Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (40 page)

B. Changes in Policy Makers’ Outlook

The formation of legal policy tends to be particularly autonomous of public opinion, social practice, and social mobilization, because law is often viewed as an arena where expertise may legitimately trump popular demands. This is all the more the case regarding laws that pertain to minorities, that account
for a small proportion of voters, mobilized citizens, and state officials. In recognition of the autonomy of policy elites, intentionalist analyses highlighted the significance of the ideas familiar to policy elites and the ends these elites value. Alan Watson and Donald Horowitz have emphasized the influence of these factors over legal change, and Jürgen Habermas, Dieter Rueschemeyer, and Theda Skocpol have stressed their relevance to a wider variety of policies.
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The growth in some policy makers’ knowledge of minority traditions, the changes in the family norms they valued, and the increased inclination of some judges to change family law influenced changes in the minority laws.

Legislators, judges, and bureaucrats continued to feel that the minority laws should especially recognize group norms and be based on group demands, and therefore changes in these laws depended on their understanding of the relevant group’s norms and initiatives. Their understanding of Islamic traditions was particularly limited until recently. The increased emphasis of reformist mobilizers and lawyers on minority traditions and the growth of transnational legal networks made some policy elites more aware of reformist interpretations of these traditions, particularly those that other governments had recognized. These policy makers based minority law reform partly on such interpretations.

The judges who changed the minority laws included both reformists of the relevant religious group who felt that the social climate gave them more space to draw on their understandings of their religious tradition, and Hindus whose knowledge of Islamic and Christian norms had grown through their careers. Justice Baharul Islam, who provided the first high court judgments that unilateral male repudiation did not necessarily end a Muslim marriage and who later became a Supreme Court justice, was the former kind of reformist judge. Justices V. R. Krishna Iyer and A. M. Bhattacharjee belonged in the latter category. From a bench of the Kerala High Court, Krishna Iyer was the first judge to observe, in an
obiter dictum
, that early Islamic traditions considered unilateral repudiation revocable when men initially pronounced it; he later authored the first two Supreme Court verdicts in favor of alimony for Muslim women. He also called for more extensive judicial reforms in the various personal laws in his writings.
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Bhattacharjee demonstrated his understanding of Islamic and Hindu traditions in two books on personal law to
which the Indian legal elite often refer, and observed that the divorce provisions of Christian law were contrary to constitutional rights in an
obiter dictum
in
Swapna Ghosh v. Sadananda Ghosh
(1989).
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He and Baharul Islam had developed their reformist interpretations of authoritative Islamic texts through their extensive reading of the relevant scholarship. Krishna Iyer was a widely known forerunner of judicial activism, whose judgments advanced the rights of various underprivileged groups, including prisoners, urban squatters, and tribal forest dwellers. He developed considerable knowledge of transnational law and some awareness of Islamic tradition through his long judicial career, during which he had extensive contact with rights activists. Other central figures in landmark Muslim law cases, like Justice S. Rajendra Babu, who authored
Danial Latifi v. Union of India
(2001), the authoritative Supreme Court judgment on alimony, were neither consistent reformists nor particularly knowledgeable about Islamic traditions. However, they carefully crafted culturally grounded verdicts, drawing from the record of pertinent judicial reform. The judges who changed Christian law, such as Justices T. V. Ramakrishnan, Ashok Agarwal, B. Sreedevi and K. P. Balachandran, similarly relied on the information they gleaned from litigants’ briefs in crucial cases—about the prevalence of marital separation and the wish to adopt children among Indian Christians, the presence of adoption customs among particular Christian groups, and the acceptance of divorce in the canon of various Protestant churches and of adoption in the Vatican canon.
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The sources cited in some recent landmark judgments indicate the growth of understanding of Islamic legal and normative traditions among the legal elite. Reformist interpretations of Islamic law find more extensive mention in recently authored textbooks of Indian Muslim law than in those that the state courts most often used in Muslim law cases through much of the twentieth century.
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The benches of the higher courts referred with some frequency to the more recent textbooks and consulted the authors of some of these books in Muslim law cases.
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Hindu nationalism’s influence has been significant among the legal elite for at least two decades.
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Although those with Hindu nationalist sympathies were inattentive to non-Hindu norms, some of them enabled minority-law reform, which they sometimes claimed was a step toward a UCC. The most prominent Hindu nationalist who helped introduce minority-law reform was
Arun Jaitley, who was the Law Minister from 2000 to 2004. He oversaw the changes in Christian law that significantly increased divorce rights and equalized them across gender in 2001, and gave demands for Christian adoption rights sympathetic consideration. The Hindu nationalist sympathies of some judges urged them toward reformist judgments in the course of which they attacked Muslim practices and called for a UCC. This was particularly true of the Allahabad High Court’s treatment of unilateral male repudiation as invalid if it was not followed by reconciliation efforts in
Rahmat Ullah v. State of U.P. and Khatoon Nisa v. State of U.P
. (1994).
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However, similar inclinations led other policy makers to block Muslim law reform to reinforce their critique of Muslims. The attorney general is said to have acknowledged that this was a reason why the Law Minister instructed him to oppose granting Muslim women alimony rights in
Danial Latifi
, which the Supreme Court considered while the BJP led the national government.
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Many policy elites (Hindu nationalist and otherwise) continued to believe that Muslims opposed changes in their personal laws, and this limited their recognition of reformist Muslim initiatives. This is an important reason why they ignored the demands of the conservative AIMPLB and some reformist Muslim organizations to give Muslim women rights in family agricultural land throughout India. Muslim women currently enjoy this right only in Bengal, the northeastern states, Maharashtra, Gujarat, Andhra Pradesh, Kerala, Tamil Nadu, and parts of Karnataka, where Islamic law is applied to the inheritance of agricultural land.

