the Conservative movement, the Enlightenment movement, the Zionist movement, and the Bund movement (Judaism as culture).157 Jewishness in Israel is a collective fact. As such, Jewishness in Israel in all its aspects is different from the characteristics of the Diaspora outside of Israel. The basic difference is that Jewish identity in Israeli society is on the public political agenda. The social and political forces which are active at the political level are struggling to navigate Israeli society to the courses that they support. The Israeli Jewishness is thus secured because of its collective characteristic in the state of Israel, enshrined now also in constitutional provisions (Basic Law: Human Liberty and Dignity and Basic Law: Freedom of Occupation) defining the state of Israel as

‘Jewish and Democratic state’. Nevertheless, it should be noted that some have disputed this approach and distinguish between Israeli and Jewish characters of the state of Israel.158

Israel’s Qualified Application of Religious Law Israel’s qualified application of religious law has both weaknesses and strengths. One weakness is an issue certainly not unique to Israel, but rather common to many countries ruled by religious personal status law: the rights and status of women. Traditional cultures, such as monotheistic religions, tend to be patriarchal in nature.159 Israeli’s recognized religions, all being monotheistic religions, thus are all to some degree guilty of patriarchic laws.160 Hence Israeli feminists (both Jewish and Arab) argue correctly that women are often disadvantaged in their interactions with religious institutions,161 which includes institutions governing the laws of marriage and divorce. Another problem is again one not unique to Israel, but common to those countries following a recognized religion model: the nonrecognition of certain religions. Although ‘non-recognized’ religions are able to organize themselves according to the rules governing private associations,162 and it is forbidden to discriminate against them,163 they are not entitled to the benefits that are accorded to recognized religions. Another disadvantage faced by adherents to non-recognized religions is the issue of marriage and divorce, which are impossible in the religious framework. Many secular Israelis, whether they be Jewish or Arab,164 resent what they consider to be forced religiosity in important matters of personal status, including marriage and divorce; Israel has no secular marriage or divorce. Many consider this forced religiosity, and it has resulted in part in animosity between the secular and religious sectors.165 There are long-standing demands for civil marriage, for those who wish not to, and cannot, marry under Israel’s religious laws.166 This issue is no small matter: consider the statistic

that in 2008 approximately half of Israel’s largest religious group, Jews, considered themselves to be secular.167 A serious problem in Israel is related to its separate education system, divided both on secular and religious lines, and also on the language divide, which translates into a Jewish school system and an Arab school system. This system, with all of its benefits, has resulted in both secular and religious rifts,168 and also increased Jewish-Arab tensions. Cultural animosity is not restricted to Jewish-Arab tensions: there are also rifts between the Muslim and Christian Arab populations, and between the secular and the religious Arab populations.169 An excellent characteristic of the Israeli system is that it cultivates a cultural mosaic, encouraging religious and cultural freedom. However, cultural mosaics can have disintegrating tendencies, especially when philosophies of different cultural groups are opposed. Hence, the Israeli religious framework, which provides for this has its downside as well—individual cultural identifications can lead to anti-majoritarian movements. Hence, rather than their increased assimilation, there is the situation where Israeli Arabs now increasingly self-identify as ‘Palestinian’.170 In 1976, 45 per cent of Israeli Arabs chose a Palestinian identity, which number rose to 55 per cent in 1980, 68 per cent in 1985, and 67 per cent in 1988.171 Elements of Arab cultural autonomy have included demanding elimination of the explicitly Jewish character of Israel’s flag and national anthem, and changing immigration policy.172 A 1988 representative survey of Israel’s Arab population showed the 63 per cent denied Israel’s right to exist as a Jewish-Zionist state, and 13.5 per cent rejected Israel’s right to exist at all.173 One reason why Arab political parties have been slow to arise in Israel has been because their entry into national politics would demand an acceptance of Israel, which many were not willing to do.174 Many Arabs showed their support for the anti-Israel Intifada by sending relief to terrorists, and by holding general strikes and demonstrations.175 One of the issues facing Israel is that any attempt to alter the modified-Ottoman system of different systems for different religious

groups would be interpreted by many as an ‘attempt to reduce the national-cultural identity of the Arab population’.176

Selected Controversial Issues in Matters of Religion In Israel a number of controversies have arisen regarding equality and religion, marriage, separate education systems, separate transportation, and separate residence. The accepted view that democracy cannot tolerate separation is not always accurate in every case as applied to the Israeli context, but must be judged according to the circumstances of each case of separation. One should examine the purpose of separate education or transportation in order to distinguish between legitimate and non-legitimate separation.177 In Israel there is an expectation that the education system should exist to preserve the Jewish identity of the continuing generations. Thus, the Jewish education is aimed at two purposes: one is to develop the personality of young men and women according to their unique talents and inclinations. The second is to prepare the young persons for their mature age, that is to give them the ability to adjust to conditions of existence in their social environment.178 The components of Jewish humanistic education are: Hebrew language, joint core of cultural content, and Jewish ideology. The need to provide Jewish heritage in education derives from the commitment to maintain their cultural identity. The Jewish people are committed to maintain their Jewish identity, particularly in light of the great disasters and threats that were experienced by the Jewish people in recent generations.179 A number of controversies arose in Israel regarding separation in the Ultra-Orthodox sector in education,180 and in public transport.181 In general society, controversies arose regarding the issue of selective procedures of admitting residents to small villages.182 Controversies arose also with regard to marriage and divorce, particularly the lack of possibility of civil marriage.183 An especially thorny issue is, the problem of a gunot wives whose husbands

refused to give geth (Jewish Certificate of divorce), which attracts sharp criticism. In spite of the fact that religious law applies in Israel to matters of marriage and divorce, important developments took place regarding the recognition of the de facto status of same sex relationships. In a historic decision, couples of same sex who married in Canada were ordered by the court in Israel to be registered as married in the population registry. This, in spite of the fact that same sex marriage is not possible in Israel.184 The court also allowed a female samesex couple to adopt each other’s children .185 The court also recognized in a series of decisions that same sex reputed spouse is entitled to economic rights, similar to reputed spouse of different sex (such as pension).186

1 NepalCivilSociety.org, Civil Society Spectrum In Nepal: Can NGOs Provide

Leadership?, available http://www.nepalcivilsociety.org/CivilSocietySpectrumInNepal.pdf.

at

2 Harka Gurung, Ethnic Demography of Nepal, Paper presented at a Talk Program

Organized by Nepal Foundation for Advanced Studies (NEFAS) (Jan. 10, 1996) (on file with the author). 3

Nepal Election Portal, Nepal’s Political History, available at http://www.nepalelectionportal.org/EN/political-development/political-history.php. 4 Prakash Bom, Declaration of Nepal a Secular Democratic State (Sep. 30, 2006)

(unpublished manuscript) (on file with the Utah Law Review). 5 Siddhi B. Ranjitkar, Republic of Nepal, ‘SCOOP’ BUSINESS, Jun. 7, 2008,

available at http://www.scoop.co.nz/stories/HL0806/S00083.htm#a. 6 Bom, supra note 4. 7 Dr K.B. Bhattachan, Nepal: Campaign to Secure Rights During Constituent

Assembly, T

N

W

, Jun. 4, 2006; Gurung, supra note 2.

8 Bom, supra note 4. 9 Nepal Election Portal, supra note 3. 10 id. 11

OneWorld.net, Nepal Guide, http://uk.oneworld.net/guides/nepal/development. 12 id.

available

at

13 Nepal Election Portal, supra note 3. 14 OneWorld.net, supra note 11. 15 Charles Haviland, Erasing the ‘Royal’ in Nepal, BBC N

, May 19, 2006,

http://news.bbc.co.uk/2/hi/south_asia/4998666.stm. 16 id. 17 Nepal Election Portal, supra note 3. 18 Bhattachan, supra note 7. 19 id. 20 id. 21 Nepal Election Portal, supra note 3. 22 Nepal Election Portal, Legal Framework Governing Elections in Nepal, available

at http://www.nepalelectionportal.org/EN/election-laws/constitution-nepal.php. 23 Bhattachan, supra note 7. 24 Interim Cons. of Nepal 2063, Jan. 15, 2007, Part I, art. 4. 25 id. 26 id. 27 id. 28 id. 29 Nepal Election Portal, supra note 22. 30 id. 31 Dhruba Adhikary, Nepal’s ‘Republic on Paper’, ASIATIMESONLINE, Jan 3,

2008. 32 Nepal Election Portal, supra note 22. 33 Reuters, Royal Flag is Lowered over Nepal’s New Republic, I

H T , May 29, 2008; Ben Peterson, Nepal: Republic Begins, Monarchy Ends, G , May 30, 2008; Surendra Phuyal, Difficult Journey into 2009, Jan. 7, 2009. 34 Phuyal, id. 35 Ranjitkar, supra note 5; Phuyal, id. 36 Peterson, supra note 33. 37 Haviland, supra note 15. 38 Phuyal, supra note 33; Reuters, supra note 33. 39 Ranjitkar, supra note 5. 40 Phuyal, supra note 33. 41 Ranjitkar, supra note 5.

42 Phuyal, supra note 33. 43 Nepal Election Portal, supra note 3. 44 Bom, supra note 4. 45 National Sovereignty, People’s Pride: Foreign Aid, A Universal Right, Civic

Declaration, CIV. SOC’Y OF NEPAL http://www.nepalcivilsociety.org/Nepal%20Civil%20Society%20 Development%20Forum-2004.htm, § 1.

(2004),

46 Id., § 2.4. 47 Maoist Krishna Bahadur Mahara stated that the foreign influence of all seven

coalition parties was affecting the ability to hold votes; however, there were media reports dismissing this suggestion: Adhikary, supra note 31. 48 National Sovereignty, supra note 45, § 2.6. 49 id. § 2.7. 50 id. 51 Haviland, supra note 15. 52 Bhattachan, supra note 7. 53 id. 54 Bom, supra note 4. 55 Prakash Bom, The Self-Terminated Feudal Monarchy & the Rise of Federal

Democratic Republic Nepal (2007) (unpublished manuscript) (on file with the Utah Law Review). 56 Haviland, supra note 15. 57 id. 58 T 59 id.

,AC

S

(Helen Chapin Metz ed., 5th ed. 1996).

60 id. 61 id. 62 id. 63 id. 64 id. 65 id. 66 T 67 T

C ,AC

. art. 7, 1921. S

, supra note 58.

68 See http://www.electionworld.org/history/turkey.htm. 69 Bertil Videt, Civil Society and Democratization in Turkey 7 (Mar. 2006)

(Unpublished Masters’ Thesis, University of Copenhagen); T

, A C

S

, supra note 58.

70 T 71 id.

,AC

S

, supra note 58

72 id. 73 Nilüfer Göle, Authoritarian Secularism and Islamist Politics: The Case of Turkey,

in C P

S

M M

S

E E

, V T : S , E 21 (Augustus Richard Norton ed., 1996).

74 Edward Mead Earle, The New Constitution of Turkey, 40 P

. S . Q. 81

(1925). 75 Ergun Özbudun, Turkey: How Far from Consolidation?, 7 J. D

124

(1996). 76 Göle, supra note 73. 77 Earle, supra note 74, at 89. 78 id. 79 T ,AC S , supra note 58. 80 Earle, supra note 74, at 100. 81 id. 82 id. 83 BBC News, Country Profile: Turkey. 84 Kurtulus Cengiz, Civil Society at the Boundaries of Public and Private Spheres:

The Internal Dynamics of Three CSOs in Turkey 51(May 2005) (Thesis Submitted to the Graduate School of Social Sciences of Middle East Technical University); T ,AC S , supra note 58. 85 Binnaz Toprak, Civil Society in Turkey, in C

V T :S ,E supra note 73, at 91. 86 T 87 T

P

C

. arts. 1, 2, 1961.

C

. art. 4, 1961.

88 id. art. 6, 1982. 89 Toprak, supra note 85, at 93. 90 T ,AC S , supra note 58. 91 id. 92 Toprak, supra note 85, at 94. 93 T C . art. 1, 1982. 94 id. art. 2. 95 T

,AC

S

, supra note 58.

S S

M M

E E

, ,

96 BBC News, supra note 83; T ,AC S , supra note 58. 97 Seyla Benhabib & Türküler Isiksel, Ancient Battles, New Prejudices, and Future

Perspectives: Turkey and the EU, 13(2) C

218, 223 (2006).

98 E. Fuat Keyman & Ahmet Icduygu, Globalization, Civil Society and Citizenship

in Turkey: Actors, Boundaries and Discourses, 7 C

S

. 222 (2003).

99 Metn Heper, The Justice and Development Party Government and the Military

in Turkey, 6 T

S

. 215, 216 (2005).

100 BBC News, supra note 83. 101 id. 102 Toprak, supra note 85, at 111. 103 Heper, supra note 99, at 216. 103a Leyla Sahin v. Turkey, ECHR Grand Chamber Judgment Application no.

44774/98, paragraph 115. 104 Registrar of the European Court of Human Rights, Press release on The

Chamber Judgment in the Case of Leyla Sahin v. Turkey (application no. 44774/98). 105 BBC News, supra note 83. 106 Özbudun, supra note 75, at 132. 107 T ,AC S , supra note 58. 108 Toprak, supra note 85, at 107–08. 109 Göle, supra note 73. 110 Toprak, supra note 85, at 107–08; Cengiz, supra note 84, at 49; T

C

S

, A

, supra note 58.

111 Cengiz, Id. at 50. 112 Özbudun, supra note 75, at 132. 113 Göle, supra note 73, at 19–20. 114 Id. at 20. 115 Id. at 17. 116 Keyman & Icduygu, supra note 98, at 222. 117 Benhabib & Isiksel, supra note 97 at 228. 118 Keyman & Icduygu, supra note 98, at 232. 119 Id. at 8. 120 Benhabib & Isiksel, supra note 97, at 228. However, there are still restrictions

on teaching the Kurdish language: it is taught in specialized language courses and not by way of public education. 121 Keyman & Icduygu, supra note 98, at 225.

122 See Turkey Backs Constitutional Changes, BBC N

, Sept. 12, 2010, http://www.bbc.co.uk/news/world-europe-11278602; see also Can Erdogan Pull It Off?, T E , Sept. 11, 2010, at 16. 123 See Turkey Backs Constitutional Changes, id. 124 id. 125 id. 126 See id. 127 Daniel Downs, Is Israel Really a Democracy? Secular or Jewish, T

S. A ., Apr. 7, 2008, http://thestateofamerica.wordpress.com/2008/04/07/isisraelreally-a-democracy-secular-or-jewish/. 128 Declaration of Establishment of State of Israel, I

. M

F

A ., http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declara tion+of+Establishment+of+State+of+Israel.htm (reproducing ‘The Declaration of the Establishment of the State of Israel’, May 14, 1948). 129 id. 130 Paul Eidelberg, Demophrenia: Israel and the Malaise of Democracy, available

at: http://mailman.io.com/pipermail/freemanlist2/2008-April/002577.html. 131 Downs, supra note 127. 132 Kenneth D. Wald and Samuel Shye, Interreligious Conflict in Israel: The Group

Basis of Conflicting Visions, 16 P

.B

157, 160 (1994).

133 Basic Law: Human Dignity and Liberty, § 1. 134 Basic Law: Freedom of Occupation, § 2. 135 Basic Law: The Knesset, § 7A. 136 Matters other than those affecting personal status are adjudicated by the civil

(secular) court system. 137 Yüksel Sezgin, The Israeli Millet System: Examining Legal Pluralism Through

Lenses of Nation-Building and Human Rights, 43 J (2010).

.R

.L

S

. 631

138 Martin Edelman, A Portion on Animosity: The Politics of Disestablishment of

Religion in Israel, 5 I

S

. 204, 206 (2000).

139 Sammy Smooha, Minority Status in an Ethnic Democracy: The Status of the

Arab Minority in Israel, 13 E

R

S

. 393 (1990).

140 Margit Cohn, Women, Religious Law and Religious Court in Israel—The

Jewish Case, 107 R (2004). 141 id.

(Scandinavian Journal of Social Sciences) 57, 61

142 Emory Law, State of Israel. 143 Cohn, supra note 140, at 57. 144 The Palestine Order in Council, 1922. 145 Cohn, supra note 140, at 57. 146 Lev v. Grand Rabbinical Court, 48(ii) P 147 Emory Law, supra note 142.

D

457, 461 (1994).

148 Cohn, supra note 140, at 69. 149 Muslims make up approximately 80 per cent of Israel’s non-Jewish population.

See, Marc Galanter & Jayanth Krishnan, Personal Law Systems and Religious Conflict: A Comparison of India and Israel, in R P L S I : A C T J 270, 289 (Gerald James Larson ed., 2001).). 150 Ralf Seliger, Secular Jews and the ‘Jewish State’, I

T T , Apr. 1, 2008. Available on http://inthesetimes.com/article/3578/secular_jews_and_the_jewish_state 151 Smooha, supra note 139, at 404. 152 G J. J ,A O G

:C I U S (1993); Gad Barzilai, Courts as Hegemonic Institutions: The Israeli Supreme Court in a Comparative Perspective, 5 I A . 15 (1999); Yoav Dotan, Judicial Accountability in Israel: The High Court of Justice and the Phenomenon of Judicial Hyperactivism, 8 I A . 87 (2002). 153 Izhak Englard, Law and Religion in Israel, 35 A . J. C

E

,B

P

P

. L. 187 (1987); P

.

154 On the history and ideology of Zionism, see e.g. D

F V

Y ,Z

(1982); T Z :T C Y

V ,Z : T I (Arthur Hertzberg ed., 1982); D (1987).

155 Amnon Rubinstein, The Decline but not Death of Multiculturalism, 49 (1)

H 47, 76–78 (2006) (Hebrew). For the road signs case see HCJ 4112/99 Adala the Legal Center for Arab Minority Rights in Israel v. Tel-Aviv-Jaffa Municipality (published: Nevo Jul. 25, 2002). 156 E

M

E

B E L B H , J I 331–33 (2006) (Hebrew), Tel Aviv Open University, 2006.

157 id. at 331–37. 158 id. at 342–52. 159 S M. O

M

,J ,G F (1989); Susan M. Okin, Is Multiculturalism Bad for Women?, in I M B W 21– 22 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum eds., 1999).

160 Ibtisam Ibrahim, The Status of Arab Women in Israel, 7 M

C

E

107, 118–19 (1998).

161 Lisa Hajjar, Between a Rock and a Hard Place: Arab Women, Liberal

Feminism and the Israeli State, M

E

R

28 (1998).

162 Englard, supra note 153, at 197–98. 163 Shimon Shetreet, Some Reflections on Freedom of Conscience and Religion

in Israel, 4 I

.Y

H

.R

. 194, 195 (1974); Englard, id. at 198.

164 Shibley Telhami, New Divide in Arab Politics in Israel, VI (4) M

P C J (Jun, 1999), http://www.mepc.org/journal_vol6/sandfreetelh.html. 165 E

I 158.

B S

available

E at

-R &S S ,E ,R C 161 (1991), referred to in Wald & Shye, supra note 132 at 157,

166 Englard, supra note 153, at 202. 167 Study: 51% of Israelis Secular, Y-N

:J W , Mar. 3, 2008, available at http://www.ynet.co.il/english/articles/0,7340,L-3514242,00.html. 168 Gideon Katz, Secularism and the Imaginary Polemic of Israeli Intellectuals, 13

I

S

. 43, 51 (2008).

169 Ray Hanania, Christian Arabs threatened from all sides—Israel, Middle East,

Arab and Islamic Worlds, too, M Y Ansary, The Challenge of Secularization, 7 J. D

(2008); see also Abdou Filali76, 76 (1996).

170 Elie Rekhess, The Evolvement of an Arab-Palestinian National Minority in

Israel, 12 I

S

. 1, 7 (2007).

171 Smooha, supra note 139, at 398. 172 Seliger, supra note 150. 173 Smooha, supra note 139, at 396. 174 Telhami, supra note 164. 175 Smooha, supra note 139, at 398. 176 Englard, supra note 153. 177 Ruth Gavison, Jewish and Democratic State: Challenges and Risks, in

M D J S : B M A R -Z 213, 247–51 (Menahem Mautner, Avi Sagi & Ronen Shamir eds., 1998) (Hebrew). 178 E

(Hebrew). 179 id. at 30.

S

, J

H

E

I

1–16 (2000)

180 HCJ 1067/08 ‘Noar-Kahalacha’ Association and Yoav Lelum v. Ministry of

Education (published: Nevo Aug. 6, 2009). 181 HCJ 746/07 Regen v. Ministry of Public Transport (published Nevo Jan. 5,

2011). 182 Hanoch Dagan, The Right of Entry, 24 M

M

59, 79 (2008)

(Hebrew). 183 Gavison, supra note 177, at 266–68; P

C

M

S

, W

A

? 10 (2000) (Hebrew).

184 HCJ 3045/05 Ben-Ari v. Director of Population Registry (published: Nevo Nov.

21, 2006). 185 HCJ 10280/01 Dr Tal Yarus-Hakak v. Attorney General of Israel (published:

Nevo Jan. 10, 2005). 186 HCJ 721/94 El-Al Israel Airlines v. Johnatan Danilovich and the Labour Courts

of Israel (published: Nevo Nov. 30, 1994).

3 COMPARATIVE LESSONS AND THE CASE OF INDIA

INDIA: THE ROLE OF COMMUNITY LAW IN PERSONAL LAW Personal laws are systems of rules which are determined by reference to a specific religion. In India, personal laws govern interpersonal relationships, including marriage, divorce, child custody, and property transfers within the family.1 Indian personal laws are divided into Hindu law (which applies to Hindus, Sikhs, Jains, and Buddhists), Muslim law for Muslims, Parsi law for Parsis, Christian law for Christians, and an optional secular civil law that covers some fields in family law.2 Perhaps due to these personal laws, religion has become the most distinctive aspect of cultural diversity.3 This division according to religion is despite Article 44 of the Constitution, which provides that India, ‘shall endeavour to secure for the citizens a uniform civil code throughout the territory…’4 The directive to enact a uniform civil code includes the areas of marriage and divorce, guardianship and custody of children, inheritance and succession, and maintenance that is applicable to all religious groups.5 However, this directive of Article 44 has not been realized due to the challenge of reconciling legal uniformity with the protection of minority rights, which are also constitutionally protected. It is important to note that rather than a means of separating church and state, Article 44 attempts to foster and recognize all religious

communities, as evidenced by other constitutional provisions protecting religion.6 One of the problems with the diverse religious-based personal laws in India7 is one seen in other countries with similar personal law structures, such as in Israel: there are difficulties when persons of different religions wish to marry. In these cases, in India, the application of principles analogous to private international law principles is often required.8 Muslim law has remained largely unchanged by parliamentary legislation whereas Parsi and Christian laws have undergone legislative alterations over the last decade, and Hindu law has been significantly changed through post-independence laws.9 Indeed, many Indian Muslims consider Article 44 of the Constitution as threatening, and have directly or indirectly pressured the government to remove this provision.10 The religious personal laws are based on religious texts and have had added to them customary law, which often varies from region to region.11 Personal law legislation affecting Christians12 includes the Indian Christian Marriage Act, 1872, with its references to the Churches of England and Scotland.13 In 1983, initiatives by Bishops, clergy, lawyers, church laïcité, and social activists were taken in an effort to modernize the Christian laws, for the Indian Christian Marriage Act, 1872, the Indian Divorce Act, 1869, and the Indian Succession Act, 1925 had several sections that were considered discriminatory.14 Personal laws relating to Hindus were reformed after 1947, in a consolidation and standardization, despite opposition at the time.15 Muslim personal law (the Shari’a/Shariat) is derived mainly from the Quran and the Hadith,16 and some resort to sources other than the Quran, including other traditions or practice (Sunna), creative interpretation (Iztihad), and consensus (ijma).17 The Quran is the main source book of Islamic laws but this law ‘as it is known and practiced today was compiled more than a hundred years after the death of the Prophet’.18

Almost all legislation regulating Islamic family law dates from the period of British colonial rule. Muslim personal law and intestate succession is applied pursuant to the Muslim Personal Law (Shariat) Application Act, 1937.19 Muslim personal law is applied by the regular state court system on the basis of Indo-Muslim judicial precedents. As the majority of Muslims are Hanafi, courts presume that litigants are Hanafi unless the contrary is established. In 1973, the All India Muslim Personal Law Board was created, with the purpose of securing Muslim religious rights in India.20 A significant example with regard to Indian Muslim personal law is the MWPRDA,21 enacted by the Rajiv Gandhi government22 following protests surrounding the case of Shah Bano.23 The case involved a woman’s petition to the courts for additional maintenance after her husband divorced her according to Muslim personal laws. Shah Bano wanted the court to overrule her ex-husband’s claim that Muslim personal law exempted him from having to pay her alimony. The Supreme Court, under the direction of the then Chief Justice Chandrachud, ruled that notwithstanding the separate Muslim personal law system, her husband was obliged under Indian criminal law to make alimony payments pursuant to section 125 of the Cr.PC.24 This ruling was seen by many sectors of the Indian Muslim population as gross interference in their personal laws, and tremendous protests followed.25 Muslim religious institutions, including the All India Muslim Personal Law Board claimed that secular institutions were without the authority to interpret the Quran and Hadith, or to make adverse comments about women’s position in Islam, and hence the court judgment was an interference in matters of personal law that had been constitutionally sanctioned to be under the direction of the Indian Muslim communities.26 To accommodate the outcry from the Muslim population, Rajiv Gandhi used his parliamentary majority to grant Muslims a special dispensation in matters of divorce and marriage.27 Although benign on the surface, with its provision that divorced Muslim women are entitled to ‘a reasonable and fair provision and maintenance to be made and paid to her within the iddat period28 by her former husband’, the law in effect removed Muslim marriages from the

provisions of law and resulted in fewer rights to Muslim women than those of other religions.29 The new law disturbed many Hindus, who saw the legislation as yet another attempt to pacify the Muslim minority in India, and to award them rights not provided to other religious groups.30 Part of this opposition no doubt had its roots in the checkered history of relations between Hindus and Muslims in India.31 The Guardians and Wards Act, 1890 deals with custody, and is applicable to all Indian religious communities. It provides that courts are to be guided by the personal law to which the minor is subject, in addition to the gender, age, and religion of the minor, the capacity and character of the proposed guardian, and in some cases, the minor’s opinion on the matter. Although there are proponents of the role that religion has to play in India’s personal laws, there are also those opposed to the structure, who believe that they result in conflict and contradiction between different laws with regard to the same set of personal status practices, and because of the inherent discriminatory practices contained within some of the laws.32 One example of a significant difference between the religious attitudes is that with regard to marriage. Hindus and Christians regard marriage in semi-divine terms, with Christians viewing the bond as being made in heaven and Hindus as it having been sanctified by fire and gods. In contrast, Muslims regard it more as a Hobbesian social contract; a dissoluble union.33

INDIA’S CONSTITUTIONAL AND SOCIAL CONTEXT Secularism in the Indian Constitution The Constitution of India, in its preamble, opens with the words ‘we, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic’,34 and thus declares India to be a secular state. The choice of secularism for

India is not an obvious one. Far from it—for many Hindus in India, religion is not merely a belief system. It has been stated about Hinduism, that ‘in his daily life, a Hindu is bound hand and foot in regard to all his actions’ and ‘religion is mixed up in everything… and everything is a religious act for Hindus’.35 Hinduism plays a part in almost every aspect of a Hindu’s life, and in a country where 80 per cent of the population is Hindu,36 this means that religion is embedded deeply in the culture of the country. Moreover, even groups that are not Hindu define themselves according to their religion, and therefore, great significance is to be attached to the declaration that India is a secular state, in terms of enforcing secular values in Indian society. The importance of religion is expressed in Articles 25–28 of the Constitution,37 which secure the principle of freedom of religion, though this is ‘subject to public order, morality and health’.38 Freedom of religion is not, therefore, absolute, but subject to limitations. Indeed, despite its central place in Indian society, religion is not accorded priority or overriding value in its Constitution. In this, it would appear India’s Constitution is somewhat unique, for instead of reflecting India’s society, it would seem that one of its main aims were, and still are, to shape Indian society, and to bring around social reform. Article 25(2)(b) of the Constitution, for example, states that freedom of religion shall not limit the state from making any law ‘providing for social welfare and reform’.39 Indeed, India’s secularism has been referred to by Gary Jeffrey Jacobson, as ‘ameliorative secularism’.40 Freedom of religion has been limited in certain cases, where it was deemed to be against the ‘good of the people’. A good example of this is the outlawing of polygamy for Hindus. The Hindu Marriage Act, 1955, in section 5(i), states that ‘[a] marriage may be solemnized between any two Hindus, if… neither party has a spouse living at the time of the marriage’.41 The courts ruled this provision to be constitutional, despite the limitation it placed on the freedom of Hindus to religion. Two arguments supported this view. The first examined polygamy in Hinduism from an internal point of view, stating that polygamy is not an essential part of the religion, and

therefore can be forbidden.42 The external point of view, is of much interest—it was claimed, in Ram Prasad v. State of Uttar Pradesh, that ‘even if bigamy be regarded as an integral part of Hindu religion, the impugned rule is protected under art. 25(b) of the Constitution’.43 The second of these two arguments in favour of upholding the law, clearly shows the ameliorative aspect of the Constitution—the court states that it is willing to forbid religious practices, even if they are a central part of that religion, for the sake of social welfare and public order.44

Article 44 of the Constitution of India One of the tools placed at the hands of the state to accomplish the Constitution’s demand for secularism, is Article 44 of the Constitution. Article 44 is to be found in the ‘Directive Principles of State Policy’. It states that, ‘[t]he State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’.45 To this day, the application of a uniform civil code has not taken place, and the government and legislature, whose job it is to secure a uniform civil code, are reluctant to do so. The difficulties of applying a uniform civil code in India are great. Few countries, if any, can claim the diversity of India—be it cultural, regional, or religious diversity, the peoples of India create such a mosaic, that an attempt to apply a single civil code for the entire country must be a grave challenge, as the experience of the past decades can testify. However, it is there, in black and white, in the Constitution—‘the state shall endeavour to secure for the citizens a uniform civil code’. It cannot be understood that the Constituent Assembly expected a uniform civil code to appear overnight, but rather, it foresaw that this would be a project that would take many years to accomplish. However, the Constituent Assembly also did not expect nothing, or very little, to be done towards adopting a uniform civil code. By locating Article 44 in the ‘Directive Principles of State Policy’ part of the Constitution, and by giving it the wording ‘the State shall endeavour’, the Assembly clearly demands that the state take steps toward adopting a uniform civil code, and thus to take steps towards

creating an environment in which the adoption of a uniform civil code would be possible.

Obstacles in Securing a Uniform Civil Code The Relation of the State towards Multiculturalism In multicultural states, minorities are always in fear of the loss of identity.46 Naturally, the majority shapes policies in a spirit that suits it, and will tend to ignore the cultural needs of minorities. Many minorities naturally fear that the application of a uniform civil code would take on a Hindu appearance, or at least would not give them a place to express their culture.47 This can be compared to the position of the Kurds in Turkey, who feel their cultural identity has been subordinated to the ideal of Turkish unity.48 The Turkish model is one of assimilation, in which the minority cultures are expected to adapt themselves to the cultural guidelines set by the state. A multicultural state does not have to choose this path. There are other options—one of which is granting minorities special rights. By granting special rights to minority groups, the state supports and nourishes the diversity which exists in it.49 However, this may create antagonism from those groups which gain less or no ‘special treatment’, and naturally feel deprived. Another option is one that emphasizes neutrality, according to which the state should show no preference to any group, be it majority or minority. This would seem to treat all cultural groups equally. However, the claim against neutrality is that the state inherently represents the majority culture, and cannot be neutral, even if it wishes to be so.50 Whichever of the models is the better one, the Constitution of India seems to have elected to follow the model of neutrality. Article 15 forbids discrimination on the basis of religion, race, caste, sex or place of birth, while Article 44 seems to be clear as it calls for a uniform civil code, thus proclaiming one rule for all. The Fear of a Hindu Code

Justice Singh, in Sarla Mudgal v. Union of India, said the following: ‘When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of [a] “uniform civil code” for all citizens in the territory of India.’51 He was referring to several Acts which codified the Hindu law—the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956. These laws all explicitly state that they apply only to Hindus, Jains, Sikhs, and Buddhists, or ‘to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed’.52 It could almost be understood from the words of Justice Singh that he wishes to apply Hindu law to all of the citizens of India. Though this may not have been his intention, many see the uniform civil code as a way for Hindus to apply their law throughout the country.53 Here, the fear is of a loss of identity, of a code that will ignore the cultural diversity of the country, and force Hindusim upon the entire population of the country. Indeed, many are adverse to a uniform civil code, for they believe that it will apply Hindu laws, and particularly Hindu personal laws, when it will be created, rather than taking on a secular character.54 Encroachment on the Freedom of Religion One of the greatest obstacles to creating a uniform civil code, is the seemingly necessary impact the uniform civil code will have on the freedom of religion. The main field in which this is problematic, and the one in which most controversies have arisen, is personal law. As far as family law is concerned, India still clings to the British system of governance, in which personal law is handled by each religion, and not by the state.55 So, Muslims are governed by Muslim law, Hindus by Hindu law, Christians have their own set of rules, etc. (It is

worth noting that the Constitution of India, when regarding Hindus, includes under that definition Jains, Buddhists, and Sikhs).56 The claim is that a uniform civil code will necessarily make the current arrangement void. A uniform civil code must apply, by definition, to all areas of civil life, including those covered by personal law. Thus, a uniform civil code will create law pertaining to marriage and divorce, inheritance, personal status, and so on and so forth. Moreover, this law must be uniform, and apply to all citizens of India regardless of their religion. Some have argued, erroneously, that this means an end to Hindu laws, Muslim laws, Christian laws, Jewish laws, as the main state sanctioned law. A Muslim who would wish to carry on a Muslim way of life would no longer be able do so, for the personal laws regarding him would be those dictated by the secular state, and not the Shari’a, the holy law by which he not only wishes to live, but—as a believer—must live. A uniform civil code, in this case, would disallow adherents of the different religions of India, from continuing to live a religious life, as they do today.57 I do not accept this argument. The Muslim individual or the Hindu individual can continue to lead a Muslim life or Hindu life even after the implementation of a civil code. However, certain practices will cease. The problem stated here is most significant in Muslim family law. Many voices in favour of a uniform civil code claim that this will advance gender equality, pointing out that Muslim women’s rights suffer under the current arrangement. Several Islamic practices, such as polygamy, or the ability of a husband to give his wife a unilateral divorce (talaq) have been pointed out as detrimental to Muslim women’s status. A uniform civil code would abolish these practices, prohibiting marriage to more than one woman, or prohibiting the talaq. Muslims see these practices as inherent to their religion, and the forbidding of them to be a limitation on their freedom of religion.58 Some may point out that such changes have already been made to the Hindu religion—polygamy has been outlawed, minority status and succession laws have been regulated by the secular state, etc. —why not make similar changes in Muslim law? There is a

difference, however. As Hindus hold a decisive majority in India, the Acts pertaining to Hindu practices (such as the Hindu Marriage Act, 1955) were passed by the Hindus themselves. If the same legislature which passed those Acts, were to pass—let us say—a Muslim Marriage Act, the same could not be said. It will not be a case of Muslims changing their own personal law, but Hindus changing their personal law for them. It has been stated that ‘minorities are particularly sensitive to externals who wish to interfere in the way they govern themselves’,59 and that ‘the psychology of minorities is such that any attempt to impose change will only slow things down’.60 The opponents of a uniform civil code argue that if any change is to be made to Muslim law, it must come from within, not from an external force imposing change upon them. The opponents of change bring to their support the Shah Bano case, a case which seems impossible to avoid in any debate regarding law and culture in India.61 Shah Bano was divorced by her husband by pronouncing talaq. The husband contended that he did not have to provide for the maintenance of his divorced wife, for according to Muslim law, the husband’s liability to provide for his wife is limited to the period of Iddat (a period after divorce, about three months), and this he provided. Section 125 of the Cr.PC, however, requires a person with sufficient means to maintain his wife, if she has not remarried, this not being limited to any period whatsoever. Section 127 of the Cr.PC states that an order of maintenance according to section 125 will not be made if ‘she [the wife] has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce’.62 The husband, therefore, claimed that since he had made the payment required by the personal law applicable to him, section 125 could not be applied in this case. The Supreme Court ruled otherwise, and stated that, ‘these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce’.63 Since Shah Bano was unable to maintain herself, it was deemed that Muslim personal law did not apply to this case. Therefore, section 125 was applied, and her

husband was forced to pay maintenance in accordance with the Cr.PC. Many Muslims were outraged by this ruling, and saw it as an attempt to force upon them a uniform code. Indeed, this can be understood, for the court, in its ruling, elaborated much upon Article 44, even though this case seemingly did not call for any reference to this Article. The court stated that, ‘[i]t is also a matter of regret that Article 44 of our Constitution has remained a dead letter’,64 and that ‘[w]e understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning.’65 Very soon after, the Muslim lobby pressured Rajiv Gandhi, then the Indian prime minister, to pass the MWPRDA, 1986, which overturned the Shah Bano ruling, and reinstated Muslim personal law as previously understood.66 The state of matters today is that the MWPRDA currently stands, and divorced Muslim women’s rights are determined by it, and what was in the past a religious law, open to reform from within, has now become state law, and much less susceptible to change. One may wonder, had the courts not ruled in favour of Shah Bano, or at least had not done so by taking on themselves the liberty to interpret Muslim law, if that change from within would not have occurred following the ruling. It has been observed that the Shah Bano case is a fine example of what is defended by stating that ‘the psychology of minorities is such that any attempt to impose change will only slow things down’.67 General Considerations on the Possible Preferred Indian Approach to Religious Issues The debate on the uniform civil code is connected directly to the debate over Indian secularism and multiculturalism. The discussion, presented in this book, focuses on the role of the uniform civil code in the wider province of Indian secularism.

