One-third of the world’s population lives under personal law systems. These systems regulate family matters by applying different ‘personal laws’ – ostensibly based on religious doctrine – to people depending on the religious group with which they are identified. Personal law systems generally raise serious concerns relating to religious freedom, non-discrimination, familial rights and procedural rights. Despite these concerns, complex political considerations keep personal law systems in place, and thwart efforts to reform them. This article proposes a way out of the stalemate that has dogged efforts to reform the personal law system in India, the country with the largest number of people living under such a system. This proposal entails the enactment of a uniform family law supplemented by a regime of state-recognized religious alternative dispute settlement. The article argues that this proposal has the potential to address major concerns raised by the personal law system, provide a means of valuable recognition for religious identities, support religious practice and religious expression, promote justice for women, and enhance group autonomy. The article also offers a number of recommendations that would help the proposed regime realize its potential. Finally, the article indicates its significance beyond India, for other jurisdictions facing contentious issues relating to the accommodation of religious norms in family law.
One-third of the world’s population lives under personal law systems ( Sezgin, 2013 : 3). These systems regulate family matters by applying different ‘personal laws’ – ostensibly based on religious doctrine – to people depending on the religious group with which they are identified. Varieties of personal law systems are found in Pakistan, Bangladesh, Sri Lanka, Singapore, Malaysia, Israel, and South Africa, amongst other jurisdictions. Personal law systems generally raise serious concerns relating to religious freedom; equality and non-discrimination; marital and familial rights; and procedural rights ( Sezgin, 2013 ; Ahmed, 2016 ). Despite these concerns, complex political considerations keep personal law systems in place, and thwart efforts to reform them ( Sezgin, 2013 : 19–42). This article proposes a way out of the stalemate that has dogged efforts to reform the personal law system in India, the country with the largest number of people living under such a system. Beyond India, this proposal is highly significant for other jurisdictions facing contentious issues relating to the accommodation of religious norms in family law.
Under the Indian personal law system, those identified by the state as Hindus (a legal category which includes Buddhists, Sikhs, and Jains), Muslims, Parsis, Jews, or Christians are governed by laws ostensibly based on the religious doctrine and the norms of their religious group. 1 (The table appended to this article offers an illustration of how the personal law system applies different rules to those subject to it, depending on their religion and gender.) When the Indian Constitution was enacted, large areas of private law were already codified and uniformly applied across India. 2 Family law, however, was not codified. The Indian Constitution’s direction to the state to endeavour to secure a uniform civil code throughout the territory of India 3 therefore amounts to a direction to enact a code of uniform family laws to replace the personal law system.
The persistence of the personal law system in the face of the constitutional directive to create uniform family laws raises difficult questions about India’s constitutional commitments to secularism, gender equality, and religious freedom: questions that resonate with other jurisdictions with personal law systems. The rules of the personal law system, for instance, relating to marriage, divorce, and alimony, are criticized as unjust, harmful, discriminatory against women, and contrary to constitutional guarantees of gender equality ( Parashar, 1992 ; Agnes, 1999 ; Jaising, 2005 ). 4 The personal law system has been further criticized for harming religious freedom, failing to recognize some religious identities, and for misrecognizing other religious identities and heterodox religious norms ( Ahmed, 2016 ). Moreover, the application of religious law sits uneasily with India’s constitutional status as a secular state.