Understandings of religious tradition influenced Christian law less than Muslim law since Christian law was more codified, policy elites regarded legislation and current Christian practices and initiatives as their main points of reference, and explored religious norms in Christian cases only if litigants claimed support in church canons. Moreover, policy elites were less wary of changing Christian law than Muslim law because they considered Christians more liberal; this premise was reinforced by the consensus that emerged among the major group mobilizers by the 1990s in favor of personal-law reform among Christians but not among Muslims. Thus, the demands of certain Christian elites and the private member bills presented in parliament in 1956 and 1958 to increase Christian divorce rights led the Law Commission to suggest such a change in two reports of 1960 and 1961, and the Law Ministry to
incorporate some of the Law Commission’s suggestions in a bill that the parliament briefly considered in 1962, well before Christian legal mobilization gathered steam. Many judges were receptive to concerns about the limited access Christians had to divorce, and called for legislative change in the IDA without introducing judicial reform, from 1968 to the 1990s. Once various Christian organizations agreed on increasing divorce rights in the 1990s, the executive soon drafted legislation to address this demand. Similarly, the Law Ministry proposed an Adoption of Children Bill applicable to all Indians in 1972 and another that pertained to non-Muslims in 1980, in response to the early demands for Christian adoption rights. (The first proposal was abandoned due to strong opposition from conservative Muslim organizations, which believed that Islamic traditions did not provide for adoption, and the second was given up because of Parsi opposition for similar reasons). This makes for a contrast with the limited policy initiatives regarding Muslim law. No Law Commission explored changes in these laws, and the only legislative change in Muslim law (the Muslim Women (Protection of Rights on Divorce) Act (MWPRDA)) after independence seemed to be meant to preserve conservative precedent. Judges did not suggest legislative reforms in Muslim law either.