The reason for this connection is the characterization of the code as a family law code, which would have a wide impact on all families, including those of religious and non-religious people. As such, the uniform civil code is one of the most contentious issues of Indian secularism. The Indian conception of secularism and the interaction of its legal system with religion are issues which have been broadly discussed in academic debate. Gary Jacobson and Rajeev Bhargava have expounded upon this subject and presented an overview of the issue, which is relevant to the discussion on the uniform civil code. In his essay ‘What Is Secularism For?’,68 Rajeev Bhargava answers the primary question of the issue of secularism, he answers thatthe common perception is that the principle of ‘secularism’ means the separation of religion from state and politics. The conceptual structure of this perception is based on three basic questions: the first is whether religion can be separated from politics and from the state? The second is why religion must be separated and what is the justification of such separation? The third question deals with the interaction of religion and the state within a state that separates religion from state; i.e. what type of separation is it?68a Can Religion be Separated from State? In this aspect he argues that one issue which arises is the difficulty in distinguishing between those who are religiously observant and those who are not. Therefore, de facto, it becomes nearly impossible to separate a legal norm that is religious from any non-religious practice. Indeed, as long as that remains the definition of secularism, such separation is almost unattainable, especially in India. Instead, one can argue for the separation of religion from at least some of the State institutions. In other words, the separation of religion from state does not need to mean that there be no representation of any religious faith or group in politics. It follows that secularism is compatible with the view that the complete secularization of society is neither possible nor desirable. Both have the potential to undermine our capacity to think for ourselves.

On the question why religion and state should be separated, he answers that The importance of the Principle of Equality arises in response to this question. Unequal treatment and discrimination of citizens, stemming from their religious faiths must be avoided. The separation is necessary, therefore, to ensure the complicated and fine balance needed to maintain an equal and democratic society.68b

As to the the type of separation warranted, he states, democracy requires that there be no concentration of power in any one institution or in any one group. If people with authority in religious affairs begin to exercise power in political matters then this will inevitably undermine democratic values. For the sake of democracy therefore, religious and political institutions must be separated. Separation is required to curb political and religious absolutism. Finally, consider the argument from the value of a fully transparent life. It might be argued that it is worthwhile to lead one’s life free of all illusions. Religion is a storehouse of superstition and falsehood. A life free of illusion then is a life without religion. If this is generally true, then it must be true of our political life. Our policy must be governed by true and self-evident principles, not by false and obscure dogmas. It follows that religion and politics must be separated. Two other arguments different in kind from the first three are also available. The first of these is an argument based in instrumental rationality. Instrumental rationality requires that we use the best means to achieve the professed objective. The coercive nature of the state renders it utterly dysfunctional in religious contexts. Therefore, to pin any hopes on it is irrational. On this view, religion is a matter of deep conviction. Matters that lie at this level of depth cannot be altered by force. Religious disputes cannot be settled and religious beliefs cannot be transformed by coercive methods. It is irrational therefore, to mix religion with politics because the very point of religion is lost by such intermingling. Religion must be separated from politics not because of the inherent deficiencies of religion but because of the coercive character of the state.

Finally, we can take recourse to, what I call, an argument from ordinary life. On this view, ultimate ideals involve qualitative distinctions of worth, necessitating a contrast between what is valuable and what is demeaning, lowly. Competing ultimate ideals, it follows, will have incompatible ideals of what is worthy and unworthy. Moreover, what is of ultimate worth for one is demeaning for the other and vice versa. A clash of such ideals has the potential of depriving people of leading even a minimally decent existence, an ordinary life. To secure an ordinary life, to protect basic worldly goods, all ultimate ideals must be expunged from the affairs of the state whose sole business is to procure for everyone minimum standards of decent living. On any account, ultimate ideals are definitionally constitutive of religious world-views. It follows that religion too must be separated from the affairs of the state. The separation of religion from politics is required in order to avert unbearable suffering and degradation of life. In particular, loss of life and liberty is evil and must not be taken away from anyone no matter [to] which religious community she belongs. To sum up, ordinary life requires that an acceptable minimum standard of human interaction exist and that it is barbaric to fall below it. Some procedures of inter-personal conduct are required simply to prevent the social system from falling apart. But a conflict of comprehensive conceptions of worthy existence, of the high ideals of different kinds of believers and unbelievers can have precisely such an effect. That is why high religious ideals must be separated from politics, the principle end of which must be to maintain some procedures of inter-personal conduct so that everyone is able to at least live an ordinary existence. All these arguments supply the point of separation. It follows that if circumstances obtain in which the point of separation is lost, then religion and politics need not be separated from each other. For example, if separating religion from politics itself deprives people of decent ordinary living then there is little point left in secularism. If the point of a secular state is to secure this-worldly goods to every citizen, then a deprivation or an unfair distribution of such goods generates a crisis in the legitimacy of such a state. In the argument

from ordinary life, the secular state fails to meet its professed objective when it fails to provide its citizens basic, secular goods.68c

The Public and Academic Discourse on the Uniform Civil Code in India69 The scholarly writing on the issue of securing a uniform civil code for India is very wide. Numerous books and articles have been published on this quite controversial subject. Among the publications of the local writers (other than overseas writers) which I consulted in the study of the public debate and the academic discourse on the civil code for India I would like to mention Tahir Mahmood, Kiran Deshta, Partha Ghosh, Dinanath Raina, M.P. Raju, Justice M.S. Ratnaparkhi, Nandini Chavan, Qutub Jehan Kidwai, Ather Farouqui, and F.E. Noronha. I also took note of the views expressed by other writers including Dr Asghar Ali Engineer, Justice C.S. Dharmadhikari, Justice O. Chinnappa Reddy, and Justice Bhawani Singh. All these distinguished writers offered their views in forewords to the recent books on a uniform civil code for India. The honourable judges offered their comments in forewords to the books in addition to their judicial pronouncements, on the uniform civil code together with their judicial colleagues who delivered the judgments in the Shah Bano case, Sarla Mudgal case, and the Jorden Diengdeh case.70 It is worthwhile to note regarding Muslim law in other countries in Asia and Africa, that with the exception of Turkey, the Muslim communities are governed by Muslim personal law. In Turkey, Muslim religious law was replaced in 1926 by a civil code. As to the rest of the Muslim world, Muslim personal law is applied but with adjustments and modifications.71 It is normally suggested that such changes in Muslim personal law are not violating the ‘spirit of Islam’.72 Justice Dharmadhikari supports the enactment of a uniform civil code. He refers with approval to the ruling of the Supreme Court of India in the Shah Bano case that the mandate of Article 44 of the Constitution should be fulfilled both to contribute to the integration of

the country as well as to serve human rights and equality, and particularly to elevate the position of women. India is a Sovereign, Socialist, Secular, Democratic Republic and is formed to secure to all its citizens, Justice, Equality and also assuring dignity of the individual and the unity and integrity of the Nation. Then, obviously [a] Uniform Civil Code is a must. This appears to be the intention in including [the] said provision in the Directive Principles of the State Policy…[the] Uniform Civil Code will have to prescribe common laws for all sections of our society and the people of India must be governed by one and the same set of Laws. The plurality of laws is a blow and direct threat to national integrity and solidarity. In this context, it is worth while to mention the names of [a] few countries where a Uniform Civil Code has been functioning successfully viz. Germany, France, Spain, Canada, Japan, Turkey and Portugal etc.73

Justice Dharmadhikari comments that, the ‘absence of [a] uniform civil code has led the Supreme Court of India to follow circuitous routes in its attempts to do substantial justice to the parties before it. All that could not be achieved directly by enacting [a] uniform civil code is partially achieved by the courts, because no court of justice can tolerate injustice and inequality.’74 Dr Noronha rightly notes that the term ‘uniform civil code’ raises some etymological issues. First, ‘civil’ code means laws dealing with civil law matters as distinguished from public, criminal, and commercial law. This means that the use of ‘civil’ to refer only to personal law matters is not accurate. Likewise the use of the term ‘code’ in the broader term civil code, is also open to question. This is because historically and legally within civil law countries the term ‘code’ was used for a comprehensive set of laws covering all the civil laws, including torts, contracts, obligations, property, and family. To mention some historical examples, such codes were the Code of Napoleon and the much earlier Roman Code, Corpus Juris Civilis (Justinian’s Code) in 528 A.D. Major comprehensive contemporary codes are in force today in numerous countries such as Switzerland, Austria, Germany, Bürgerliches Gesetzbuch, and France. In India, the reference to a uniform civil code in Article 44 of the Constitution refers to a general law in the areas of family law applicable to all the communities, regarding such matters as marriage, divorce, polygamy, inheritance, adoption, and

maintenance. In this study, we are using the term civil code as it is understood in the Indian public and academic discourse on Article 44 of the Constitution of India. In common law countries, the term ‘code’ is sometimes employed for laws dealing with certain areas, as distinguished from comprehensive codes in civil law countries. In India, we can find the Cr.PC, and in the U.S. we can find another UCC which is the Uniform Commercial Code. One further point should be noted with regard to the terminology of ‘uniform civil code’, and this point relates to the term ‘uniform’ in Article 44. The term means the same in similar conditions, as distinguished from ‘same in all circumstances’.75 Controversial debates on the uniform civil code began prior to India’s independence in August 1947. The major concern of India’s population regarding implementation of a uniform civil code was that it was seen as analogous to westernization of India’s personal laws, or the imposition of the majority law on all the minorities. Dr Ambedkar, the law minister at the time, refuted such claims and instead, insisted that the implementation of a uniform civil code will not westernize India’s laws, rather it will provide ‘modernization, secularization and national unity’76. This debate that started in the early 1930s was at the forefront of discussion in the Constituent Assembly. In the debate, it was emphasized that the Constituent Assembly had already ‘accepted the principle that the freedom to practice and propagate religion did not bar the making of any law regulating or restricting any secular activity’.77 Personal laws hindered women from several opportunities of social life and welfare. The man was seen as the head of the household and treated as such. Women were secondary. This secondary status was evident in the discrimination and unequal treatment of women in matters of marriage, divorce, maintenance, guardianship of children, adoption, succession, and inheritance.78 The debate on the implementation of a uniform civil code reignited during the 1980s amidst conflicts among religious communities and castes. ‘The crisis of identities refers to the escalation of communal conflicts, the resurgence of majority and minority fundamentalisms, caste wars, and regional separatist movement in this period, and

political mobilization seems also to have increasingly relied on particularistic identities and loyalties’.79 The issues of implementing a uniform civil code were again brought to the forefront because of the clashes between the majority Hindu population and the minority populations. The minority populations acquired the mindset that the majority would impose the majority culture resulting in interference with their religious freedom and homogenization of culture would occur. However, the enactment of a uniform set of laws was not intended to do so. Instead, the vision of the Constituent Assembly was that it was best to implement a set of civil laws that would enable and empower women and other disenfranchized groups to successfully coexist in a male dominant society. In 1985, the Shah Bano case brought these gender issues to the forefront of the public agenda. The Supreme Court ruled that section 125 of the Cr.PC dealing with maintenance applied to Muslim women as well in order to prevent destitution of a divorced wife80. The court declared that the ‘state should enact a Uniform Civil Code to promote national integration’.81 Therefore, the implementation of a uniform civil code was not seen as a step towards exclusion or homogenization but rather towards inclusion, integration, and social justice. In the aftermath of the Shah Bano case, parliament reversed the Supreme Court decision and enacted the MWPRDA 1986. Several years after the Shah Bano case, the controversy over the uniform civil code significantly intensified. However, in the 1990s, three new major problematic groups emerged.82 The most prominent of these was the Bharatiya Janata Party (BJP), and as a result their interests were proliferated. In his 1997 book,83 Justice Ratnaparkhi makes a very detailed and well-reasoned argument for the early adoption of a uniform civil code. He advances the thesis that what is best in all existing personal laws, be it Hindu, Muslim, Christian, Parsi, or any other, will be formulated and offered as basic principles of a civil code to serve a developing and modern thinking, emphasizing the argument that ‘the uniform civil code is not only feasible, but is also immediately necessary’.84 He is of the opinion that though Article 44 is a

directive, that is declaratory and is not included in the binding parts of the Constitution, it imposes a constitutional mandate on the state. Justice Reddy, former judge of the Supreme Court of India explained very clearly the reasons why the Indian leadership did not enact a uniform civil code in the 1950s after the independence of India. In his preface to the book by Justice Ratnaparkhi on the Uniform Civil Code, he suggests that in the early 1950s ‘it would not have been very difficult for parliament to enact a uniform civil code’.85 They did not do so because ‘they had no desire to rush things in the direction of a uniform civil code’. Among the factors that Justice Reddy mentioned were that ‘they wanted a smooth transition and they had many pressing priorities. There were social and economic reforms of a large magnitude to be carved out.’ These included the nationalization of key industries, the abolition of sati, land reforms, economic issues, reorganization of states, the relations with neighbouring countries, and non-alignment strategy. There have been numerous objections to a uniform civil code on part of the Muslim community as well as from other communities, but the Muslim community has been conceived as the main community which opposes the implementation of a uniform civil code. In support of the uniform civil code, it was argued that there cannot be different laws for different communities in one country such as on bigamy, polygamy, and favouring Muslims who can marry four wives. Further it was said that it is under the constitutional mandate by virtue of Article 44 and hence must be implemented. It is over sixty years since the Constitution was framed, but a uniform civil code has not been introduced. In support of a uniform civil code, its advocates argue that it is needed in order to ensure gender justice. Muslim personal law in particular violates gender justice because it permits polygamy and unilateral divorce. Adopting a uniform civil code will ensure gender justice. Likewise Hindu law has certain aspects that are adverse to the equality of women and the uniform civil code is required to achieve the empowerment of Hindu women as well. In addition, it is argued that the Hindus have introduced changes in their personal laws and other communities,

including the Muslim communities, cannot resist modernization and change. Finally, and very importantly, the advocates of a uniform civil code emphasize that it will strengthen the unity and integration of the country. Article 44 is included in the advisory part of the Constitution. The provisions are directives. In the course of the debate during the drafting of the Constitution, a committee report included a minority view which recommended that Article 44 should be moved to Part I and changed to become binding in ten years (like Article 45 on education which had to be implemented in ten years). This proposal was not approved.86 Proposals and arguments against Article 44 relied on a number of grounds and lines of reasoning. It was argued that the Constitution guarantees the right to an individual’s personal law and a uniform civil code would be seen as a violation of this right. The concept of secularism will be damaged by perceived interference in individual lifestyles. It was also argued that, ‘the concept of [the] Uniform Civil Code does not include personal laws’. The traditional laws were never disturbed by India’s colonial rulers in its long history. Finally, it was supposed that India is so large and heterogeneous a country that a uniform code would be impossible to implement.87 It should be noted that before the 1937 Sharia Act there were a number of Muslim community members who followed Hindu law in personal law matters, so a uniform code should not be objectionable when or if it is introduced.88 In the debate in the Constituent Assembly, the majority rejected the proposals to limit the scope of Article 44 or to water it down. These amendments aimed at restricting the power of the state to implement a uniform civil code. The restrictive approach was dismissed by the majority. Nevertheless our approach is not only based on the language, or on the constitutional and legislative history. We propose to follow a conciliatory or consensual approach and not a majoritarian approach. Justice Ratnaparkhi refers to the fact that members of the Muslim minority tend to be in the lower socio-economic strata, and they tend to have the least interest in societal changes and are largely

influenced by their religious leaders.89 He suggests that a uniform civil code will help bring unity to the fragmented Indian society. Without a uniform civil code, other religious minorities will demand their own distinct personal laws further fragmenting Indian society on religious lines.90 He notes the significance of the change of the attitude of the Muslim community.91 There are signals coming from the constituencies of the minority communities in favour of a change in the personal law of these communities. He mentions the reformist Maulana Wahiuddin, and Dr Tahir Mahmood who expressed support for change, so there are voices for internal change. However, in order to succeed Justice Ratnaparkhi proposes to take proper measures to educate the public on the necessity of a uniform civil code.92 Justice Ratnaparkhi suggests that Muslims should not continue to hold the view that under the garb of the uniform civil code, Hindu law will be imposed on them. The Hindu law itself was changed when the Hindu code Bill was drafted. In this context, he mentions that the option of puberty was borrowed from Islamic law; it was decided that marriage was a contract and not sacrament as in the old Hindu law. Having noted these changes in the Hindu law, Ratnaparkhi asks, ‘[h]ere is a community which has borrowed some concepts from other personal laws including the Muslim law and grafted them into its own system. How can it be imagined that this community would thrust its personal law on other communities?’93 Justice Ratnaparkhi advances the proposition that: The real intention is that the Uniform Civil Code is not merely a feasibility, but necessity too. It will take hardly any time to prepare the draft, and put it before the people for their approval. What has been said so far, is more than sufficient to convince the people, including the minority communities, that the Uniform Civil Code is not only feasible, but is also imminently necessary.94

Justice Ratnaparkhi adds that: The nation has sufficiently waited with all eagerness for half [a] century for [the] fulfilment of the positive mandate given by the Constitution. But our State during the last five decades [has] made no endeavour in that direction. On the

other hand, promises which are not in consonance with the constitutional mandate, have been given to different communities from time to time. This is in flagrant violation of the constitutional provisions, which no sensible Indian would appreciate if the impending cleavage between different communities has not only to be aborted but also obliterated in totality.95

Gender justice requires civil law to be applied because traditional law discriminates against women. Quranic law was based on a concept of gender justice, but later developments in Muslim law were not favourable to gender justice. Patriarchy prevailed and did away with the Quranic gender-just approach. Dr Engineer calls for a return to the Quranic principles for a gender-just approach. The British rulers did not touch the personal law of the communities except for the Christian Divorce Act.96 The reasons for the British policy in India mentioned by Dr Engineer were varied. He refers to the Revolt of 1857, the enactment of a criminal procedure code that was accepted by all communities, and the fact that women in nineteenth century were far from liberated and mostly illiterate, and thus not aware of their rights. The 1937 Sharia Act benefitted women as it provided better protection than the traditional law accorded them.97 As Dr Engineer has suggested, it is more difficult to effect change today in a democratic society than in the colonial era. The reason being that, ‘[t]he politicians are afraid of facing the wrath of their voters. The vast number of women continue to be illiterate and unaware of their rights as equal citizens and hence it is men who decide what is good or bad for them.’98 The Jamait-Ulama-i-Hind (the Muslim Council of India) supported independence and objected to the uniform civil code since they had been promised that Shari’a law would apply to their communities in the post-independence period. The Indian political leadership could not breach this promise, and this produced severe ramifications for the newly established independent state of India.99 Other difficulties which prevented a uniform civil code can be mentioned. No community was ready to accept gender justice. Even in the majority community, the Hindu community there was a heated debate on the Hindu Bill introduced by Dr Ambedkar. The Bill was

not adopted. Instead a series of watered down texts were passed on several matters including marriage, divorce, etc.100 A significant factor was the minority fear psychology, which played an important role in the political science. The fear psychology was further reinforced by the immigration of the elite Muslim population to Pakistan, while the remaining population were more committed to traditions. It was less educated and viewed the Shari’a as divine law ignoring the realities of what the Shari’a law was, that is predominantly in fact a post Quranic set of norms with custom and practice taken from the Arab World.101 The result was that ‘[m]inority status, poverty, illiteracy and sense of insecurity due to repeated communal riots all combined together to make any changes in Shari’ah laws impossible.’102 As to the Hindu side in the Indian society, the situation was not conducive to change, neither was it inclined to support the implementation of a uniform civil code.103 Hindu society itself is diverse internally. There is a large proportion of the population that is illiterate and many perceive their traditions as sacred and not subject to change by secular authority. For instance, child marriage takes place in the open in spite of the fact that it was made unlawful in 1930s. Likewise, the Sati and Dowry Acts are violated quite openly.104 Dr Engineer has observed that the issue was politicized and a uniform civil code was never implemented. Major political parties such as the BJP ignored the mandate of the implementation of a uniform civil code. The negative image of Muslims in the world and in India is strongly coloured by the involvement of extremist Islamist groups in terrorist attacks all over the world and the recurrent terror attacks in India in recent years. Mr Farouqui offers a fair and critical view of the Indian Muslim identity in the broader global context. He confesses with much selfregret: Being Muslim in today’s world often means carrying a special burden of suspicion and prejudice on one hand, and social, political, and religious

conservatism on the other. The common Muslim is caught between the increasingly strident anti-Muslim propaganda of the West and the equally strident religious fervor of the ‘jihadi’ Muslims. Both sides are pushing the common Muslim towards making a clear choice between either being antiMuslim or being pro-jihadi. However, this is not a choice that every Muslim wants to make. But it is a dilemma that has driven many Muslims to become followers of militant Islam. The situation is the same for Muslims in India and so is the impact of fringe extremism, though it is manifested differently because of a Hindu majority and the secular nature of the Indian Constitution; this makes the case of Muslims in India more complex.105

The image of the Muslim in India has its unique historical reasons. I found the analysis in Farouqui revealing and interesting. As to the specific Indian situation, Farouqui emphasizes the following points: In contrast to views in the West, the Indian perspective is somewhat different because Muslims form an intrinsic part of Indian society. After the advent of Islam in India and till the time of the British conquest, Muslims were the ruling community in many parts of the subcontinent. However, through conversion and inter-marriage, Islam did not remain confined to the upper echelons of society and permeated every stratum of Indian life and culture. The British conquest resulted in a cultural upheaval among the Hindus, termed as the Bengal renaissance. It however, failed to bring about a similar change in the Muslim community. Thinkers and leaders amongst Muslims were unable to take a lead in this matter. The idea of Pakistan was popularized by feudal sections of Muslims in colonial India among the Muslim masses, and this resulted in large-scale sectarian violence. Military dictatorship and feudal lords and their dominance over the polity and power structure in Pakistan resulted in the creation of Bangladesh in 1971. In effect, it proved the complete failure of the two-nation theory. The fight for cultural hegemony is continuing among different cultural groups and ethnic entities in Pakistan, resulting in the destruction of civil society.106

The book offers a critical approach to the negative images of Muslims in India which is no different from the Muslim image in the Western World. The book offers a number of explanations for the poor treatment of Islamic topics in the Media, and for the scarcity of Islamic focused journals and magazines. Mr Farouqui suggests that the Muslim middle class must play a more active role in the change of Muslim attitudes and in the message that is transmitted from the Muslim community. The

argument is that the middle class moderate voice should be heard to counterbalance the radical and extremist Muslim voices. But the issue that is again paramount is why the Indian Muslim middle-class is so shy of its identity and tends to dance to the tunes of Muslim fundamentalists. Why do educated Muslims in the whole of South Asia, including Pakistan (where there is a huge middle-class) often exhibit backward-looking attitudes? The media image of any community, whether distorted or glorified, plays a vital role in establishing its status in society. The distorted and negative image of Muslims in the international and Indian media must therefore be changed. But Muslims must themselves take the lead in this direction. The first step towards this must be introspection and self-reform.107

Dr Tahir Mahmood108 is quoted in the Shah Bano case as an advocate of the uniform civil code. Later Dr Mahmood changed his approach.108a The position of Dr Tahir Mahmood that the Supreme Court quoted was from a book of 1977. In support for the uniform civil code in his later book in 1995, Dr Tahir Mahmood changed his approach. Dr Mahmood refrained for a period from expressing his views in support of a uniform civil code because as he put it, his position was improperly used by proponents of a uniform civil code in a way derogatory to the Muslim minority.109 He preferred to focus on the misconceptions and ‘distortion of the Islamic Law’. But he also continued to advocate the need for reforming Muslim law. ‘This change in his academic policy’ resulted in criticism being levelled at him in the public discourse to which he had to respond.

The Court’s Role in Securing a Uniform Civil Code Article 37 of the Constitution of India states that the provisions contained in Part IV, the Directive Principles of State Policy ‘shall not be enforceable by any court’.110 It is the duty of the state—the parliament and the government—to give effect to the directives stated in that part, and it is not the place of the courts to enforce the policies this chapter envisions. Is the court, then, overstepping its authority, in judgments such as Shah Bano, Sarla Mudgal, and Jorden Diengdeh? When the court makes a declaration urging the

state to perform its duty of enacting a uniform civil code, when the court criticizes the state for refraining from taking any action toward securing a uniform civil code, is it treading in places which the Constitution deems it should not? To the majority of writers, scholars, and leaders it seems odd to completely remove an entire section of a nation’s highest law, from the purview of the nation’s highest court.111 Article 44’s language bids the state to ‘endeavour to secure for the citizens a uniform civil code’. The emphasis on endeavour means to portray that though the court may not pass judgment on the actual application of a uniform civil code, it seems that it is entirely within its authority to review the seriousness of the state in endeavouring to secure a uniform civil code.112 If understood in this way, the court’s judgment in Shah Bano seems less controversial. When the court says that ‘it is a matter of regret’ that no steps have been taken toward a uniform civil code, the court is completely within the scope of its authority—it is passing judgment on the way the state is endeavouring to secure a uniform civil code, that is to say—not endeavouring at all. In Sarla Mudgal, when Justice Singh states that, ‘[t]here is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country’,113 he is criticizing the parliament and government for not performing their duty under Article 44, and not passing judgment over the character the uniform civil code should have. Indeed, when the Constituent Assembly drafted the Constitution, it did not pick the word ‘endeavour’ for no reason. The Assembly expected action to be taken on behalf of the state to advance a uniform civil code. It did not expect a uniform civil code to be formulated overnight—in a state as varied and diverse as India, in all aspects of life, this would be impossible. However, it did expect one to be enacted over time; otherwise Article 44 would not exist at all. We cannot know how long the Assembly expected this to take—if indeed, the drafters of the Constitution had any such expectancy. However, they did not expect no steps to be taken towards this at all. Over sixty years later—hardly any steps, if at all, have been taken.

Judicial Interpretation and Declaratory Remedies

The jurisprudence regarding Article 44 can be classified into a number of categories of judicial pronouncements. The Supreme Court has held in a number of cases that Article 44 is separate from religion and therefore the general common civil code on personal law can and should apply to all communities. The court ruled that Articles 25, 26, and 27 dealing with religious liberty do not restrict the powers of the state to regulate family matters of marriage and divorce or succession in a common civil code for India. This was decided in the Sarla Mudgal case114. The Supreme Court of India refrained from an affirmative order to the state or the Government of India to enact a civil code. As Article 44 is included in the Directive Principles in Part IV of the Constitution of India, it is deemed judicially unenforceable. However, the Supreme Court of India when dealing with a number of issues that came before it for resolution in fact forged declaratory remedies by making very clear judicial pronouncements that the Government of India should take the necessary steps to enact a uniform civil code under Article 44. The court made these pronouncements in Mohd. Ahmed Khan v. Shah Bano Begum.115 Chief Justice Chandrachud expressed regret that Article 44 remained a dead letter, and that there was no official activity for implementing a uniform civil code. In fact this judicial pronouncement can be defined as an instance of a declaratory judicial remedy. The declaratory judicial pronouncements made in the Shah Bano case were supported and repeated in the same year 1985 in the case of Jorden Diengdeh v. Chopra116. The Supreme Court, per Justice Chinnappa Reddy reiterated the need for a uniform civil code under Article 44. Ten years later in Sarla Mudgal v. Union of India,117 the Supreme Court of India again made clear judicial pronouncements regarding the constitutional mandate to introduce a uniform civil code by virtue of Article 44. Justice Kuldip Singh and Justice R.M. Sahai commented that after forty-one years (then in 1995, now over sixty years) there was no justification for delaying the introduction of common civil code. What the Supreme Court of India did was similar to the now existing FOR of judicial review under the Unitd Kingdom Human

Rights Act, 1998, providing for a Declaration of Incompatibility of any Law of Parliament that courts find incompatible with the ECHR. Under Article 37 of the Indian Constitution, the Directive Principles of State Policy contained in Part IV of the Indian Constitution have the following characteristics. These principles are not enforceable. However, they are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. Babasaheb Ambedkar said, ‘[t]he fact that they are not enforceable does not mean that they can be ignored’.118 The established view in India is that since Article 44 is a secular provision of the Constitution, it is not restricted by other provisions, such as Article 25 (freedom of religious conscience), Article 51-A (e) dealing with pluralism, and Article 29 dealing with cultural rights. As mentioned, in the debate in the Constituent Assembly, the majority rejected the proposals to limit the scope of Article 44. These amendments aimed at restricting the power of the state to implement a uniform civil code. The restrictive approach was dismissed by the majority. The Directive Principles (as distinguished from the bindingenforceable articles of the Indian Constitution) form Part IV.119 Nature of Article 44: Justice Ratnaparkhi is of the opinion that, ‘A mandate in unequivocal terms has been given to achieve them (the Directive Principles)’.120 He rejects the approach that Article 44 is a directive of moral or ethical concepts. ‘If one generation has not achieved the goal, or failed to achieve [it], the other generation has to discharge that burden’.121 In addition, it was argued that a reasonable time requirement has to be read into Article 44.122 In the Supreme Court the representatives of the government were asked to file a report of steps taken, and the court said that the government has not taken tangible steps to implement a uniform civil code since 1952123. Noting that the implementation of a uniform civil code does not require vast resources (as compulsory education), Justice Ratnaparkhi concludes that ‘the failure to adopt a uniform civil code is attributed to the political considerations of those who have to take the decisions. The Constitution, however, does not admit of any

political or any other consideration while achieving those objectives. If at all there are difficulties, they are extra. In spite of these difficulties, the constitutional mandate remains and the government which comes into office on taking the oath of allegiance cannot defy this mandate, nor can it afford to be indifferent to it. It is its prime duty to work for achieving this goal in spite of the difficulties coming its way’.124 In defence of their opposition to changes in Muslim personal law by the implementation of a uniform civil code, opponents rely on Article 25 of the Indian Constitution providing entitlement to the equal ‘freedom of conscience and the right to freely practice and propagate religion.’125 The Supreme Court in the Sarla Mudgal case (May 1995) ruled as its ratio decidendi that a Hindu husband cannot convert to Islam and take a second wife. But in the obiter dictum the court made a strong statement regarding the duty of the state to take steps to introduce the common civil code under the directive of Article 44 of the Indian Constitution. Dr Mahmood refers with rather sharp criticism to the reasoning of the court per Justice Singh and Justice Sahai in Sarla Mudgal.126 He disputes the reasoning of the court in Sarla Mudgal that the failure to introduce a uniform civil code was for the ‘appeasement of the minorities’. He analyses the legislation on the Hindu personal law, arguing that through all such laws, instead of introducing a general secular law of succession, marriage, maintenance, and adoption, and applying it to the whole country, the parliament preferred to reform the Hindu law partly protecting religion based norms in the newly enacted legislation.127 Dr Mahmood also criticizes the obiter dicta in the Shah Bano case. He supports the ruling that section 125 of the Cr.PC applies to Muslim women as well. However, the other statements which the court pronounced were unnecessary and wrong in his opinion. The court attempted to reinterpret the Quran and made a declaration on the need to introduce a uniform civil code.128 The issue in the Shah Bano case was the entitlement to maintenance of a Muslim woman under section 125 of the Cr.PC. It

was held that that it applied to Muslim women. As to the reasoning in reference to the Quran, Dr Mahmood writes it was unnecessary and incorrect as to the reference to the uniform civil code—was not called for and was based on popular misconceptions. Dr. Tahir Mahmood, in reference to the quote by the court of his position in support of a uniform civil code and changes to Muslim personal law, has this to say: What I had said [or, at least intended to say] in my 1977 book was that the goal of secularism could be pursued in the domain of family law only if the majority community gave the lead by allowing the State to stop administering its religion-based personal law first. And I stand by this view. I also stand by the opinion that the State’s Constitutional power to legislate in the domain of family law extends to all the citizens, including the Muslims. When, how and by what means it exercises this power in respect of a particular community would depend on governmental wisdom and social-reform strategy. But who can deny that the power exists? I also reiterate my opinion that Islamic legal principles, if seen and practised in their correct perspective, are fit enough to be nationalized in this country. And I re-assert that if my brethren-in-religion are really concerned about their personal law they have to put their house in order.

Dr Mahmood clarified in a later book that he had not disowned his views that he has expressed from time to time, which the Shah Bano judgment adopted. The Jorden Diengdeh decision was given by the Supreme Court of India in May 1985 shortly after the Shah Bano case. The case involved a Christian tribal woman and her Sikh husband. The woman filed a suit for divorce on the grounds that her husband was not able to sexually satisfy her, and therefore she was entitled to a decree of nullity of marriage under the Indian Divorce Act, 1869. She claimed that she was so entitled as the marriage ceremony was conducted according to Christian ceremony under the Christian Marriage Act, 1872. The court concluded that under existing Christian Law it cannot give the judicial remedy petitioned for by the wife. Upon reaching this conclusion Justice Chinnappa Reddy made critical remarks on the failure of the state to introduce a uniform civil code.

It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far from being uniform. Surely the time has now come for a complete reform of the law of marriage and for making a uniform law applicable to all people irrespective of religion and caste…. The court further added: we suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce… We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take.129

Dr Tahir Mahmood disputes all the points of reasoning of the court regarding the uniform civil code in the Sarla Mudgal case. He absolutely objects to the reference to the two-nation theory and to the critical reference to ‘those who preferred to remain in India after partition’ who should have known that the vision of the Constitution was of one integrated nation.130 Approaches to Securing a Uniform Civil Code How then, should the state ‘endeavour to secure for the citizens a uniform civil code’? Several approaches which try to answer this question may be found: The Readiness of the Majority We have already mentioned Justice Singh’s opinion in Sarla Mudgal. According to Justice Singh, the fact that a codified law already applies to a vast majority of the people of India, is a signal that the Indian people are ready, and that a uniform code should be applied to all Indians.131 Justice Singh’s opinion has been criticized. First, on what grounds can he state that the Indian people are ready for a uniform civil code? This is an empirical statement, for which he brings no empirical data, other than the fact that a majority of Indians are under a codified personal law. However, from the mere fact that a codified law applies to most Indians, it cannot be understood that a majority of Indians are ready for a uniform civil code. Whether Indians are ready for a uniform civil code, and whether a codified personal law applies to them are two separate questions.

Second, the codified laws that apply to a majority of Indians, though adopted by the state, are not secular, but represent Hindu interests, as is apparent by the names of the different Acts—‘The Hindu Marriage Act’, ‘The Hindu Adoption and Maintenance Act’, etc. It may be said that this is their name, only because they apply to Hindus and not because of their Hindu character. Yet even if that is so—though they may not be Hindu by nature, they still represent Hindu interests, and not pan-Indian interests. Therefore, though 80 per cent of the population has been brought under a uniform code, this is not the secular uniform code envisioned by the Constitution of India. The mere act of codification is not sufficient to create a law that will meet the requirements of Article 44. A uniform civil code must be one that is acceptable to all the people of India, and not just to its majority community. Third, even had a majority of Indian citizens agreed to a uniform civil code, and even were this majority a vast one, this majority would have to consist of more than just Hindus. A uniform civil code will affect all the peoples of India, and as such must be accepted by a majority that represents all these groups. Indeed, contrary to the statement made by Justice Singh, it seems apparent that the consensus for a uniform civil code is still quite far yet. The debate still subsists as to how a uniform civil code should be secured, and what its form and content should be. Even those who support establishing a uniform civil code are at loss as to how this should be done—the BJP, when it was in government, did little to bring forward a uniform civil code. Perhaps, one day, a consensus will exist for a uniform civil code, but that day is not here yet, and the Hindu Acts passed during the mid-50s cannot be the outline for the uniform civil code. Justice Singh’s approach can be understood through his statement, ‘Marriage, succession and like matters of a secular character’.132 For him, it seems that the tenets of a secular uniform civil code are already a given, for matters governed by personal law are not—to begin with—matters which it is the business of personal laws to govern. He sees these matters as characteristically secular. We shall see, when exploring the solution suggested here, how this

statement can be reconciled with the acceptance of the importance of religious personal laws. The Readiness of the Communities Another approach, also found in Sarla Mudgal, is presented in the opinion of Justice Sahai. Justice Sahai claims, in contrast to Justice Singh, that ‘marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith’.133 Because of the sensitivity felt towards the state’s interfering with religion, Sahai goes on to say that ‘a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity. But the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity.’134 Justice Sahai’s point of view is one which leans, perhaps extremely so, towards pluralism, and puts the rights of groups in the centre, without allowing any interference from the state. When the religions change, only then shall a uniform civil code be implemented. It has been frequently argued by writers that change of personal law should come from within. This line is one very problematic to take, on the road towards obtaining a uniform civil code. If the different groups composing Indian society are left completely to their own devices, there will be no reason for them to change in a direction agreeable with the Constitution of India, one that will allow for the implementation of a uniform civil code. In the case of Muslims, for instance, with no external incentive, there is no reason to prefer a path that will lead to more women’s rights over one that won’t, a path that will grant more personal freedoms rather than another. This change from within, is one that needs an external force to push and encourage it in the right direction, the direction put forth in the Constitution of India. At this point, it would be prudent to discuss Article 14 of the Constitution. This Article determines the principle of equality before law, and in conjunction with Article 44, it has been argued that personal laws applying to Hindus should be applied to the entire population of India. However, it has been deemed by the court, that the enactment of a uniform law may be done in stages, through

‘gradual progressive change… It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable in one go.’135 The concept of bringing about change in stages is all well and good, but it requires that change be ‘brought about’. Change will not come of its own accord, and when it does come, it must be in a direction agreeable with the Constitution. If we take Shah Bano as an example, or rather the aftermath of Shah Bano, and the MWPRDA 1986, we can see that change not only does not come without external pressure but that the ‘old ways’ can become more permanent. The obvious argument here is that too much external pressure (a direct imposition), caused the minorities to react in a way that will preserve their ways. However, a slightly more subtle lesson is to be learned as well—if given a choice, the groups comprising India will stick to their ways. The lesson, then, if to be put more precisely, is this—change cannot be forced, but must be encouraged. How this can and should be done, we shall discuss at greater length later. A Uniform Civil Code of Principles Another suggestion, as to how to bring about a uniform civil code, has been put forward by Professor S.P. Sathe. In his words, a uniform civil code ‘does not necessarily mean a common law but different personal laws based on uniform principles of equality of [the] sexes and liberty for the individual’.136 The focus here shifts from particular laws, to general principles, values the particular laws shall be based on. It is to be assumed that different personal laws would be passed for different religions, and these personal laws would have to comply with the principles set forth in the uniform civil code. If understood in this way, it seems that this approach can achieve little, if anything. The values, the general principles, that Sathe suggests shall appear in the uniform civil code already exist in the Constitution of India. The personal laws in existence today, are either those codified by the state (such as the Hindu Marriage Act), or those that are part of religions and traditions of the different groups

in India. Muslim marriage, for example, is governed by Shari’a laws, and by the MWPRDA. According to Sathe’s suggestion once a uniform civil code would be created, or once these principles would be set forth, legislation of personal laws would have to follow.137 We can assume that something like a Muslim Marriage Act, similar in principle to the Hindu Marriage Act, would come into being. This Act would have to comply with principles such as gender equality, and we can assume that acts such as ‘talaq’ and polygamy, would not be included in it. We can see now, that this suggestion does not change much. Even today, the legislature may pass a Muslim Marriage Act, and this Act would have to comply with principles of equality—for Article 14 of the Constitution provides for equality before the law, and Article 13 deems void any law inconsistent with the provisions of the Fundamental Rights chapter. The only thing that prevents the passing of a Muslim Marriage Act is the unwillingness of the legislature to do so, probably due to the lack of support from the Muslim community. Sathe’s proposition would also need acceptance from the Muslim community, and until they are prepared for it, a Muslim Marriage Act may not be forced upon them—whether it is done via a uniform civil code, or via ‘regular’ legislation.