There is, therefore, strong support from some corners for the abrogation of personal laws and their replacement with uniform family law, as directed by the Constitution. This support includes political support from the Bharatiya Janata Party. The stated aim of this call for reform is to rectify the gender-related problems of the personal laws ( Bharatiya Janata Party, 2004 ) – especially Muslim personal law – and to put an end to the system’s (supposed) tendency to promote religious communalism 5 and undermine national unity ( Agnes, 2011 : 117). However, there is also opposition to the enactment of uniform family laws from a number of fronts. Calls from Hindu nationalists for uniform family laws are thought to carry a negative subtext about Indian Muslims ( Kapur and Cossman, 1996 ; Agnes, 2011 : 117–18): that they are ‘obscurantist and fundamentalist’ ( Hasan, 2005 : 363), ‘barbaric’, 6 and not as committed as other groups to ‘the cause of national unity and integration’ ( Agnes, 2011 : 163). Many fear therefore that supporting the enactment of uniform family laws may be read as support for Hindu nationalism and an endorsement of this negative subtext relating to Indian Muslims ( Kapur and Cossman, 1996 : 260; Redding, 2006 ; Agnes, 2011 ). Others oppose uniform family laws because of concerns that they would reflect Hindu norms to the exclusion of others ( Nussbaum, 2004 ). Many who defend the personal law system appeal to religious freedom ( Williams, 2006 : 100–01) and minority group autonomy. 7 Further, for some Indian Muslims, the personal laws have become associated with group identity in such a way that calls for abolition are perceived as an attack on their identity group, and as forced assimilation ( Hasan, 1994 : xiii; Mahajan, 1998 : 107–08), which in turn leads some commentators to argue that the legal reform of Muslim personal law against the wishes of Indian Muslims would be an instance of Hindu oppression ( Spinner-Halev, 2001 : 94–99; Noorani, 2014 ).
Here is the dilemma: to maintain the personal law system would be to disregard a constitutional directive and perpetuate a harmful, discriminatory, unjust (and arguably unconstitutional) system; to abolish it in favour of uniform family laws would be to raise the concerns about oppressive assimilation, religious freedom, group autonomy, and pejorative casting of Indian Muslims described above. This dilemma has led to an intractable stalemate that has persisted through seven decades of debate and political activism around the personal law system ( Larson, 2001 : vii ; Ahmed, 2006 ).
This article therefore proposes a novel and unexplored reform possibility: supplementing the enactment of uniform family laws with a well-regulated state-recognized regime of religious alternative dispute resolution (ADR). It argues that this reform proposal has significant advantages compared to both the personal law system and uniform family laws alone, and averts the stalemate that has dogged the reform of the Indian personal law system. It argues that three major problems associated with the Indian personal law system – misrecognition and non-recognition of religious identities; interference with religious freedom; and discrimination and injustice for women – would be ameliorated by the adoption of this proposal. It further argues that the reform proposal would enhance group autonomy.
The argument and proposal defended here are significant for other jurisdictions with personal law systems. India shares personal laws with other jurisdictions: the Dissolution of Muslim Marriages Act 1939 in force in India also applies in Pakistan and Bangladesh. 8 Some aspects of the Indian personal law system have influenced those of other states: eg Pakistan, 9 Uganda, and Kenya ( Virdi, 1972 : 39–42; Shah, 2003 : 371). Moreover the Indian personal law system is influential in debates about how to reform personal law systems in other jurisdictions. Commentators on the South African personal law system learn from aspects of the Indian system ( Rautenbach, 2006 ). Comparisons between the personal law system of India and the millet system in Israel are thought to be helpful in addressing the human rights concerns raised by both ( Galanter and Krishnan, 2001 ). The Indian personal law system has been chosen for comparison with those of Israel and Egypt with respect to their implications for human rights ( Sezgin, 2013 ). It has even been argued that Western liberal jurisdictions such as the USA should look to the Indian personal law system for a lesson in how the law can support multiple conceptions of marriage ( Nichols, 2007 ). More generally, the Indian personal law system is highly visible in academic (and to some extent judicial) dialogue between jurisdictions with personal law systems (see generally, Menski, 2003 : 592; Shah, 2008 ).
