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Recent Developments in the Uniform Civil Code debates in India - Part 1 of 2


By Werner Menski
Abstract
Read the Full Contribution as a PDF


Suggested Citation: Werner Menski, Recent Developments in the Uniform Civil Code debates in India - Part 1 of 2, 9 German Law Journal 211-250 (2008), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=930

[Editors’ note: Due to its large size, the HTML version (this version) is published in two parts. This is part I/II]

A. Introduction: What Happens if One Asks for the Moon?

Postcolonial India’s modernist ambition to have a Uniform Civil Code, impressively written into Article 44 of the Indian Constitution of 1950 as a non-justiciable Directive Principle of State Policy, concerns not just an Indian problem but a universal predicament for lawyers and legal systems. What is the relationship between personal status laws and general state-made laws? To what extent should the formal law allow for, or seek to restrain, the legal implications of religious and socio-cultural diversity? To what extent does a state, whether secular or not, actually have power and legitimacy to decree and enforce legal uniformity? There are many more agendas at play here than simply the central issue of legal authority, focused on the power of the law, or simply “religion” v. “law”, or “culture” v. “law”, as we are often still led to believe.

I present here the recent developments in India’s law relating to the much-debated Uniform Civil Code agenda to illustrate that Indian law today increasingly turns its back on supposedly European or “Western” models, and has been developing its own country-specific and situation-sensitive methods of handling complex socio-legal issues. This may contain some important lessons for European lawyers, specifically in terms of managing cultural diversity through plurality-conscious legal intervention, rather than the traditional insistence on state-centric legal uniformity.

The key lesson from this evidence is that personal status laws may well endure and survive the much-desired uniformity of legal reforms all over Asia and Africa, and probably elsewhere, too. The future of the world lies evidently not in simplistic legal uniformity, but in considered, carefully weighed respect for diversity. Globalisation, we are told elsewhere, comes out prominently as localisation, creating new hybrid entities of ever-growing plurality. Therefore, we must learn to handle and understand more deeply how plural legal arrangements operate...


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