THE POSSIBLE MODELS AND THE PREFERRED MODEL We have now outlined several of the main problems facing any attempt to secure a uniform civil code, as well as several of the proposed solutions. Others may be offered, and here we wish to propose our own. Before any solution is put forward, however, it must first be understood what model of church-state relations is applicable to India. Understanding this aspect of the problem is vital for finding a solution.

The Model of Church and State Relations Applicable to India

The Constitution of India, in its preamble, declares India to be a secular state,138 and therefore the model is one of separation of state and religion. However, there are several such models—the state can declare itself as secular, as neutral towards religion, or as separate from issues of religion. To judge by the wording of the preamble alone, it would seems that India chose the secular model —comparable to France and Turkey, which take a nearly antireligious attitude, and demand allegiance to the society first, before any group comprising the society. However, this model cannot be applied to India, and it cannot be thought that such was the intention of the Constituent Assembly. The deep inseparable connection that communities in India have with religion and community traditions, has already been mentioned, and this is not a matter that could have escaped the realization of the drafters of the Constitution. When secularism is mentioned, therefore, it cannot be the same secularism as understood in France, but something more accommodating towards religion—such as the U.S. model. This accommodating attitude towards religion is easily found in the current Hindu law system. The Hindu Marriage Act, 1955 asserts—amongst other things—how Hindu marriages are solemnized. Section 7 states that ‘[a] Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto’.139 An aggressive secular state could never allow for religious customs to be an integral part of its system, and were India such a state, this provision would be unconstitutional, and void. A similar arrangement may be found in the Parsi Marriage and Divorce Act, 1936 whereby no marriage between Parsis is valid if ‘such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad”…’.140 These examples may be reminiscent of a recognized religions model. Indeed, considering the fact that different religions are subject to different laws, and the fact that different groups are entitled to different rights, it could be said that the model applicable to India is de facto a recognized religions model. However, though this is the current state of affairs, this is not the state of affairs envisaged by the Constitution. It is not the model that India vis-à-vis its Constitution, was meant to have. Article 44 makes

it clear that there was no intention for these customary laws to remain a part of Indian law forever. Though not unconstitutional, these laws cannot remain the main and only law in the future. The model of church-state relations to be applied for India is, therefore, a ‘secular accommodating separation’ model, as compared to a ‘secular aggressive separation’ model, or a ‘recognized religions’ model.

Securing a Uniform Civil Code in India Now that the model has been identified, it remains to be seen how such a model can be achieved—how can a uniform civil code be secured, whilst still accommodating religions? The Theoretical Basis of a Uniform Civil Code We do not propose, here, to outline the substantive provisions of a uniform civil code. That must be left to the legislature. Of course, many proposals have been offered. Justice Singh’s statement can be understood as a proposal to impose the current Hindu Acts as a uniform civil code. Another proposal has been to ‘choose the best practices from every community’141—an integral code that will reflect all the different groups of India, thus preserving India’s pluralism. Be the substantive provisions what they may—they must be constitutional. They must preserve the values enshrined in the Constitution of India—values of a democratic society, values of basic civil and political rights. Most notably, they must reflect the value of equality, as expressed in Articles 14 and 15 of the Constitution. The provisions of the uniform civil code, therefore, cannot allow polygamy, must secure a settlement for alimony after divorce, and so on. It is clear, that steps must be taken by the different groups in society, towards these values. More than fifty years ago, the Hindus gave up polygamy, for the sake of equality. Muslims, Christians, and other groups must give up their discriminatory practices, if a uniform civil code is ever to be implemented. This is required not only by Articles 14, 15, and 44 of the Constitution, but by the overall essence

and spirit of the Constitution—one of democratic values, of union, and of secularism. It must be pointed out, that steps toward securing a uniform civil code are not only steps that must be taken by the different communities towards the state. The state of India must also take such steps towards the community. We have mentioned that the model India has chosen is not an aggressive secular model, but an accommodating one. Unlike the models of Turkey and France, an accommodating model allows for exemptions and adjustments on the ground of the traditions of the communities. The Elements of the Uniform Civil Code In securing a uniform civil code, a number of guidelines for action should be put into place, in order to make its application as easily acceptable for all the citizens and communities of India as possible. The first guideline that we propose is a parallel existence of civil and religious law. The securing of a uniform civil code must not negate the possibility of citizens availing themselves voluntarily of religious law—if they so wish. Moreover, the state must not merely allow for the existence of a religious law system, but must assist in its enforcement, if the need for such intervention is required, and the circumstances allow for it. The mere existence of a civil law does not nullify the existence of a religious law system. We shall demonstrate how the two may coexist. The second guideline suggested here, is a gradual application of the uniform civil code. Time must be allowed for the citizens of India to accustom themselves to the existence of a civil code. A drastic change in the civil life of the people of India cannot be put into place overnight, but must be implemented over time. The third guideline put forth here, is mediation. This mediation should take on two forms—intercommunity mediation, and individual mediation. The first of these two relates to a dialogue between the communities of India, to advance an agreement upon the substantive provisions of the uniform civil code. The second relates to mediation between individuals, on occasions where disputes arise in the realm of personal law.

It must be made clear that we do not recommend securing a civil code through a primarily judicial process. Not only would this be unconstitutional (as Article 37 of the Constitution of India states that the provisions of Article 44, amongst others, are not enforceable by any court), but it would bring about a civil code that does not have the support of the citizens. The lesson of Shah Bano is that issues regarding personal law are far too sensitive to be dealt with through the adjudicative process, which is a non-conciliatory process. The securing of a civil code must be done through legislation. The legislation itself must be achieved through dialogue and mediation, and not by merely imposing the will of the majority upon the minority. Parallel Law Systems We can find examples for the allowance of parallel law systems— both civil and religious—in many secular countries. In the realm of family law, we can find allowance for religious marriage, for instance. Thus, though the only marriage recognized by the state is civil marriage, sanctified in accordance with the state’s civil code, there is still allowance for religious marriages. The state does not prevent couples from sanctifying their marriage through religious means as well as civil means. Moreover, in such a model the state’s civil authorities help enforce religious practice when needed. Such an example can be found in the case of Avitzur v. Avitzur.142 In this U.S. case, a Jewish couple was married in accordance with the civil law of the State of New York, and also performed a religious ceremony, thus sanctifying their marriage under both civil and religious law. In 1978, the wife divorced the husband under the civil law, but was still considered married under Jewish law, and therefore could not remarry pursuant to Jewish law (by civil law, of course, she was able to remarry). Prior to the Jewish marriage ceremony, the couples signed a document, ‘Ketubah’, according to which they recognized the power of the ‘Beth Din’, a rabbinical tribunal, to counsel the couples in matters concerning their marriage. The husband refused to appear before the ‘Beth Din’, and the wife sought an order from the civil court, compelling the husband to do so. The Court of Appeals of New York granted the wife’s request, stating that,

‘judicial involvement in matters touching upon religious concerns has been constitutionally limited in analogous situations’.143 However, it was deemed that a ‘neutral principles of law’ approach was consistent with those constitutional limits. Such an approach ‘contemplates the application of objective, well-established principles of secular law to the dispute’.144 Thus, the issue at hand—though religious at its core—was solved through civil means, contract law. The court saw the obligations in the ‘Ketubah’ as binding, and ‘[t]he fact that the agreement was entered into as part of a religious ceremony does not render it unenforceable. Solemnization of the marital relationship often takes place in accordance with the religious beliefs of the participants, and this State has long recognized this religious aspect…’.145 This action by the court is not an interference with religious authority, but merely an upholding of obligations between individuals. However, were the model not accommodating, the state would not have recognized any obligation having existed in the first place. In a similar case, Bruker v. Marcovitz, the Canadian Supreme Court ruled that the fact that a dispute has a religious aspect does not make it non-justiciable.146 In this case, the couple agreed to obtain a religious divorce immediately upon obtaining a civil one. However, the husband refused to provide the wife with a religious divorce for fifteen years, and she was thus prevented from remarrying under Jewish law. She, therefore, sued for damages in a civil court. The husband claimed that the religious aspect of his obligation made it a moral one, but the court ruled that there is nothing to prevent a person from transforming a moral obligation into a legally binding one. When the court granted the wife damages, it did not determine doctrinal religious issues, and did not interfere with freedom of religion. It merely upheld a valid and binding contractual agreement. Again—perceiving a moral obligation as a valid, legally binding obligation, carries much significance. Had the state not been accommodating towards religion, there would have been no contractual agreement recognized. In both cases, there was seemingly no reason for the courts to get involved. As far as the civil law is concerned, the couple, once

divorced under civil law, was divorced and free of all obligations, free to remarry at will. However, for a religiously observant couple, until a religious divorce is obtained, they are bound by religious law.147 A secular state should seemingly not intervene in these cases, for it has nothing to do with religion. A clear barrier is set up between state and religion, and one does not interfere with the other. However, in a case such as Bruker or Avitzur, damage is caused to a party, because of the unwillingness of another to fulfil its obligations. The courts intervene, only because the state is willing to take an accommodating approach. This same model could and should be implemented in India. By our proposition, only marriages sanctified under the uniform civil code shall be recognized by the state, whilst couples may also marry in accordance with their religious traditions. The civil law will apply uniformly to all citizens of India, regardless of their religion, and citizens may choose to avail themselves of their religious law—if they so choose—while the state shall help enforce religious law if the need arises. In other words, despite the existence of a secular law, the state will not relieve itself of all obligations towards religion. The substance of the uniform civil code, the civil norms that shall apply, must be unequivocally accepted as secular. As has already been mentioned, different groups will have to give up different practices that cannot be accepted in a secular democratic society, practices that clash with ideals of equality and personal liberty. This does not mean that there is no place for religious practice and customs. On the contrary, we have already pointed out how an accommodating secular state not only allows but, on some occasions, supports religious practice. Old traditions and ways of life do not vanish, merely because a civil code is put in place. In fact, a uniform civil code should have very little bearing on questions of multiculturalism, and many groups’ fear of loss of identity is unfounded. The code does not intrude upon cultural and religious life, and does not interfere with it or disallow its existence or relate to it in any way. All citizens are still free to live as they see fit and live according to the rules they believe in, and create institutions to safeguard their way of life. All this, of course, is subject to constitutional limits, and the state will not allow for practices that are

against the basic principles of the system—principles which exist even today, with the civil code neither raising nor lowering the standard of protection they have. The secular character of the uniform civil code should also alleviate any fears of it imposing Hindu law upon minorities. Again, only laws that are explicitly secular will have any place in a uniform civil code, and can therefore not represent any single group’s interests. The emphasis here is on equality before law—the same rules must be applied to all citizens of India. Today, for instance, some women enjoy more rights and liberties than others, such as Hindu women’s alimony rights, as compared to Muslim women. This state of affairs cannot be allowed to continue under a uniform civil code, and not only because it violates Article 14 of the Constitution. Requiring a common arrangement of alimony payment in all cases of divorce, be the couple Hindu, Muslim, Christian, mixed or of any other community, does not impose a Hindu law on all groups of the Indian society, but a secular law. Gradual Implementation of the Uniform Civil Code Gradual implementation of the uniform civil code is important for many reasons. A sudden, all-encompassing change to the entire fabric that makes up the civil code of India, is not one that should, or can, be thrust upon the state overnight. Time must be allowed for the citizens and the state both, to adjust—psychologically and practically —to a new and hitherto strange system. As far as the individual is concerned, a major practical reason for this is reliance. Commitments that people entered into before the implementation of a civil code may not be considered valid once the code is in place. Thus, if someone has committed himself to a polygamous marriage that would be valid today, a sudden implementation of a uniform civil code would make that commitment invalid, thus greatly harming that individual’s reliance. Such comprehensive and drastic changes are utterly unfair on the individual. A few years delay in the implementation of the code, allows for a framework of time, within which the individuals know the

current laws still apply. This gives individuals time to complete current and new commitments. This framework also allows for psychological adjustment to the idea of a civil code. When people know that within a certain amount of time, what today is law will cease to be law, people can better adjust themselves to this new idea. Instead of having to adjust ad hoc, as the law is implemented, time is given to allow the idea to settle in, time which should eventually give the uniform civil code greater validity and acceptance among the citizens. As far as the state is concerned, this period of adjustment is critical to allow the different institutions of the state to adapt to the new code. Most notably, the judiciary must be made acquainted with the uniform civil code—its provisions, its spirit, the way in which the legislature intended for it to be applied, the effect it has on other laws and regulations, and the effect other laws and regulations have upon it. The state will also need time to create a new institution that we propose is essential to the application of a uniform civil code— Mediation. Mediation The additional guideline we wish to propose is the establishment of mediation. The two levels of mediation we suggest are intercommunity mediation and individual mediation. By intercommunity mediation, the intention is to create a Parliamentary Special Committee, the purpose of which will be to create dialogue through mediation, dialogue between the different groups and communities comprising the rich society of India. The purpose of the dialogue is to determine the substantive provisions that shall comprise the uniform civil code. As of today, as we have observed, very few steps have been taken toward securing a code. One of the main problems is the great controversy that arises every time an attempt is made to tackle the sensitive issues surrounding the uniform civil code—determining the provisions that are acceptable to all the communities of India as part of their personal law. The aftermath of Shah Bano is testimony to this. However, despite the fact that Article 44 requires the state to

‘endeavour to secure’ a uniform civil code, no serious attempt to bridge the gaps between the communities can be pointed out. The creation of a parliamentary committee, constituted to that end precisely, is a big and necessary step towards bridging the gaps between the communities. As has already been mentioned—in order to secure a uniform civil code, different communities will have to concede different practices, principles, and other aspects that are unique to them. Through dialogue, the different sides can better educate and explain the significance of these to the communities, and through dialogue, communities can agree upon what they can and cannot give up. Mediation is necessary, for agreement must be reached, if there is ever to be a uniform civil code, and whilst all the groups will relinquish some aspects that are part of their personal law, they are not yielding their religious or cultural way of life in entirety. We have already determined that most aspects of religious and cultural life will remain completely untouched, with only those that are unconstitutional having to be conceded. Again—since the common ground achieved by this mediation is secular, it cannot be said about any group that it is conceding more or less than the others. All the groups will concede only what is required to achieve a common, shared, ground. The second form of mediation we propose as necessary for the application of a uniform civil code, is individual mediation. This mechanism is to be established after the uniform civil code comes into effect. The purpose of personal mediation, or part of it, shall be to resolve disputes that arise in the individual domain of personal law —disputes that prior to a uniform civil code, would fall under the domain of each community’s laws. Though a civil law will exist, it is expected that many people will not feel in the beginning that this law provides answers they can relate to. Mediation provides the means to resolve conflicts of personal law outside of the courts, with the help of a mediator. The mediator, in the process of resolving the issue, shall endeavour to take into account the religious and cultural background of the individuals before him, when attempting to bring about a solution to the dispute. However, no matter what their background is, this

solution may never infringe upon the basic principles of the uniform civil code. The mediation can be court-annexed. This is dealt with in greater detail by Hiram E. Chodosh, in the next part of the book. It has been mentioned, that in the process of securing a uniform civil code, the communities must take steps toward the state, but the state must also take steps toward the communities. This mediation, provided to the sides by the state, is another form of the state’s endeavour to introduce a civil code under Article 44. Though a civil law is in existence, the state will not insist on its application, if the sides reach an agreement through mediation—again, so long as the result achieved is one that conforms to the basic principles of the uniform civil code. Legislative Process Preferred to Judicial Resolution It should be made clear that the author does not intend for the securing of a civil code to be come a judicial process. That would be unconstitutional (Article 37 of the Constitution of India states that the provisions of Article 44, amongst others, are not enforceable by any court) as well as bring about a civil code lacking support of the citizens. The Shah Bano case teaches us that issues regarding personal law cannot be dealt with by the judiciary, as they are too sensitive, and the judiciary process is a non-conciliatory one.Legislation must be used to secure a civil code with dialogue and mediation guiding the legislation. The will of the majority cannot be forced upon the minority by way of the civil code. In the Shah Bano case the court also clearly prefers legislative action to the judicial response on the issue of securing a common civil code. As to the judicial role vis-à-vis legislative reform the court has this to say: We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the

place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case148

The court can address certain measures of uniform civil law in family matters by judicial interpretation; but the overall aim of formulating a common civil code should be attained by legislation. Illustrations of judicial interpretations advancing a common civil code include the decision of the Bombay High Court in 1982148a that the Special Marriage Act, 1954 applies to all inter-religious marriages. It can safely be said that the Special Marriage Act is in reality an Indian Marriage Act which applies to all Indian communities irrespective of caste, creed or religion…The said law will become the lex domicile of India for the purposes of matrimonial reliefs (in inter-religious marriages). Such an interpretation will be in tune with Article 44 of the Constitution.149

Likewise, are the ruling in Sarla Mudgal barring a Hindu husband from converting to Islam and marrying a second wife and the ratio decidendi in the Shah Bano ruling (as distinguished from the state under a uniform civil code) that a Muslim woman is entitled to maintenance under the Cr.PC, later amended by the MWPRDA, 1986. Further Policy Considerations for Devising a Model for India The position of Justice Ratnaparkhi is that, The real concept of the Uniform Civil Code is that it will neither be a Hindu law, nor Christian law, nor a Parsi law. But it would be [an] entirely Indian law, in which the best principles existing amongst the existing personal laws of all the communities would be picked up and assimilated. On this process there should be a consensus amongst all communities. A committee of experts from all the sections can be constituted and it should review all the existing personal laws and suggest common principles to be embodied in the Uniform Civil Code. A Civil Code which is prevalent in Goa can be an ideal before this committee. It covers every aspect of human life including marriage, divorce, maintenance, inheritance, personal property acquired before or after marriage, adoption etc. etc.150

Thus, the fears of the Muslim community are viewed as unfounded by writers who support a uniform civil code. They argue that a true uniform civil code will not be partisan to a particular segment of India’s religious communities, but will be a genuine national law that integrates the best features of all community laws. The Code as embodied in the example of Goa is an ideal example, both in its comprehensive nature and implementation. A few comments are in order regarding the analysis of the elements of personal law which the uniform civil code will have to regulate in a gradual process. This will have to be done keeping in mind the diversity of the laws of the various communities and particularly the personal law of the Muslims, who are very sensitive, in spite of the suggestion by some that their fears are unfounded or exaggerated. I would like to add some observations on Muslim personal law with reference to community laws. In Muslim law, polygamy is permissible but not mandatory. Some countries with majority Muslim populations have introduced monogamy.151 Special hardship to women is caused by the triple divorce, as it is too easy to obtain a divorce. According to certain schools of Muslim law, there is a possibility of introducing restrictions on unilateral divorce by the husband, and grant some measure of rights to women on the dissolution of the marriage.152 As to maintenance, the MWPRDA, 1986 restricts the period of maintenance to the divorced wife to three months, and this will have to be debated. As to separate property to women, the Goa Code can be followed. The spouses can sign an agreement for joint ownership or separate ownership.153 As to the custody of children, the best interest of the child should be the prevailing test.154 On the issue of intestate succession, women suffer discrimination in Muslim law being accorded unequal shares as compared to men. It was ruled by Justice Gajendragadkar that the inequality should be set aside by virtue of Articles 12, 13, and 14 of the Constitution.155 As to inter-religious adoptions a liberal approach should be

developed. Justice Ratnaparkhi is totally convinced that is can be done: This is a broad frame of the Uniform Civil Code. There should be no doubt in anybody’s mind that it would not work. To achieve this constitutional goal it is imminently imperative to do away once and for all with the confounded prejudices and notions from the minds of the minority communities. To repeat it once again, the Uniform Civil Code will not be a Hindu Code imposed on the Muslim community. On the other hand it will pick up the best provisions from every available system of personal law including the Muslim law.156

Because there has been no progress in the introduction of a comprehensive uniform civil code, the various all-encompassing aspects of personal law should be corrected on a topic-by-topic basis (much like the Israeli Basic laws approach). Thus, there will be a series of uniform statutes dealing with different aspects of personal law. The main theme should be the rights of women. There is another positive dimension of this gradual approach. Perhaps avoiding the introduction of a comprehensive uniform civil code will alleviate the fears associated with it, while pragmatically achieving the same result over a period of time. Ms. Chavan and Ms. Kidwai are not in favour of a uniform civil code. Ms. Chavan views it as a political tool in the hands of the political parties, particularly the BJP—to consolidate the Hindu vote by creating a critical attitude toward the Muslim minority for not agreeing to uniform civil code and remaining sheltered from the application of a secular code that protects women157 Ms. Kidwai argues that there is no need for a uniform civil code to assist gender justice and to promote the empowerment of women in India. This can be done separately, unrelated to a uniform civil code. The evidence supporting this approach is that in many Muslim countries where women’s groups were aware of their rights and were effectively organized, they were able to introduce reforms empowering women’s position in society and improving their rights in family matters.158 Ms. Kidwai concludes that a uniform civil code is not practical as there are many differences from region-to-region and from

community-to-community and it is not possible to implement a uniform civil code in matters of family and personal law.159 Ms. Kidwai advances the view that it is better to amend personal law, but refrain from touching religious rules. Ms. Chavan argues that Hindu personal law can have a connection with religious law particularly as regards Hindus. She also argues that the power of social custom is overwhelmingly stronger than the force of the written provisions of legislation. She mentions as illustrations for this argument that laws pursued reforming Hindu law are not fully enforced or often completely ignored. This is true with regard to principle of monogamy, the property rights of daughters, the succession rights of women, and prohibition of the practice of dowry. All these legislated arrangements protecting women, she says, are largely and openly ignored. I take issue with this line of argument. Legislation is a machinery for social change and it sometimes takes a long time for the legislated norms to be accepted and implemented in each society. The status of Hindu women in the country faces a major challenge as concerns gender equality because of the historical impediments to equality emanating from earlier periods dominated by a patriarchal power structure and caste stratification.160 Improvement of the status of women began to take place in the British period, and further improvements were later introduced, but there is still a long way to go. Ms. Chavan and Ms. Kidwai strongly recommend to the Muslim leadership to take the initiative to codify the Muslim personal law in the spirit of the Islamic Shari’a. The: ulama and well known Muslim lawyers should draft a comprehensive Bill in this respect, but well within [the] Shari’ah framework, and give it to the government to enact it through Parliament. Islam was most fair to women and gave them well-defined rights. But selfish men have deprived them of their Islamic rights. This was done in the medieval times. Now things have changed. Women should be given back their rights. How? A comprehensive codification will help their cause. One can see how other Muslim countries have done it.161

They further explain that the Muslim personal law in India is in fact Anglo-Muslim law. This personal law is in urgent need of reform. Whereas other countries with Anglo-Muslim populations have

introduced numerous reforms in the customs, and legal improvements relative to personal law of the Muslim population, no changes have been introduced in the Muslim personal law in India. Muslim religious leaders have expressed an orthodox view and rejected the demands for introducing changes in the Muslim personal law in India.162 According to this argument, a uniform civil code will also violate Article 25, guaranteeing the right to culture. This argument was rejected by the Supreme Court of India.163 Dr Engineer objects to the application of a uniform civil code of personal law because in his view it will violate the democratic values of India. This violation will result because the society in India is very pluralistic, not only between religions, but within each of the religions. There are numerous regional and tribal differences irrespective of religion. The application of a uniform code will, according to Dr Engineer, inevitably compromise the local and regional traditions and customs. Dr. Engineer feels that India being a pluralist country for ages, caters to different religions. There are several castes that follow different customary laws even though they belong to the same religion. Our customary laws change with the regions. Therefore, it is wrong to say that Hindu, Muslim, and Christian are homogenous communities. Their laws, customs, and traditions vary from region to region. Also apart from major religious and caste traditions, there are a pretty large number of tribal traditions and practices. So imposition of [the] UCC on the minorities who are not willing to change or accept [it] would lead to violation of democratic values.164

Ms. Kidwai argues that there is no need for a uniform civil code, but that the Muslim community should generate a process of change and reform the Anglo-Muslim law and go back to the principles of the original Shari’a law which are consistent with the social circumstances in India, much as was done in other Muslim countries. With regard to women, Ms. Kidwai argues that the principles of Islam support equal status to women. The main problems of women in the present Indian personal law for Muslims are polygamy (permissibility of marrying four wives), the practice of ‘triple divorce’ (the pronouncement of ‘talaq’ three times

effects divorce), and the poor entitlement of women to maintenance (only for three months after divorce). Ms. Kidwai suggests that the Muslims in India can themselves solve these issues. As to the ‘triple divorce’ practice, it has been banned in numerous Muslim countries, and can be banned by the Muslim religious leaders themselves without state interference. Ms. Kidwai thus proposes that Muslims should introduce the changes themselves.165 My conclusion from the analysis of Ms. Kidwai is somewhat different from her final result. I support her view that the Muslim Ulama should reform the Anglo-Muslim law to ensure that it will be responsive to the modern perspective on gender justice and to the principles of fairness and equality. However, the Muslim law should apply in a parallel manner to the basic principles of the uniform civil code, not as the main law. The main law should be a civil code or a civil statute. I accept all of the arguments of Ms. Kidwai that the principles of Islam support the equality of women. It follows from these justified arguments that a uniform civil code which supports women’s rights as regards polygamy, easy divorce, maintenance, and property rights, will not violate the principles of Islam, and therefore should not be objected to by the Muslim community. Muslim scholars advocate self-action by the Muslim community to remedy its image in society. A convincing case was made by Mr Farouqui. The process of legislating a uniform civil code should be such that it should take great care to consider the high sensitivity of the matter. The high tensions which existed from time to time between the Hindu community and the Muslim community must be a factor in the planning of the process of the development of the agreed principles for the uniform code of personal laws. The most regrettable demolition of the Babri Masjid and the riots that followed illustrate that the public leaders, who bear the main responsibility, judicial leadership, academic scholars, women’s groups, and community spiritual leaders must exercise great caution in these matters. The sense of insecurity in the Muslim community is reinforced by the negative imagery of Muslims in India (and around the world). In a

book edited by Ather Farouqui,166 this issue is analysed in detail. The psychology of fear in the Muslim minority is a central issue as it concerns the failure to adopt a uniform civil code. The fear is that the majority will impose Hindu culture on the Muslim minority.167 The parallel law cannot apply in cases of bigamy, polygamy, or Sati. There are central values that cannot be compromised and therefore in those situations recognition or exceptions for community law should not be accepted.168 For the sake of a full picture of the legislative response to the Shah Bano case, it is worthwhile to give details of the provisions of the MWPRDA, 1986. Section 3 provides three months maintenance for the wife and two years maintenance for the children. As to property, it provides the dower and her property in any amount given to her at the time of marriage or after marriage by her relatives or friends, her husband or his relatives or friends will be the property of the wife. Section 3(4) provides imprisonment for failure to pay and provides jurisdiction to a magistrate to deal with cases of failure to comply with orders to pay maintenance, etc [section 3(3)]. Section 4 provides that after the iddat period of three months (if the wife does not re-marry and has no means) maintenance can be ordered by the judge from the relatives who are entitled to inherit from the divorced woman. If she has children, the children will be ordered to pay maintenance to their mother. In the absence of relatives, the Wakf Act will apply (i.e. trustees of Wakf will give her maintenance from the public trust). Section 5 of the MWPRDA, 1986 provides for optional alternative law if the two spouses, husband and wife agree to be governed by sections 125–28 of the Cr.PC, 1973. Then this law will apply. There is thus the possibility of an agreement for the application of the alternative substantive law in the Cr.PC, 1973. This is the reverse of what I propose. I propose that the civil code regulation of personal law will be the main law applicable and the parallel system will be the religious law. Today the religious Muslim law is the main law and by joint consent the husband and wife can

subject themselves to the general law of the land, as embodied in sections 125–28 of the Cr.PC, 1973. It is to be noted that the model of parallel applicable law that will be available to the parties in personal law matters is not foreign to the law of India. As discussed, the MWPRDA, 1986 provides for such a parallel alternative application. Perhaps it might be advisable to proceed on a two-track model. This means that on the one track to embark upon reforming the personal laws of the Hindu and of the Muslim communities and on the parallel second track to embark on developing a consensus on the basic principles of a common civil code. The dual track will have a combined impact. When the two tracks will be complete, the common civil code will be the law of the land for all whereas the community law will be an optional parallel system that the parties can agree to apply voluntarily. The alternative model to introducing a uniform civil code is to rely on the communities to change their own community laws by initiating legislative changes through parliament. This alternative does not seem to be a justifiable or workable solution to the challenges facing Indian society because the deficiencies of the present system have remained uncorrected for many decades now since the Constitution was framed. In addition to the constitutional aspects, the debate on the uniform civil code raises also international law aspects168a Indeed, international human rights treaties have been mentioned in this context.169 I have recently offered a detailed analysis on the impact of international law on national domestic laws in an article in the Chicago Journal of International Law. This article analysed the normative cycle of norms of international law and national law.170 The focus of the article is the normative cycle in the area of judicial independence but the idea of normative cycle of norms is applicable in all areas including the area of human rights and women’s rights and culture.171

The Goa Civil Code as a Possible Model for Other Parts of India Dr Noronha looks at the expression ‘civil code’ in its broad meaning i.e., not just a code pertaining to personal law but also to other more general topics such as contracts, etc. in the civil law tradition. He suggests that in order to expedite and promote the enactment of a civil code, the subject should be taught at universities.172 The Portuguese Civil Code has been the law of Goa since 1867. After Goa came under the rule of India in 1961, the Goa, Daman and Diu (Administration) Act, 1962 provided in section 5 that all laws in force in Goa, Daman and Diu shall continue in force until amended by the competent authority.173 Under this provision, the Portuguese Civil Code is still in force in Goa including on the personal laws relative to marriage and succession. The laws in India regarding personal law have not been applied to Goa.174 Dr Noronha is enthusiastically convinced that the Goa model of the civil code can serve as a model for India. He observes that the substantive principles of the Code are practiced by and are known to all the people of Goa, even the less educated. He observes that the Portuguese Civil Code and other laws are an important functional and operative part of the Goan heritage because they are deeply ingrained into the minds and hearts of Goan people like the Konkani language, folklore, food, and habits.’175 Dr Noronha concludes that the Goa model should be adopted for the whole country. He reasons: Goa is the focal point, the model state that we aspire to be, from which uniformity and systematization of Civil law will spread to the whole country. There lies the relevance of this Code for India as a whole. Portuguese Civil Laws are relevant because they are uniform as envisaged by Article 44 of the Constitution. In fact they are a major subconscious integrating force in Goan society. The Portuguese Civil Code of 1867 is enchanting, not because it is uniform, not because it is followed by all people, not because it is time tested. The best thing about the Portuguese Code is not its utility but its theoretical structure and literary grace. Its systematic formulation and its graceful expression is that what makes the Civil Code worthy of study. It is an imposing

edifice, a work of legal art and a treatise of legal science, a real heritage monument of 19th century civil jurisprudence.176

President Chodosh and I share the view of Dr Noronha that the model of Goa is a case in point that a common civil code for personal law matters can be achieved for other parts of India according to the general guidelines I have proposed. However, I am not inclined to join his proposals to tie the issue of Article 44 on a uniform civil code in personal law with his proposals to undertake the much broader and very ambitious legal enterprise of codification of the laws of India.177 On the other hand, I agree that attention should be given to the suggestions of Dr Noronha that the society, government, and parliament of India should focus on civil law after decades of emphasis on constitutional law, and that Indian society should emphasize duties, not only rights of the citizens. The Goa situation indeed warrants a detailed analysis.178 In fact, in the course of the academic discourse on a uniform civil code, Goa has been mentioned as a possible model for adoption at the national level in India.179 As mentioned, Dr Noronha is very supportive of this model. Partha Ghosh, who has examined this suggestion, is critical of the model. Ghosh writes that, ‘[a] peep into the evolution of family law in Goa will reveal that the process has been no less complicated and continues to be so’.180 The state of the personal law in Goa also reflects a pluralistic legal system in some aspects as impacted by the legal and political history of Goa. The present law is based mainly on the Cordigo Civil Portuguese Code or on the Portuguese Civil Code passed in 1867. Later the Portuguese Civil Code was amended in 1910 and 1946. The Code applies to all the communities but it has carved certain special exceptions for particular sections in the communities of Goa. Thus, the right of qualified polygamy is granted to Hindu men; they can have a second wife in certain circumstances based on the Codes of Usages and Customs of Gentile Hindus of Goa, Daman and Diu.181

The Muslim community in Goa accepted the Portuguese Civil Code. An attempt in 1981 to apply the law of India to Goa, was opposed successfully by Goan Muslim youth groups and Goan women’s associations. In spite of the support of such a move by the Goa Muslim Sharia Organization, the Civil Code in Goa is applied generally. Even though it is not strictly uniform and allows for certain exemptions it can be viewed as a possible model for a common civil code for India. The exceptions that are provided for by the Goa Civil Code refer to a number of aspects. One aspect is the law of marriage. The Goa Civil Code recognizes three types of marriage: Catholic marriage, Catholic marriages that are not governed by the Catholic Church, and non-Catholic marriage. Catholics can marry at the Catholic Church. In such a case the Church also conducts the registration. Catholics can also have a civil marriage, without having to resort to church officials at all. As to the law of divorce, based on an agreement approved in 1946 between the Catholic Church and Portugal, divorce under the Goa Civil Code is not applicable to Catholics who marry in the Catholic Church. They can only sue for judicial separation on the restrictive grounds that the marriage will be declared void i.e., that it has not been consummated or that it be declared null as if it had not taken place at all. Such judicial separation was granted by the Ecclesiastical Court of the Church. The practice was declared unconstitutional by the Supreme Court of India in E. Nunes v. Fernandez in 1974.182 Other exceptions are covered under the Codes of Usages and Customs of Gentile Hindus. Under these provisions divorce is permitted only on the ground of adultery of the wife. As to bigamy, it is allowed in defined circumstances when the wife does not give birth at all or does not deliver a male child.183 My own view is that the case of Goa can certainly serve as an instructive model in the public and academic discourse on the development of a uniform civil code as provided by Article 44 of the Constitution. The fact that its provisions create exceptions and special arrangements due to Goa’s particular historical background only strengthens the approach in favour of reviewing it. This is because it shows that the Goa Code was sensitive and was based

on consensus and not unilateral imposition. It also achieved the aim of a civil code available to all the communities subject to certain agreed exceptions. The alternative model is to leave to each of the communities in India to initiate parliamentary legislation to amend the law applicable to each of them. This is cumbersome and too slow to provide the needed legislative responses to social change and changing challenges.

1 Patricia Jeffery, A Uniform Customary Code? Marital Breakdown and Women’s

Economic Entitlements in Rural Bijnor, 25 C (2001).

I

S

. 1, 2

2 See Sujata Manohar, Inter-personal Laws in India 2 (undated) (unpublished

manuscript), available http://wwwsoc.nii.ac.jp/jsil/annual_documents/2003/autumn/houkokuabstr/Panel%20E4%20Manohar%20revised.pdf.

at

3 Mary E. John, Feminism in India and the West: Recasting a Relationship, 10

C

D

197, 201 (1998).

4I C . art. 44. 5 Manohar, supra note 2; see N

C

&Q J K ,P L R G E :AD U C C 245 (2006); Indian Law: Muslim Women Have Right to Maintenance till Remarriage, L I G , Aug. 17, 2010, available at http://www.lawisgreek.com/indian-law-muslim-women-have-right-maintenance-tillremarriage (discussing a Delhi High Court decision establishing that ‘Indian Law: Section 125, Cr.PC is applicable to Divorced Muslim Women’). 6 Robert Hardgrave Jr., India: The Dilemmas of Diversity, 4(4) J. D

54,

65 (Oct. 1993). 7 For a general review of the Hindu-Muslim problem, see C

M

G

:H

L

I

F. A

,

(2010).

8 Manohar, supra note 2. 9 Id. 10 R. Upadhyay, Muslim Personal Law: Should it be Politicised?, South Asia

Analysis Group (Paper No. 666, 2003). 11 Manohar, supra note 2. 12 J M ,M

D

70–71 (1999).

13 Emanual Nahar, Minority Rights in India: Christian Experiences and

Apprehensions, M

W

, Apr. 24, 2007.

14 Id. 15 Jeffery, supra note 1, at 2. 16 Upadhyay, supra note 10. 17 S.K. G 18 Id. at 46.

,M

P

I

47 (1987).

19 The Muslim Personal Law (Shariat) Application Act, 1937. 20 All India Muslim Personal Law Board, T M G O

, Feb. 16–28,

2005. 21 The Muslim Women (Protection of Rights on Divorce) Act, 1986 § 25. 22 Hardgrave, supra note 6, at 65. 23 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. On the

implications of the Shah Bano case for national politics in India, see V C E :A A P C (1997).

D I

,

24 Madhavi Sunder, Piercing the Veil, 112 Y L.J. 1427 (2003). 25 Anwar Alam, ‘Scholarly Islam’ and ‘Everyday Islam’: Reflections on the Debate

over Integration of the Muslim Minority in India and Western Europe, 27(2) J. M M A . 241, 256, n. 9 (2007). 26 Id.; Jeffery, supra note 1, at 3. 27 Sumit Ganguly, The Crisis of Indian Secularism, 14(4) J. D

11, 18

(2003). 28 Approximately three months, with exceptions. 29 Hardgrave, supra note 6, at 65. 30 Id. 31 Ganguly, supra note 27, at 13. 32 Purushottama Bilimoria, Muslim Personal Law in India: Colonial Legacy and

Current Debates, E L. S ., available at http://www.law.emory.edu/ifl/index2.html (follow ‘Case Studies’ hyperlink; then follow ‘Muslim Personal Law in India: Past Legacies and Current Voices from the Ground’ hyperlink). 33 Id. 34 I 35 G 36

C J

. Preamble. J

,T

W

L

36, 37 (2003).

Census of India, available http://censusindia.gov.in/Census_Data_2001/India_at_glance/religion.aspx.

at

37 I C . arts. 25–28. 38 Id. art. 25. 39 Id. art. 25(b). 40 J , supra note 35, at 91–95. 41 The Hindu Marriage Act, 1955, § 5. 42 J , supra note 35, at 96–97. 43 Ram Prasad v. State of Uttar Pradesh, AIR 1957 All 411, ¶ 8. 44 Id. ¶ 6. 45 I C 46 See W

. art. 44.

A H (R.N. Trivedi ed., 2010).