Besides its significance for India and other jurisdictions with personal law systems, in defending a system of family law, which recognizes religious ADR, this proposal contributes to debates in liberal jurisdictions such as Canada ( Moon, 2008 ), Australia ( Krayem, 2014 ), the UK ( Poulter, 1990 ; Williams, 2008 ), and the US ( Estin, 2004 ) where religious ADR is fiercely controversial. The following section describes the reform proposal (which will be defended in Sections III–VI below) against the context of relevant Indian law.
II. UNIFORM FAMILY LAW AND RELIGIOUS ADR
This article argues that the enactment of uniform family laws supplemented by religious ADR represents a way out of the current stalemate. This section will show that the Indian legal system already has the germ of both a framework of uniform family law and a regime of state-recognized religious ADR, making the proposed reform particularly viable.
The Special Marriage Act 1954, an ostensibly secular enactment, allows the registration of marriages solemnized according to both civil and traditional or religious ceremonies. 10 The Special Marriage Act allows two people of the same or different faiths to marry, does not recognize polygamous marriages, 11 does not grant men a more expansive power of divorce than it does women, 12 and gives courts the power to grant alimony or maintenance to the woman. 13 In another move towards more uniform marriage laws, the Supreme Court has directed the central and state governments to provide for the registration of all marriages, regardless of religion. 14
But the Special Marriage Act 1954 has major limitations. Only those marriages registered under the Act are governed by its provisions. 15 The Act has not been well publicized, and only a small number of marriages are actually registered under it ( Agnes, 2011 : 97). Flavia Agnes notes:
Besides a lack of awareness about the existence of this enactment, there are serious practical difficulties in having a marriage solemnized under the Act ( Kapoor, 2007 ). One account of an attempt to register a marriage under the Act suggests that it was impossible to do so without identifying the religion(s) of the couple ( Kapoor, 2007 ). The provisions of the Act, and their implementation, make it difficult for people who wish to marry against the wishes of their families to do so ( Venkatesan, 2013 ). Moreover, if a Hindu marries someone identified by the personal law system as non-Hindu under the Act, his property rights might be adversely affected. 16 Despite these limitations, the Special Marriage Act, with appropriate amendments and better public awareness of its provisions has the potential to serve as a uniform marriage law for India.
Though the Act has been in existence for a long time, it is the least publicized legislation and is shrouded by misconceptions. The most common misconception which prevails is that this law is to be used only in cases of inter-religious or inter-caste marriages, or ‘love’ marriages, which term refers to marriages of choice contracted against parental wishes. The fact that anyone, including those belonging to the same religion, can opt to get married under this Act has not been sufficiently highlighted. ( Agnes, 2011 : 92).
When people marry or register their marriage under the Special Marriage Act, they are also automatically governed by the Indian Succession Act 1925, 17 unless they are both considered ‘Hindu’ by the system. 18 The Indian Succession Act, again while not without limitations, has the potential to serve as a uniform law of inheritance and succession ( Agnes, 2011 : 66–67). There are other uniform family laws. Maintenance may be claimed from a person by his parents, minor children, wives, and ex-wives 19 under the Code of Criminal Procedure 1973, which therefore applies almost uniformly. The Guardians and Wards Act 1890, which deals with guardianship of minors, applies regardless of one’s personal law group. 20 In 2006, an amendment to the Juvenile Justice (Care and Protection of Children) Act 2000 allowed people of any personal law group to adopt children who are orphaned, abandoned, neglected, or abused 21 . There is also currently uniformity in institutional arrangements relating to family law: the Family Courts Act 1984 sets up a system of courts hearing family law disputes.
India does not currently have an ideal uniform regime of family laws. The laws just described form an unsystematic patchwork which is not perfect, uniform, comprehensive, or accessible by all. But these laws could form the basis for a genuinely uniform and just family law regime for India. This article will go on to argue that supplementing this regime with state-recognized religious ADR would have significant advantages. Firstly, though, what is religious ADR?
