Legal Pluralism in India – is it effective enough?

India has always been a land of pluralism. Ever since the British run states and the princely states came under the common banner of being recognised as ‘India’, it has been a place of symbiotic co-existence of diverse forms of life in terms of social, cultural, religious and legal phenomena. The acceptance and living together of these diverse communities have been the very functional strategies of the land. Legal pluralism broadly refers to the faith based pluralist system of the country which attempts to cover existing religious or community practices that have been followed by the masses for centuries. It refers to the multiple sources of law which can be recognised as both state and nonstate to fulfill the needs of several communities, for example- the Muslim laws in India, The Hindu laws (The Hindu Code Bill), etc.

The need of every community carved in the Legal system

Now many might have a question that if we reside in the same country and follow the idea of ‘global citizens’ with no imagined boundary then why is the law divisive in nature. Well, to begin with let us try to narrow the concept to a classroom. Each student in a class is unique in their identity in terms of gender, religion, family background, language, IQ, economic strata, etc. The way each of them view the world differs heavily even if they sit in the same class and belong to the same age group. Thereby, the outcome of teaching varies largely across individuals and this is the primary reason why the modern education system is looking for an individualistic approach, is pro active in meeting the unique needs of each student and is subjectively involved with their mental space. Likewise, the society we live in consists of fully functional diversified individuals. The rules and customs we are born with is a part of who we are. The idea of legal justice would fail if it becomes homogenous in nature and if the power holders assume what would be collectively best for all. For a long time, rationalization of the society’s organisation through state laws was focused on uniformity and universality. A set pattern of laws was deemed to be ‘modern’ and pluralism was allegedly interpreted as a ‘primitive’ idea. However, according to me, Legal pluralism helps in understanding the culturally diverse realities of human existence. Interpreting the plural nature of law is definitely more necessary than an intercultural comparison of traditions.

Multiple requirements in a civil society

The rural folks of India belonging to any tribal community, women at large, the scheduled castes, scheduled tribes, and people following the minor religions in India have been subjected to systematic exploitation by the upper castes, the majority religion, urban group of people, and by patriarchy. They have been systematically excluded from power, justice and were left unheard for the longest time. Now if laws are not carved in a way that represents the mass at large then what is the role of the judiciary at all? Legal pluralism can substantially elevate the condition of the deprived sections of the society to be self-reliant and enable them to seek the justice that they deserve. Legal pluralism should not be mistaken to be the solution of their oppression; it is only a step forward towards making every individual heard according to laws that are best suited for them and their circumstances. The debate of differences vs equality will always be a part of this topic, yet representing all in an individualistic manner is what the world seeks today. It is quite fashionable to talk about inclusive development which calls for an all-embracing framework of development so that every community (religious or ethnic) is not left out of the margin but to practice it in the modern context is a matter of social and legal justice.

The relation between uniform civil code and legal pluralism

Modern legality is said to be constituted of homogeneity. But individual rights and uniformity need to go hand in hand. By accepting the rights and laws that are specific to several groups and devising the policies for the recognition of cultural differences which ensures the autonomy of every community in the judicial scenario, the system becomes a communitarian liberal democracy. If the uniform civil code completely comes into the picture then the idea of a plurality of civil code will be lost forever. That way the idea of common culture and common history would only resemble those of the dominant groups and another set of citizens will tend to lose their identity. This would contradict the very idea of an ideal state and secularism. Now, this does not entail that the laws adopted in a pluralistic manner for the masses can be wholly traditional with no sense of overall justice. For example – the idea of triple talaq has been prohibited since the Parliament of India passed the ‘protection of rights on marriage bill’ on 28th December 2017 which stands effective from 19th September 2018 after the reintroduction of the bill on July 2019. Secularism does give equal status to all religions but misusing the provision can be harmful for the different sects of the society. A Uniform civil code should not be the alternative for legal pluralism. There should be a concrete analysis of such a diverse idea.

A diversely unified law

In modern society, adherence to pluralistic ties can be the ideal political development of a nation. Nation-building is directly linked to fashioning individual citizens governed by a uniform civil code that primarily owns allegiance to their traditional collective norms. To give an example, a Muslim woman residing in a village in the Northeastern part of Rajasthan is more likely to take her disputes or issues to the local village councils or state courts. But if the councils, courts, and the laws are dominated by a set of common principles that does not fulfill her sense of justice or are constituted by powerful men who belong to the upper caste Hindu religion then there is a fair possibility that the woman would not get the justice that she is seeking for. In this case, a Maulavi (a spiritual teacher) can help understand the victim better while being a part of the central legal system. This should not only be looked at as cultural conception but insights into a more individualistic judicial system.

Overall, Legal Pluralism cannot be identified as good or bad. The legal system should be a mix of ideas that can represent everyone in a justified manner. However, every possibility should come with a limitation and should be exercised as per the need of the hour or subject at large. Such concrete ideas can only be justified when both sides of the picture are carefully analysed and implemented effectively.

Also Read: Criminal Justice System in USA