R

: S

J. S

, A F

16

47 J

, supra note 35, at 109–10; Faizan Uddin, Human Rights and Minorities, in H R Y 2009 33 (Pravin H. Parekh ed., 2009). 48 BBC News, Country Profile: Turkey. 49 Will Kymlicka, Liberal Complacencies, in I

W 1999).

M B F ? 32–33 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum eds.,

50 Michael Walzer, Comment, in M

R

P

O

99–100 (A. Gutman ed., 1992).

51 Sarla Mudgal v. Union of India, AIR 1995 SC1531. 52 The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu

Minority and Guardianship Act, 1956; The Hindu Adoption and Maintenance Act, 1956. 53 See summary of Fali Nariman’s speech, in Should Secular India Have a

Uniform Civil Code?: The Telegraph Calcutta Club National Debate (Mar. 13, 2005), available at http://www.cse.iitk.ac.in/~amit/other/debate0503.html. 54

E

R

K

& B L I

C , S 259–60 (1996).

S

: F

55 Marc Galanter & Jayanth Krishnan, Personal Law Systems and Religious

Conflict: A Comparison of India and Israel, in R P L S I :AC T J 270 (Gerald James Larson ed., 2001). 56 I C . art. 25. 57 See Dr Areti Krishna Kumari, In the Absence of a Uniform Civil Code, is the

Special Marriage Act the Best Alternative for Women? (Jan. 10, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956233; see also Summary of Mani Shankar Aiyar’s speech, in Should Secular India Have a Uniform Civil

Code?: The Telegraph Calcutta Club National Debate (Mar. 13, 2005), supra note 53. 58 Kumari, Id. 59 See Summary of Fali Nariman’s speech, supra note 53. 60 See Summary of Syed Sahabuddin’s speech, in Should Secular India Have a

Uniform Civil Code?: The Telegraph Calcutta Club National Debate (Mar. 13, 2005), Id. 61 Mohd. Ahmed Khan v. Shah Bano Begum, supra note 23. 62 The Indian Criminal Code of Procedure, 1973, § 127. 63 Mohd. Ahmed Khan v. Shah Bano Begum, supra note 23. 64 Id. 65 Id. 66 Galanter & Krishnan, supra note 55, at 277. 67 Sahabuddin, supra note 60. 68

Rajeev Bhargava, What is Secularism For?, available at http://www.law.uvic.ca/demcon/victoria_colloquium/documents/WhatisSecularismfo rPreSeminarReading.pdf. 68a Id. 68b Id. 68c Bhargava, supra note 68. 69 For the debates in the Constituent Assembly regarding the civil code, see

C.A.D., Vol. VII, 546, as quoted, in part, in F.E. N C C C :A I C L

,U 141–42 (2008).

70 P

G , T P P L S A : I , N U C C (2007); K D , U C C : I R P (2002); D R , U C C G J (1996); M.S. R , U C C :A I C I (1997); N , id.; C K , supra note 5; M M I :N V V (Ather Farouqui ed., 2009); M.P. R , U C C : A M ? (2003); See also V N ,R T N :M W L I (2009). I am grateful to my colleague K. K. Venugopal, Senior Advocate of the Supreme Court of India, for assisting me in obtaining the relevant books. 71 G , Id. at 274–81. 72 Id. at 274. A similar development took place at the time in the Soviet Union, and

regions of Central Asia after the communist revolution. 73 Id. 74 Id.

75 C K 76 Id. at 269. 77 Id. at 267.

, supra note 5, at 265.

78 Id. at 268. 79 Id. at 270. 80 Id. at 271. 81 Id. 82 Id. at 272. 83 R

, supra note 70.

84 Id. at 106. 85 Id. at vii. 86 Id. at 6–7. 87 Id. at 7–8. 88 Id. at 8. 89 Id. at 99. 90 Id. at 98. 91 Id. at 100. 92 Id. 93 Id. 94 Id. at 106. 95 Id. 96 C 97 Id. at 6. 98 Id.

K

, supra note 5, at 5.

99 Id. at 7. 100 Id. 101 Id. at 8. 102 Id. 103 Id. 104 Id. 105 Farouqui, supra note 70, at 3–4. 106 Id. at 5. 107 Id. at 12.

108 Author of T

M ,U C C :F A F (1995) and other works. See quote in G , supra note 70, at 265; see also Mohd. Ahmed Khan v. Shah Bano Begum, supra note 23. 108a See his book of 1995, M 109 See id. at 6. 110 I 111 J

C

, id.

. art. 37. , supra note 35, at 111–12.

112 Id. 113 Sarla Mudgal v. Union of India, supra note 51. 114 Id. 115 Mohd. Ahmed Khan v. Shah Bano Begum, supra note 23. 116 Jorden Diengdeh v. Chopra, AIR 1985 SC 935. 117 Sarla Mudgal v. Union of India, supra note 51. 118 R , supra note 70, at 18; Further, ‘if it is said that the Directive

Principles have no legal force I am prepared to admit it. But I am not prepared to admit that they have no binding force at all. Nor am I prepared to concede that they are useless because they have no binding force in law. The Draft Constitution as framed only provides a machinery for the government of the country. It is not a contrivance to install any particular party in power, as has been done in some countries. Who should be in power is left to be determined by the people, as it must be, if the system is to satisfy the test of democracy. But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions which are called the Directive Principles. He cannot ignore them. He may not have to answer for their breach in a court of law. But he will certainly have to answer them before the electorate at election time. What great value these Directive Principles possess, will be realised better when the forces of right contrive the power.’ 119 Id. at 17–18. 120 Id. at 19. 121 Id. 122 Id. at 20. 123 Id. at 21. 124 Id. at 22. 125 C K , supra note 5, at 280. 126 Justice Singh: ‘Those who preferred to remain in India after partition fully knew

that the Indian leaders did not believe in [the] two-nation or three-nation theory.’ See MAHMOOD, supra note 108, at 13; Justice Sahai: ‘A unified code is

imperative…the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity.’ See, Id. 127 M

, supra note 108, at 14–15. The paragraph quoted from Dr Mahmood was: ‘The Directive Principle of State Policy contained in Article 44 of the Constitution asks the State to “endeavour to secure a uniform civil code for the citizens throughout the territory of India”. The directive has however, been constantly ignored by the State while legislating in the area of the personal law of the majority community. A Hindu Code Bill was inherited by Independent India from the pre-Constitution regime. After the introduction of Article 44, Parliament kept on debating it for over four years. In 1954, it enacted a new general nonreligious law of marriage and divorce—the Special Marriage Act of 1954— attaching to it also the secular law of succession contained in Chapter 2 of Part III of the Indian Succession Act 1925. Instead of applying these secular laws compulsorily to the majority community, within the next two years Parliament enacted two special laws—the Hindu Marriage Act 1955 and the Hindu Succession Act 1956—both retaining many religion-based provisions. The already available secular laws of minority and guardianship—the Indian Majority Act 1875 and the Guardians and Wards Act 1890—were also not found fit enough for the majority community. Instead, a new Hindu Minority and Guardianship Act was enacted in 1956. Special provisions relating to maintenance of wife and other relations were included in the Hindu Adoption and Maintenance Act 1956. Notably, all four Hindu-law statutes, enacted by the modern Parliament in the secular India of 1955–56, expressly provided that “ceasing to be Hindu” would result in the loss of all the family rights relating to adoption, guardianship and maintenance, etc. which they had provided for.’ G , supra note 70, at 265. 128 M , Id. at 20–26. 129 Id. at 27–28. 130 Id. at 35–40. 131 Id. 132 Sarla Mudgal v. Union of India, supra note 51. 133 Id. 134 Id. 135 Pannalal Bansilal v. State of Andhra Pradesh, AIR 1996 SC 1023. 136 Dr Satyarajan Purushottam Sathe, Uniform Civil Code: Implications of

Supreme Court Intervention, XXX (35) E (Sep. 2, 1995). 137 Bilimoria, supra note 32. 138 I C . Preamble. 139 The Hindu Marriage Act, 1955, § 7.

A

P

W

2165

140 The Parsi Marriage and Divorce Act, 1936. 141 Summary of Narendra Modi’s speech, in Should Secular India Have a Uniform

Civil Code?: The Telegraph Calcutta Club National Debate (Mar. 13, 2005), supra note 53. 142 Avitzur v. Avitzur, 58 N.Y.2d 108 (1983). 143 Id. at 114. 144 Id. 145 Id. at 115. 146 Bruker v. Marcovitz, 2007 SCC 54. 147 Id. ¶¶ 4–5. 148 G , supra note 70, at 265. 148a Abdur Rehman Undre v. Padma Abdur Rehman Undre, AIR 1982 Bom 341,

355. 149 M 150 R

, supra note 108, at 31. , supra note 70, at 100.

151 Id. at 101–02. 152 Id. at 104. 153 Id. 154 Id. 155 Id. at 104–05. 156 Id. at 106. 157 C K 158 Id. at 17. 159 Id.

, supra note 5, at 16.

160 Id. at 174. 161 Id. at 256. 162 Id. 163 Mohd. Ahmed Khan v. Shah Bano Begum, supra note 23. 164 C K , supra note 5, at 258. 165 Id. at 262. 166 M

M

I

, supra note 70.

167 For discussion of Muslim-Hindu relations in Goa, see Charles Bayes, Issues of

Goan Muslims as seen in the Goan Press, in M 142–46.

M

I

, id. at

168 G

, supra note 70; The Muslim Women (Protection of Rights on Divorce)

Act, 1986. 168a See G 169 Id. at 12.

, supra note 70 at 12–13.

170 Shimon Shetreet, The Normative Cycle of Shaping Judicial Independence in

Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges, 10 C . J. I ’ . L. 275 (2009). 171 S 172 N

S

,L

A

S

P

(2002).

, supra note 69, Preface; see also, Foreword by Justice C.S. Dharmadhikari, Former Judge, Bombay High Court, id. at vii. 173 For a very comprehensive analysis by Dr Noronha of the long history and the

amendments of the Portuguese Civil Code in Goa and its retention in Goa after it came under the rule of India in 1961, see, id. at 95–124. 174 Id. at 97. 175 ‘Portuguese laws, like, the need to register your marriage, the equal rights of

husband and wife in marriage, equal right of all children, sons and daughters in succession, that you cannot will everything to one son or daughter, that the Will is to be made in the Registrar’s office and in Registrar’s book not on some piece of paper in the house, that after death Inventory or Succession Deed are required— these things are known and have passed on by word of mouth from generation to generation. All Goans including illiterates know it, in the coastal belt or the interior talukas, in Goa or wherever Goans have migrated. I have seen an order of the High Court of Mombasa, in a succession matter distributing under Portuguese Laws the assets of succession because the deceased was Goan.’ See Id. at 97. 176 Id. at 97–98. 177 For a detailed analysis of codification of laws in India in the nineteenth century

and earlier, see id. at 127–40 and see specifically 159–61. 178 For the Goa situation, see G

, supra note 70 at 18–21, based on: Nishtha Desai, Goa Code has Meshed Well with Muslim Culture, T I , 29 Apr., 1997 (New Delhi); Pamela D’Mello, Common Personal Law in Goa—A Critique, M I (1997); Lauren Benton, Beyond Legal Pluralism: Towards a New Approach to Law in the Informal Section, 3 S . L S . 223 (1994), L B ,L C C :L R W H (2002). 179 R , supra note 70, at 1. 180 Id. at 18. 181 G , supra note 70, at 19–20. 182 Id. at 20; D’Mello, supra note 178, at 513.

183 D’Mello, Id.; Ghosh,id. at 20–21. Bigamy is allowed if the first wife does not

deliver a baby until the age of 25 or does not give birth to a male child until the age of 30.

4 CONCLUSION TO PART ONE

a mosaic of religions and cultural groups. In an attempt to respect the different religions of India, it was decided that on those issues most important and central to religion, each religion shall determine its rules, and be judged by them. However, with the will of creating a unified, secular, and democratic state, the Constitution of India declared in Article 44 that, ‘[t]he state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. And so, an unresolved conflict was born, a conflict between the state of India, and the communities comprising it, a conflict between a secular state, and the religions of its peoples. This work has attempted to propose a blueprint of guidelines for a solution to these conflicts. The laws governing different religions bring about many problems. One of these occurs when two separate and different sets of rules apply to a situation, such as when two people of different religions wish to be married. Another is that while some religious laws have gone through reforms over time, others have not been changed at all. This leads to there being rules which allow substantial deprivation of human rights, and in particular of women’s rights, in a state that wishes to be democratic. This includes polygamy or the unilateral divorce in Islam. Another problem is that significantly different rules apply to different people, creating a situation in which not all are equal before the law. The Constitution of India attempted to rectify these ills, by creating a secular state, with a uniform civil code, while at the same time permitting freedom of religion. With the central importance religion has in the life of all the citizens of India, the purpose of the

Constitution was not to reflect the current state of India, but to better shape the society, and bring about social reform. How exactly this should be accomplished, however, was not elaborated in the Constitution. One of the tools placed in the hands of the state, however, was Article 44. Though the Constitution was created with the birth of the state of India, today—over 60 years later, there is still no uniform civil code. To propose a solution, first the obstacles must be understood. This work has outlined several possible reasons for the fact that a uniform civil code has still not been secured. One is the inherent fear minority groups have of the state in multicultural states, such as is India. These groups fear that a uniform civil code, being the product of a Hindu majority, will not express their cultural needs and identity, and will not leave room for them to express their culture. Another problem is the fear that a uniform civil code will be a Hindu code, again, due to its being the product of a Hindu majority, and will apply Hindu law to all the people of India. Another obstacle is the fact that people in India have always lived by their religious laws—and it is always difficult to accept change. The main issue, however, is the conflict between a secular code, and freedom of religion. How can accommodation of religion be achieved, in a state where there is only one rule for all, and that rule is secular? An attempt at reconciliation was made in the Shah Bano ruling, where the court interpreted Muslim law as not being in conflict with the general law of the land on maintenance. This interpretation of Muslim law by the courts was seen as an attempt to force upon the Muslim community a secular law, and brought about the MWPRDA, 1986. In order to secure a uniform civil code one must deal with these problems, and find solutions to each and every one of them. How then should this be done? One proposal, is that since the majority of the citizens of India are already governed by codified laws (as personal laws regarding Hindus have all been codified), the majority of Indian citizens are ready for a uniform civil code, and these laws should be made into a uniform civil code (perhaps with some changes). However, it is not clear at all that a majority is ‘ready’ for a uniform civil code, certainly not in the form of the current codified laws that exist, which are Hindu in nature, and represent Hindu

interests. Furthermore, since a uniform civil code will affect all the citizens of India, and not only Hindus, in order to prevent tyranny of the majority, it is not enough for all Hindus to be ready for a uniform civil code, but for all the groups comprising India to be ready. Another option is to wait for the different communities to change and adapt their rules to a secular, democratic state, and only then to secure a uniform civil code. However, the Constitution of India seeks to actively bring change to India, not to wait for change to come. If change is not actively brought about, it will not necessarily come. Furthermore, even if the rules do change, they will not necessarily change in a direction that will be consistent with a secular uniform code. There must be an external move providing incentive for change. Another suggestion that has been examined here is that a uniform civil code ‘does not necessarily mean a common law but different personal laws based on uniform principles of equality of [the] sexes and liberty for the individual’. However, these uniform principles already exist in the Constitution, and it is not clear how a uniform civil code will bring a practical change to community laws. None of these options deal properly with all the problems and obstacles that stand in the way of securing a uniform civil code as has been discussed. We have not suggested the substantive provisions for the uniform civil code, but rather we have proposed a blueprint of several guidelines that should be put in place, as part of the process of securing a uniform civil code—parallel existence of civil and religious law, a gradual application of the civil code, and mediation on an intercommunity and individual level. It is my belief, that these guidelines will help to overcome the obstacles outlined here. The purpose of a gradual implementation of the laws is to allow time for the people of India to get accustomed to the significant changes that a uniform civil code will bring about. People will have time to adjust themselves and their lifestyles to the new order. Furthermore, this period of adjustment between the securing of a civil code, and the actual implementation of the laws gives the state and its institutions, and most notably—the judiciary, time to adjust to the new code.

Having religious law and secular law exist side by side allows for freedom of religion. Whilst for one’s marriage to be recognized by the state, one has to perform a civil marriage, there is nothing preventing a religious marriage as well. Furthermore, as has been demonstrated in the cases of Avitzur and Marcovitz, the religious marriage itself can be brought before the purview of the court, thus ensuring that the husband and wife hold up to both their secular and religious obligations to one another. Furthermore, because the uniform civil code is of a secular nature, it cannot have a Hindu character, but will rather represent the interests of all the citizens of India. The main proposed guideline, aimed at alleviation of fears of tyranny of the majority, is mediation. The mediation that has been proposed is on two levels, intercommunity mediation and individual mediation. Intercommunity mediation is of central importance to the securing of a uniform civil code. The code must be agreeable to all the communities of India, and must therefore be achieved through a process of legislation. However, it must be one that is not merely passed by the majority, but one that is also acceptable to the minorities. The way to achieve this is through intercommunity mediation, by bringing representatives of the different communities together, with their sole purpose being to attempt to find a viable solution to the problem of Article 44. This, in itself, will not bring about a uniform civil code overnight; however, it is a first step, and a first step must be taken, before others can follow. So far, over sixty years after the Constitution of India, no step has been taken, and the creation of a Parliamentary Special Committee, whose sole purpose shall be securing a uniform civil code, should be the catalyst that is required here. Individual mediation is no less important than intercommunity mediation. As we saw in Shah Bano, courts, being non-conciliatory by nature, face many problems when attempting to solve personal law issues. Therefore, having a mechanism in place, that may resolve these disputes through mediation, is necessary for preserving traditions, culture, and religion. The citizens must have recourse to a process, which will take into account not only the law, but also their religious and cultural backgrounds, when resolving their disputes.

Over sixty years after the Constituent Assembly drafted the Constitution, and Article 44, it is time to take a first step. It is my belief that the proposal put forward by this study, shall allow for a uniform civil code for the people of the state of India.

PART TWO MEDIATING THE UNIFORM CIVIL CODE

provided a rich description of the alternative models for mitigating, accommodating, resolving, or eliminating conflicts in personal law. Given the polarization of the debates over the uniform civil code in India, serious attempts to bridge the chasm between proponents and opponents, Muslims and Hindus, religious and secular, or any other heated oppositions, will require more than mere awareness of models or suggestions of ways to proceed. Progress toward a uniform civil code will require an intense process of social and political intermediation. Accordingly, Part Two infuses the debate with an exploration of different ways to understand the conflict and those strategies that may be capable of providing a theoretical and practical foundation for building bridges between opposing sides on the critical issues. Before we identify the distinctive conflicts arising from the question of a uniform civil code and the strategies capable of mediating them, let’s step back to make some general observations about conflict itself. Conflict both reflects and shapes the human condition. Conflict grows from two basic social facts: social difference and interaction. Were we all identical in all respects, we would have arguably no conflict. Were we to never touch one another’s lives in any way, conflict would not occur. It is when we engage each other’s differences in opinions, ideas, values, beliefs, cultural practices, status, identity, power, and power over resources that conflict emerges. In turn conflict shapes who we are. It sharpens a sense of selfdefinition; what ideas we have, values we hold, beliefs we pursue,

practices we internalize, our sense of status and identity, the power we feel (or feel we lack), and the delimitation of the resources to which we have rights are all shaped by conflicts of the past or present or by worries about those of the future. We define ourselves to a large extent not only in affirmative terms but also in negative ones—we are who we want to be but we also are who we do not want to be. We understand our values, beliefs, status, identity in contrast to those around us—the property we own, lineage we have, is delimited by that which we do not. The greater the interaction between those affirmatively or negatively defined differences, the sharper those differences may become. Conflict is thus an indispensable, frequently helpful, creative social process—when we try to avoid it, we risk the internalization of its costs—we leave critically important questions unresolved, including the lines we draw to define ourselves and others. When we engage it, conflict sparks the fire that pushes us to change. The renowned philosopher and music critic Adorno saw success in art as a kind of negative harmony containing inner structures of pure and uncompromised contradictions. Hume taught us that truth emerges from arguments between friends. Dewey urged that conflict instigates invention. In other words, conflict is good. Yet, as we know all too well, conflict is also destructive—costly emotionally, economically, and when violent is viciously cyclical. Social groups subject to violence either seek retribution, impose it on others, or develop a victim-mentality that ironically licenses the victimization of others. Conflict upsets, disrupts, demoralizes, and sadly can even kill. In sum, conflict is bad. If conflict then is good and bad, the challenge for our civilization is formidable: to get the best and avoid the worst from conflict. So how do we exploit the creative powers of conflict and then depolarize it to reduce its most deleterious consequences? That is one of the great challenges of our civilization—how to mediate conflict in ways that leverage its value and reduce its harm—and this is the main project of this part of our inquiry on the uniform civil code. Before we can resolve conflict, we must specify its nature. Accordingly, each of the following chapters identifies different types of conflict underlying the controversy at hand. First is the conflict

between competing ideals of authority: hierarchical and coordinate. The second type of conflict is one of the laws in place. The third is conflict over the reform alternatives. The fourth is the social and political conflict over the uniform civil code between groups and persons, as well as within groups and (from a more psychological perspective) within individuals themselves. The final conflict is one of the choice of dispositional and normative principles for addressing the issue: is the controversy over the uniform civil code a question of equality, human rights, national identity, or on the other hand, a matter of religious freedom, minority rights in a democratic system, pluralism, or diversity? If we believe in each of these principles, how do we resolve controversies when they collide? Accordingly, the uniform civil code generates conflicts on at least these five levels. Each chapter then advances a series of observations and strategies for working through these five types of conflicts. Specifically, Chapter Five observes that hierarchical ideals reflected in some of the arguments for a uniform code are incompatible with the fundamental structure of authority in modern India. Chapter Five further breaks down the use of uniformity into three separate and related questions about how the level of uniformity in the law or in applications can affect one’s view in favour of (or opposed to) a uniform civil code. Chapter Six provides a full array of alternative approaches to conflicts of law in which uniformity can be seen as having certain advantages and disadvantages. Chapter Seven describes the dilemmas that arise from reform conflicts and sketches a series of conceptual ways to think through those trade-offs. Chapter Eight explores more directly the social and political conflict over the uniform civil code and describes how the tools of mediation, even short of a concerted mediation of the legislation, can help to resolve the underlying issues at the core of the controversy. Additionally, Chapter Eight anticipates how any matters under the new code might be mediated according to section 89 and Order X of the CPC, and reflects on the internalization of mediation in India and within the Indian legal culture. Finally, the conclusion to this part identifies several competing normative principles that are reflected in the arguments for and against a uniform civil code, and adds one more to the array of alternatives: comparative harm, as an attempt to

transcend the collision of other alternative choices. Comparative harm is an idea grafted from choice of law doctrine and drawn from anti-dilemma strategies and interest-based bargaining in mediation. Comparative harm is the more humble sibling to the principle of comparative advantage—the notion that collective interests can be advanced by having competitors in trade do what they do best. Conversely, comparative harm find the solution that does the lesser of the compared injuries to the parties in conflict. The conclusion also suggests ways of institutionalizing the application of mediation to the design and implementation of a uniform civil code in India.

5 CONFLICTING IDEALS OF AUTHORITY

IDEALS OF AUTHORITY The level of tolerance for conflicting personal and family law derives from the choice of how best to organize or disperse authority. The ideals that motivate highly centralized, uniform legal systems contrast sharply with those that support decentralized, even disparate, localized legal systems. Damaska’s seminal work on this major distinction in comparative law distinguishes between the hierarchical and coordinate ideals of authority.1 The hierarchical ideal stresses central control, discipline, national unity, and top-down processes of decision-making. The coordinate ideal stresses dispersed control, freedom, diversity, and bottom-up or peer-to-peer processes of decision-making. In every society, institution, or group, these two ideals compete with one another. Very few organizations are completely hierarchical (vertical) or perfectly coordinate or flat (horizontal). And in one system, it is frequent to see reactions to the status quo that press a move in the other direction. For example, when states fail to manage economies, there is a strong move to foster and trust markets. When market economies fail, as in the recent economic crisis, there is a strong impulse for state intervention. In the broad context of comparative models, India can be placed safely among the more coordinate systems, and in the personal and family law area, as a matter of pure description and observation, that is even more true. The sheer diversity of personal law among various religious groups—Hindu, Muslim, Parsi, Christian, Jewish, and so on—and the devolution to protected tribal groups make for an

extremely flat, coordinate reality. Furthermore, the sheer social and political diversity of the country—perhaps the most diverse country in the world today—seems hardly compatible with hierarchical ideals of authority. Whether in social, cultural, linguistic, political, or legal terms, uniformity is not a word typically used when describing India, and the concept may sit uncomfortably in the broader national context.

CONFLICTING PRESUMPTIONS OF UNIFORMITY Conflict over a uniform law, however, begs important questions about the nature and level of contemplated uniformity. The ideals of authority and the underlying demography and diversity of the country should be expected to have an impact on perceptions of uniformity. If uniformity is emphasized as a way of creating homogeneity, one should not be surprised to see resistance from more vulnerable minority groups. If, on the other hand, the principle of uniformity signifies symmetrical freedom of diverse identities, then those less tolerant of diversity are likely to object. Uniformity is a sweeping term, one filled with certain ambiguities —some potentially constructive in leaving open a broad range of possibilities; others potentially destructive in their vulnerability to sharp disagreement. One characteristic of the debate in India is that those for and against the code often presuppose what it would contain. This is far from clear, however. The question of the uniform civil code may be considered as three, sequentially separate, yet intertwined matters. First is the question of whether to secure uniformity. Article 44 speaks in terms of an ‘endeavour to secure’, and this literally indicates a serious, good faith effort to try, but appears short of an obligation to secure. Whether the constitutional promise of the endeavour may be fulfilled short of execution of a piece of legislation under that rubric remains an open question under Indian constitutional law. Second, most debate in India for and against the uniform civil code presupposes that uniformity means the elimination of

inconsistent personal laws in the country. That is also far from evident, and possibly even further from what would be advisable. At one extreme, a uniform code might establish as its basic principle a stated symmetry of equal rights to maintain personal laws (with some human rights or constitutional exceptions). The point here is that Article 44 does not define how much uniformity must be in the code in order to satisfy the promise of the provision. The less invasive that uniformity, e.g., the principle that everyone uniformly may practice his or her own personal law, the less opposition one may have from those who claim the uniform civil code will infringe on religious freedom. Most ‘uniform codes’ allow for some level of diverse practice, e.g., a uniform dress code need not dictate colour, quality of material, etc., and will hardly ever dictate sizing!2 Even with a commitment of uniformity, the breadth and depth of uniformity will remain controversial and in need of resolution. Thus, the question of support or opposition for the code is related to the question of what those provisions might contain. Third, the system can anticipate conflicts based on any uniform legislation under the code itself, as law rarely can be expected to anticipate the unexpected patterns of human interaction it attempts to grasp, and thus, in addition to adjudication, non-binary, consensual processes for resolving civil conflicts falling under the new code may be worth exploring even now. Uniformity in application is as important as uniformity in the legislation itself, and if it is anticipated through both case law and consensual settlements in the shadow of the uniform civil code that the code will not be rigidly enforced, then this too might reduce the fears of some that their fundamental rights to religious freedom will be undermined by the code. Each of these three questions is interrelated: whether to pursue uniformity, how much legislative uniformity should the civil code contain, and what level of differentiation might be tolerated in the application of the code to real cases. In this sense, the question of whether to support or oppose a uniform civil code in India can hardly be answered before we understand what such a code might contain —which denominators of common practice are prohibited and which numerators of diverse practice are allowed. Analogies illustrate the

point. Consider whether we are in favour of or against uniform classroom standards throughout the nation’s schools, uniform food safety standards throughout the country’s restaurants, uniform dress codes applicable in all public spaces. We can quickly see that it is nearly impossible to have an intelligible view without further definition of the level of specificity and depth to which such laws would apply. The polarization of the conflict over the uniform civil code may thus be in part diffused by stepping back and creating alternative, coordinate ways of designing uniformity in the midst of a society with diverse social practices. Let’s envision sometime in the near future the headline: India Passes Uniform Civil Code. The constitutional mandate of Article 44 is fulfilled. Not only would the state have successfully made an endeavour to secure, it would have actually secured ‘for the citizens a uniform civil code throughout the territory of India’.3 Does the mere existence of new legislation under the rubric of a uniform civil code itself answer the critical question of what that law should require or contain? On one extreme, it is true that the uniform civil code might create a universal personal law of marriage, divorce, maintenance, inheritance, and other substantive areas of law. However, it is also true that at the other extreme, a uniform civil code might stipulate that it is the uniform law of India that each legitimate religious group is free to define its own terms of regulating those areas of human affairs. Further, it might allow individuals in any one group to opt out into a secular, uniform system. And naturally, there is a large space in the midst of these alternatives for both universally applicable provisions and the preservation of autonomous or semi-autonomous legal spaces for sub-national communities or individuals. How would anyone know whether to endorse or oppose a code without knowing in advance what it precisely contains? Thus, whether one supports the promulgation of the uniform civil code depends on the individual’s presumption of its provisions. Since these provisions do not exist in any one dispositive draft, either opposition or support for a uniform code is by itself (without such specificity) premature, if not patently indefensible.

1 M

R. D A

C

, T

F L

J P

S

A

: A

(1991).

2 Let’s illustrate this with a more pedestrian scenario, one at least on first glance

that does not implicate the same quality of controversy. Let’s say that in an attempt to brand and reinforce a certain style for a particular school or university, they proposed the creation of a uniform dress code. Are you for it or against it? That would be difficult to answer and justify in the abstract if I haven’t described the contents, depth, or application of uniformity. Let’s say one of the code provisions was ‘no hats or similar head coverings’. If you liked hats you might oppose uniformity. If you wore a head covering, e.g., a Jewish Yamulke or a Muslim Hijab, then you might strongly oppose uniformity. If, however, you knew that in the application of the code, there would be an opportunity to mediate the conflict such that maybe you couldn’t wear a baseball hat but could wear a religious head covering as a legitimate exception to the provision, then your opposition to the basic norm of uniformity or this particular, uniform provision might not be as strong. 3I

C

. art. 44.

6 CONFLICTS OF LAW

the combination of three political and social facts: the separation of communities, the different norms they live by, and the interaction between them. Communities may be defined by territory or identity (legal personality, often associated with a strong ethnic, territorial, or religious affinity). Interaction need not be direct or tangible; it can also be as attenuated as the exchange of information about the other or general awareness about the other communities’ norms and practices. Strategies designed to address conflict of law problems focus on any one of the basic social facts: either they (1) limit the interactive activity, (2) choose among the competing norms, (3) reform one law or the other, (4) erase differences among competing laws, or (5) unify the communities in one-decision-making polity (which may or may not necessarily eliminate legal differences). Even though uniformity is often put forth as an obvious solution to conflicts of this kind, it is only one of five competing strategies, each with its advantages and disadvantages both in general and specific contexts. Because the context affects (as it should) which approach to recommend, it will be helpful to engage the readers’ intuitions through illustrating these trade-offs in a seemingly pedestrian social context. These stylized illustrations can help us set down for the moment any baggage we might carry to the more heated issues surrounding the uniform civil code. The following example has been utilized to teach different strategies to cross-border problems,1 and provides the basis for a book series,2 but it applies equally well when the borders are of a sectarian, ethnic, or religious nature.

AN ILLUSTRATIVE SOCIAL EXAMPLE ON THE CONFLICT OF LAWS In 1993, when my family moved to Cleveland, Ohio, my daughter, Saja (pronounced ‘SAY-ja’) was less than one year old. As new parents concerned with setting strong standards of healthy behaviour early on in her life, we did not allow her to eat candy. Because she did not have much opportunity for candy exposure prior to our move from Manhattan, we had no trouble implementing and enforcing this preferred regime. The Kovic family, who lived across the street, was a lovely crew. The parents were both incredibly warm and caring people. Their three kids were all smart and fun. There was just one problem. They ate candy, lots of it, and without much effective parental regulation. I suppose this would not have bothered me very much if the families had not become close. Why should I care if the parents had a different way of raising their children? After all, they were not forcefeeding sweets or lacing them with narcotics (which, even without any interaction, might have been a sufficient basis for humanitarian intervention!); so at first this contrasting parental policy was a matter of indifference. The increasingly frequent interaction of the children, however, presented us with a conflict of law problem, created by the intersection of three social facts: (1) two different families or polities; (2) the difference between the Chodosh anti-candy rule and the Kovic pro-candy rule, and (3) the cross-border interaction between members of one family and the other. In other words, Saja’s social exchange with the more liberal Kovic family created opportunity for violation of an important domestic Chodosh rule against candy. What were our options and what lessons might we draw from them in the context of uniform family or personal law?

Isolation First, we could have built an impermeable social border between the two families and prevented any interaction between Saja and her

friends. Where there is no cross-border activity, there is rarely a conflict, except for those cases in which the foreign activity violates a value of such psychological depth that we treat it as a universally recognized harm. Think of our reaction to forced candy consumption, or more troubling, drugs, or sexual abuse! We certainly would not have subjected her to that risk. Even with the case of candy, preventing Saja from crossing the street, eliminating her interactions with the candy liberals to our west, would have decisively solved the problem. The costs of this approach, however, would have been considerable. The restriction on her interactions would have imposed a hefty social cost on her ability to make friends, enjoy their company, and learn from her peers. The opportunity costs associated with such restrictions are so high that we tend to use the approach sparingly.

Choice of Law Putting this first option aside, we could have drawn on choice of law approaches. Choice of law rules allocate whose rule applies to whom, when, and where. For example, a territorial approach to choice of law would have suggested that Saja be allowed to consume candy in the Kovic household, but not at home. This approach would have severely limited the extraterritorial reach of our regime to our own child’s activities abroad. In other words, a territorial approach permits those in Rome to do as the Romans do. In contrast, an alternative choice of law doctrine would have focused on the legal personality of Saja as a member of the Chodosh polity, thus binding her to the anti-candy rule regardless of her territorial presence in another regime. As an additional contrast or exception to the territorial approach, a polity may invoke a public policy exception. For example, here, we could have declared the pro-candy rule a drag on human civilization and invoked a public policy exception to justify the extraterritorial application of our own norms. One of the most intriguing approaches worthy of focus in working through very difficult conflicts is the concept of comparative harm. Under this approach in choice of law, we would have to quantify the comparative harm to each one of the families if the other family’s rule

applied. Whose interests would be more impaired by application of the foreign rule? Is the occasional and arguable health risk to members of the Chodosh clan greater than the occasional and arguable harm of candy deprivation to the Kovices? From the vantage point of trying to increase the overall welfare of the two families, this is a superior doctrine because it minimizes harm overall, and increases social utility. Unlike what may appear to be a non-contextual or rigid territorial or personality approach, it looks at the nature of the conflict, thus allowing a different result depending on the precise circumstances. For example, if the candy at issue is sugarless, the harm to Saja may be significantly reduced, and it would then become easier to apply the pro-candy rule. On the other hand if it contains a life-threatening allergen, then the potential harm of consumption (pursuant to the more liberal rule) would be so great that application of the anti-candy rule would be justified. Although this means that one family would internalize a cost that the other would not, it would apply reciprocally to other situations and thus produce a net benefit to both families over time. I will return to the notion of comparative harm later on, but should note here as well that one of the weaknesses of the doctrine in choice of law contexts is that harm is often in the eye of the beholder. If an adjudicator belongs to one community or the other, they are likely to overvalue their own perceived harms and undervalue those of the other community. By allocating the scope of application among conflicting rules, choice of law avoids the opportunity cost of isolation (the first alternative), and it does not require either family to alter its fundamental normative choices (as in the other strategies outlined below). Yet this approach also poses a significant risk that Saja would take advantage of the differences in family regimes through a process of legal arbitrage. Legal arbitrage, the flip side of forum shopping (which focuses on litigation contexts), is a process of altering the location of conduct to take advantage of a jurisdiction’s more favourable standards or rules (e.g., lower tax rates). With choice of law as our only strategy, and assuming the common territorial approach, Saja would have a strong incentive to spend as

much time as possible abroad (or at least enough to satisfy her hunger for candy), beyond the normative reach of her parents.

Comparative Law Reform In the place of restricting cross-border activity or choosing which law to apply, a third major approach is to alter, even if slightly, the underlying law that is in conflict. Accordingly, we could have pursued a change in our rules or tried to impose one on our dear friends across the street. For us, a sudden change to a pro-candy regime was not desirable. For the Kovic family, a new prohibition era was equally unrealistic. Short of these two extreme reform alternatives, however, we had a number of intermediate strategies. One particularly attractive proposal (itself borrowed from another family’s approach) was to create a ‘candy-day’. Under this approach, Saja was allowed to eat candy on only one day per week. Had we not come under the transnational influence of the Kovic regime, we would not have moved in this direction, but it seemed a reasonable way to accommodate the external pressure on our normative system. It became easy to manipulate Saja’s interactions with her friends in order to make the best use of this approach. For example, we scheduled her play dates at their house on her candy day and their play dates at our house on some other day, when our rules would apply. Thus, the candy-day rule allowed Saja (so to speak) to have her candy and eat it too. This approach (in turn) deeply impressed the Kovic household. The parents were tired of the kids wearing them down for candy day and night. They saw Saja as a well-adjusted child. Our imposed deprivations had not exacted any palpable injury. Within a few months, they adopted the candy-day rule as well, and the problem seemed to have been resolved. There was one problem, however. We discovered that our candyday was on Friday, and their candy-day was on Saturday. Guess what? The kids were effectively arbitraging the different regimes by coming to our house on Fridays and going to the Kovic house on Saturdays. Thus, they cleverly transformed our one-day restrictions

into two days of candy consumption. This arbitrage required us to pursue a fourth strategy.

Uniformity of Law Because the two families were now close to choosing the same approach, we needed to create greater uniformity to settle on a particular day of the week. Thus, we negotiated a treaty—an agreement between the two families that settled once and for all on the choice of a particular day (Saturday). This treaty not only governed cross-border interactions but intra-familial activity as well. Through this agreement, the two families had achieved a completely uniform rule to strike a balance between health (and cavity prevention) and the enjoyment of sweets (with special attention to flossing and brushing on that particular day). Problem solved? Not so fast.