Religious ADR refers to arbitration, mediation, or conciliation conducted according to religious norms. Religious ADR, where it exists, is generally agreed to by parties in a contract as a means of resolving a dispute. Under Indian law as in most jurisdictions, arbitration is binding on the parties to it, 22 but mediation and conciliation are normally non-binding ( Atlas et al, 2000 : 5–6, 309–11). However, even parties to a mediation or conciliation may choose to sign a settlement agreement binding them to the terms of their (otherwise) non-binding mediation or conciliation settlement; this agreement would then be legally enforceable. 23
Religious ADR could be used to settle many disputes currently governed by the personal law system such as the terms of a divorce, disputes relating to maintenance and the division of marital property, as well as disputes relating to inheritance. 24 However, statuses such as marriage, divorce or adoption are not usually subject to ADR. 25 The contractual norms governing religious ADR – the procedure to be followed, the person(s) who will arbitrate, mediate, or conciliate, and the norms by which the dispute will be resolved – can be decided privately by the parties. But the parties could also approach existing organizations that conduct religious ADR. These organizations (examples of which are discussed in the sections that follow) may have standard-form contracts which assist parties in establishing an ADR mechanism to resolve their dispute. They can also provide access to arbitrators, mediators, conciliators, legal practitioners, social workers, and other state actors such as the police ( Solanki, 2011 : 54).
ADR is already well established in India. State courts and tribunals do not currently monopolize dispute resolution. Nor is the constitutional directive to establish a uniform civil code 26 thought to preclude ADR. Private arbitration, conciliation, and mediation are recognized, facilitated, and encouraged in many areas of law – including, to some degree, in family law ( Malhotra and Malhotra, 2010 ). 27 Judicial decisions reveal a range of family law disputes that have been referred to binding arbitration. 28 Members of the Parsi community, at one point, campaigned for a system of arbitration for Parsis ( Sharafi, 2006 : 192). In the sections that follow, this article argues that the existing facilities for ADR in the Indian legal system should be developed, modified, and publicized so that religious ADR becomes a meaningful option for those who wish to be governed by religious norms in family law.
The debates on the accommodation of religious norms in family law in many Western jurisdictions (see generally, Ahdar and Aroney, 2010 ) have focused on religious ADR as a mode of accommodation of religious norms in family law. At the same time, religious ADR has been given very little attention in the academic and political debates on the reform of the personal law system in India, 29 despite the growth of religious ADR fora in India. As Gopika Solanki notes, in matters of marriage and divorce, ‘the Indian state has adopted … a model of shared adjudication, in which the state splits its adjudicative authority with social actors and organizations in the regulation of marriage and divorce among a section of religious and caste groups and other actors’ ( Solanki, 2011 : 10). Thus, religious ADR deserves to be taken seriously as part of any proposal for the reform of the personal law system.
This article proposes that religious ADR should supplement uniform family laws. It should be open to people to use religious ADR to decide those family law matters which can be resolved using ADR – eg financial terms of a divorce, disputes relating to maintenance and the division of marital property, as well as disputes relating to inheritance. 30 Meanwhile, uniform family laws would apply to statuses such as marriage, divorce, or adoption, which are not usually subject to ADR. The sections that follow argue that uniform family laws supplemented by an appropriately modified regime of religious ADR would address major problems with the current personal law system and would have significant advantages over both the personal law system as well as a regime of uniform family laws alone. In particular, these sections argue that uniform family law supplemented by religious ADR has the potential to provide a means of valuable recognition to religious identities (Section III); support religious practice and religious expression (Section IV); promote justice for women (Section V), and enhance group autonomy (Section VI).
