Abstract
In her recent book Divorce and Democracy: A History of Personal Law in Post-Independence India, Saumya Saxena contributes a powerful and persuasive understanding of the changing relations of the state and religion, and state and ‘democracy’ through the prism of change and continuity in personal law. What makes the work remarkable is a steady focus on the agency and autonomy of women negotiating, individually and collectively, both the state and the non-state law and varieties of religion-based and secular alternatives. In a sense, it offers a long meditation on—what Gayatri Chakravorty Spivak (1998) once called—‘strategic essentialism’. It is a ‘temporary device’ by which the colonised and other subaltern, always marginalised and often given no agency and voice, may represent oneself as collective agency.
The term ‘personal laws’ is in its origins a colonial term widely used at once to mark it as marginal to affairs of sovereignty and to insist on the acknowledgement of the ‘place of religion in the personal, public, and political lives of the people’ (p. 36). 1 This dyad turns into a triad, when we recall the elementary social fact that ‘personal laws, on many occasions, were not derived from religion or custom but from judicial and legislative responses to familial and conjugal disputes to which religion was only incidental’ (p. 36). This ambivalence is even present in constitution—making since then. A Uniform Civil Code ‘was seen by some as necessary for national integration, and simultaneously by others as a cause for disintegration’ and ‘women’s empowerment or rights saw limited debate’ in the Constituent Assembly Debates (p. 36), which evolved ‘from the civilizational battle between tradition and modernity in the colonial period’ to the ‘Hindu Code Bill’, as an example of an ‘upper caste’ and ‘civilisational euphoria’, some variations in patriarchy also occurred through law reform reinforcing, nascent ‘competing modernities’ (p. 35).
Chapter 1 is extremely relevant to the contemporary state of affairs concerning law, governance, development, and resistance in the making/remaking of modern personal law. This occurs through different narratives, explored in Chapter 2, of ‘various state-led initiatives in recognizing, validating, reforming, or modifying customary law and ritual practices in Hindu, Muslim, and Christian family law in the 1960s’ (p. 92), and these ‘parallel narratives of Christian, Muslim, and Hindu personal laws reveal the looming shadow of the Hindu Code Bill on family law debate’ (p. 93). And in escaping the sterile binaries of success/failure, the reports became ‘a parking lot for social change as they awaited enactment and constitutional recognition, and their recommendations resurfaced in parliamentary debates in the later decades’ (p. 152). Obviously, expedient political labours were essential to convert reports into legislation but Saxena is right to suggest the these created residues of gender justice and laid (to adapt a ‘Kantian phrase’) a groundwork for the ethics of social change. But it is to Chapter 6 that we fully turn the inner morality of two central realities, first, the apex Court decisions in Shah Bano and second Daniel Latifi and the subsequent Muslim Women (Protection of Rights on Divorce pp. 282–290). In Chapter 5, the Supreme Court of India emerges as a ‘critical site’ for women’s struggle, despite ‘the court’s unpredictable responses to political and social campaigns in the recent years’ (p. 234). Saxena traces in the main, how the perplexities surrounding secularism were ‘delegated’ now to the Court and the ‘courtroom witnessed nuanced debates on religious laws and alternate readings of religious sources that the legislature had not captured’ (p. 233) One may wonder about how nuanced were these debates, or even quality of the ‘nuance’ these entailed (Ahmad & Sinha, 2019)!
One may note that adjudicative law is however marked by hermeneutical indeterminacy as well as responsible limitations on the self-discipline imposed on the scope of judicial power. So is the practice and power of legislation (legisprudence) governed by expediency and contingency of context, which often determine the context of when to make (or not to make), what law to make/unmake, how, and why. What may be the relation of law and social movements and how far do contingency and pragmatism affect equally the otherwise robust first principles of women’s and social and human rights interventions in social life? Is it a question that the historian as well as the sociologist of law may ponder differently?
Chapter 5 presents the teleological politics of the regime in power, 2 but Chapter 6 (titled ‘From the Courtroom to the Courtyard: The Public Life of Personal Law, 2000–Present’) constitutes, I believe, the heart of the book.
We are told at the outset (of Chapter 2) that ‘particularly towards the turn of the twenty-first century, innovations outside the law preceded the law and were slowly absorbed by legal institutions’ in the form of encouraging judgments, committee and commission reports, or hasty legislative interventions’ (p. 92). The 21st Law Commission of India finally acknowledged (it had before it a consultation paper in 2018) that a ‘uniform code may not yield just outcomes for women’ (p. 278)—a conclusion that also holds for both Supreme Court and Parliament which ‘put women’s demands in a precarious paradox of simultaneously opposing Hindu nationalism and also bargaining with them’, leading to many a ‘feminist divide’ (pp. 282–318).
Likewise, ‘the idea that a Uniform Civil Code would be a solution to familial patriarchy’ had largely been rejected by ‘many strands of the Indian women’s movement after considerable debate in the early 2000s’ (p. 278). Instead, many a vibrant new form of Muslim politics began to challenge ‘the imagination of a community’ in ways that represented ‘decentralization of authority on family law’ as a ‘hospitable arena’ for social action (p. 278). Whatever may be said about the ‘chaotic balancing acts’ manifest in the interplay of internal debates on ‘intervention/non-intervention’, the achievement of ‘conversation on Muslim law reform’ was that these were now in anchored ‘firmly with its stakeholders’ (p. 280). And what is more, some of these conversations found a niche in ‘hospitable arena’ of CJR (p. 278).