Unification of Institutions As might be expected, even where there was agreement on the rule, there was inconsistency in its interpretation and enforcement. Keep in mind that the two families began with very different choices about the proper approach to candy. We were particularly concerned about the harms from candy consumption (the related fears of bad teeth, bad appetite, bad taste, and bad habits were particularly pronounced in our camp). The Kovic family had more of a laissez-faire, freemarket attitude (kids will be kids; candy is an integral part of childhood; self-regulation is superior). Notwithstanding the evolution of our respective adjustments from the original position to a more accommodating one of a single candy-day, with this pre-existing, underlying difference of value choices, it should not have surprised us if we interpreted and enforced the rule more strictly than did our bilateral treaty partners, where interpretation and enforcement turned out to be particularly lax and threatened to compromise the fundamental terms of the bargain we had reached. Were certain mints really candy if they contained no sugar? How about sugarless gum? Did we really mean that neither family could use candy as a

way of extorting certain kinds of desired behaviour (e.g., a reward for cleaning cluttered closets or a palliative for painful vaccinations)? Ultimately, we could have concluded that the families on their own were incapable of enforcing the rules to which they had agreed and that some higher level of institutional power and authority would be required. Such a supra-parental allocation of control to a neutral third party, a local sheriff, court, or state was not desirable in the end. This would have seemed to be an abdication of our assumed level of parental control and authority (indeed, our sovereignty), and in the final analysis the problems of under-enforcement were outweighed by the loss of power and control associated with letting someone else decide and enforce the rules we had chosen.

APPLICATIONS TO CONFLICTS OF LAW Let’s consider situations closer to the topic at hand, that is, conflicts over personal or family law. If the family across the street had a different way of recognizing marriage or divorce, contrasting standards for considering adoption or levels of financial support for a divorced spouse or children from a broken marriage. Which strategy would the reader deploy? In other words, what does this story have to do with the uniformity of personal or family law in India? The story shares many central (though highly abstracted) elements of differences in law and social interaction between different communities, the resulting conflicts, and the legal responses available to conflicting communities, including but not limited to uniformity of law. This approach specifies the tools used by politically defined communities to address conflicts arising from cross-border interactions.

The Pattern Consider the following typical pattern: Communities

A

B

Communities Parties

A (a)

Key Fact

B (b) *

Law

X

Y

This pattern produces a conflict of laws X and Y (where X does not equal Y) between communities A and B, where (a) has a permanent connection (e.g., either territorial or in this case personal) with Community A, and (b) has a comparably permanent connection to Community B. The key facts (conduct, injury) take place in community B. In order to address the conflict from either a structural or doctrinal point of view, the decision-makers of A and B would consider several strategies.

The Pattern Applied Accordingly, the pattern from the Saja paradigm looks like this: Communities Parties

Chodosh Chodosh kids

Key Fact

Kovic Kovic kids Candy consumed

Law

Anti-Candy

Pro-Candy

If we chart, say, a conflict between the Hindu and Muslim communities on personal law, the structure would look like this: Communities Parties

H (h)

Key Fact Law

M (m) *

No

Yes (multiple marriage, liberal divorce, more minimal maintenance, no adoption, halfinheritance of girls to boys)

Tax breaks for joint families

Not available to non-Hindus

This framework allows one to see each strategy in isolation from (and combination with) one another. Examples of these legal strategies are plentiful. First, legal measures may seek to restrict cross-community interactions and arbitrage, e.g., anti-conversion laws that would prohibit members of one community joining another for the purpose of enjoying a more desirable law. Second, judicial or doctrinal approaches to choice of law offer approaches based on the identity of the communities involved, relationships between those communities and their interests, or the comparative harms resulting from application of the foreign rule. These doctrines may focus on who controls the forum, the legal personality of the parties being regulated (from H or M), the location of the key facts (critical conduct or injury) at issue, if there is a territorial connection, or the location of the community conduct if it is a personality or identity connection. Even after applying the doctrine, the decision-maker may invoke a more universal principle of public policy or human rights to void the application of the foreign, seemingly obnoxious provision. Under the comparative harm approach, the competing harms to each group of applying the other’s law are weighed against one another. Accordingly, in the case of conflicts of personal law, which community or person suffers greater harm if the other one’s rules apply? It should be noted that with the exception of conversion, the case of conflicting personal laws is unlike the candy consumption example, in that there is no direct interaction, merely the exchange of information that the personal law of one community differs from the other. One might ask, then, why there would be a conflict if there is no direct impact. This type of conflict is one of conscience and identity. When our minds are offended by external conduct we find obnoxious to our notions of civilization and human decency, we treat this as a serious conflict. Further, when the two communities are joined—e.g., through a national identity—our interest in other communities increases as we may be offended not only by the behaviour but by the association with our own national identity. To put this another way, I may not be moved by what I view as the offensive behaviour of a stranger; however, I might find that same

behaviour by a close family member very disturbing. (The ban on polygamy in the U.S. was viewed as a matter of sedition, for example, and in more modern terms, one often hears criticisms of certain social conduct as ‘un-American’.) Now, the reader will quickly understand that it is extremely difficult to quantify and weigh competing harms. Harm, it may be said, is in the eye of the beholder. Stated otherwise, there is no objective measure for the intensity of harm or offence, especially when each community sees the issues very differently: when the same practice is rooted in religious identity by one group and seen to violate basic humanitarian principles of equality by another. The problem with the doctrine of comparative harm in conflict of laws is that the forum usually sees the foreign harm as less than the interest of the forum in having its own law apply. Even though and because there is no objective standard for resolving this, and especially if we distrust any ostensibly neutral figure to find objectivity in the comparison, the only way to come to some agreement is to mediate the issue. Theoretically, each community could decide how to articulate which specific practices or rules cause a serious or unacceptable harm, and mediation would engage them in a negotiation over what is really important to each. (We will return to this process later on, but for now, let’s retain this notion of comparative harm and the obstacles to its implementation through objective adjudication.) Beyond choice of law doctrines, as a third approach, often due to external pressure, but at times merely as a function of social integration, some comparative legal reform interventions create greater harmonization (bringing different notes in simultaneous coordination and closer together in tone and pitch). It can also backfire, bringing on even greater differences in community law, particularly where that community is feeling insecure or threatened. At times, groups may grow further apart in an attempt to hold tight to their (weakening) identity. Fourth, national legislation like the uniform civil code may seek to create partial or complete uniformity among previously divergent laws. And finally, institutional allocations of power to a polity formed by two or more conflicting communities create supra-community, national forms of political organization, e.g.,

India, and take away autonomy and authority of sub-national communities to make their own law. Even a cursory view of these different strategies demonstrates advantages and disadvantages of each of the competing strategies in isolation or combination with one another. Restricting the crossborder or inter-community activity eliminates the conflict but also creates deep opportunity costs for communities resulting from the inability to interact. Choice of law preserves the differences, and allows the activity, but is vulnerable to arbitrage, creates transaction costs, and indeterminacy. Comparative reform efforts aimed at reducing contrasts between the different regimes may also conflict with local determinations over public choices. Uniform national legislation by definition eliminates many of the normative differences, but either bruises the autonomy of minority groups or through more substantial compromise renders the uniform rule vague and ambiguous, thus merely deferring the conflict to a later date for resolution by an arbiter who may or may not be neutral. Unification efforts may create greater consistency in the uniform rule’s application and enforcement. Federalization of law by national institutions, however, also reduces local control and creates a greater distance between representative decision-makers and the represented populations, thus reducing direct democratic participation, access, and accountability. Again applying these observations to the question of a uniform civil code in India, we might ask how severe a contrast the two different family rules would need to be to justify a social partition between the two groups. At what point of severe normative difference would I not allow my daughter to enter the Kovic home? And further, at which extreme point would I even deny the freedom of my neighbours to order their social relationships in the manner they saw fit? Beyond my concerns about social influence, my conscience would be offended by certain social practices that I deem as abusive or extremely harmful, and that is where my insistence on uniformity (the denominator of basic, decent human behaviour common to our neighbourhood) would start to kick in. Short of that point, however, I might be comfortable with choice of law principles, and unilateral adjustments of comparative reform that would allow freedom of

choice and accommodation of difference. How might we bring these strategies in closer connection with the specific Indian context? As a promising approach to sorting through conflicts of personal and family laws, consider a recent Bombay High Court judgment in the case of an attempted adoption by a Hindu family of a young girl.3 In this case, the Pathak couple wished to adopt a young girl Payal; however, the Hindu Adoptions and Maintenance Act, 1956 prohibited the adoption of a daughter by any couple who already has a Hindu daughter. Justice Chandrachud had to reconcile the 1956 law with a more recent and secular Juvenile Justice (Care and Protection of Children) Act, 2000, which provides legal support for the rehabilitation and social integration of orphaned, abandoned, or surrendered children. Justice Chandrachud held that the effectuation of a strong policy in favour of rehabilitation and social integration of orphaned, abandoned, or surrendered children must override the embargo that is imposed on adopting a child of the same sex by a Hindu. Beyond the technical and doctrinal strategies for reconciling these two conflicting laws, the court noted that ‘[t]here is abundant material . . . to conclude that it is manifestly in the interest and welfare of the child that the petition for adoption should be allowed’.4 The notion of comparative harm is not explicit in this weighing of interests; however, the implicit logic of the decision interprets the law by weighing and choosing the lesser of two harms: the abstract compliance with a more dated law that may have been intended historically to prevent the abuse of adoption as a guise for exploitation of children as family servants against a strong constitutional and legislative norm in protection of a sub-class of vulnerable children, as well as evidence of the special interest of one particular little girl. Aside from the systemic emphasis placed on the more recent social welfare legislation, a fact-sensitive, social assessment may have bolstered the judgment. What were the comparative harms to the girl, parents, and community to which they belong of either blocking or allowing the adoption? If in that instance there was evidence of risk of exploitation of the adopted child, the adoption could have been disallowed on those grounds. This is precisely the kind of judgment on comparative harm that can help navigate the path forward. Applied to broad legislative negotiation of

the denominators and numerators in the formation of a uniform code, this mode of reasoning may provide a strong foundation for the mediation and harmonization of the country’s conflicting personal and family laws. Judicial reconciliation of conflicting constitutional values takes place in a qualitatively different institutional setting, compared to the rough-and-tumble of democratic politics in the legislative realm. Nonetheless, legislation itself must take strong stock of constitutional values, and in this case, any uniform civil code to be enacted in India would be recognized as the implementation of an express constitutional provision, even if it appears to be stated in general, more aspirational terms. These constitutional values (rights and freedoms, protections, systemic allocations of power in a federalist system) are likely to be expressed at the core of any political negotiation of a uniform civil code. Therefore, the type of reasoning elaborated in judicial reconciliations through comparing harms in specific contexts may be useful as a principled way of softening the tendencies toward political polarization on sectarian issues. By comparing harms, legislatures (as well as courts interpreting legislative actions) need not make abstract, general decisions about the reconciliation of majority and minority interests, the debate between secularism and religion, the tension between group and individual autonomy, or other grand disputes in a multicultural, federalist, democratic system. In contrast, legislatures applying the principle of comparative harm can make measured decisions that maximize the satisfaction of ostensibly mutually exclusive values. Uniform denominator protections for girls and women do not necessarily have to undermine strong identities formed from legal practices in the numerator fields of differentiation. Opt-out provisions for members of a strong religious group need not be viewed as threats to the identity and constitutional protection of the group as a whole. Requiring the communities in conflict to express the precise nature of the harm of any one configuration of a new code can help to refresh justifications for the ‘way things need to be’ and open up new avenues for the ‘way things could be tolerated to change’. These inquiries and a social process of communication to support them could serve to reinforce constitutional values that are otherwise

swept away in the political storm of polarizing protest and debate: true representation, the dignity of each individual and group identity to which he or she belongs, tolerance for the other, the value of honest debate and deliberation itself, and good governance with an emphasis on participatory democracy and accountability. In this respect, the principle of comparative harm can help to energize and engage the competing constitutional values in ways that bring more social interests into the conversation and open the process of proposition and protest in the democratic, legislative process.

1 This discussion is drawn from Hiram E. Chodosh, Globalizing the U.S. Legal

Curriculum: The Saja Paradigm, 37 U.C. D 2 The series is entitled L

A

B

L. R

. 843 (2004). and is published by Aspen

Publishers. 3 In the matter of adoption of Payal, Indian Adoption Petition No. 31, Judge’s

Order No. 298 (2009), Dr D.Y. Chandrachud, Judge, Bombay High Court. 4 Id.

7 CONFLICTS OF REFORM

context that the prospect of the uniform civil code might be best understood as one of many competing strategies to deal with differences in law and the conflicts that arise from interaction (through national discourse and institutions) between differing communities. The first part of this book described a wide range of alternative institutional and normative arrangements to address the implications of differing family and personal laws in India. Again, the major point is not to dictate a resolution but to provide some pathways for that determination to be made among alternatives. The basic underlying observation that these competing strategies pose trade-offs means that the question of drafting the uniform civil code itself creates a formidable series of conflicts and dilemmas for the Indian society. In short, the uniform civil code gives rise to a conflict of alternative reforms. How might one think about dealing with this conflict or any other dilemma in reform—situations which call for consideration of alternative, imperfect solutions? Below I have sketched out a series of conceptual strategies. The force of these is to depolarize what are often presented as hard, binary choices through a series of alternatives: mitigation, expanding options, eliminating false dichotomies, breaking down big issues into smaller ones, thinking in terms of relative value, approaching the hardest choices with humility, and most importantly, putting people together to work through these conflicts.1

ACKNOWLEDGING COMPETING VALUES A first, somewhat crude, and conclusory option in any binary choice in reform is to ignore the dilemma as such. One may dismiss as trivial the competing values that make the preferred option less than fully satisfactory. For example, it may be easy for one religious community to lack any appreciation for a social practice that is thought by the other to be deeply embedded in religious doctrine and identity, or for members of a discrete group to undervalue the ways in which separately defined norms corrode national unity and shared experience and identity. Approaches to conflict that merely dismiss the competing values tend to backfire and give rise to distrust and intransigence. Even if a majority view is successful and uniform legislation becomes operable, the losing community may be expected to have low levels of compliance with the law, and in effect, the attempt to change underlying behaviours then is likely to fail. As will be noted below, in lieu of dismissing competing values, short of accommodating them, the mere acknowledgment of opposing views is central to establishing trust and depolarizing heated conflict.

SWEETENING THE DEAL WITH SIDE-PAYMENTS A second option is to improve one of the alternatives through mitigating incentives or side-benefits. In other words, when faced with unsatisfactory choices, one may sweeten the deal for the community experiencing the greatest loss in the resolution of the controversy. This may involve a grand bargain in which resistance is reduced with the offer of other incentives. The specific nature of this bargain depends heavily on the values and actors involved, but the underlying point here is that instead of taking a dispositive, optimal view of uniformity in which there will be winners and losers, it is possible to negotiate remedies that take care of negative outcomes on one side of the legislative ledger. This reinforces the basic point that such accommodations require negotiation and where parties are not trustful of one another, intermediary facilitation (or mediation) may be necessary.

TOUS LES DEUX: PURSUING BOTH OPTIONS A third option is to attack the strength (or dichotomous nature) of the either/or statement in the articulation of the dilemma. Dilemmas may be falsely characterized as presenting mutually exclusive choices between alternative X and Y, when both may be pursued to achieve the overall objective. Is it possible to have uniformity and diversity? Actually, yes. A uniform code may create a common denominator of protections while still leaving an (numerator of) autonomous space for differentiated communities to make their own value-driven determinations. This is similar to Shetreet’s recommendation for a parallel uniform and diverse system, one that creates uniformity above the protection of important differences, while placing some limits on what might be viewed as the most problematic provisions of the personal law.

FINDING A THIRD WAY Along these lines, a fourth option is to attack the exclusivity of (or rigidity of the boundaries set by) a strong either/or choice, i.e., the choice of two options, no more. Reformers frequently look for a third way. Instead of being forced to choose between these unsatisfactory alternatives between complete uniformity and none, here again, reformers might seek a common ground for maintaining autonomy but ensuring that the basic rights of men, women, and children are protected. The use of federalist systems, for example, allow for intermediate institutional strategies in which shared spaces of power and authority are organized to allow both autonomous and common law.

ATTACKING FALSE POLARITIES A fifth strategy is to recognize that the putative polarity in many perceived dilemmas is false. Take the conflict between uniformity and the diversity of religious practices. One may have a uniform code that still allows for some measure of that diversity of social

practice (under, or not falling under, its scope). The principle that everyone may exercise freedom of religion is a uniform code provision, for example, that allows for diverse religious practice. Furthermore, opt-out provisions that allow for members of a religious community to select a non-religious option, preserve the religion’s personal law on a more consensual basis. Thus, it may be important to separate the issues onto separate axes of differentiation, e.g., the level of uniformity (basic protections), the range of diversity on specific issues of importance: marriage, divorce, inheritance, and so forth. Thus, the coexistence of a uniform civil code and the recognition of religious laws becomes conceivable.

AGGRESSIVE DISTINCTIONS These tools become significantly more precise through a sixth process of aggressive distinctions. The process of disaggregation helps to resolve dilemmas that are conceptualized too generally. This process would separate each of the controversial provisions of personal law in conflict with others, from marriage to divorce, from maintenance to custody, from inheritance to adoption into separate issues. Separate consideration of each issue on its merits and the social implications of allowing or prohibiting any one particular normative practice can help to break down the overwhelming problem into a series of more surmountable legislative challenges. This is similar to Professor Shetreet’s suggestion that the reform should not attempt to resolve all of the issues simultaneously but should incrementally take on one at a time.

GRASPING RELATIVITY OF BENEFITS AND HARMS In addition to the foregoing series of aggressive distinctions, opportunities arise from rejecting binary conclusions based on an arbitrarily binary assignment of absolute 0 or 1 values to the chosen approach. Even though law and policy may demand the notion of absolutes in prohibiting abuse and exploitation, for matters that are

less clearly and necessarily harmful, an alternative approach is to embrace the relativity of goal satisfaction in degrees of benefits and harms in the pursuit of multiple objectives. Thus, the net result of any reform measure is an empirical question (about which we know much too little) that (if we knew more) would render answers in quantifiably relative, rather than absolute, terms. The relativity (and probable risk) of harms allows them to be compared and weighed, even if subjectively, and can help avoid the absolutes that block agreement on a way forward. Relativity is one of the intellectual foundations of comparative harms—if two competing harms are each considered absolute, comparing them will hardly do much good.

PICKING THE POISON: MAKING TOUGH VALUE CHOICES What if none of the foregoing options is available, and the dilemma is an undeniably strong and inescapable one? In such cases, an eighth option for dealing with dilemmas is available. The reformer must choose between competing and putatively equivalent mistakes, harms, or errors that result from each of the two alternatives. This is similar to the choice of type one or type two errors in criminal justice systems that develop procedural rules to help determine which mistake they would rather make: sending a criminal free or an innocent person to prison? Burdens of proof and other protections for the accused may weigh in their favour in order to reflect the choice that the first error is less serious than the second. Which mistake, which harm, is greater? Here again, comparative harm as a principle would help make that determination, and since this is difficult for an impartial decision-maker to do, the approach would be facilitated by a form of social or political mediation so that each party would be in a position to articulate their own harm and weigh and possibly even internalize the prospect of harm to the other.

TAKING COLLECTIVE ACTION ON THE SOCIAL DILEMMA

Many reforms fail because individual and collective interests are poorly aligned or even perversely set against one another. Reforms that accentuate a conflict between the interests of the individual or some group of individuals and the overall collective interest pose a social dilemma.2 As observed elsewhere,3 short of a commanding theoretical solution, societies need practical strategies for these types of social dilemmas in part because complex, organized systems defy top-down, command-control solutions’.4 Furthermore, non-threatening, open-ended communication about the nature of the social dilemma and the values at stake may do more to advance reform than any particular resolution advanced by a single leader or individual. Because the question of the uniform civil code is filled with value judgments, harsh assessments may get in the way of effective approaches to reform. Experimental research shows that (in addition to side payments which are not always available) non-threatening communication may create more cooperative behaviour (by creating conditions for internalization of the social costs).5 It may be useful to recall that in the paradigmatic case of the prisoners’ dilemma, the two detainees were not allowed to confer.6 Without this restriction, a more collaborative, bottom-up process of individual and collective self-assessment and problem solving may help to break down the constraints imposed by social dilemmas in legal reform. Thus, joint communication about the conflicts surrounding the uniform civil code may provide a promising avenue for resolving the entrenched conflicts. Each of the foregoing conceptual strategies represent tools available to those who are serious about bridging ostensibly insuperable conflicts of opinion and position. None is a panacea; some can work in combination with others; and together, these ideas can help resolve seemingly intractable law and policy conflicts over the uniform civil code. Conceptual strategies, alone, however, cannot achieve their promise. They must attach to social processes capable of depolarizing conflict, such as the type of non-threatening, joint communication suggested above. And that brings us to the social and political conflict resolution mechanism we know as mediation.

1 This discussion is drawn from Hiram E. Chodosh, Emergence from the

Dilemmas of Justice Reform, 38 T H E. C ,G J (2005).

. I ’ L.J. 587 (2003), later published in R : A C M

2 G

J R , id. at 99–101 (on social dilemmas), at Ch. 6 (on resolving social dilemmas). 3 Id. at Ch. 6. 4 See P S

, T L L 445 (2000) (noting the tendency of lawmakers to ignore the competing forces of social norms and markets: ‘Lawmakers are drawn to top-down forms of law such as command-and-control rules, which seem authoritative, clear, rigorous, and relatively easy to enforce.’). 5D

&I A C A experimental evidence). 6

P. G

See R. D

S

,P

R P

L

I C custody and separated’).

& H S

S

C T : 88–93 (1994) (on

R , G D : 95 (1957) (‘two suspects are taken into

8 SOCIAL AND POLITICAL CONFLICTS

tools that might help decisionmakers and their constituencies reach productive outcomes on the substance of a uniform code. This approach contemplates that at least some part of any prospective code may take into account certain critical non-uniformities. Most uniform codes carve out space for defined subject matter jurisdiction, exemptions, exceptions, classifications, or other adjustments to diverse patterns of human interaction, and in that sense allow for behaviours arguably inconsistent with their major purpose. Beyond a national mediation process capable of leading to the legislative design of a uniform civil code, mediation may also be considered as one of many alternatives to resolve disputes that arise under the code. Especially, if the code makes tough choices that put social pressure on individual or collective conflicts of values, beliefs, practices, and so on, mediation also offers a potential softening of those legal edges, the creation of space for compromise, and other processes that might help build justice and peace in a society in which profound differences are the source of both an inspired culture and understandable but often painful conflicts. Accordingly, the first part of the chapter will identify the communication and negotiation strategies that fall under the rubric of mediation and then raise larger questions on how these tools might be best utilized in the formation of a uniform civil code. The second part of the chapter will then evaluate the role of mediation in India as a way of helping to resolve expected conflicts under the code, consistent with the 1999 Amendments to the CPC (implemented in 2002) under section 89 and Order X.1

Specifically, the first part of the chapter demonstrates the value of mediation as an intellectual technology of two distinct sets of skills: (1) neutralizing communication techniques and (2) bargaining strategies. Neutralizing communication skills include joint communication, setting a positive tone, active listening, acknowledgment, neutral restatement, sequencing, and the choice of messenger. Bargaining strategies include positional, interest-based, relational, and integrative negotiation. Simultaneously, the discussion in the first part suggests applications of those tools to the creation of a uniform civil code, suggesting how the communication and bargaining strategies in mediation may be well utilized in (1) creating the means of communication that can better neutralize the hostility and distrust in the debate, and (2) lead to maximizing the real interests of conflicting communities and enhancing their relationships out of the process. The second part of the chapter then explores the current condition of mediation in the Indian legal process. This discussion outlines the history of mediation reforms in the CPC, obstacles to its full implementation, and ways to overcome those obstacles, thus leading to an effective internalization of mediation in the Indian legal culture. This part further explores the kinds of disputes under a uniform civil code that might be resolved through mediation, and how the very existence of mediation in these areas might enhance India’s ability to create a uniform code that is acceptable to all communities.

THE VALUE OF MEDIATION An evaluation of the usefulness of mediation2 in the light of its core objectives presupposes an awareness of what it is and the specific value it offers. Furthermore, an effective adaptation of mediation to a set of new conditions first counsels separate treatment of a wide variety of features clustered under the mediation rubric. Separate treatment of these processes and techniques underlines the view that many, if not all, of these features are severable from the rest. Disaggregation of these features from one another allows for more creative designs and experiments to overcome problems

encountered in the application of mediation to Indian legal disputes (including in particular mediation practices and theories developed in the U.S., the United Kingdom, Australia, and northern Europe as applied to the Indian context). What then is mediation? Put simply, mediation denotes the series of skills that falls under the rubric of facilitated negotiation. Facilitation includes the establishment of joint communication, neutral reframing, agenda setting, acknowledgment, and several other important communication strategies and tactics. Negotiation tools include distributive, interest-based, relational, integrative, and other strategies. Specific attributes clustered together in mediation systems vary greatly. The result is always consensual, the facilitator presumed neutral, and the process is usually (but not necessarily) confidential, jointly participatory, interest-based, future looking, and aimed at a durable, win-win solution. Initiation of mediation may be voluntary or compulsory (usually as one of several constrained options of other Alternative Dispute Resolution (ADR) techniques), court-annexed or private, position-based, or interest-based, facilitative or evaluative, and free of charge or fee-for-service. Mediation does not come as an unchangeable recipe or rigid system. Indeed, one of its most attractive features may be its flexibility (and thus its consequential adaptability). Overly prescriptive or doctrinaire views about the essentials of mediation risk undermining this important feature, particularly in social settings that may be hostile to rigid assumptions of individual autonomy. Furthermore, formulaic approaches may preclude experimentation with independently fruitful communication and negotiation tools that may be incorporated into an emerging, Indian mediation process. Each tool may have its own considerable value or application. A brief description of available techniques will help to illustrate their independent usefulness.

The Value of Neutralizing Communication Skills Beyond the negotiation techniques employed by an effective mediator, several communication techniques are useful tools of facilitation. As in negotiation strategies, none is a sure-fire way to

settle a dispute; however, each one alone has the ability to bring the parties further together by neutralizing the emotionally harsh and irrationally exaggerated behaviour and perspectives of the parties and to transform the frequently self-defeating aspects of their conflict (particularly where they have an interest in preserving or enhancing a relationship) into a mutually beneficial settlement. Establishing Joint Communication Mediations attempt to establish (or re-establish) joint communication between the parties in three significant ways. First, in order to establish a process of mediation, conflicting parties may have to communicate about logistics for the mediation itself (e.g., timing, exchange of documents, confidentiality agreements, etc.). Second, the mediator may bring the parties together and as a first step allow each to hear from one another their varied points of view. Third, with time, mediations help individuals or groups in conflict to speak directly to one another. Joint communication of each varied kind is obviously no guarantee to conflict resolution; however, this one factor may be key to bringing parties together where resistance to communicating with one another further escalates the conflict.3 Establishing Tone An effective mediator establishes a positive tone and environment conducive to settlement by behaving in a professional, confident, purposeful, open, constructive, and socially engaging manner. By setting an example, the mediator may encourage through body language and emotional tones or other signals,4 the kind of behaviour expected in the session. Again, this can have a neutralizing impact on the more negative, insecure, closed-minded, destructive, and resistant behaviour frequently encountered in adversaries. Active Listening

Both as a necessary tool for effective facilitation and as a way of acknowledging the viewpoints of each side, active listening is an essential skill emphasized in mediation. It allows for a more accurate comprehension of the dispute, the ability to distinguish dispositive or helpful from irrelevant or unhelpful comments, positions from interests, less important interests from higher priority ones. Retelling stories is one way of demonstrating that mediators have listened carefully and can articulate a value or harm felt by one or more of the disputing parties. Again, active listening also signals to the persons or groups in conflict that what they have to say is important, and that can encourage the parties to listen actively to one another as well. Acknowledgement Acknowledgment, even short of apology or agreement, is one of the most important communication skills in the resolution of disputes.5 Albie Sachs of the Constitutional Court of South Africa and an architect of the Truth and Reconciliation Commission6 has emphasized that acknowledgment may be the most critical means to breaking the vicious cycle of human conflict. To acknowledge the views of one party or another is not to express any judgment (either positive or negative) but to register that the view has been heard and understood. Acknowledgement of one party by another (without apology) often defuses a conflict by allowing the combating parties to feel at the very least that each of their voices has been heard. As discussed above, acknowledgement is a remedy to the tendency to dismiss opposing or threatening points of view. Neutral Restatements, Summaries, and Word Changes Mediators use language effectively to take the edge off volatile statements and words.7 They may reframe a statement as neutrally as possible without trivializing the viewpoint of the speaker.8 Persons in conflict often describe the factual background in a disorderly fashion, and a mediator’s role is to bring some order to confusing statements.9 Finally, an effective mediator will be careful in the choice of words. ‘Blame’ may become ‘responsibility’. ‘Your side of

the story’ may be restated as ‘factual background’. Again, here, by rephrasing more neutrally, mediation can defuse the language of its explosive impact without changing the core meaning, and by doing so, may encourage the persons or groups to speak with fewer offensive or conflictual phrases and words that put the other side on the defensive. Sequencing: Agenda Setting; Deferring; Redirecting Effective mediation controls the sequencing of what is discussed by setting the agenda, deferring the toughest issues, and redirecting the discussion to more fruitful subject matter. They may postpone the discussion of the most controversial issues until they have reached agreement on the less conflictual ones. The ability to adjust the sequence provides the mediator with enormous flexibility to move in fruitful directions based on input from the parties. As Professor Shetreet has advocated, in moving toward a new code, it may be easier to do so incrementally, by choosing the least controversial topics to work on first, which can establish trust and a foundation for resolving more difficult topics later. Changing the Messenger In conflictual relationships, even close ones, suggestions made by one party are automatically discounted by the other. The very same suggestion may come from a third party and be far more readily accepted. Mediators are able to fulfil that role. They can solicit ideas from one side, and communicate those suggestions to the other, without attribution, and thus without any reactive discounting by the recipient.

Negotiation Techniques: The Intellectual Technology Position-Based or Performative Bargaining As an example of an overly prescriptive view, many mediation experts stress the negative consequences of position-based or performative bargaining and urge that mediations should focus

primarily (if not exclusively) on determination, prioritization, and maximization of the parties’ interests. Indeed, the first chapter in the seminal book, Getting to Yes, begins with the mandate: ‘Don’t Bargain Over Positions’.10 For reasons advanced here, particularly in the early stages of developing mediation practice, such advice may be misplaced. Performative or position-based bargaining is a frequent starting point for giving full expression to the conflict, and premature interventions to divert the emotional impulses that support it may not be productive. Furthermore, position-based bargaining can help the parties to reach a more realistic view of what is at stake in failing to settle the conflict, and to take the consequences of the failure to agree into account as one of their many interests. Interest-Based Bargaining Beyond the legal positions of the parties, effective mediators explore the parties’ interests.11 By focusing on interests, mediation may be effective at forming new (or bolstering pre-existing) relationships out of the ruins of a conflict. These interests provide potential resources for resolution of conflicts. This requires an exploration of the nature of the conflict. Why are individuals or groups in disagreement? Are they fighting over what economists call rival goods or rival rights (such as who is the proper owner of a limited resource) or are they fighting over matters of identity or conscience (such as whether particular social practices based on religion offend minimal standards of human dignity, or the rights of women). An argument between two people over the proper ownership of a goat, for example, presents the adjudicator with the task of finding a rule of decision: who had it first (property); who purchased it (contract); who needs it more (equity)? The arbitrator (upon failure to find a rule of decision) might split the difference, awarding half to each person, and ordering the goat to be slaughtered. Obviously, this may be in neither party’s interest if they rely on the goat for milk. The mediator, however, will ask the parties why they each want the goat. If one wants the milk and the other wants the goat for breeding purposes or to consume brush in effort to prevent fire, the parties may agree to hold equal rights in the goat

and distribute the benefits accordingly. Drawing upon our previous discussion on conflicts of law, consider that the right to eat candy may be non-rival if the communities are separate in their social practices; however, once the practice is viewed as so harmful that it offends the conscience of the other group (the right to do drugs or hold armed weapons in the home), suddenly non-rival behaviours become a source of great (rival) conflict. Not every case, perhaps not even most, will resolve easily based on an exploration of interests, and may require other distributional bargaining strategies, but interest-based negotiation provides a powerful negotiation strategy for creating durable settlements of seemingly irreconcilable conflicts.12 Relational or Integrative Bargaining If the parties cannot agree on how to share or cooperate, an effective mediator may explore either relational or integrative bargaining strategies. Relational bargaining may attempt to find value in the relationship between the conflicting parties that can be tapped and incorporated into a future-looking arrangement. Integrative bargaining explores the investment of resources outside those at stake in the controversy. The famous story of the Eighteenth Camel13 provides a wonderful illustration of integrative bargaining. Resources external to the dispute (in this case, one camel) are invested, the problem is solved, and the resource is then returned. Examples of integrative bargaining applied to legal conflict are many: convincing a bank not party to the dispute to finance a new business arrangement formed from a breach of contract claim; a wealthy malpractice claimant promising to donate money to the retraining of doctors in the relevant area of practice; a landlordtenant family repossession case where the owner gets a contractor to knock down the building and build more units for a growing family and provides a new flat to the recalcitrant tenant; or an unenforceable maintenance award in a divorce proceeding where the broader community pays the maintenance (thus alleviating the underlying source of conflict, e.g., financial pressure) and eventually bringing the couple back together.

Application of Tools to Resolving Conflicts over the Uniform Civil Code Again, mediation does not supply a recipe for resolving human conflict, but it does offer a series of strategies that can be pursued separately or together to improve the conditions and likelihood for resolving it. How would one begin to move past the opposing views that (1) the Constitution requires a uniform civil code, which means the elimination of any autonomy (and difference) of personal law, and (2) any reform of personal law imposed by the state means a violation of freedom of religion? One can never be confident of how these mediation tools would be best utilized, so let’s consider a series of questions that might tentatively advance this central approach. Has anyone made a concerted effort at establishing open, nonthreatening, non-result oriented communication between individuals and groups who disagree about the future of the uniform civil code? What is the quality of the tone of that discussion? Are the conflicting parties really listening to one another? Are there neutral restatements of what’s at stake, where the conflicts are least or most difficult to resolve, which changes in personal law would likely result? Has there been any thought given to areas of agreement or that are close to agreement as an incremental way of proceeding? Is there a way to find neutrals to help mediate the controversy, people of enormous respect, who do not have a dog in the fight, or a dual or multiple mediation model which reduce the perception of bias? Has anyone thought through the mutual community interests, e.g., the loss of personal law of the majority community, the real life impact of the elimination of any particularly diverse personal law, and the question where they are irreconcilable, which community would be at greater harm if the other had its choice of a uniform rule? If there is no prior, deliberate application of these tools, then it is difficult to say whether they can be helpful, but it is simultaneously difficult to reject them out of hand as not useful in the negotiation over what any such uniform code should provide.

MEDIATION IN APPLICATION OF A UNIFORM CIVIL CODE Beyond processes to facilitate the creation of legislation, mediation may have an additional role to play. Mediation may also be used to resolve controversies that would arise under any new law. Indeed, the knowledge that mediation will be applied to interpretations of any code would help alleviate concerns about potentially binding interpretations of the code itself. A strong consensual dispute resolution process might help reassure citizens worried about harsh, though correct, applications. Alternatively and arguably, the idea of private settlement itself might give the impression of undermining the entire notion of uniformity. To help answer those questions, the following discussion outlines the history of mediation in the Indian litigation system, the considerable obstacles to its broader and deeper application, and the available strategies for overcoming them.