III. RECOGNITION OF RELIGIOUS IDENTITIES
India’s personal law system, on its face, appears to provide recognition for religious identities. But in fact, a major problem with the system is that it treats individuals with misrecognition and non-recognition ( Ahmed, 2016 : 111–13). Charles Taylor explains the harm that misrecognition and non-recognition cause:
Non-recognition and misrecognition are, as Taylor’s remarks suggest, damaging, disrespectful and among the most grating insults to which we could subject a person. Non-recognition comes in many forms. Treating a person as if they did not exist, as if they were invisible, or as if they made no mark on the world can certainly have a devastating effect on them. Failing to recognize the very existence of people and treating them as if they were invisible is perhaps an extreme case of misrecognition – of failing to recognize the truth about their existence or some aspect of their selves. This may account for the offence that people feel when facts are assumed about them (eg based on generalized associations or stereotypes), which are not true. There is certainly some evidence to suggest that that this kind of misrecognition, such as having one’s name misspelled or mispronounced or having significant facts relating to identity misrepresented, is often taken as a personal insult ( Gabriel, 1998 ; Jones et al, 2002 ). Misrecognition or non-recognition can be particularly wounding because it may suggest that the person in question is so insignificant that it is not worth the trouble of finding out or remembering even the most basic facts about her.
… our identity is partly shaped by recognition or its absence, often by the mis recognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves. Non-recognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being ( Taylor, 1994 : 25).
The personal law system shows little regard for how people identify themselves and what their understanding of their religion really is. It often identifies people in terms different from the terms in which they identify themselves ( Ahmed, 2016 : ch 6). By applying a single, state-endorsed religious interpretation to all those whom the state identifies as belonging to a particular religious group, it ignores the fact that the religious interpretations of many people within this group may well deviate from that of the state. For instance, a Hindu who does not believe that a ‘coparcenary’ is a part of the Hindu religion is nevertheless governed by Hindu personal law, which treats this belief as if it is an essential part of the Hindu religion. By bundling together a religious label – ‘Hindu’, ‘Muslim’, etc – with a certain interpretation of that religion, the personal law system misrecognizes or fails to appropriately recognize those who identify with that religion, but do not share the personal law system’s interpretation of religious doctrine. Despite the fact that a person’s understanding of their religion may be central to their identity and self-perception, it is not important enough (it may seem) for the state to take the trouble to do more than paint everyone in one personal law group with the same brush.
Others are misrecognized even more dramatically. Sikhs, Jains, and Buddhists, who do not generally think of themselves as Hindu, are identified as ‘Hindu’ by the personal law system. There is evidence that this is perceived as insulting and disrespectful. 31 The displeasure of the Sikh community at not having their own marriage law, 32 as well as official comments that having a separate Sikh family law ‘would invite similar demands from other religious denominations’ (presumably Jains and Buddhists), indicates that their non-recognition by the personal law system has the worrying consequences that Charles Taylor describes above. Thus Sikhs, Jains, and Buddhists, along with those whose religious beliefs deviate from the rules of their personal law, are misrecognized by being subsumed under existing personal law categories. But at least Sikhs, Jains, and Buddhists are mentioned by name in Hindu personal law. Others – Baha’is, atheists, agnostics and smaller and newer religious movements – are even worse off, for they are neither mentioned nor recognized at all by the personal law system. Such people are ignored or misrecognized by the system in ways likely to harm their self-respect.
Religious ADR, in contrast to the personal law system, would not misrecognize religious identities. People would only use religious ADR if they wanted to. Section V will discuss signs that a range of religious ADR organizations of a variety of schools, sects and heterodox religious interpretations are developing in India. Since this would be an opt-in system, an individual would only be associated with a particular organization if they chose to. Not only would this minimize misrecognition, it might also provide a means of valuable recognition. Heterodox individuals or ‘micro-minorities’, such as Baha’is or tribal indigenous groups, might find in these religious ADR organizations both the locus of a religious group and a means of valuable recognition. Religious ADR as a supplement to the uniform family law, by preventing the misrecognition of religious identities, and providing the potential for valuable recognition, represents a significant advantage over the personal law system, as well as a regime of uniform family law alone.