True, Saxena demonstrates how ‘appropriation’ of judicial observations occurs. She says: ‘Court rooms, covertly and overtly, made religion contestable. They generated unintended consequences such as encouraging campaigns for religious reforms among the clergy or taking the wind out of potential legislative interventions by settling controversial matters in courts’ (p. 268). This valuable aspect is, however, independent of the claim that the Court consolidated a Hindutva identity.
I have been in the minority of one who reads Prabhoo decision entailing strictly the context of what free speech is permitted in the larger context of permissible speech in an election context. Was not the judicial observation of ‘Hindutva as a way of life’ made during a campaign speech? Not all references to religion are corrupt practices under the Representation of Peoples’ Act; but no ‘way of life’ characterisation of any religion will withstand conclusive evidence that such a reference was intentionally made to influence the voters.
The idea that the Supreme Court of India helped consolidate any identity or conflated ‘Hindutva’ with ‘Hinduism’ by the way of life remark is at best a partisan political and at worst an interpolation masquerading as an interpretation of a text. Granting this, we need to distinguish analytically among ‘interpretation’, ‘appropriation’, and ‘interpolation’; this last is certainly different from judicially reasoned elaboration (interpretation). Interpolation has no bearing whatsoever on what justices intended to say or mean but what others in society and state want to hear or are made to hear. In this context still the distinction I make between governance-oriented secularism (GSR) and rights-oriented secularism (ROS) may make further sense in the struggle for appropriation and de-appropriation for recovery of ROS opposed to an advent of a dreadful constitutional dystopia. Baxi (2007) and also Padhy (2004) present a thoughtful appraisal of relevant judicial developments.
The point simply is that Court was not promoting any communal or partisan agenda; ways of violent social exclusion occur elsewhere in fractions of the civil society and the State power, and many of these stand addressed in terms of constitutional and human rights frameworks. An overestimation of the role of judiciary does not help in redressing forms of authoritarian legality or (what has been recently termed as) ‘democratorship’, manifesting a continuum between ‘democracy’ and ‘dictatorship’. The global struggles are directed against forms of partisan constitutionalism, which foster politics of hate, cruelty, and violence, shrinking of political space, freedom for all, and ethnonationalism (the ‘othering’ of co-citizens, and persons, even the means of their violent expulsion from the polity and society).
I turn in conclusion to two aspects. The first is the concept of doing history as a longue durée historian, a genre to which this book seeks to contribute. The history of ‘personal law’ from the colonial to the preset era in India makes a strong claim to belong that genre. But this does not accord with the originary widest possible sense that Fernand Braudel gave to it in which would include sciences such as earth sciences, climatology, demography, geography, ecohistories, and oceanology. Critical events, on this register, do emerge but ever so slowly, and imperceptibly and eventually lead to drastic and large global results, and may even in planetary destruction. Or in another sense, one contrasts the long duration with (what François Simiand called) histoire événementielle (‘eventual history’, the short-term timescale). Indeed, there is some evidence of pullback and longue durée, as considered by Braudel, is even considered as a flawed practice of historiography (Guldi & Armitage, 2017). The limited question here is: Which may be the best points of departure for law and social studies? Saxena wisely adopts a midpoint frame, (p. 322) avoiding geological time scale and schedules of presentism. Implicit is the very important point that a social historian of law may adopt varying timescales (except when one is pursuing planetary contexts of anthropogenic harm).
The second is the matter that concerns ‘negotiation’, a pivotal notion which is, more or less, central to the book, and certainly to Chapter 6, which is concerned with ‘the unrecorded and unwritten experience of engaging the law’ that provides ‘meaningful insights on women’s relationship with the state, religious community, and contemporary politics’. Often this ‘shared adjudication … and inter-legality’ allowing in personal law to alter the terms of engagement and deploy new strategies of engagement or resistance against religious, communitarian, and state patriarchy (p. 279).
‘Negotiation’ is surrounded by many neighbouring conceptions: ‘engagement’, ‘accommodation’ ‘bargaining’, and ‘dialogue’ but it has a self-evident core of meaning entailing practices of institutional of shared outcomes, building coalitions even with ‘strange bedfellows’, and ad hoc networks for specific cause, and strategies for handling disagreements through ‘dialogue’ in a given change context (pp. 282–287). Saxena is of course not theory averse but some of us go further to reiterate, with William James, that nothing is more practical than a good theory.
In this context, the early contributions of ‘democratic bargaining’ as an essential feature of ‘negotiations’ remain, important. Such bargaining occurs in the ‘shadow of law’ (Mnookin & Kornhauser, 1979), whether legislative, adjudicatory, or folk law. It is important to take account of both the aspects, theoretical and empirical. It is in that context, that we must go back to the germinal work of Robert Dhal and Charles Lindblom (1953), who described bargaining as a form of ‘reciprocal control’ burdened always by the conditions and circumstances of social pluralism, and part disagreement, or what John Rawls describes as ‘overlapping consensus’. Dahl (1956) spoke famously of ‘endless bargaining’ that characterises American politics (we should add) and law, and accepted hierarchic inequality but he articulated a powerful caveat against ‘unjustified forms of inequality’. Overall, while collective groups may claim authorship of any specific policy, but we lack much understanding of the dynamics of any collective responsibility for policymaking. Ensuring such associational or group responsibility for action or inaction remains a major problem for any theoretical approach to negotiation as democratic bargaining.