The Legal Authority for Mediation Parliament promulgated (in 1999) several amendments to the CPC, 1908. Among these many amendments, section 8914 and Order X (1A)15 provided for court-annexed ADR. Under the new provision, the court directs the parties to choose among several ADR mechanisms, including lok adalat, arbitration, conciliation, and mediation. Section 89 contemplates that the judge (presumably the judge assigned to the case) should first determine whether there exist ‘elements of a settlement which may be acceptable to the parties’. If so, the court secondly ‘shall formulate the terms of settlement and give them to the parties for their observations’. Third, ‘after receiving the observations of the parties, the court may reformulate the terms of a possible settlement’ and refer the same for arbitration,16 conciliation, judicial settlement, including through lok adalat, or mediation.17 These provisions, drawn from the conciliation provisions of the Arbitration and Conciliation Act, 1996,18 are based on the United Nations Commission on International Trade Law

(UNCITRAL) model law, itself derived from mainly European practice of conciliation. Based on widespread opposition to the amendments from the practicing bar, the amendments were suspended indefinitely. In July 2002, however, parliament decided to put the amendments, including section 89, into full effect. Following the effectuation of section 89, a bar association in Tamil Nadu brought a constitutional challenge in the case of in re Salem Advocates Bar Association. In a panel decision written by Chief Justice Kirpal in late October, 2002 the Supreme Court upheld the constitutionality of the law and established a five-person committee to study the reforms and to make recommendations on the need for any amendments or additional rules to facilitate implementation of the reforms.19 The Law Commission conducted a national conference in 2003 and then promulgated guidelines for the use of mediation. The decision in Salem Advocates Bar Association was confirmed in 2005.20 In 2010, the Supreme Court further clarified the application of the specific provisions of section 89.21

Obstacles to Mediation Reform Notwithstanding the halting legal implementation of mediation and the perceived advantages of these independent tools, mediation in India has not been self-effectuating. Resistance emerges from many sources. In many systems, at least initially, mediation poses a perceived threat to important values and individual incentives of key actors in the system. Furthermore, issues arise from the implementation of the current statutory framework for mediation. Finally, even when actors are convinced of the theoretical value of mediation, they may have difficulty applying those processes to current legal conflicts. Until recently, judges and lawyers in India carried understandable apprehensions about the relationship between mediation and the formal judicial process and deep scepticism over the application of mediation to a wide variety of Indian legal disputes (particularly outside the commercial area). The courts are still in search of an

operational case management trigger (e.g., under section 89 or Order X of the CPC)22 for referring cases to mediation. The explicit terms of section 89 (calling for a form of judicial conciliation by the trial judge) may be incompatible with subsequent referrals to mediation under that provision. Trained mediators are not yet universally available, though enormous progress is evident from Chennai to Bangalore to New Delhi. Mediation experts are still working hard to overcome prematurely strong opinions about the limited role of mediation. Finally, notwithstanding these obstacles, a series of short-term incentives (judicial evaluation schemes, lawyer compensation methodologies, litigants in defence of dispute resources) continue to pose the risk of resistance to mediation, thus producing a social dilemma in which critical actors view their professional or personal, short-term interests as potentially inconsistent with the system’s long-term objectives. How can these issues and perceived threats be continually and persuasively addressed? Judges Judges may see mediation as potentially undermining their authority to make public judgments and normative pronouncements. Furthermore, professional incentives may discourage judicial support for mediation. For example, judges may feel they will lose the professional satisfaction of issuing judgments if cases settle and also are evaluated on the number of ‘legal’ dispositions they reach, excluding settlements. Finally, some see mediation as intellectually soft compared to adjudication. These views often persist for lack of experience with rigorous mediation processes. Judges quickly see, however, that effective mediation depends on (while complementing) the core function of adjudication. Without normative standards, the parties have much greater difficulty negotiating according to their alternatives, and thus mediation alone is not likely to bring justice to a law-based society. As a complement to the formal process, mediation may alleviate the burdens placed on the courts, transmit norms more effectively to society, increase compliance with the law, prevent parties from pursuing extra-legal

strategies (i.e., crimes) to resolve their disputes, and improve the communication skills used within the courts. Furthermore, many judges will take as much satisfaction, some even more, from settling difficult cases, particularly in ways that please both parties (rather than only one, as in litigation). Finally, methodologies for evaluating judicial performance can be adjusted to take the relative value of settlements into account, if that is an additional disincentive that impedes support for mediation. Lawyers Lawyers may be understandably concerned that mediation threatens their livelihood by reducing the number of matters they handle or fees they charge. If more disputes are to be mediated, lawyers might view ADR as nothing more than an ‘alarming drop in revenues’. They may encounter pricing problems in how to charge for their role in a particular mediation. Additionally, they may wonder about the value of their own role in a party-dominated process and how they will act as zealous advocates when their parties do not want to settle and engage in a process that calls for cooperation (which may be a sign of weakness in trial). Here, too, attention to the unmet need for legal dispute resolution in society, the underlying economics of litigation, the need for integrated legal expertise in mediation, and the professional opportunities to represent litigants in mediation as well as serve as mediators tend to allay these initial concerns. First, in any society, particularly where use of the legal system is costly (in terms of money, time, or uncertainty), many legally cognizable disputes are not brought to court. Legal injuries are internalized or ‘lumped’, and many lawyers are not consulted for their advice. When either those costs decrease or superior conflict resolution services are provided, a significant subset of those potential litigants will consult a lawyer, if not file a claim. Just as better roads bring more cars to the city; better conflict resolution processes bring greater need for legal services, even when it does not necessitate work in court. Furthermore, legal mediations provide another venue in which legal services can be valuable to litigants,

thus creating new opportunities for law practice and for lawyers to serve as neutrals. Second, the time value of money dramatically discounts the actual value of claims filed in the courts. From an economic perspective, legal fees are a function of the difference they make in extracting social or economic value from the legal process. If delays in the system discount this value, the fees that lawyers can charge will be significantly less. Consider the following example. If a litigant approaches a lawyer who suggests that he or she can make on average a 20 per cent difference in the outcome of the litigation, and the litigant and the lawyer agree to split that value between them, the lawyer would be justified economically in asking for approximately 10 per cent of the value of the case in fees. If, even under the best case scenario, an injured party cannot collect a claim for ten years (especially when observations of delays are much more devastating, e.g., fifteen years in Ahmedabad to twenty-five years in Mumbai), the difference between the cost of money for an unsecured loan (e.g., 15 per cent) and the highest prejudgment interest rate (6 per cent) may discount the value of that claim by some 60 per cent. That is, a claim for $100,000 may be discounted to a value of $40,000. With these calculations, a plaintiff (economically) would be justified in paying the lawyer $4,000 (not $10,000) in fees. This means that a more economically efficient system may translate into higher legal fees for lawyers. If the value of their service to the client increases by virtue of the results they can achieve, their fees may rise accordingly. Finally, after an initial adjustment, when engaged in the process of mediation, with its own set of special practices and incentives, lawyers have no difficulty in adapting their modes of representation, and may find a wider range of skills upon which to draw to provide valuable service to their clients outside formal court settings. Private and Public Litigants Private litigants, too, may harbour anxiety about mediation as an alternative to the court system. Fearful of exploitation, distrustful of private proceedings, comforted by the familiarity of the court system, insecure about making decisions about their own interests, or

interested in vexatious litigation or in delaying the case for economic reasons, some litigants may prefer the lawyer-dominated, public, formal, and evaluative judicial process. First, mediation will not frustrate the preferences of such litigants; indeed, their right to trial is fully preserved under the Indian reforms. Furthermore, an effective mediation process can quickly allay these fears. Litigants involved in the process are much less likely to be exploited. They will quickly understand that the mediator has no power or social control over them or their resolution of the dispute. Second, effective mediators will gain their trust over time. Third, if the parties still feel the need for an evaluation of the legal issues, the mediation can be accordingly designed to deliver that service. At times, litigants can better save face with members of their family, community, or organization, if they can cast responsibility for the result on a neutral third party, and for this group, a strong evaluative process may be appropriate. Surveys of litigants find that mediation receives the highest satisfaction ratings of any dispute resolution process, and the reason for that high rating rests in the valuable features of the process explicated above. For vexatious litigations, unlike trial, mediation has the ability to get beneath the surface of the filed dispute to address the underlying conflict that motivates a frivolous lawsuit. Finally, the conventional view that incentives for settlement for one of the parties will be low, thus frustrating the likelihood that the mediation will succeed, carries an unexamined and false assumption. Naturally, the defendant in the example of the $100,000 claim has a weak incentive to settle the claim for that amount. Indeed, the claim by the plaintiff does not represent its real present value, if the defendant can delay for fifteen years before facing his responsibilities. Once the plaintiff realizes that the true value of that claim may be as low as one-tenth of its stated value, the defendant’s incentives to settle the case with a more realistic plaintiff will suddenly become stronger. It is not the availability of mediation that reduces the value of the claim but delays in the formal system. Settlement negotiations merely take realistic account of that unfortunate reality.

Public litigants may present a less permeable set of barriers, at least in the early growth of mediation. Suits against the government may be difficult to settle for a number of reasons. Private caucusing with government litigants may give an appearance of impropriety. Officials may be reluctant to settle cases for fear that they will be accused of differential treatment, will undermine government policy, or will give rise to a flood of additional claimants seeking compensation. For these reasons, the officials participating in the mediation may not have sufficient authority to agree to a settlement. Overcoming these impediments will require a good deal of ingenuity. Mediators may shape the proceedings to be transparent and public (forsaking private caucusing). They may have to innovate ways to join all relevant cases together in one mediation so that there is no risk of inequitable results, uneven policies, or a new flood of litigation. Alternatively, if these adaptations are initially unworkable, the expansion of mediation services to cases against the government may be deferred until it is sufficiently developed in private litigations that themselves present problems due to incomplete authority of the participants to settle the case. Concerns about the Statutory Framework of Section 89 In addition to the foregoing questions about the acceptance of mediation by different actors in the legal process, many concerns arise from a critical reading of section 89.23 As explained earlier, Section 89 anticipates that the judge first determines whether there exist ‘elements of a settlement which may be acceptable to the parties’. Second, the judge ‘shall formulate the terms of settlement and give them to the parties for their observations’. Third, ‘after receiving the observations of the parties, the court may reformulate the terms of a possible settlement’ and refer the same for arbitration,24 conciliation, judicial settlement, including through lok adalat, or mediation.25 These provisions were drawn from the conciliation provisions of the Arbitration and Conciliation Act, 199626. The language is derived from the European UNCITRAL model law and raises several questions. First, the timing (after written statement, when parties are

examined, before framing of issues, or as a precondition to an application for ad interim relief) of section 89 through a case management proceeding of some kind remains an open question. An answer to the question of timing depends on an assessment of when the perceived incentives for settlement are highest (as a function of a sense of jeopardy or the early mutual gains of saving costs). Second, it is unclear how the judge is supposed to determine whether there are sufficient elements of a settlement to justify the investment of time. Every case has elements of settlement; however, these are difficult to identify without reviewing the case and questioning the parties about their underlying interests. Without further guidance, these cost-benefit decisions will be difficult to conduct. This difficulty may be resolved either by using Order X (1A)27 as a primary and independent mechanism for triggering a choice of ADR venues or by sequencing the types of cases in which section 89 processes will be employed as a matter of course (rather than discretion). Third, if the section 89 judge is the same one who presides over the trial, the parties are not likely to share observations that would narrow the differences between them. There is no section 89 provision for the confidentiality of these observations, and even if there were, the parties would be understandably reluctant to express weaknesses in their positions or to suggest compromise for fear of appearing weak to the other side. Assignment of a special section 89 (or settlement) judge within the court and ensuring the confidentiality of the party observations may help to alleviate these concerns. Finally, it is unclear what impact the specific terms defined by the judge will have on a subsequent settlement through mediation or other techniques. If the settlement discussions lead the parties away from or beyond the specified terms, they may worry about the enforceability of the settlement agreement. In contrast, if they constrain their negotiations to the specified terms, the likelihood of settlement may be significantly diminished. Again, instead of the judicial conciliation process contemplated by section 89, treating Order X (1A) as an independent provision for triggering section 89 ADR options (a–d) may provide a quicker, cleaner, or more versatile

bridge to mediation and other section 89 alternatives that promote settlement. Adaptation Concerns In addition to these concerns, many lawyers and judges worried about the applicability of these techniques to the specific nature of the diverse Indian caseload. Would mediation work effectively beyond commercial disputes in family matters, property partitions, landlord-tenant disputes, industrial disputes, cases containing elements of a crime, and as noted claims against the government? Theoretically, mediation may work very effectively to deal with the complex social relationships that make formal trial so difficult. Its reliance on orality may be better suited for the undereducated litigant or the litigant that does not speak the language used in the court proceedings. Mediation may be able to plough beneath the surface of frequently vexatious litigations by addressing the underlying conflicts. Mutual gains and distributional bargaining techniques may help to resolve partition cases. Integrative negotiation (including investments by those not engaged in the dispute) in landlord-tenant cases may allow for reconstruction and expansion of currently limited space. Deeply embedding mediation in the community may alleviate underlying causes of conflict and even some forms of criminal activity (e.g., assault). Notwithstanding the theoretical benefits in these applied contexts, however, these questions cannot be answered in the abstract. Mediation must be tried and tested, lessons learned, and adjustments made. In a phrase, the proof is in the pudding, and the signs of growth in the past couple of years have been extremely positive, particularly in New Delhi where the courts have been supportive and financial support from the local government has helped considerably create the necessary incentives to bring everyone to the mediation table. Building Capacity: Next Steps Naturally, the foregoing sketch of issues is far from exhaustive. A number of implementation questions will continue to need attention: how to make mediation economically desirable, how to train and

certify a larger number of mediators and provide adequate resources to make their services available to the courts, how to promote and improve educational exposure and training methodologies throughout the country, including those under the direction of the High Courts.28 These capacity-building issues also demand attention and intellectual investment. Finite answers to these several important questions would still be premature. How should mediation attract litigants from a purely economic point of view? Who will serve as neutrals in mediation? How will mediation be initiated (for which cases) and concluded? Which attributes of mediation are most likely to be effective in different litigation contexts? How should the courts establish quality controls (including ethics and discipline) over the emerging practice of mediation? How should the courts build both internal and external capacity without incurring unaffordable costs? How should negotiation and mediation be taught in Indian law schools? Practice and experience have started to guide the emerging response. Signs in the Delhi High Court Mediation Centre, Samadhan, for example, are positive that litigants are engaged, settling cases mediated by thoughtful and innovative attorneys, who are cultivating their own uniquely Indian approach, and this success has spurred new programs in mediation in many national law schools.

AVAILABLE STRATEGIES For some time, the foregoing concerns and questions gave some the understandable, yet false, impression that mediation reform was doomed to failure in India. Troubling issues and perplexing questions are generating answers. First, the early economics of mediation are critical to its long-term growth. Developing a pro bono commitment of neutrals (at least outside of high stakes commercial disputes, where parties are already paying for mediation services) seemed necessary; however, where the state is paying mediators to work (albeit at a discounted, low pro, rate) in the annexed centre, mediation is beginning to take greater root. Going forward, working with lawyers on how to structure

fee arrangements for cases that settle (e.g., splitting in half the expected total fees from full blown trial and appeal before they have completed even close to half the work, thus sharing the savings with clients) will be equally necessary. Second, the potential pool of mediators is growing, particularly within the bar. In addition to judges (as specialists within court), retired judges, lawyers (both junior and senior), and academic experts in ADR in collaboration with law students in legal services clinics, non-lawyers (including doctors, accountants, engineers, family psychologists) should be considered as well. Third, coordination of the mediation process with the trial system is beginning to develop. In particular, courts have begun to apply the section 89-specific trigger for mediation. This still appears to depend on the particular likings of the chief justice of the particular high court, but supporters are growing in number. Fourth, the selection of specific attributes (the negotiation techniques, the communication skills, or the structure and sequence) of Indian mediation is currently being tested against the context of a wide range of legal disputes. Whether these processes will be primarily evaluative or facilitative in the longer run, employ a community model or private caucusing once trust is developed, embrace confidentiality or publicity (in cases of public interest) will each require special attention to the specific nature of the controversies to which mediation will be applied. Here it is important to avoid dogmatic perspectives about foreign models (whether wholly positive or negative), to resist the view of any specific configuration as necessary to mediation, and to stress the value of experimentation and pragmatism as a way to maximize the values of the great array of techniques offered by mediation practices. Fifth, ways to achieve oversight (without excessively regulating and thus stiffening mediation) will continue to be equally important. Evaluating mediators through surveys of litigants and lawyers, continual review of panels and periodic retraining will be critical to the integrity of the system. Additionally, the determination of ethical norms (self-determination, impartiality, disclosure of conflicts of interest, competence, confidentiality, and overall quality of service) and disciplinary systems (ethics hotlines, calibrated sanctions) to

enforce them would provide some of the available tools of effective oversight. Sixth, Indian law schools, which are required by the Bar Council to teach ADR, only have the capacity to teach arbitration as part of the required curriculum. Mediation programs are sprouting quickly; however, they are almost always special certificate courses outside the formalized degree programs. Furthermore, the tools for teaching negotiation and mediation are limited by class size, lectureorientation, and limited training in interactive and simulation methods. To overcome these hurdles, the addition of negotiation and mediation to the basic curriculum must be studied by the Bar Council and materials, interactive videos, and in-class pedagogies must be developed.29 Finally, the courts are advancing ways in which to build human resources and administrative capacity for mediation as a complementary institution. Strategies include building court units, similar to the Delhi High Court’s mediation centre, Samadhan, (with internal staff or external panels of trained neutrals) to perform mediation services or act merely as clearing houses. Legal educators are also exploring ways to enhance a growing set of graduate diploma courses, experiential mediation education, and training methodologies, in particular for young lawyers. How does this all translate into the question of Indian family and personal law? Data on how cases are resolved is still limited, but consider the following family law case recently resolved by the Delhi High Court Mediation Centre, as reported by them30: Krishna was married to Ramesh (names changed). She was unable to bear a child. She was convinced by her husband and his family that if Ramesh could get another wife, he could have a child. In this way, Krishna would also become a mother. Krishna consented to the second marriage of Ramesh and even accompanied her husband to the new bride’s place where the marriage ceremony was performed. She was happy until she found during the return journey the new bride seated next to her husband, both in their wedding finery. It was then that what had really happened dawned on her and she suddenly realized the loss she had suffered. By the time Krishna visited the Legal Aid and Advice Board of Delhi, the new bride was already pregnant. The relief that was available from the court was outlined for her consideration: (i)

divorce/judicial separation, (ii) separate residence with maintenance, (iii) prosecution for bigamy, (iv) a complaint to the government for termination of Ramesh’s employment. She did not to pursue any of these options. What did she want? What was her grievance? She had been an active party to her husband marrying another woman. It was in part her fault. It was no fault of the other woman who herself was a victim of the circumstances. Further, a child was about to come. The man himself was torn between the claims of the two rival women. What was in Krishna’s best interest and what relief could be provided in the situation? The mediators decided they needed to determine what Krishna’s perception of justice to herself was. She was at a loss. The mediators took her through some long counseling sessions during which it emerged that she needed to regain her lost pride, have financial security for her future, retain her hold over the matrimonial household and be given reassurance of her due place by her husband and his family. She did not want the new bride to be thrown out. Nor did she demand jail for her husband. Her husband and the new bride joined in conciliation proceedings throughout. Eventually a solution was developed. A property was purchased by her husband in Krishna’s name and was rented out. This assured her of a regular income. She got her own place to live in. Her husband promised to visit her regularly and provide her with maintenance much higher than the usual 1/3rd or 1/4th that the court could have given. The members of the husband’s family showed their solidarity with her. The husband expressed his gratitude publicly for the sacrifice Krishna had made for him. Krishna was satisfied with this settlement.

The mediation could not address the underlying social dynamic in which a woman, legally married, consented to her husband taking another wife; however, under the unfavourable alternatives before her, mediation provided a remedy. Prosecution of her husband would have left her alone, and most likely destitute, whereas the solution reached here provided her with a sustainable livelihood. If these individuals can reach agreement from such a painful situation, perhaps the rest of the country can do so as well, in whatever shape it chooses to pursue in its own collective interest. Internalization of mediation into the Indian legal culture has one additional, potentially profound benefit. Because each of these tools may be used outside of a third-party mediation, or even outside of a bilateral negotiation, the internalization of these behaviours may create a more collaborative ethic and attitude toward not only law practice but all human conflict. Spouses and siblings who do not

speak to one another can hardly resolve their problems. Neighbours (including landlords and tenants) in dispute who do not negotiate can hardly reach agreement. The more these tools can be used on a day-to-day basis, the less the society will have to rely on the courts (or annexed mediation or other forms of dispute resolution) to solve their problems. An inspiring example of India’s creative internalization of these tools is reflected in a story of a successful mediation in Samadhan. A young advocate known for his talent in helping recalcitrant parties come together in settlement was faced with a very difficult case: two brothers, one much elder, who would not even acknowledge the presence of the other. The father had died at a young age, leaving substantial property holdings to the two boys. The elder brother took sole responsibility for the burdens of the family, and he and his wife raised his younger brother (almost as a son). Over the years, understandable wedges in their relationship deepened. The younger brother began to feel a sense of entitlement without having pulled his weight, and the elder brother grew resentful. Conflicts over workload, resources, and revenues became especially divisive, such that they would not even be in one another’s presence, and the family business was suffering badly. The mediator scratched his head: what to do? He then told the brothers that it was a custom of the centre when family members were present to have the younger show respect to the elder through the social rite of touching the elder’s feet. The younger brother resisted. The mediator proceeded to explain that this common obligation or rite of respect applied to the mediator himself. Since the elder brother in the dispute was his senior, the mediator approached the elder brother and touched his feet. At this point, the younger brother had no choice, and with great hesitation he bent down and touched the feet of his elder. As he rose, the brothers embraced, and the elder brother began to weep, exclaiming that respect was all he has ever wanted from his little brother. Remarkably, he then offered the younger brother whatever he wanted, and the mediator proceeded to help them come to an equitable agreement going forward.

This example demonstrates several key points. First, that each technique is potentially powerful. Second, this particular one would never appear in any foreign manual on ADR. Third, any one of these techniques does not require utilizing the scarce resource of the formal legal system. Fourth, India must and is developing its own rich innovations. Finally, as these strengthen and broaden, the foundation for mediating the uniform civil code in the social, political, and legal sense becomes increasingly firm.

1 This analysis is drawn from Hiram E. Chodosh, The 18th Camel: Mediating

Mediation Reform in India, 9 G

L. J. 251 (2008) (special issue on India).

2 The global interest in mediation is growing substantially. See, e.g., details about

the newly formed International Mediation http://www.imimediation.org/?cID=about_imi.

Institute,

available

at

3 A lawyer from Hyderabad relayed a story about a married couple engaged in a

serious conflict. The husband had decided to donate one of his kidneys to his ailing mother, without having consulted with his wife. The wife, who had no substantive disagreement with his decision, was offended by her husband’s failure to confer in advance of such an important decision. The couple grew estranged and could not speak to one another as a result of the conflict. A family lawyer asked them to come to his house. He placed them in a room together and then abruptly left. The couple sat silent for a long time, then began to yell at each other, and after some time began to talk (and listen). Finally, they were able to overcome their conflict. This was no mediation. The lawyer only facilitated the meeting of the couple, their joint presence, short of communication, which only came later. However, this anecdote shows that even the establishment of a meeting (nothing more) can help to bring parties together to resolve their disagreements. 4 One remarkable mediator in the Delhi High Court Mediation Centre is renowned

for the effective use of various religious texts and prayers before mediations begin, as a way of getting the adversaries to tap into an ethos of forgiveness and generosity. 5W

U ,G P N 40 (1991) (‘Every human being, no matter how impossible, has a deep need for recognition.’). 6 See, e.g., A S ,S V F F (2000). 7 See, Gregg. F. Relyea, The Critical Impact of Word Choice in Mediation, 16

A

1, 9 (1998).

8 Take, for example, the statement, ‘My husband is a pathological liar! I hate him!’

The effective mediator may reframe the outburst as: ‘I can understand why you

would be so angry if you feel that your husband was not truthful.’ Here no judgment, only acknowledgment has been expressed in a neutral way without losing the substance of what was declared. 9 For example, let’s say that the litigant exclaimed:

And then she left for the hospital, but before she got back she took out money from our joint bank account, which did not belong to her, and then she went shopping with it, for shoes, but that was before she went to the hospital or so she said; she is always doing stuff like that, lying, taking money, not going where she says she’s going. An effective mediator might reply, in a more neutral and structured summary: So you appear upset about two things: first, you feel that your wife should not have taken money out of your joint bank account; and second, you feel that she does not tell you what she’s going to do. 10 See R F &W U ,G Y 3–8 (1983). 11 To go beyond the positions of the parties does not mean that they are no longer

relevant. Experts speak in terms of knowing the best alternative to a negotiated settlement (BATNA), the worst alternative to a negotiated settlement (WATNA) and the most likely alternative to a negotiated settlement (MLATNA) (similar to BATNA, but including a factor of probability in the calculation) (together referred to as Alternatives to a Negotiated Settlement (ATNA)). As in any negotiation, these provide useful guideposts to help parties recognize their options (both good and bad) which include settlement under different terms and alternatives to settlement through trial and its aftermath. Although many mediators may stress the irrelevance of positions to interest-based bargaining, negotiation in the shadow of alternatives actually necessitates exploring the likely outcomes of a litigation. To do that realistically, the position-based bargaining skills presented above will be quite useful. Therefore, exclusive (and misplaced) emphasis on interest-based bargaining in legal disputes undermines the full value of ATNA evaluations. In other words, the current valuation of rights and liabilities is one of the parties’ many interests to be factored into an ‘exclusively’ interest-based negotiation. 12 See generally F U , supra note 10. 13 The story of the Eighteenth Camel has many versions in different literary

traditions. Here is one that I adapted for purposes of an article published several years ago: In the western part of India, on the edge of the Thar Desert, a wealthy camel herdsman died, leaving his seventeen camels to his three sons. His final wishes distributed the camels to his heirs in specific proportions: one-half to the eldest, one-third to the middle son, and one-ninth to the youngest. The sons quickly appreciated the immediate obstacle to complying fully with their father’s

wishes. How could they make this specific distribution? They could not wait for the camels to breed; nor did they choose to sell them off and share the proceeds because herding camels was all they had ever known. Accordingly, they decided to consult their village leaders from the local panchayat. Seemingly uncertain of the appropriate solution, one of the five elders suggested that the boys accept a loan of one of his camels, go home, think it over again, and return the camel to him on the very next day. Disgruntled by the ostensible futility of this advice, they returned to their tent, under their breath cursing the stupidity of the old man. While shaking their heads over tea, the youngest quickly rose in excitement. ‘Brothers’, he exclaimed, ‘we now have eighteen camels’. ‘So?!?’, the eldest mocked him, ‘we will have seventeen only tomorrow. What good will that do, you fool?!?’ “But bhaya, with eighteen camels, we can divide them up according to the wishes of our papa: you get nine; our brother gets six; and I get two. That makes seventeen. We divide the herd, and give the eighteenth camel back to our elder!’ 14 See I

C C . P ., § 89(1)(a)–(d), (as amended by Code of Civil Procedure (Amendment) Act, 1999) (describing and directing the court to utilize dispute resolution mechanisms, including arbitration, conciliation, judicial settlement, judicial settlement through lok adalat, or mediation): § 89 of the Civil Procedure Code, Part V, Special Proceedings, Arbitration, Settlement of Disputes outside the Court: 89 (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for— (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute has been referred— (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions

of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat under the provisions of the Act; (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. 15 See I

C C .P . Order X (as amended by Code of Civil Procedure (Amendment) Act, 1999) (describing and directing the court to utilize dispute resolution mechanisms, including arbitration, conciliation, judicial settlement, judicial settlement through lok adalat, or mediation). Amendments to Order X: Examination of Parties by the Court: Direction of the Court to opt for any one mode of alternative dispute resolution. 1A. After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of Section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties. Appearance before the conciliatory forum or authority. 1B. Where a suit is referred under rule 1A, the parties shall appear before such forum or authority for conciliation of the suit. Appearance before the Court consequent to the failure of efforts of conciliation. 1C. Where a suit is referred under rule 1A, and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the date fixed by it. 16 This may be seen by some to mean that a judge might refer parties to binding

arbitration without their consent. Surely, the statute can be read to allow for that understanding; however, it would be inconsistent with the principle of consent and self-determination to compel parties to binding arbitration without their consent. The control of the parties over the outcome in each of the other proceedings reduces concern about compelling a constrained choice of an ADR technique. 17 See I

C C . P (Amendment) Act, 1999).

., § 89 (as amended by Code of Civil Procedure

18 Cf. Arbitration and Conciliation Act, 1996, The Gazette of India, New Delhi, the

16th January, 1996/Pausa 26, 1917 (Saka), Part III, § 73 (using language nearly identical to Section 89).

19 See Salem Advocates Bar Ass’n v. Union of India, (2002) 35, 146–52. (‘With the

constitution of such a Committee, any creases which require to be ironed out can be identified and apprehensions which may exist in the minds of the litigating public or the lawyers clarified.’) Former Supreme Court Justice Rao and Chairman of the Law Commission chaired this committee, on which the former Law Minister Arun Jaitley also served. The Supreme Court initially gave the Rao committee four months to seek comments and to report back. Chairman Rao drafted consultation papers, including rules on mediation and case management, and circulated them to the High Courts for comments; however, these papers did not reach the High Courts until late January, thus leaving insufficient time for adequate study and commentary. Chairman Rao asked for an extension of time until July, and organized a national conference on mediation and case management, in which most of the authors of this book contributed papers and gave presentations. The national conference involved Chief Justices of each of the High Courts, and two lower court judges, as well as prominent lawyers from the bar. 20 Salem Advocates Bar Ass’n II v. Union of India, (2005) 6 SCC 344 (including

the Civil Procedure ADR and Mediation Rules). 21 Afcons Infrastructure, LTD v. Cherion Varkey Construction Co. (2010) 8SCC24

(holding referral to arbitration under section 89 without full consent of parties is not permitted). 22 See I

C C .P ., § 89, Settlement of Disputes outside the Court and ord. X rule 1(A)–(C) (as amended in 2002 by Code of Civil Procedure (Amendment) Act, 1999); Salem Advocates Bar Association v. Union of India, supra note 19, at 146–52 (Chief Justice Kirpal joined by Justices Y.K. Sabharwal and Arijit Pasayat); See also, Law Commission Consultation Paper on ADR and Mediation Rules 1 (2003) (calling for a section 89 proceeding ‘after recording admissions and denials at the first hearing of the suit under Rule 1 of Order X’); and Law Commission, Consultation Paper on Case Management, Rule 4, at 9 (2003). 23 Concerns about enforcing confidentiality and ensuring that the section 89

process does not further protract the trial process are additional concerns. 24 See supra note 16. 25 See § 89, supra note 14. 26 Cf. Arbitration and Conciliation Act, supra note 18, at § 73 (using language

nearly identical to section 89). 27 Order X (1A) may solve this and other problems raised in the context of section

89, including the question of timing: ‘After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified in sub-section (1) of Section 89.’

28 See Rule 7, Consultation Paper on ADR and Mediation Rules, supra note 22, at

5. 29 See H

I

:AT

E. C (2004).

,N

B

&F

K

,M

30 The narrative is based on the inquiries following the first publication of the story

in Justice Manju Goel. Why Training in Mediation, R

, 2010, at 82.

9 CONCLUSION TO PART TWO: INSTITUTIONALIZING MEDIATION OF THE UNIFORM CIVIL CODE

of authority, the interpretation of uniformity, divergent personal laws, reform alternatives, sectarian or national politics, or the code itself (if legislated), one larger conflict stands in the way of resolving the issue of the uniform civil code. Which grand principle of law and justice prevails? Which idea is the fundamental point of differentiation: equality, human rights, or national identity, on the one hand, or religious freedom, minority rights, or diversity, on the other? The choice of principle matters, as each one of them focuses on a different value or set of relationships. Those in favour of a uniform civil code tend to stress national unity and identity, human rights, and notions of equality (between communities and between persons, including women). Those opposed to a uniform civil code tend to stress freedom of religion, the rights of minorities, and diversity (of communities). Is there a more fundamental way to choose among these conflicting normative principles, or is there an alternative that is more neutral—that is, a principle that does not prefigure the solution to the controversy? One such principle that was woven through the foregoing sections on conflicts of law and reform and on mediation is the principle of comparative harm. As explained, this is a doctrine from the field of choice of law, a way of making tough decisions of unsatisfactory trade-offs (pick your poison), and a common aspect of interest-based and integrative negotiation in which conflicting parties may advance

their collective interest by advancing the least (overall) harmful solution. Unlike competing principles, comparative harm does not prefigure any specific outcome. For example, if an argument expresses the competing principles of Indian national identity, it is safe to presume they favour a strongly unifying code. On the other hand, if religious freedom is invoked, one can expect a justification for resistance to the uniform civil code. Not so with comparative harm. Indeed, to determine comparative harm, persons or groups in conflict must communicate to one another their perceived injuries (presuming that the less favourable rule is chosen against their wishes). This process of communication, mutual articulation of injury, and the comparisons of them facilitate the kind of process that is more likely to lead to positive outcomes. Even short of a solution, the mere fact of joint communication according to a neutral principle, active listening and engagement of perceived harms, the articulation of subjective weights, and even an attempt at integrative bargaining between communities would mark substantial progress in intercommunity understanding and trust. This part of the book has established that the question of the Indian uniform civil code raises five different types of conflicts, each of which may be mediated (in the broadest sense) conceptually, socially, and ultimately politically. Many observations and ideas have been advanced on the process for conducting that mediation; however, acceptance of the identification of these different aspects of the conflict and the ideas advanced only take the process so far. Jean Monnet, architect of the EU, is said to have observed that every new idea is a bad idea until it has a corresponding institution. So then what are the institutional settings for these processes of mediation, and what are the practical steps ahead? The first step forward is to recognize that mediation of the uniform civil code is not a new idea. In 1983, the most influential innovator in Indian legal education, Professor Menon, developed a similar approach to the analysis of what such a code might contain. Seminars, workshops, conferences, working groups, and other social interactions generated a draft code, one that is (sadly) rarely referred to in the literature on the topic. Thus, the first step is to take stock of

this and any other interactions and to study their limitations in order to overcome those obstacles in the future. Having studied those lessons, the second step is to realize that any mediation process is not self-effectuating. In the first phases of institutionalization, mediating the code will require a group of opinion leaders who are sufficiently frustrated with the status quo to pursue a series of processes. First, opinion leaders should establish joint (and less threatening, less result-oriented) communication between conflicting persons and groups, more neutral framing of the issues, and acknowledgments of the conflicts felt by all sides. Second, scholars must make clear observations on what the personal law of each community currently is, and an evaluation by all concerned of the policy justifications for or objections to those provisions. Third, experts must clearly articulate gaps between the letter of the law and its enforcement, as this can either explain abuses of current law (that cannot be so easily solved by legislation) or humble legislation that may be unlikely to be enforced if it is radically out of alignment with accepted social practices. For example, if religious conversions are undertaken to arbitrage more liberal multiple marital arrangements, then one might tighten the rules of conversion. If certain provisions are harmful to women, then enforcing the protections as a separate matter might offer a solution. Alternatively, if rules of multiple marriages are strictly enforced, extramarital relationships may emerge in ways that frustrate the protection of women in marital relationships. Fourth, organizers must engage each person or group in a process of articulating the comparative harms of not having their way on specific provisions, weighed in the context of broader mutual self-interest. Judges must anticipate ambiguities that might give rise to conflicts later on and whether the section 89 or Order X procedures will be available. As a third step, the engagement of these issues through workshops, conferences, community meetings, simulations of mediated cases, and other interactions would generate alternative drafts for broader consideration before generating the necessary debate and bargains in the political arena. The engaged discussion and negotiation (even that in dissent) would provide a foundation for

the creation, approval, and subsequent acceptance of any particular model. If not through parallel civic institutions that foster mediation of the uniform civil code, the political arena may be the only medium through which the Indian society will see or hear the issues. There is no reason to believe that on its own, the political arena will depolarize or depoliticize the issues sufficiently to advance the discussion any further than it has already gone. Politics, if anything, easily bends to further polarization, as sectarian positions stoke the fires of community-based support more than do more accommodating political perspectives. However, before one can ever know what kind of uniformity to select, a commitment to mediating these conceptual, social, and political conflicts may be, thus, more promising, if not completely essential. Sceptics will understandably deem this approach to be unrealistic and impractical. The sharp diversity of religious and secular communities, the divergence of opinion between and within them, the hot lava under the bridge, now etched in stone cold opinions, the complexity of the substantive issues of law—all these factors might make it seem pure folly to suggest that any controversy of this sort could be mediated in India. But the question in cases of speculative reform processes that must be posed is: compared to what? If there is dissatisfaction with the status quo, and nothing else seems to be advancing the proverbial legal ball, then sceptics would need to demonstrate that the comparative harm of mediating the uniform civil code is greater than the risk of doing nothing to facilitate it outside the currently stalled political dynamics. We can answer that scepticism only in Indian terms: with both a real, direct story, and a more apocryphal, social one. Back in 1996, when former Chief Justice Ahmadi, Niranjan Bhatt, and many others began working on mediation in India, this kind of a case was nearly unimaginable. Resistance to out of court processes was high, especially when the Chief Justice addressed 500 curious attendees at that critically important conference in Ahmedabad. A decade later, it is now nearly a national movement, one of which the eminent scholars on the uniform civil code could not yet have taken adequate

stock. Is India capable of applying mediation to a controversy that strikes at its very identity? Consider a story told by a young woman in Nasik that expressed for her love for her country. A couple had a wedding appointment. The husband was irritated with his wife for being late, and as they drove hurriedly to the ceremony, they got stuck in a muddy spot on the road. Villagers encircled the car, staring awkwardly in growing numbers, and the husband slammed the dashboard and yelled ‘only in India!!!’ At that point, the villagers all got around the vehicle and remarkably lifted it out of the mud onto the dry part of the road. Speechless, the husband looked at his wife, and she had the final word: ‘Only in India!!!’ So the question is which India India wants: the India in which the uniform civil code is stuck in the political mud, or the other one in which people join together to do the heavy lifting necessary to pick this legal vehicle out of the mud and send it on its way toward the realization of the Directive Principle in Article 44. In this particular case, picking up the vehicle may be insufficient; India may have to build the path on which it is to travel. Even though it may seem there is no hopeful way forward, we should all remember the words of Lu Xun, the great Chinese author during the Republican, inter-war period of China. Hope, he said, is like a road on the earth. At first there were no roads, but when many people walk in one direction, a road is made.

APPENDICES SUPREME COURT JUDGMENTS DEALING WITH UNIFORM CIVIL CODE

APPENDIX 1

[AIR 1985 SC 945] [Decided on April 23, 1985 by Y. V. Chandrachud, C. L with D. A. Desai, O. Chinappa Reddy, E. S. Venkataramiah and Raghunath Misra, JJ.1. Held: (Per Chandrachud, C. J.) 1. The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in the context of section 127 (3) (b) namely, “payment of Mahr money, as a customary discharge is within the cognizance of that provision”. Justice Krishna Lyre who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society. A divorced Muslim wife is, therefore, entitled to apply for maintenance under section 125 of the Code. [865H, 866A-C] 2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125. [855A-B: 854B] 2.2 Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not re-married after the divorce. That is the genesis of clause (b) of the Explanation to section 125 (I). Section 125 of the Code is truly secular in character. Section 125 was enacted in order to provide a quick and summary

remedy to a class of persons who are unable to maintain themselves. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these-provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the CrPC not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act. It would make no difference as to what is the religion professed by the neglected wife, child or parent. [834DE: 855E-G] 2.3 Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individuals’ obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed With relation. [834G-Hl] That the right conferred by section 125 can be exercised irrespective of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 (3) of the Code. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone, three or four other marriages, which a Mohammedan may have under the Islamic law. Further it shows unmistakably, that section 125 overrides the personal law, if there is any conflict between the two [836B-C,F-G] Jagir Kaur v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C applied. 3.1 The contention that, according to Muslim Personal Law the husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat. Despite the fact that she is unable to maintain herself cannot be accepted, since that law does not contemplate or countenance the situation envisaged by section 125 of the Code. Whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain amongst others, his wife who is unable to maintain herself. [838H, 851A-B]

3.2 One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams which is equivalent to three or four rupees. But one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. The application of those statements of law to the contrary in textbooks on Muslim Law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. [858D-G] 3.3 The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. Thus there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself. Aiyat No. 241 and 242 of ‘the Holy Koran’ fortify that the Holy Koran imposed an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teachings of Koran. [859CD; 862C-D] 3.4 Mahr is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile answer of the All India Muslim Law Board that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her is a most unreasonable view of law as well as of life. [863E-F, 866E-F] 3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called ‘prompt’ which is payable on demand, and the other is called ‘deferred’, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify that it is payable ‘on divorce’. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. [863B-D]

3.6 Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce’. Thus, the payment of Mahr may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events. [863D-G] Similarly, the provision contained in section 127 (3) (b) may have been introduced because of the misconception that dower is an amount payable ‘on divorce.’ But, that again cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to.

Observation (Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot

take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.)