Many policy makers with majoritarian inclinations did not want to enable a growth in the religious minorities’ share of the population, anxieties about which were fed by ongoing increases in the Christian share of the population through conversion (from 2.0 percent in 1941 to 6.7 percent in 2005) and in the Muslim share of the population due to higher fertility rates and perhaps migration from Bangladesh (from 9.9 percent in 1951 to 14.6 percent in 2011).
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This led two Union Law Ministers (Hans Raj Bharadwaj, who occupied this post from 1991 to 1996 and from 2004 to 2009, and Ram Jethmalani, who did so from 1998 to 2000), certain bureaucrats in the Law Ministry, and some ruling parties to resist giving Christians unlimited adoption rights. Both the governments led by the BJP and by the Congress Party (which includes many with a Hindu majoritarian outlook) were willing to give Christian couples the right to adopt children of known Christian parentage, but not children of non-Christian biological parents or foundlings of unknown parentage. They took this position although the adoption rights of Hindus were not similarly limited, to address fears that the Christian
population might grow if Christian couples had unlimited adoption rights. Since the Christian organizations opposed the proposed restrictions, Christians have yet to gain adoption rights other than through high court decisions recognizing canons and customs that accept adoption and pertain to particular Christian groups.

Similar concerns about the growth of the Muslim and Christian populations led certain courts to resist validating the bigamous practices of men whose religious behavior did not back their claims to have converted from Hinduism to Islam, in
Sarla Mudgal v. Union of India
(1995). They also influenced an attempt made while the BJP led the national government to restrict the application of the ICMA to Christian couples, rather than to couples in which one partner was a Christian as well, as has been possible since the act was adopted in 1872. This proposal was meant to discourage couples in which one partner was a Christian and the other a Hindu from raising their children as Christians, or at least to avoid ascribing the children from such marriages a Christian identity by default. It was not presented to parliament due to the opposition of the churches.
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We saw in
Chapter 4
that judges and legislators became more inclined starting in the 1970s to promote conjugal autonomy while maintaining the stability of the nuclear family, and to reduce inequalities in matrimonial relations by reinforcing economic support for the indigent after marital separation and divorce. This led them to accommodate certain demands for minority-law reform that favored these ends while being grounded in the concerned group’s norms and orientations as they saw them.

IV. CHANGES IN MUSLIM LAW

Many scholars have misunderstood the course of Muslim law in the Indian courts. Parashar, Ratna Kapur and Brenda Cossman, and Rajeswari Sunder Rajan claimed that the courts interpreted legislation to increase women’s rights in Muslim law in certain respects in the 1970s and 1980s. But they believed that the majority of mobilized Muslims opposed these reforms, which they took to undermine the recognition of their religious identity, leading the legislature to abandon Muslim law reform and reinstate precedent.
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Vrinda Narain added that constitutional rights shaped these judicial reforms.
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These
claims referred to the requirement of alimony among Muslims and the effects of the MWPRDA, and are inaccurate in various ways. We will see that even many conservative Muslims viewed only some of the judicial reforms in Muslim law as threats to their religious freedom, and they rallied only against these reforms. Some conservative Muslims welcomed certain reformist Muslim law judgments, which prompted them to understand Islamic traditions differently. Although the MWPRDA was intended to limit the obligation of Muslim men to maintain their ex-wives, certain courts interpreted the act in ways that left Muslim men responsible to provide for these women until their remarriage or death, in the form of alimony or a share of their property. They faced limited Muslim resistance when they interpreted Muslim law based on Islamic legal traditions, rather than prioritizing criminal law over Muslim law or overruling aspects of Muslim law based on constitutional rights. The legal changes introduced by such judgments were therefore not overturned. Moreover, the courts also restricted the conditions under which a Muslim man’s unilateral repudiation of his wife ended their marriage, and enabled women to get divorces or judicial separation if their husbands were bigamous. They justified the latter reforms with reference to Islamic norms and Muslim-law statutes, not constitutional rights. The following discussion demonstrates these trends by exploring pertinent legislation, case law, and the forms of reasoning used by the litigants, judges, and legal mobilizers who intervened in crucial cases. It elaborates on the trends outlined by Basu, Agnes, Sylvia Vatuk, and Gopika Solanki.
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