Judgment: Criminal Appellate Jurisdiction: Criminal Appeal No. 103 of 1981. From the Judgment and Order dated 1. 7. 1980 of the Madhya Pradesh High Court in Crl. Revision No. 320 of 1979. P. Govindan Nair, Ashok Mahajan, Mrs Kriplani, Ms. Sangeeta and S.K Gambhir for the Appellant. Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N. Singh for the Respondents. Mohd. Yunus Salim and Shakeel Ahmed for Muslim Personal Law Board. S.T. Desai and S.A. Syed for the Intervener Jamat- UlemaHind. The Judgment of the Court was delivered by CHANDRACHUD, C.J. This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance. Some questions which arise under the ordinary civil and criminal law are of a far-reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment. ‘Nastree swatantramarhati’ said Manu, the Law giver: The woman does not deserve independence. And, it is alleged that the ‘fatal point in Islam is the ‘degradation of woman’ Selections from Kuran by Edward William Lane 1843, Reprint 1982, page xc (Introduction). To the Prophet is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly’. This appeal, arising out of an appellation filed by a divorced Muslim woman for maintenance under section 125 of the CrPC, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable

degree of progress in that direction. The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore, asking for maintenance at the rate of Rs 500 per month. On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent’s petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband is before us by special leave. Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife? Undoubtedly, the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all. But, is the only price of that privilege the dole of a pittance during the period of iddat? And, is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of iddat, the mere fact that he has paid something, no matter how little, absolves him for ever from the duty of paying adequately so as to enable her to keep her body and soul together? Then again, is there any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’? These are some of the important, though agonising, questions which arise for our decision.

The question as to whether section 125 of the Code applies to Muslims also is concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidalli Chothia 1979 (2) SCR 75) and Fazlunbi v. K. Khader Vali.1980 (3) SCR 1127. These decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under section 125. But, a Bench consisting of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ. were inclined to the view that those cases are not correctly decided. Therefore, they referred this appeal to a larger Bench by an order dated February 3, 1981, which reads thus: As this case involves substantial questions of law of far-reaching consequences, we feel that the decisions of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia & Anr and Fuzlunbi v. K. Khader Vnli & Anr. require reconsideration because, in our opinion, they are not only in direct contravention of the plain and an unambiguous language of s. 127(3)(b) of the Code of Criminal Procedure, 1973 which far from overriding the Muslim Law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed. The decision also appear to us to be against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by s. 2 of the Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed by the aforesaid decisions. We, therefore, direct that the matter may be placed before the Honorable Chief Justice for being heard by a larger Bench consisting of more than three Judges.

Section 125 of the CrPC which deals with the right of maintenance reads thus: “Order for maintenance of wives, children and parents. 125. (1) If any person having sufficient means neglects or refuses to maintain(a) his wife, unable to maintain herself, (b)... (c)... (d)... a Magistrate of the first class may, upon proof of such neglecter refusal, order such person to make a monthly allowance for the maintenance of his wife .. at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate think fit.

Explanation-For the purposes of this chapter(a)...... (b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband has not remarried. (2)...... (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided...... Provided further that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.’ Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus: ‘Alteration in allowance 127. (1)..... (2)...... (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that(a)..... (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the Sum which, 854 under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order (i) in the case where such sum was paid before such order, from the date on which such order was made.

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.’ Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), ‘wife’ includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern The rights and obligations of the parties belonging to particular, religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True, that they do not supplant the personal law of the parties but, equally the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to section 125(1), which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character. Sir James FitzJames Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences. In Jagirkaur v. Jaswont Singh, 1964 (2) SCR 73, 84. Subba Rao, J. speaking for the Court said that Chapter XXXVI of the Code of 1898 which contained section 488, corresponding to section 125, ‘intends to serve a social purpose’. In Nanak Chand v. Shri Chandra Kishore Agarwala. 1970 (l) S CR 565.Sikri, J., while pointing out that the scope of the Hindu Adoptions and Maintenance

Act, 1956 and that of section 488 was different, said that section 488 was “applicable to all persons belonging to all religions and has no relationship with the personal law of the parties’. Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be, extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the Explanation to section 125(1), which provides that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1&98 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of ‘wife, so as to include a divorced woman lends even greater weight to that conclusion. ‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. The conclusion that the right conferred by section 125 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance not withstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order. According to the Explanation to the proviso: ‘If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.’ It is too well-known that’. A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular’ (See Mulla’s Mahomedan Law, 18th Edition, paragraph 25S, page 285, quoting Baillie’s Digest of Moohummudan Law; and Ameer Ali’s Mahomedan Law, 5th Edition, Vol. II, page 280). The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section 125 overrides the personal law, if is any there conflict between the two.

The whole of this discussion as to whether the right conferred by section 125 prevails over the personal law of the parties, has proceeded on the assumption that there is a conflict between the provisions of that section and those of the Muslim Personal Law. The argument that by reason of section 2 of the Shariat Act, XXVI of 1937, the rule of decision in matters relating, inter alia, to maintenance “shall be the Muslim Personal Law” also proceeds upon a similar assumption. We embarked upon the decision of the question of priority between the Code and the Muslim Personal Law on the assumption that there was a conflict between the two because, in so far as it lies in our power, we wanted to set at rest, once for all, the question whether section 125 would prevail over the personal law of the parties, in cases where they are in conflict. The next logical step to take is to examine the question, on which considerable argument has been advanced before us, whether there is any conflict between the provisions of section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. The contention of the husband and of the interveners who support him is that, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of iddat. In support of this proposition, they rely upon the statement of law on the point contained in certain text books. In Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that, ‘After divorce, the wife is entitled to maintenance during the period of iddat’. At page 302, the learned author says: Where an order is made for the maintenance of a wife under section 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat. The result is that a Mahomedan may defeat an order made against him under section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that case on the completion of her iddat. Tyabji’s Muslim law (4th Edition, para 304, pages 268-269). contains the statement that: ‘On the expiration of the iddat after talaq, the wife’s right to maintenance ceases, whether based on the Muslim Law, or on an order under the Criminal Procedure Code-’ According to Dr Paras Diwan: ‘When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat.... On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced.’

(Muslim Law in Modern India, 1982 Edition, page 130) These statements in the text book are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and induration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir hams, which is equivalent to three or four rupees (Mulla’s Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinton that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under all obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.

There can be no greater authority on this question than the Holy Quran, “The Quran, the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God’s will’ (The Quran- Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translation are reproduced below: Arabic version English version. Ayat No. 241 For divorced women WA LIL MOTALLAQATAY Maintenance (should be MATA UN Provided) BIL MAAROOFAY On a reasonable (Scale) HAQQAN This is a duty ALAL MUTTAQEENA On the righteous. Ayat No. 242 KAZALEKA YUBAIYYANULLAHO Thus doth God LAKUM AYATEHEE LA ALLAKUM Make clear His Signs TAQELOON To you: in order thatye may understand. (See ‘The Holy Quran’ by Yusuf Ali, Page 96). The correctness of the translation of these Aiyats is not in dispute except that, the contention of the appellant is that the word ‘Mata’ in Aiyat No. 241 means ‘provision’ and not ‘maintenance’. That is a distinction without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation is to the’ Mutta Queena’, that is, to the more pious and the more God-fearing, not to the general run of the Muslims, the ‘Muslminin’. In Aiyat 242, the Quran says: ‘It is expected that you will use your commonsense’. The English version of the two Aiyats in Muhammad Zafrullah Khan’s ‘The Quran’ (page 38) reads thus: ‘For divorced women also there shall be provision according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand.’ The translation of Aiyats 240 to 242 in ‘The Meaning of the Quran’ (Vol. I, published by the Board of Islamic Publications, Delhi) reads thus. 240-241. Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year’s maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way; Allah is All Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people. 242. A Thus Allah makes clear His commandments for you: It is expected that you will use your commonsense.” In ‘The Running Commentary of The Holy

Quran’ (1964 Edition) by Dr Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus: ‘241 And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent.’ In “The Meaning of the Glorious Quran, Text and Explanatory Translation”, by Marmaduke Pickthall, (Taj Company Ltd., karachi), Aiyat 241 is translated thus: ‘-241. For divorced women a provision in kindness: A duty for those who ward off (evil). Finally, in “The Quran Interpreted” by Arthur J. Arberry. Aiyat 241 is translated thus: ‘241 There shall be for divorced women provision honourable—an obligation on the god fearing.’ So God makes clear His signs for you: Happily you will understand.’ Dr K.R. Nuri in his book (quoted above): The Running Commentary of the Holy Quran’, says in the preface: ‘Belief in Islam does not mean mere confession of the existence of something. It really means the translation of the faith into action. Words without deeds carry no meaning in Islam. Therefore the term “believe and do good’ has been used like a phrase all over the Quran. Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action. Belief in Allah means that besides acknowledging the existence of the Author of the Universe, we are to show obedience to His commandments...’ These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teaching of the Quran. As observed by Mr M. Hidayatullah in his introduction to Mulla’s Mahomedan Law, the Quran is Al- furqan’ that is one showing truth from falsehood and right from wrong. The second plank of the appellant’s argument is that the respondent’s application under section 125 is liable to be dismissed because of the provision contained in section 127 (3) (b). That section provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and, she has received ‘the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce’. That raises the question as to whether, under the Muslim Personal law, any sum is payable to the wife ‘on divorce’. We do not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced before us on behalf of the appellant and by the interveners supporting him, is that Mahr is the amount payable by the husband to the wife on divorce. We find it impossible to accept this argument. In Mulla’s principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined in paragraph 285 as ‘a sum of money or other property which

the wife is entitled to receive from the husband in consideration of the marriage.’ Dr Paras Diwan in his book, Muslim Law in Modern India (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable ‘in consideration of marriage’ but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that nonspecification of Mahr at the time of marriage does not affect the validity of the marriage. We need not enter into this controversy and indeed, Mulla’s book itself contains the further statement at page 308 that the word ‘consideration’ is not used in the sense in which it is used in the Contract Act and that under the Mohammedan Law, Dower is an obligation imposed upon the husband as a mark of respect for the wife. We are concerned to find is whether Mahr is an amount payable by the husband to the wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called ‘prompt’, which is payable on demand, and the other is called ‘deferred’, which is payable on the dissolution of the marriage by death or by divorce. But, the tact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband hl consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all. And he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’. In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi v. Zubaide Bibi (1) summed up the nature and character of Mahr in these words: ‘Dower is an essential incident under the Muslim Law to the status of marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called ‘prompt’ payable before the wife

can be called upon to enter the conjugal domicil; the other “deferred”, payable on the dissolution of the contract by the death of either of the parties or by divorce.” (p. 300-301) This statement of law was adopted in another decision of the Privy Council in Syed Sabir Husain v. Farzand Hasan.(1) It is not quite appropriate and seems invidious to describe any particular Bench of a court as “strong” but, we cannot resist the temptation of mentioning that Mr Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Husain. These decisions show that the payment of dower may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events. It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was on the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs: ‘Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code. If there is a demand for change in the Muslim Personal Law, it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystalise before we try to change this customary right or make changes in their personal law. Above all, this is hardly, the place where we could do so. But as I tried to explain, the provision in the Bill is an advance over the previous situation. Divorced women have been included and brought within the admit of clause 125, but a limitation is being imposed by this amendment to clause 127, namely, that the maintenance orders would ceases to operate after the amounts due to her under the personal law are paid to her. This is a healthy compromise between wh lt has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem. We have made an advance and not tried to transgress what are the personal rights of Muslim women. So this, I think, should satisfy Hon. Members that whatever advance we have made is in the right direction and it should be welcomed.’ lt does appear from this speech that the Government did not desire to interfere with the personal law of the Muslim through the Criminal Procedure Code. It wanted the Muslim community to take the lead and the Muslim public opinion to crystallize on the reforms in their personal law. However, we do not concerned with the question whether the Government did not desire to bring about changes in the Muslim Personal Law by enacting sections 125 and 127 of the Code. As we have said earlier and, as admitted by the Minister, the Government did introduce such a change by defining the expression ‘wife’ to include a divorced wife. It also introduced another significant

change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife’s refusal to live with him. The provision contained in section 127 (3) (b) may have been introduces because of the misconception that dower is an amount payable ‘on divorce’. But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. It must follow from this discussion, unavoidably a little too long, that the judgments of this Court in Bai Tahira (KrishnaIyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society. We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce. Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgement There is a statement at page 80 of the report, in the context of section 127 (3) (b), that ‘payment of Mahr money, as a customary discharge, is within the cognizance of that provision’. We have taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision. It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves. The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain herself. The facile answer of the Board is (that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephew and cousins, to support her. This is a most unreasonable view of law as well as life. We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women’s Association for the uplift of Muslim women, intervened to support Mr Daniel Latifi who appeared on behalf of the wife. It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. There is no evidence of any official activity for 867 framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead

in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. Dr. Tahir Mahmood in his book ‘Muslim Personal Law’ (1977 Edition, pages 200-202), has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: ‘In pursuance of the goal of secularism, the State must stop administering religion based personal laws’. He wants the lead to come from the majority community but, we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community: ‘Instead of wasting their energies in exerting theological and political pressure in order to secure an “immunity” for their traditional personal law from the state’ legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.’ At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi? he also made an appeal to the Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April-June, 1981, page 146). Before we conclude, we would like to draw attention to the Report of the Commission on marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution dated August 4, 1955. The answer of the Commission to Question No.5 (page 1215 of the Report) is that ‘a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children.’ The Report concludes thus:

‘In the words of Allama Iqbal, “the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution-a question which will require great intellectual effort, and is sure to he answered in the affirmative’. For these reasons, we dismiss the appeal and confirm the judgment of the High Court. The appellant will pay the costs of the appeal to respondent 1, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under section 127 (1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section. S.R. Appeal dismissed’.

APPENDIX 2

[AIR 1985 SC 935] [Decided on May 10, 1985 by O. Chinappa Reddy, J. with R B. Misra, J.) HELD: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. [717 B] (2) Under the Hindu Marriage Act, a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial separation, if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time. (3) In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably breakdown of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. [717 B-C] (4) Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in. It is necessary to introduce irretrievably breakdown of marriage, and mutual consent as grounds of divorce in all cases.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 2047 of 1985. From the Judgment and Order dated 29.2.1984 of the Delhi High Court in F.A.O. (O.S.) No. 28 of 1982. Mohinder Narian, S.S. Jauhar and Ms. Zubeda Begum for the Petitioner. The Order of the Court was delivered by CHINNAPPA REDDY, J. It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into Art. 44 of the Constitution which provides that ‘The State shall endeavour to secure for the citizens a uniform civil code through out the territory of India.’ The present case is yet another which focuses attention on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, C.J., in the recent case decided by the Constitution Bench (Mohd Ahmed Khan v. Shah Bano Begum & Ors.) There is no evidence of any official activity for framing a common civil code for the country ... ... A common Civil Code will help the case of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice from case to case.

The facts of the case are somewhat novel and peculiar. The wife, who is the petitioner before us claims to belong to the ‘Khasi Tribe’ of Meghalaya, who was born and brought up as a Presbytarian Christian at Shilong. She is now a member of the Indian Foreign

Service. The husband is a Sikh. They were married under the Indian Christen Marriage Act, 1872. The marriage was performed on October 14, 1975. The present petition for declaration of nullity of marriage or judicial separation was filed in 1980 under sections 18, 19 and 20 of the Indian Divorce Act, 1869. The prayer for declaration no nullity of marriage was rejected by a learned single judge of the High Court, but a decree for judicial separation was granted on the ground of cruelty. On appeal, a Division Bench of the High Court affirmed the judgment of the learned single judge. The wife has filed this petition for special leave to appeal against the judgment of the High Court. She seeks a declaration of nullity of marriage. The ground on which the declaration was sought in the courts below and the ground on which it is now sought is the impotence of the husband in that though the husband is achieving 707 erection and penetration, he ejaculates prematurely before the wife has an orgasm, leaving the wife totally unsatisfied and frustrated. At this stage, we are not concerned with the question how far the wife has been able to establish her case. The real problem now is that the marriage appears to have broken down irretrievably. Yet if the findings of the High Court stand, there is no way out for the couple, they will continue to be tied to each other since neither mutual consent nor irretrievable break down of marriage is a ground for divorce, under the Indian Divorce Act. Section 10 the Indian Divorce Act prescribes the grounds on which a husband or wife may petition for dissolution of marriage. The ground on which a husband may obtain a decree for dissolution of marriage is the adultery of the wife. The grounds on which a wife may obtain a decree for dissolution of marriage are change of religion from Christianity to another religion and marriage with another woman, incestuous adultery, bigamy with adultery, marriage with another woman with adultery, rape, sodomy or bestiality, adultery coupled with cruelty, adultery coupled with desertion for more than two years. It must be noted that the Indian Divorce Act applies only to cases where the petitioner or respondent professes the Christian religion. Section 19 provides that a marriage may be declared null and void on the ground. (1) that the respondent was impotent at the time of the institution of the suit;

(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in fore.

Section 22 provides for judicial aspersion at the instance of either husband or wife on the ground of adultery, cruelty, or desertions for two years or upwards. The provisions of the Divorce Act may now be compared with the provisions of other enactments and laws which provide for decrees of nullity of marriage, divorce and judicial separation. Under the Hindu Marriage Act, sec. 10 provides for judicial separation. It enables either party to a marriage to seek judicial separation on any of the grounds specified in sec. 13(1) and in the case of a wife also on any of the grounds specified in sub-sec. 2 of sec. 13. Section 11 provides for a declaration that a marriage is a nullity if it contravene as any one of the conditions specified in clauses (i), (iv) and (v) of sec. 5. Sec. 5 (i) requires that neither party has a spouse living at the time of the marriage. Sec. 5 (iv) requires that the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two. Section 5(v) requires that the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Section 12 further provides that a marriage is voidable and may be annulled if (a) a marriage has not been consummated owing to the impotence of the respondent; or (b) a marriage is in contravention of the conditions specified in sec. 5(ii) (marriage without valid consent); or (c) the consent of the guardian, where required, under sec. 5 was obtained by force or fraud; or (d) the respondent was, at the time of the marriage was pregnant by some person other than the petitioner. Section 13(1) enumerates the grounds for the dissolution of a marriage on the petition of a husband or wife. It provides that a marriage may be dissolved by a decree of divorce if the other party‘(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty, or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or (ii) has ceased to be Hindu by conversion to another religion, or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

(EXPLANATION) omitted for the present purpose) (iv) has, been suffering from a virulent end incurable form of leprosy, or (v) has been suffering from venereal disease in a communicable form, or (vi) has renounced the world by entering any religious order, or (vii) has not been heard of as being alive for a period of seven years or more by these persons who would naturally have heard of it, had that party been alive.”

(EXPLANATION omitted for the present purpose) Section 13 (1-A) provides(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties, or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.

Section 13 (2) provides(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner, or

Provided that in either case the other wife is alive at the time of presentation of the petition, or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, or (iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards, or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Section 13-A provides that on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in sec. 13 (i) (ii) (vi) and (vii), the court may, if it considers it just so to do, having regard to the circumstances of the case, pass a decree for judicial separation. Section 13-B further provides that a petition for dissolution of marriage by a decree of divorce may be presented to the court by both the parties to the marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. If the provisions of the Hindu Marriage Act are compared with the provisions of the Indian Divorce Act, it will be seen that apart from the total lack of uniformity of grounds on which decrees of nullity of marriage, divorce or judicial separation may be obtained under the two Acts, the Hindu Marriage Act contains a special provision for a joint application by the husband and wife for the grant of a decree of divorce by mutual consent whereas the Indian Divorce Act contains no similar provision. Another very important difference between the two Acts is that under the Hindu Marriage Act, a decree for judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from the date of the passing of a decree for judicial if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to

remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time. We may also notice that irretrievable break down of marriage is yet no ground for dissolution of marriage under the Hindu Marriage Act also, though the principle appears to have been recognized in sec. 13 (1A) and sec. 13(B). We may now have a look at the provisions of the Special Marriage Act, 1954 which applies only to marriages solemnized under that Act. Sec. 23 of the Act enables the husband or the wife to present a petition for judicial separation-(a) on any of the grounds specified in sub-section (1) and sub-section (1-A) of section 27 on which a petition for divorce might have been presented; or (b) on the ground of failure to comply with a decree for restitution of conjugal rights. Section 24 declares that a marriage may be declared nullity if (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit. We may notice here that sec. 4 clauses (a), (b), (c), (d) and (e) provide that neither party has been subject to recurrent attacks of insanity or epilepsy, that the male has completed 21 years of age and the female 18 years of age and that the parties are not within the degrees of prohibited marriage. Section 25 declares that a marriage shall voidable and may be annulled by a decree of nullity if,(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872.

(The provisos have been omitted as they are not necessary for the purposes of this case.) Section 27 enables either the husband or the wife to seek a decree of divorce on the ground that the respondent(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (b) has since the solemnization of the marriage treated the petitioner with two years immediately preceding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

(Explanation omitted as it is not necessary.) (f) has been suffering from venereal disease in a communicable form; or (g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent has been alive.”

(Explanation omitted as it is not necessary) Section 27 (1A) enables a wife to present a petition for divorce on the ground that her husband has since the marriage been guilty of rape, sodomy or bestiality, or that an order for maintenance has been made against the husband and that cohabitation has not been resumed for one year or upwards after the making of the order. Sec. 27 (2) further provides that a decree for divorce may be presented on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation. Sec. 28 provides for the passing of a decree of divorce on the presentation of a petition by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have actually agreed that the marriage should be dissolved. It will be seen that the Special Marriage Act like the Hindu Marriage Act contains provisions for a decree for judicial separation being followed up by a decree of divorce if there has been no resumption of cohabitation for a year or more and also for a decree of divorce by mutual consent. Here again, it will be seen that the principle of irretrievable break down of marriage seems to be accepted on principle, but is not specifically made a ground of divorce.

Under the Parsi Marriage and Divorce Act, 1936, section 30 provides that a marriage may be declared to be null and void if consummation of a marriage is from natural causes impossible. Sec. 31 provides for the dissolation of a marriage if a husband or wife has continuously been absent for a period of seven years and has not been heard of as being alive within that time. Sec.32 provides grounds for divorce: (a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it; 714 (b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit; (Proviso has been omitted) (c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff;

(Proviso has been omitted) (d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence (Proviso has been omitted) (e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease, or, where the defendant is the husband, has compelled the wife to submit herself to prostitution;

(The proviso has been omitted) (f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (The proviso has been omitted) (g) that the defendant the deserted the plaintiff for at least three years; (h) that a decree or order for judicial separation has been passed against the defendant, or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for three years or more since such decree or order; (i) that the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more; and (j) that the defendant has ceased to be a Parsi (Proviso has been omitted)

Section 34 provides for judicial separation on any of the grounds on which divorce could be sought; or on the ground that the defendant has been guilty of such cruelty to him or her or to her children or has used such personal violence, or has behaved in such a way as to render it in the judgment of the court improper to compel him or her to live with the defendant. It will be noticed here that under the Parsi Marriage and Divorce Act also, mutual consent and irretrievable break down of marriage are not grounds of divorce though a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for three years or more since such decree or order. Under the Mohammedan Law, a Muslim husband may divorce his wife by the pronouncement of talaq. A Muslim wife may after the passing of the dissolution of Muslim Marriages Act, 1939, obtain a decree for a dissolution of a marriage on one of the following grounds: (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his martial obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years.

(Proviso has been omitted as it is not necessary) (viii) that the husband treats her with cruelty that is to say(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law.

(The proviso has been omitted as it is not necessary in the present case). We may add that under strict Hanafi Law, there was no provision enabling a Muslim women to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and it was the absence of such a provision entailing ‘inspeakable misery in innumerable Muslim women’ that was responsible for the dissolution of the Muslims Marriages Act, 1939. (See Statements of Objects and Reasons of that Act). If the legislature could so alter the Hanafi Law, we fail to understand the hallabalcoo about the recent judgment of this court in the case of Mohd. Ahmed Khan v. Shah Bano Begum & Ors. interpreting the provisions of sec. 125 of the Criminal Procedure Code and the Muslim Law. It is also necessary to add that Mohammedan Law provides for a decree for divorce known as Khula and mubara’ at by agreement of parties. It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. In the meanwhile, let notice go to the respondents.

APPENDIX 3

[AIR 1995 SC 1531] [Decided on May 10, 1995 by Kuldip Singh, J. and R. M. Sahai, J. (separate judgments).] Justice Kuldip Singh. ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’ is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law—a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said ‘I do not think that at the present moment the time is ripe in India for me to try to push it through’. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments—which have come and gone—have so far failed to make any effort towards ‘unified personal law for all Indians’. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80 per cent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of ‘uniform civil code’ for all citizens in the territory of India. The questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid

marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)? These are four petitions under Article 32 of the Constitution of India. There are two petitioners in Writ Petition 1079/89. Petitioner 1 is the President of ‘KALYANI’—a registered society - which is an organisation working for the welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wedlock. In early 1988, the petitioner was shocked to learn that her husband had solemnized second marriage with one Sunita Narula @ Fathima. The marriage was solemnized after they converted themselves to Islam and adopted Muslim religion. According to the petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC. Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu. Rather interestingly Sunita alias Fathima is the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws. Geeta Rani, petitioner in Writ Petition 424 of 1992 was married to Pradeep Kumar according to Hindu rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage. Sushmita Ghosh is another unfortunate lady who is petitioner in Civil Writ Petition 509 of 1992. She was married to G.C. Ghosh according to Hindu rites on May 10, 1984. On April 20, 1992, the

husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner has further prayed that her husband be restrained from entering into second marriage with Vinita Gupta. Marriage is the very foundation of the civilized society. The relation once formed, the law steps in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilization can exist. Till the time we achieve the goal—uniform civil code for all the citizens of India—there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences. The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognize that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage. It would be useful to have a look at some of the old cases on the subject. In Re Ram Kumari 1891 Calcutta 246 where a Hindu wife became convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under Section 494 of the IPC. It was held that there was no authority under Hindu law for the proposition that an apostate is absolved from all civil obligations and that so far as the matrimonial bond was concerned, such view was contrary to the spirit of the Hindu law. The Madras High Court followed Ram Kumari in Budansa vs. Fatima

1914 IC 697. In Gul Mohammed v. Emperor AIR 1947 Nagpur 121 a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It was held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC. In Nandi @ Zainab vs. The Crown (ILR 1920 Lahore 440, Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the Indian Penal Code. It was held that the mere fact of her conversion to Islam did not dissolve the marriage which could only be dissolved by a decree of court. Emperor vs. Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous. In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnized under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion. In Sayeda Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745, Lodge, J. speaking for the court held as under: “The parties were originally Jews bound by the Jewish personal law... The Plaintiff has since been converted to Islam and may in some respects be governed by the Mohammedan Law. The Defendant is not governed by the Mahommedan Law. If this were an Islamic country, where the Mahommedan Law was applied to all cases where one party was a Mahommedan, it might be that plaintiff would be entitled to the declaration prayed for. But this is not a Mahommedan country; and the Mahommedan Law is not the Law of the Land. Now all my opinion, is it the Law of India, that when any

person is converted to Islam the Mahommedan Law shall be applicable to him in all his relationships?... I can see no reason why the Mahommedan Law should be preferred to the Jewish Law in a matrimonial dispute between a Mahommdan and a Jew particularly when the relationship, viz.: marriage, was created under the Jewish Law. As I stated in a previous case there is no matrimonial law of general application in India. There is a Hindu Law for Hindus, a Mahommedan Law for Mahommedans, a Christian Law for Christians, and a Jewish Law for Jews. There is no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case. It may be that a marriage solemnized according to Jewish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnized according to Jesish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnized according to Mahommedan Law may be dissolved according to the Mahommedan Law when one of the parties ceases to be a Mahommedan. But I can find no authority for the view that a marriage solemnized according to one personal law can be dissolved according to another personal law simply because one of the two parties has changed his or her religion.” Sayeda Khatoon’s case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her marriage stood dissolved because of her conversion to Islam. The learned Judge dismissed the suit. It would be useful to quote the following observations from the judgment: We have, therefore, this position—British India as a whole, is neither governed by Hindu, Mahommedan, Sikh, Parsi, Christian, Jewish or any other law except a law imposed by Great Britain under which Hindus, Mahomedans, Sikhs, Parsis, and all others, enjoy equal rights and the utmost possible freedom of religious observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in

principle, no adequate ground for holding that in this case Mahomedan law is applicable to a non-Mahomedan. Do then the authorities compel me to hold that one spouse can by changing his or her religious opinions (or purporting to do so) force his or her newly acquired personal law on a party to whom it is entirely alien and who does not want it? In the name of justice, equity and good conscience, or, in more simple language, of common sense, why should this be possible? If there were no authority on the point I (personally) should have thought that so monstrous an absurdity carried its own refutation with it, so extravagant are the results that follow from it. For it is not only the question of divorce that the plaintiff’s contention affects. If it is correct, it follows that a Christian husband can embrace Islam and, the next moment, three additional wives, without even the consent of the original wife.

Against the judgment of Blagden, J. appeal was heard by a Division Bench consisting of Sir Leonard Stone, Chief Justice and Mr Justice Chagla (as the learned Judge then was). Chagla, J. who spoke for the Bench posed the question that arose for determination as under: ‘what are the consequences of the plaintiff’s conversion to Islam?’. The Bench upheld the judgment of Blagden, J. and dismissed the appeal. Chagla, J. Chagla, J. elaborating the legal position held as under:We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v. Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Raza v. Abbas Bandi Bibi. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we must be decided according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do

substantial justice between the parties and in doing so hope that we have indicated the principles of justice and right or equity and good conscience... It is impossible to accept the contention of Mr Peerbhoy that justice and right requires that we should apply Muslim law in dealing this case. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the religion they should profess, their marriage must be automatically dissolved. Mr Peerbhoy has urged that it is rarely possible for two persons of different communities to be happily united in wedlock. If conversion of one of the spouses leads to unhappiness, then the ground for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But s.4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renulciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religious. We must also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion. It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that

the rule of decision in the various cases enumerated in s.2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim.’ (the single Judge judgment and the Division Bench judgment are reported in 1946 Bombay Law Reporter 864) In Andal Vaidyanathan vs. Abdul Allam Vaidya 1946 Madras, a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held: ‘The Special Marriage Act clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means for the dissolution of a marriage or a declaration of its nullity. Consequently, where two persons married under the Act subsequently become converted to Islam, the marriage can only be dissolved under the provisions of the Divorce Act and the same would apply even if only one of them becomes converted to Islam. Such a marriage is not a marriage in the Mahomoden sense which can be dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute: (‘41) 28 A.I.R.1941 Cal. 582 and (1917) 1 K.B. 634, Rel. on; (‘35) 22 A.I.R. 1935 Bom. 8 and 18 Cal. 264, Disting.” It is, thus, obvious from the catena of case-low that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage. The position has not

changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the apostate. The Act applies to Hindus by religion in any of its forms or developments. It also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. Section 4 of the Act is as under: Overriding effect of Act. Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.’

A marriage solemnized, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that ‘the other party has ceased to be a Hindu by conversion to another religion”. Sections 11 and 15 of the Act is as under:Void marriages:- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. ‘Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, of there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. In that situation parties who have solemnized the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless

be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest. Section 494 Indian Penal Code is as under:- ‘Marrying again during lifetime of husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The necessary ingredients of the section are: (1) having a husband or wife living; (2) marries in any case; (3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife. It is no doubt correct that the marriage solemnized by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. The expression ‘void’ for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the Section. On the other hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation. The expression ‘void’ under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under section 494, IPC. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void. The real

reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal. We also agree with the law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani’s case (supra) wherein the learned Judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute ‘where the parties are Muslims’ and, therefore, the rule of decision in such a case was or is not required to be the ‘Muslim Personal Law’. In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC. Looked from another angle, the second marriage of an apostatehusband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void. The interpretation we have given to section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. Result of the interpretation, we have given to section 494 IPC, would be that the Hindu Law on the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting

in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law. All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife. We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC. We may at this stage notice the Privy Council judgment in Attorney General Ceylon vs. Reid (1965 Al. E.R. 812). A Christian lady was married according to the Christian rites. Years later she embraced Islamic faith and got married by the Registrar of Muslim Marriages at Colombo according to the statutory formalities prescribed for a Muslim marriage. The husband was charged and convicted by the Supreme Court, Ceylon of the offence of bigamy under the Ceylon Penal Code. In an appeal before the Privy Council, the respondent was absolved from the offence of bigamy. It was held by Privy Council as under :‘In their Lordship’s view, in such countries there must be an inherent right in the inhabitants domiciled there to change their religion and personal law and so to contract a valid polygamous marriage if recognised by the laws of the country notwithstanding an earlier marriage. It such inherent right is to be abrogated, it must be done by statute.’ Despite there being an inherent right to change religion the applicability of Penal laws would depend upon the two personal laws governing the marriage. The decision of Privy Council was on the facts of the case, specially in the background of the two personal laws operating in Ceylon. Reid’s case is, thus, of no help to us in the facts and legal background of the present cases. Coming back to the question ‘uniform civil code’ we may refer to the earlier judgments of this Court on the subject. A Constitution Bench of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945 held as under:

‘It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made is the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.” In Ms. Jordan Diengdeh vs. S.S. Chopra AIR 1985 SC 935 O. Chinnappa Reddy, J. speaking for the Court referred to the observations of Chandrachud, CJ in Shah Bano Begum’s case and observed as under: “It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into Art. 44 of the Constitution which provides that ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ The present case is yet another which focuses .. on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before mentioning the facts of the case, we might as well refer to the

observations of Chandrachud, CJ in the recent case decided by the Constitution Bench (Mohd. Ahmed Khan vs. Shah Bano Begum).” One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law personal law of the Hindus—governing inheritance, succession and marriage was given go- bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a ‘common civil Code’ for the whole of India. It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to “public morals”, even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of “Suttee” in the interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955). Political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without

discrimination between Hindus and Mahomedans. The 1772 Regulations followed by the Regulations of 1781 whereunder it was prescribed that either community was to be governed by its ‘personal’ law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in twonation or three-nation theory and that in the Indian Republic there was to be only one Nation—Indian nation - and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation—not religion—being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The Successive Governments till date have been wholly re-miss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and ‘endeavour to secure for the citizens a uniform civil code throught the territory of India’. We further direct the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a “uniform civil code” for the citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which

can be undertaken by the Government in this respect. Answering the questions posed by us in the beginning of the judgment, we hold that the second marriage of a Hindu—husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate—husband would be guilty of the offence under Section 494 IPC. The question of law having been answered we dispose of the writ petitions. The petitioners may seek any relief by invoking any remedy which may be available to them as a result of this judgment or otherwise. No costs. Smt. Sarla Mudgal, President.

BIBLIOGRAPHY

BOOKS A A A A

B

,P (2002). S ,S V F F (2000). L ,T :T M ,I P (1999). R ,T F B N M .H 49, 1 47, AT 81–84 (2006). A S ,E :S ’ I ’ C T :A U , S ’ P M I , 225 (Arskal Salim & Azyumardi Azra eds., Singapore: ISEAS, 2003). B V ,C S D T 7 (Mar 2006). ———, M ’ T :C S D T , 7 (University of Copenhagen, WIP, Updated 1 Mar. 2006). B T ,C S T , C S M E ,V T :S E P S M E , 91 (Augustus Richard Norton ed., Brill, 1996). B B ,C E –A E C M (2001) 134. C K ,A T A C R ? T R M C 228, 229 (Will Kymlicka ed., 1995). C B ,I G M S G P , in Muslims and Media Images, (Ather Farouqui ed. 2009)

C

F. A

,M

G

H

L

I

(2010). D V ,Z :T C Y (1987). ———, Z :T F Y (1982). D R ,U C C G J (1996). D P. G &I S P R C T :AC A P S , 88-93 (1994). D C. N &R P T ,T R W W (1973). P B ,M P L I : C L C D . E B E &L B H ,J I M M E , 331–333 (2006). E B -R &S S ,E ,R C I S , 161 (1991). E S ,J H E I , 1–16 (2000). E G ,N N (1983). F U ,H R M , H R Y at 33 (Pravin H. Parekh ed., 2009). Foreword by Justice C.S. Dharmadhikari Former Judge, Bombay High Court, vii. G B ,C H I :T I S C C P , I :T D C C 15, 18 (David Levi-Faur et al. eds., 1999). G J. J ,A G :C I U S 177–182 (Princeton University Press, 1993). G J J ,T W L 36, 37 (2003). G L &M J ,M W L B (1980).

G

S

, A -D L , M R C E E , 33 (Bernd Rechel ed., Taylor & Francis, 2009). H.M. S ,C L I :AC C (4th ed. Universal Book Traders, 1991). H. Petzold, T C P S , T E S P H R , 41 (R. Macdonald, F. Matscher & H. Petzold eds., 1993). H E. C ,N B &F K , M I :AT (United States Education Foundation in India, 2004). H E. C ,G J R :AC M (2005). I K ,AD M C A (2002). Jeff Spinner-Halev, F ,M ,O S E 84, 112 (2001). J G ,L :E P P , 217 (1989). J M ,T O D R (1806). John Whelpton, A H N 61–79 (2005). J B &Y P , ‘O A A D : C L M C ’ M M ,R S and A S (E ), M D J S :B M A R -Z i, 107, pp.112–113 (1998). J F L A ,T B P B E C , C C D E C , G E U AC :T H R T E T T AE C T , 438 (Josef Blanke & Stelio Mangiameli eds., Springer Berlin Heidelberg). K D ,U C C :I R P (2002).

K

T

,T

L

EU C :M R S , Jemie 1, 1 (2003). L L ,T F E H : M C R , D A P II 135, 140–147 (Anna Maria Biro & Petra Kovacs). L B ,L C C :L R W H , (2002). L A B :D P R S , G P C (2007) Law Commission Consultation Paper on ADR and Mediation Rules (2003). Leslie Green, I M T R , R M C , at 262. Lord Acton, E L I H 393 (William H. McNeill ed., University of Chicago Press, 1967). M.J. P ,T C :T C A H R (1982). M.P. R ,U C C :AM ? (2003). Marc Galanter & Jayanth Krishnan, ‘P L S R C ’, R P L S I :AC J 272–275 (Gerald James Larson ed., 2001). ———, ‘P L S R C ’, R P L S I :AC J (G J L ., 2001). M A G ,T T F L :S , L , F U S W E (1989). M.S. R ,U C C :A I C I (1997). M ,J ,M D , 70–71 (1999). M R , ‘C ,P C A E ’, I C C , 84 (Nick Stevenson ed., S , 2001).

Mb Hooker, I L S A (1984). Mehdi, Rubiya, T I L P (1994). Menahem Fridman, ‘The Market Model and Religious Radicalization’, Behevlei Massoret Utmora, 91, at 105 (1990). M H ,C N (2000). M W ,I M P R , 99-100 (A. Gutman ed., 1992). M R. D ,T F J S A : AC A L P 23–28 (1991) (1986). M C. B ,S G J : J S B M L (2010). M M I :N V V (Ather Farouqui ed., New Delhi: Oxford University Press, 2009). N C &Q J K .P L R G E :AD U C C (2006). National Sovereignty, People’s Pride: Foreign Aid, A Universal Right, CIV. S ’ N (2004). P D’M .C P L G -AC , M I (1997). P G ,T P P L S A : I ,N U C C (New Delhi: Routledge, 2007). P S. G ,P P L S A : I N U C C , 18-21 (2002). P E ,B P P . ———, D :I M D . P B ,T S C :E S T R , 107 (1969). P S ,T L L , 445 (2000). P S ,L E :T S I , 47 (1980). P N &P S ,L S T :T R L (1978).

R. D L &H R ,G D : I C S , 95 (Wiley, 1957). R. U ,M P L :S P ?, S A A G (Paper No. 666, 2003). R H ,T F C P N M , M R C E E , 51 (Bernd Rechel ed., Taylor & Francis, 2009). R B ,W S F ? Available at http://www.law.uvic.ca/demcon/victoria_colloquium/documents/Wh atisSecularismfor PreSeminarReading R K &B C ,S S :F E L I , 259-260 (1996). R H ,C A T A S – I ,M E ,A I W ,T ,M Y (2008). R S. L ,P P :H H T N I , 1890–1919 (1989). R A ,AT C R 102 (J R T , OUP, 2002) (1985). R F &W U ,G Y , 3-8 (1983). R I &D O ,I , A S -E :T H D S , A C C ,D C C P , 5 (H. V , J. S & P. E E ., L ,T N :B ). R G ,J D S :C R M D J S 213, 247-251. S. T ,T I :G D H F I U -G . S.K. G ,M P I , 47 (1987). S S ,L S P (2002). ———, B T B G :T B R M R I 73–76

(2001). ———, Models of Constitutional Adjudication: A Comparative Analysis, in P P C P L 769 (Ada Pellegrini Grinovner & Petronio Calmon eds., 2007) ———, ‘S R F C R I ’, I Y H R 194, 195 (Yoram Dinstein ed., 1974) ———, T G L :B P R 341–360 (1998). ———, T M S C R I I P F C R :AC A C S I , in R P S :AC A G ,I ,A I L 87 (Winfried Brugger & Michael Karayanni eds., 2007). S S ,A ., G J (2000). S M ,I -P L I 2 (undated) S M. O , J ,G F (1989) S M O , M B W (Joshua Cohen, Matthew Howard and Martha C. Nussbaum, eds., 1999) T M ,U C C :F F (1995) T C. H &B G. C ,T S , P , L C :R E I A , 1977–1986 (American Bar Foundation Working Paper No. 9019, 1990). T Z I (Arthur Hertzberg ed., 1982) T K ,C ,I I T E U :B P F , 53 (2001). Tony Wilson, H H I :T F H B E C . Available at: http://www.google.co.il/url? sa=t&source=web&ct=res&cd=1&ved=0CAgQFjAA&url=http%3A

%2F%2Fwww.arts.auckland.ac.nz%2FFileGet.cfm%3FID%3Dc79 b0d70-0cc5-407e-87e2-c818f64e06a8&ei=WxfES-LHYGZOMKmgLMP&usg=AFQjCNGpURxZsi73S6zL5GpavegbF SZoZg&sig2=X2n0eRhH_6p2pb7gCTa3EA. T ,AC S (Helen Chapin ed., Washington: Library of Congress, 1996). Ü A ,C H L :A T C , Qantara.de (2008). V D ,C E :A A P C I (1997). V N ,R N :M W L I (2009). Will Kymlicka, ‘L C ’, I M B F W ?, 32-33 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum eds., 1999). ———, M C :AL T M R , 52 (1995). W A. G ,L P –T I V P P T P (2002). William G. Sumner, F , 381 (1906). William Ury, G P N , 40 (1991) W W ,A B M ,I L R 403 (H H . 1971) W A H R :S J. S ,AF 16 (R.N. Trivedi ed., 2010).

ARTICLES AND REPORTS A.J. Menendez, Chartering Europe: Legal Status and Policy Implications of the Charter of Fundamental Rights of the European Union, 40 J 481 (2002). Abdou Filali-Ansary, The Challenge of Secularization, 7 J. D 76, 76 (1996).

Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Y L.J. 692, 735 (1968). Alan Schwarz, The Nonestablishment Principle: A Reply to Professor Giannella, 81 H . L. R . 1465, 1471 (1968). All India Muslim Personal Law Board, T M G O (16–28 Feb. 2005). Amina Jamal, Gender, Citizenship, and the Nation-State in Pakistan: Willful Daughters or Free Citizens?, 31:2 J. W C S ’ 283, 292 (2006). Anne Cussac, Muslims and Politics in Kenya: The Issue of the Kadhis’ Courts in the Constitutional Review Process, 28:2 J. M M A . 289, 289 (August 2008). Antje Wiener, European Citizenship Practice, 27, Paper prepared for presentation at the European Union Studies Association (EUSA) Tenth Biennial International Conference in Montreal, Quebec, Canada, May 17–19, 2007. Anwar Alam, ‘Scholarly Islam’ and ‘Everyday Islam’: Reflections on the Debate over Integration of the Muslim Minority in India and Western Europe, 27:2 J. M M A . 241, 256 (2007). BBC News, Country profile: Turkey. BBC News, World Edition, Thursday, Dec. 11, 2003. Ben Peterson, Nepal: Republic Begins, Monarchy Ends, GREENLEFT (May 30, 2008). C Rautenbach, Some Comments on the Current (and Future) Status of Muslim Personal Law in South Africa Potchefstroom Electronic Law Journal (2004). Can Erdogan Pull It Off?, ECONOMIST, Sept. 11, 2010, a2004). Canada’s Ethnocultural Mosaic, 2006 Census: Highlights. Catherine Wihtol de Wenden, Immigration and Cultural Rights: political recognition and cultural acceptance, 59 M I ’ 1, 25 (2007). Cengiz, Kurtulus, Civil Society at the Boundaries of Public and Private Spheres: The Internal Dynamics of Three CSOs in Turkey 49, Thesis Submitted to the Graduate School of Social Sciences of Middle East Technical University (May 2005).

Çetin, Zafer M, Tales of Past, Present, and Future: Mythmaking and Nationalist Discourse in Turkish Politics, 24:2 J. M M A . 347, 352 (2004). Chaim Gans, On Kymlicka’s Multicultural Odysseys, 2 J .R . L S . 64 (2010). Charles Haviland, Erasing the ‘Royal’ in Nepal, BBC NEWS (May 19, 2006, 16:23 GMT). C H ,W H R G (1986). Church of England Website. CIA, World Factbook: Turkey, updated Dec. 18, 2008. Civil Society Spectrum in Nepal: Can NGOs Provide Leadership?, CIV. SOC’Y OF NEPAL. Clark, The Interdisciplinary Study of Legal Evolution, 23 E .H . R . 1 (1970). Clive Barnett, Culture, Policy, and Subsidiarity in the European Union: From Symbolic Identity to the Governmentalisation of Culture, 20 P . G 405, 406 (2001). Cognet, Marquerite, Review of “L’inégalité raciste: L’universalité républicaine à l’épreuve (Christian P, Francois Vourch & Veronique De Rudder eds.)”, 34 C . E S . 167 (2002). Conseil d’Etat 1989. Council of Europe, Advisory Committee on the Framework Convention for the Protection of National Minorities, Commentary on Education under the Framework Convention for the Protection of National Minorities, 7 (2006). Council of Europe, Advisory Committee on the Framework Convention for the Protection of National Minorities, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, 19 (2008). Council of Europe, Directorate General of Human Rights and Legal Affairs, Protection of National Minorities, 1 (2008). Council of Europe, Framework Convention for the Protection of National Minorities and Explanatory Report, Feb. 1995, H (1995) 010, at 2.

D. Williams, In France, Students Observe Scarf Ban: Hostage Takers in Iraq had called for Repeal, WASHINGTON POST FOREIGN SERVICE, Page A11, Friday, Sep. 3 2004. Daniel Downs, Is Israel Really a Democracy? Secular or Jewish, T S. A . (Apr. 7, 2008) Dennis Curtis & Judith Resnik, Images of Justice, 96 Y L.J. 1727 (1987) Dennis Thompson, Democratic Theory and Global Society, 7:2 J. P . P . 111, 120 (1999). Desai Nishtha, Goa Code has Meshed Well with Muslim Culture, T I (29 Apr. 1997, New Delhi). Dhruba Adhikary, Nepal’s ‘Republic on Paper’, AsiaTimesOnline, Jan 3, 2008. Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. T L.J 383 396 (2007) S J. H ,F S H D 70 (2008) Donald Horowitz, The Qur’an and the Common Law: Islamic Law Reform and the Theory of Legal Change, 42 A . J. C . L. 233 (1994). Donald L. Horowitz, The Qur’an and the Common Law: Islamic Law Reform and the Theory of Legal Change, 42 A . J. C . L. 233, 244–52 (1994). Areti Krishna Kumari, In the Absence of a Uniform Civil Code, is the Special Marriage Act the Best Alternative for Women? K.B. Bhattachan, Nepal: Campaign to Secure Secure Rights During Constituent Assembly, T N W , June 4, 2006 Satya Rajan Purushottam Sathe, Uniform Civil Code: Implications of Supreme Court Intervention, E A P W , 02/09/1995. E. Fuat Keyman & Ahmet Icduygu, Globalization, Civil Society and Citizenship in Turkey: Actors, Boundaries and Discourses, 7 C S . 222 (2003). Edward Mead Earle, The New Constitution of Turkey, 40 P . S . Q. 81 (1925).

Elie Rekhess, The Evolvement of an Arab-Palestinian National Minority in Israel, 12 I S . 1, 7 (2007). Ellen Wiles, Headscarves, Human Rights, and Harmonious Multicultural Society: Implications of the French Ban for Interpretations of Equality, 41 L S ’ R . 699, 712–13 (2007). Emanual Nahar, Minority Rights in India: Christian Experiences and Apprehensions, M W (Apr. 24, 2007). Emory Law, State of Israel. Ergun Özbudun, Turkey: How Far from Consolidation?, 7 J. DEMOCRACY 123, 124 (1996) Eric Chenowith & James P. Young, Majority Rule/Minority Rights: Essential Principles, DEMOCRACY WEB: COMP. STUD. IN FREEDOM. Eric Kurlander, Multicultural and Assimilationist Models of Ethnopolitical Integration in the Context of the German Nordmark, 1890–1933, 1 G R .E 39, 49–50 (2002). Erol Ülker, Assimilation, Security and Geographical Nationalization in Interwar Turkey: The Settlement Law of 1934, 7 E . J. T . S . (2008). Ethnic and National Minorities in Poland, M O T I A . European Council in Copenhagen, Conclusions of the Presidency (1993), para. 7(A)(iii). F.E. Noronha, U C C C :A I C L , 141-42 (Nagpur: All India Reporter, 2008). Fali Nariman’s speech Frank Coffin, Judicial Balancing: The Protean Scales of Justice, 63 N.Y.U.L. R . 16, 19 (1988). French Head Scarf Ban Underway, Oct. 20, 2004, CBS News. German Embassy, Washington D.C. Gershon Gontobnik, The Right to Culture in the Liberal Society and in Israel I M vol. 27 (1), 23, at pp. 46-49 (2003).

Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, 4 E . L. J. 5, 10 (1998). Gideon Katz, Secularism and the Imaginary Polemic of Israeli Intellectuals, 13 I S . 43, 51 (2008). Grainne DeBurca, The Constitutional Challenge of New Governance in the European Union, 28 E . L. R . 814, 822 (2003). Gregg. F. Relyea, The Critical Impact of Word Choice in Mediation, 16 A 1, 9 (1998). Haldun Gulalp, Whatever Happened to Secularization? The Multiple Islams in Turkey, 102 S. A 381, 382 (2003). Hanoch Dagan ‘The Right of Entry’ Mehkarey Mishpat vol 24, 59, at 79 (2008). Harka Gurung, Presentation at a Talk Program Organized by Nepal Foundation for Advanced Studies: Ethnic Demography of Nepal (Jan. 10, 1996) Hasnil Basri Siregar, Islamic Law in a National Legal System: A Study on the Implementation of Shari’ah in Aceh, Indonesia, 3:1 A J. C . L. 20 (2008). Haut Conseil a l’Intergration 1996:35. Hiram E. Chodosh, Globalizing the U.S. Legal Curriculum: The Saja Paradigm, 37 U.C. D L. R . 843 (2004). Hiram E. Chodosh, The 18 Camel: Mediating Mediation Reform in India, 9 G L. J. 251 (2008). Ibtisam Ibrahim, The Status of Arab Women in Israel, 7 M E C 107, 118–19 (1998). Iddo Porat, The Dual Model of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law, 27 C L. R . 1393, 1398 (2006). Indian Law: Muslim Women Have Right to Maintenance till Remarriage, L G (Aug. 17, 2010). International Coalition for Religious Freedom, Religious Freedom World Report: Ukraine. International Coalition for Religious Freedom, Religious Freedom World Report: Latvia, updated 26 June 2004.

Islamic Marriages and Related Matters, South African Law Commission, 49 (Discussion Paper 101). István T. Kónya, Minorities and Majorities: A Dynamic Model of Assimilation, 38 C J. E . 1 (2005). Izhak Englard, Law and Religion in Israel, 35 A . J. C . L. 187 (1987). John Erik Fossum, Still a Union of Deep Diversity? The Convention and the Constitution for Europe, A Working Paper 21/03, 1213. John Erik Fossum, The European Union: In Search of an Identity, 2 E . J. P . T 319, 325 (2003). Josiah Ober, The Original Meaning of “Democracy”: Capacity to Do Things, not Majority Rule, 15:1 Constellations 3, 8 (2008). Kenneth D. Wald & Samuel Shye, Interreligious Conflict in Israel: The Group Basis of Conflicting Visions, 16 P . B . 157, 160 (1994). Khou Xiong, Hmong in France: Assimilation and Adaptation, VII UWL J. U R . 2 (2004). Kurt Raaflaub, Democracy, Oligarchy, and the Concept of the ‘Free Citizen’ in Late Fifth-Century Athens, 11 P . T 517 (1983). Lauren Benton, Beyond Legal Pluralism: Towards a New Approach to Law in the Informal Section, 3 S . L S . 223 (1994) Laurence R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, 19 E . J. I ’ L. 125, 128 & n.10 (2008). Lisa Hajjar, Between a Rock and a Hard Place: Arab Women, Liberal Feminism and the Israeli State, M E R . M. Monshipouri, The Muslim World Half a Century After the Universal Declaration of Human Rights: Progress and Obstacles’, 16 N . Q. H . R . 287 (1998). Madhavi Sundert, Piercing the Veil, 112 Y L.J. 1422 (2003). Mani Shankar Aiyar’s speech.

Margit Cohn, Women, Religious Law and Religious Court in Israel – The Jewish Case, 107 R (Scandinavian Journal of Social Sciences) 57. 61 (2004). Marguerite Cognet, Book Review, 34 C . E S . J. 167 Martin Edelman, A Portion of Animosity: The Politics of Disestablishment of Religion in Israel, 5 I . S . 204, 206 (2000). Mary E. John, Feminism in India and the West: Recasting a Relationship, 10 Cultural Dynamics 197, 201 (1998). Metn Heper, The Justice and Development Party Government and the Military in Turkey, 6 T S . 216. Michael Karayanni, Jewish and Democratic Ricochets, 9 M U 461 (2006). Michael M. Karayanni, The Separate Nature of the Religious Accommodations for the Palestinian-Arab Minority in Israel, 5 N . U. J. I ’L H . R . 41, 54 (2006). National Sovereignty, People’s Pride: Foreign Aid, A Universal Right, Civic Declaration. Nepal Election Portal, Legal Framework Governing Elections in Nepal. Nepal Election Portal, Nepal’s Political History. NepalCivilSociety.org, Civil Society Spectrum In Nepal: Can NGOs Provide Leadership? Nick Nelson, Peyote and Peyote Law, DAILY HERALD, May 22, 2005, at A6. Nilufer Gole, Authoritarian Secularism and Islamic Politics: The Case of Turkey, in 2 C S M E :S E P S M E 17, 21 (Augustus Richard Norton ed., 1996). OneWorld.net, Nepal Guide Osamu Muramoto, Bioethics of the Refusal of Blood by Jehovah’s Witnesses: Part. 1. Should Bioethical Deliberation Consider Dissidents’ Views?, 24 J. M . E 223, 223–230 (1998).

Patricia Jeffery, A Uniform Customary Code? Marital Breakdown and Women’s Economic Entitlements in Rural Bijnor, 25 C I S . 1, 2–3 (2001). Philippe C. Schmitter and Terry Lynn Karl, What Democracy is…and is Not, 2:3 J. D 75, 84 (Summer 1991) at 84. Pinhas Shifman “Who is Afraid of Civil Marriage?” 10 (2000). Prakash Bom, Declaration of Nepal a Secular Democratic State 3 (Sept. 30, 2006). Prakash Bom, The Self-terminated Feudal Monarchy & The Rise of Federal Democratic Republic Nepal 2 (May 1, 2007). Purushottama Bilimoria, Muslim Personal Law in India: Colonial Legacy and Current Debates, E L. S . R. Post, Blasphemy, the first amendment and the concept of intrinsic harm, 8 T A U. S . L. 293 (1988). Rachel A. Cichowski, Courts, Rights, and Democratic Participation, 39 C .P .S . 50, 71 (2006). Ralf Seliger, Secular Jews and the ‘Jewish State’, I T T (Apr. 1, 2008). Registrar of the European Court of Human Rights, Press release on The Chamber Judgment in the Case of Leyla Sahin v. Turkey (application no. 44774/98) Reuters, Royal flag is lowered over Nepal’s new republic, I H T , May 29, 2008. Richard Fallon, Individual Rights and the Power of Government, 27 G . L. R . 343 (1993). Robert C. Post, Blasphemy, The First Amendment and the Concept of Intrinsic Harm, 8 T A U. S . L. 293, 312 (1988). Robert Hardgrave, Jr., India: The Dilemmas of Diversity, 4:4 J. D 54, 65 (Oct. 1993). Ruth Gavison, Kymlicka’s Multicultural Odysseys - A Comment, 2 J .R .L S . 71 (2010). Salame, Islam and the West, 90 F P ’Y 22, 25 (1993). Sammy Smoha, Minority Status in an ethnic democracy: The Status of the Arab minority in Israel, 13 E R S . 393 (1990).

Sammy Smooha, Minority Status in an Ethnic Democracy: The Status of the Arab Minority in Israel, 13 E R S . 389, 398 (1990). Schuck, The Politics of Rapid Legal Change: Immigration Policy in the 1980s, 6 S . A . P . D . 37 (1992). Senate Rejects Bill Forcing Pharmacists to Dispense Birth Control, S C J., (Feb. 7, 2008, 12:34 PM). Seyla Benhabib & Türküler Isiksel, Ancient Battles, New Prejudices, and Future Perspectives: Turkey and the EU, 13 Constellations Vol. 228 (2006). Shabnam Ishaque, Islamic Principles on Adoption: Examining the Impact of Illegitimacy and Inheritance Related Concerns in Context of a Child’s Right to an Identity, I ’ J. L. P ’ F . 22, (2008), 393–420 at 397. Shibley Telhami, New Divide in Arab Politics in Israel, VI: 4 Middle East Policy Council Journal (June 1999). Shimon Shetreet, The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges, 10 C . J. I ’ . L. 275 (2009). Shimon Shetreet, On Citizenship and National Identity in Europe and Israel, The Isr. J of For. Aff 115 (2011). Shlomi Segall, W W :K ’ G O ,2 J .R .L S . 55 (2010). Shwarz, No Imposition of Religion: The Establishment Value, 77 Y L.J. 692 (1968). Shwarz, The Nonestablishment Principle: A Reply to Professor Giannlla, 81 H . L. R 1465 (1968). Siddhi B. Ranjitkar, Republic of Nepal, ‘SCOOP’ BUSINESS, 7 Jun. 2008. Stefan Theil, Tolerating Intolerance: Germany Debates the Headscarf and Finds It Un-German, A . I .F C . G .S . (Mar. 4, 2004).

Steve Sampson, Nepal’s Re-Return to Democracy, KNOWLEDGE NEWS. Study: 51% of Israelis Secular, Y-Net: Jewish World (3 Mar. 2008). Sumit Ganguly, The Crisis of Indian Secularism, 14:4 J. D 11, 18 (2003). Summary of Fali Nariman’s speech Summary of Syed Sahabuddin’s speech Surendra Phuyal, Difficult journey into 2009, Jan. 7, 2009. Sylvia Maier, “Honor Killings” and the Cultural Defense in Germany and the United States, Paper presented at the annual meeting of the American Studies Association, December 1, 2008. Talcott Parsons, Evolutionary Universals in Society, 29 A . S . R . 339, 353-56 (1964). Teubner, Substantive and Reflexive Elements in Modern Law, 17 L. S ’Y R . 239 (1983). The Declaration of the Establishment of the State of Israel (May 14, 1948). The Gazette of India, New Delhi, the 16th January, 1996/Pausa 26, 1917 (Saka), Part III, § 73. The Islamists Show Their Hand in Turkey, NEWSWEEK (Feb. 14, 2009). Turkey Backs Constitutional Changes, BBC NEWS (Sept. 12, 2010, 16:09 ET). U.S. Department of State, Country Reports on Human Rights Practices, 2005, Mar. 8 2006. Watson, Legal Change: Sources of Law and Legal Culture, 131 U. P . L. R . 1121, 1153 (1983). Weiler, The Transformation of Europe, 100 Y L. J., 2403 (1991). Will Kymlicka, R ,2J .R .L S . 91(2010). Yoav Dotan, Judicial Accountability in Israel: The High Court of Justice and the Phenomenon of Judicial Hyperactivism, 8 I A . 87 (2002). Yoav Dotan, Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel, 32 I . L. R . 448, 457–461

(1998). Yüksel Sezgin, T P T R , 43 J

I

M

S N

L .R

.L

S

E -B . 631 (2010).

L H

INDEX

Absolute Secular model 2n3 6n6, 35 Ahmadi, Chief Justice 243 Alexy, Robert 60 All India Muslim Personal Law Board 120 Ambedkar, Babasaheb 147 Anglo-Muslim law 170–1 anti-Israel Intifada 114 Arbitration and Conciliation Act, 1996 224–5 assimilationist models 27, 69–70, 73–5; in France 69, 71; in Turkey 71, 73 Assimilationists 73–4, 75 Atatürk. See Kemal, Mustafa (Atatürk) Austria 135 authority, ideals of 4, 185, 187–8 Avitzur v. Avitzur 160–1, 182 balancing of interests 59–60 Barak, Aharon 59 Barry, Brian 55 Bengal renaissance 143 Benhabib, Seyla 55 ‘Beth Din’ 160 Bharatiya Janata Party (BJP) 137, 142, 153, 169 Bhargava, Rajeev 130 Bhatt, Niranjan 243 bigamy 23, 123, 138, 172, 177–8, 237 Birendra, King 16, 87 blasphemy 42 British Columbia Human Rights Tribunal 18, 47

Bruker v. Marcovitz 161 Buddhists 25, 117, 126–7 Bürgerliches Gesetzbuch 135 Çiller, Tansu 101 Cameron, David 68 Canada 11, 31, 47–8, 134; B.H. v. Alberta in 48; Pannu’s case in 47; pluralist model in 13, 69; same sex marriage in 116; Supremacy of God in 47 Canadian Multiculturalism Act 1988 70 Chandrachud, D.Y. 146, 202–3 Chavan, Nandini 133 Chinnappa Reddy, O. 133, 147, 151 Chirac, Jacques 13, 72 Chodosh, President 3, 5, 176 Choice of law 4, 186, 194–6, 200–2, 241 Christian Divorce Act 141 Christian laws 26, 117–19, 127, 167 Christian Marriage Act, 1872 119, 151 Christians 111, 117, 119, 121, 126, 137, 151, 158, 163, 171, 188 church-state relations models of 2n3, 6–7, 30, 35, 41, 44–5, 156–7, see also under European Union (EU) civil marriage 31, 96, 113, 116, 160, 177, 182 Civil Portuguese Code 175, 177, see also Goa Civil Code Civil Procedure Code (CPC) 7, 185, 213, 223; amendments to 7 collective action 209–11 Community Law 2, 15, 17, 62, 167, 172–4, 181, 201; Personal Law 117–22 comparative harm 5, 186, 195, 200–1, 203–4, 209, 241–3 Comparative Law Reform 196–7 competing values 206–9 conflict of laws 188–91, 192–4, 198–9, 199–204, 241; Isolation in 194 conflict reform, false polarities in 208 conflicts, resolving 222–3 Constitution of India 32, 49, 31–2, 34, 49, 122–3, 125, 135, 145–6, 154–6, 158–9, 179–82

Corpus Juris Civilis (Justinian’s Code) 135 cultural rights 7, 9–13, 22, 49, 60, 63–4, 66, 100, 148; recognition of other 11, 52–5, 60 democratic majority right 13–14, 75, 78 Deshta, Kiran 133 Dharmadhikari, C.S. 133–4 Engineer, Asghar Ali 133, 141, 170–1 England 8, 41–2; Anglicanism in 42, see also established church model Established Church model 2n3, 6–7, 35, 41–2, 46–7 European Convention on Human Rights (ECHR) 62, 101, 147 European Court of Human Rights (ECtHR) 11, 66, 71, 75, 102 European Union (EU) 9–13, 62–3, 66, 78, 104, 241; and Amsterdam Treaty 9, 61–2; Charter of Fundamental Rights of 10, 63–4; community laws in 62; Council of Europe and protection of national minorities (AC) 9, 61; culture and cultural rights in 9–13, 60–7; 1992 and Maastricht Treaty 10, 62; and Treaty of Lisbon 10, 63 evolutionist model 14, 79 family law 26–7, 31, 80, 117, 126, 135, 150, 159, 176, 198, 202–3 Farouqui, Ather 133, 143–4, 172 France 7–8, 11, 12, 13, 30, 36–9, 46, 66–7, 69, 72–5, 134–5, 156; anti-religious attitude 37; Reservation in 66; suppressed minority model 74 freedom of religion 5, 7, 12–13, 26–7, 37, 41, 45, 71–2, 102, 122–3, 126–30, 161, 180–1, 208, 222, 240; in India, 28–9; and Israel 107 French principle of laïcité 38 French Revolution 37 Galston, William 56 Gandhi, Rajiv 120 gender justice 138, 141, 169, 171, see also women’s rights Germany 43–4, 48, 95, 134–5; recognized religions model 43 Ghosh, Partha 133, 176 Glendon, Mary Ann 80

Globalization 105 Goa Civil Code 174, 177 Goa Muslim Sharia Organization 177 Greek Orthodox 24–5; Bright Saturday ceremonies of 26 Guardians and Wards Act, 1890 121, 150 Gyanendra, King 16–17, 87–8, 90–1 headscarves 44, 52, 71–2; France ban on 15, 46, 73; German Federal Constitutional Court and 44; Turkey’s ban on 12, 39, 71, 73, 75, 101 Herzl, Theodor 106 Hindu Acts 153, 158 Hindu Adoption and Maintenance Act 1956 125, 150, 152, 202 Hindu Code 125, 140, 168, 180 Hindu Marriage Act 123, 125, 128, 150, 152, 155, 157 Hindu Minority and Guardianship Act 1956 125 Hindu Succession Act 1956 125, 150 Hindus 2, 15, 25, 27, 29, 86, 121–3, 126–8, 137–8, 142, 152–4, 169, 172, 180–1; personal laws of 27–8, 117–18, 125–7, 138, 140, 149, 162–3, 167, 169, 180 Horowitz, Donald 14, 79–80 human rights 4–5, 8–11, 59, 62–3, 67, 74, 79, 90, 100, 134, 240 India: church and state relations 156–7; constitutional provisions 14, 26–9; court and Uniform Civil Code 145–6, 155–6; declaratory remedies in 146–53; Hindu Code in 125–6; model of Goa Civil Code 174–8; multiculturalism in 124–5; readiness of communities 153–5; religious freedom 126–33; role of Community Law In Personal Law 117–22; Secularism in Constitution of 122–4; Uniform Civil Code in 133–44,157–74 Indian Christian Marriage Act 1872 119 Indian Divorce Act 119, 151 Indian Majority Act 1875 150 Indonesia, societal change model in 82 International Covenant on Civil and Political Rights (ICCPR) 66, 100 Islamic laws/Muslim Law 2, 14–15, 25–6, 83, 99, 118–19, 126–9, 134, 140–1, 144, 167–8, 171, 180

Islamic principles and Personal Law 79–84 Israel 21–5; Basic Law 107–8, 112; Declaration of the Establishment of the State of 21; Druze community 23, 24, 109; Druze justice system 23; Druze Religious Council 23–4; equality in 107; qualified application of religious law 21–5, 112; recognized religious communities 21, 107; religious controversy in 115–16; religious law In 22, 106–15 Isreael, Knesset 107–8 Jacobson, Gary 130 Jains 25, 117, 126 Jamait-Ulama-i-Hind 141 Japan 134 Jewish law 107, 127, 160; remarrying under 161 Jews 8, 47, 107, 110–13, 126; identities of 111, 115; education system for 115 jihadi Muslims 143 Jorden Diengdeh v. Chopra 133, 147, 151, 266–75 Judaism, collective identity of historical 111 Judges 14, 21, 76, 105, 133, 226–8, 233, 235, 242 Judicial remedies 66 Juppe, Alain 37 Juvenile Justice (Care and Protection of Children) Act, 2000 203 Kemal, Mustafa (Atatürk) 2, 18–19, 74, 95–7, 100, 103; concept of ‘modernity’ 22, 105; reforms of 20, 97 Kemalism 18, 96, 98 ‘Ketubah’ 160 Kidwai, Qutub Jehan 133 Kirpal, Chief Justice 225, 227 Kukathas, Chandran 49–50, 56 Kymlicka, Will 40, 49, 54–5, 57–8, 68, 125; theory of 57–8 lawyers 81, 119, 170, 225–6, 228–9, 233, 235–6 Legal Services Authority Act, 1987 224 liberal multiculturalism 57–8, see also multiculturalism Lok Adalat 223–5, 231

Madhesis 88, 93 Maoists 17, 87–8, 91 Marcovitz case 161, 182 market model 58; theory of 58 mediation 3, 5, 25, 30–2, 159, 163–6, 181–3, 211–16, 219, 222–34, 233–9, 241–3; adaptation concerns in 233–4; bargaining strategies in 213; Communication Skills in 215–19; President Chodosh on 7; evaluation of 214; Indianization of 5, 7; individual 3, 31–2, 159, 164–5, 182; intercommunity 3, 31, 32, 159, 164, 182; interest-based bargaining in 186; internalization of 7, 185, 213, 238; legal authority for 223; levels of 31; reforms 213, 226, 235; strategies for 235–9; Statutory Framework of Section in 231–3; tools of 185; value of 213–15 Merkel, Angela 68 minority culture, recognition of 8–9 models: possible and preferred 30–2; separation of church and state 36–41; established church 41–2; recognized religions 42–4; recognition of minority cultures 44–8 Mudgal, Sarla 28–9, 125, 145, 147, 149, 152–3, 166 multiculturalism 27, 48, 55, 68, 111, 124, 130, 162; in Europe 67–8; theories of 48–52 Muslim Marriage Act 128, 155–6 Muslim Personal Law 28, 119–20, 129, 134, 138, 149–50, 167, 170 Muslim Women (Protection of Rights on Divorce) Act (MWPRDA) 1986 28, 120, 129, 137, 154–5, 166, 168, 172–3, 180 Muslims 4, 17, 30, 73–4, 79, 83, 109–11, 119–21, 126–9, 134, 138– 40, 142–4, 149–50, 156, 167–8, 170–3, 177, 180 negotiated settlement 219 negotiation: integrative 213, 233, 241; techniques 215, 219–22, 235 Nepal 2, 15–17; Civil Society in 85–94; Constitution as Fundamental Law in 89–92; as multi-party democracy 16; multi-party democracy 87 Nepal Civil Society Development Forum 92–3 1937 Sharia Act 139, 141 Noronha, F.E. 133, 135, 174–6

Okin, Susan Moller 55 Ottoman millet system 108 Özbudun, Ergun 103 Parallel law systems 31, 159–63, 172 Parliamentary Special Committee 31, 164, 182 Parsi Law 25–6 Parsi Marriage and Divorce Act, 1936 157 Parsis 25–6, 118, 126, 137, 157, 188 personal autonomy of individuals 11–12, 69–70, 75; Secularismand 69–73 Pluralists 4, 11, 21–5, 56, 69, 73–5 policy considerations 167 Political Reasons Model 74–5; and right of democratic majority 75–8 political, conflicts 7–8, 185, 243; reasons 11–12, 69–70, 74–5, 83 poly-ethnic rights 57 polygamy 23, 27, 30, 52, 96, 123, 127–8, 135, 138, 155, 158, 171–2 Portuguese Civil Code in Goa 134, 174–5, 177 Prachanda 16, 87, 91–2 Quran 19, 39, 103, 119–20, 150 Rabbinical culture 111 Raina, Dinanath 133 Raju, M.P. 133 Ram Prasad v. State of Uttar Pradesh 123 Ratnaparkhi, M.S. 133, 137, 139–40, 148, 167–8 Reddy, Chinnappa 137, 151 religious: ECtHR and 102, headscarves 12–13, 72; ban 71; French case, the ban on 74; personal laws 83, 119, 153 Republic of Turkey 12, 18, 71, 73, 84, 96, 100 Republican People’s Party 98 right to culture 40–1, 54, 57–8, 68, 170, see also cultural rights Roman Code 135 Sahai, R.M. 31, 147, 153 Sahin, Leyla 71 Salem Advocates Bar Association v. Union of India 227

Sarla Mudgal v. Union of India 30, 125, 133, 145–7, 149, 151, 276– 90 Sathe, S.P. 31, 155–6 sati 138, 172 secular civil law 28, 117 secular state 16–17, 19, 28, 30, 36, 39, 89, 99–100, 122, 127–8, 133, 179–80 Secularism 11–13, 17–21, 69–70, 97, 103, 105, 122, 156, 158, 204; autonomy and 69–73; constitutional requirement of 69; French 15, 37, 156; in India 28–9, 123, 130–1, 133, 139, 150; in Indian Constitution 122–3; Kemalist principles 98; and Nepal 75, 88, 96; personal autonomy versus 69–73; in Turkey 18, 20, 44, 71, 73, 75, 96, 101–5 secularization of society 131 separation of state and religion model 6, 7, 8, 30, 36–7, 39, 42–5, 47, 156 Shah Bano case 28–30, 120, 128–30, 133–4, 137, 144–7, 150–1, 154, 159, 164–6, 172, 245–64 Sharia Act 28, 81–2, 95, 109, 127, 139, 141–2 Shari’a/Shariat 119, 141–2, 155, 171 Shetreet, Shimon 207–8, 218 Sikhs 9, 25, 47, 117, 126–7 Singh, Bhawani 133 Singh, Kuldip 125–6, 145, 147, 152–3, 158 societal change model 15, 80–2 South African Law Reform Commission, Draft Bill on Islamic Marriages of 84 Spain 36, 134 Special Marriage Act 127, 166 Spinner-Halev, Jeff 56 state’s civil code 31, 160 Suppressed Majority/minority Model 74; Supreme Court judgments 245–64, 266–75, 276–90, see also under separate names Switzerland 135 Tarif, Sheikh Amin 23

Treaty on European Union 63, see also European Union (EU) Turkey 2, 7, 12–13, 15, 17–21, 36, 39, 66–7, 71, 73–4, 94–105, 124–5, 134; Islamist traditions in 20, 105; minority ethnic groups in 39; reservation in 66, 100; Secularism in 71, 94–105; separation of state and religion model in 39; Tansu Çiller of 101 Turkish: banning of headscarves 39; Constitution 20, 100, 105; Constitutional Court 71, 102; modernity 39, 71; personal laws 84; secularism 18, 20, 22, 39, 94–5, 100–1, 103–5; secular model 22, 104 Unification of institutions 197–8 Uniform Civil Code, theoretical basis of 157–8 Uniform Commercial Code (UCC) 135, 171 uniform religious laws 17, 83 uniformity of Law 6, 175, 185, 188–92, 197–8, 202, 207–8, 223, 240, 243; controversy over 6 Unitd Kingdom Human Rights Act, 1998 147 United Nations Commission on International Trade Law (UNCITRAL) model law 225 Utilitarianism model 14, 79–81, 83 value choices 197, 209 Wahiuddin, Maulana 140 Weizmann, Chaim 106 women, rights 51, 53, 154, 172, 174, 179; in religious communities 53; status of 24, 112, 170 women’s groups 169, 172; in Nepal 89 Yadav, Ram Baran 91

ABOUT THE AUTHORS

Shimon Shetreet holds the Greenblatt Chair of Public and International Law at the Hebrew University of Jerusalem, Israel. He is the author and editor of many books and articles on judiciary. He is President of International Association of Judicial Independence and World Peace and the leader of the International Project on Judicial Independence and the Mt Scopus International Judicial Independence 2008, Member, Royal Academy of Sciences and Arts of Belgium, International Jurists Association Award in New Delhi 2010. He has held visiting academic positions and delivered distinguished guest lectures in many overseas universities . Between 1988 and 1996 he served as Member of the Israeli Parliament and was a cabinet minister under Yitzhak Rabin and Shimon Peres. Professor Shetreet’s books and works have been cited in numerous Highest court cases in many countries like UK, Canada, Australia, US, New Zealand, and India. His recent books include Judges on Trial: Independence And Accountability of The English Judiciary (2013 Cambridge University Press) (co-author Sophie Turenne); Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Nijhoff, 2012) (co-editor Christopher Forsyth); Culture of Judicial Independence: Rule of Law and World Peace (Brill-Nijhoff, 2014). Hiram E. Chodosh serves as President of Claremont McKenna College. Prior to his appointment, he served as Dean of the S.J. Quinney College of Law at the University of Utah, where he was also the Hugh B. Brown Endowed Presidential Professor of Law and Senior Presidential Adviser on Global Strategy. He began his academic career at Case Western Reserve University School of Law, where he directed the Frederick K. Cox International Law

Center, and served as Hostetler Professor and Associate Dean for Academic Affairs. The author of many articles, essays, and books, including Global Justice Reform: A Comparative Methodology (NYU Press) and Law in Iraq: A Document Companion (with co-editor Chibli Mallat) (Oxford University Press), President Chodosh has worked in more than twenty countries in Asia and the Middle East, serving in advisory positions on pressing problems in justice reform for the World Bank Justice Reform Group, the International Monetary Fund Legal Department, and many court systems, non-profit organizations, and national commissions. He also served as a Fulbright Senior Scholar in India in 2003. In 2011, he was the recipient of the Gandhi Peace Award, and in 2013, he was named one of the 25 most influential legal educators by the National Jurist magazine.