IV. SUPPORT FOR RELIGIOUS PRACTICE AND EXPRESSION
As the previous section shows, under the personal law system, the state takes a ‘cookie-cutter’ approach to religion that applies the state’s understanding of Hindu, Muslim, Jewish, or other religious norms to those that the state identifies as belonging to those religious groups. In the course of this process, the state often ends up applying personal laws to those who may not endorse them. Both the personal law system and any proposed uniform family law, by obliging people to organize their lives according to certain norms, stand in the way of those who endorse other norms (usually religious norms, in this context) from organizing their lives in accordance with them. They stand in the way therefore of religious practice and expression.
On the other hand, the regime proposed here is a form of ‘cultural voluntarism’ ( Eekelaar 2010 ), under which individuals always have resort to both general state law as well as religious ADR tailored to their beliefs. While the personal law system only applies (the state’s version of) the norms of five defined religious groups, religious ADR would permit those who disagree with the state-endorsed version of their religious doctrine, or members of new religious movements, or those belonging to groups that are not recognized by the personal law system (eg Baha’is), to order their lives according to their religious beliefs. They could use religious ADR to ensure that their disputes are settled according to their own religious norms, and, furthermore, settled by people that they trust to interpret those norms. Further, those who reject religion or have no religious beliefs would be free to make ADR arrangements based on other norms, or indeed to follow uniform family laws. Thus, supplementing uniform family laws with religious ADR gives an opportunity to practice religion in family law matters to those who want it. This would allay the concerns about oppressive assimilation that are often raised against the enactment of uniform family law.
Moreover, giving people the opportunity to use religious ADR gives them an important means of religious expression. In their daily lives, religious people may not have much of an opportunity to promote or aid their religion, eg by proselytizing 33 or raising money for religious causes. Symbols of religious commitment may therefore be of great significance to religious people ( Adams, 1997 ). If a person cannot do anything for her religion, at least she can express that she is for her religion. Making a commitment to use religious ADR in family matters could be a way for such a person to express this sentiment.
V. JUSTICE FOR WOMEN
As mentioned earlier, a major criticism of the personal law system is that it harms, and discriminates against, women. There is reason to think that religious ADR would be better for women than the personal law system. The establishment of the All India Muslim Women’s Personal Law Board, sharia courts and ‘jamaats’ run by women across the country, and the involvement of Muslim women’s NGOs such as Bharatiya Muslim Mahila Aandolan and Awaaz-e-Niswan ( Aawaaz-e-Niswaan, 2011) in developing gender-just interpretations of religion for religious ADR are promising signs ( De, 2013b ; see also Ilangovan and Dutta, 2013 ; Rashid, 2013 ). One scholar offers this account of the activities of a women’s religious ADR group:
[they] arbitrate in cases of marital disputes and custody matters and assist with legal aid. They challenge the clergy in their orthodox interpretation of Islam and help women obtain faskh or khula [types of divorce] through qazis [clergy] who are known to hand down women-friendly judgments. The committee also participates in various campaigns to work towards legal reforms. These groups draw on their own ideas of [religious] law ( Solanki, 2011 : 291–92).
The emergence of these new religious ADR providers also opens up a ‘competition’ between religious ADR organizations offering different visions of religious doctrine – including between patriarchal and gender-just organizations. Gopika Solanki’s account of the ADR organizations of three communities in India indicates that ‘internally democratic caste panchayats that interact with external actors – political parties, special movements, women’s organizations, religious organizations, and trade unions – are more likely to evolve democratic justice systems, interact with different sections of the society, and increase women’s options for justice .’ ( Solanki, 2011 : 253).
Despite the development of these gender-just ADR organizations, it is important to acknowledge the danger that religious ADR might use norms which disadvantage women. Critics of religious ADR might point to religious norms that deny women equal inheritance rights, 34 that make it difficult for them to get a religious divorce 35 or that treat them as the wards of men. To prevent this possibility, it is important to introduce safeguards that would prevent the enforcement of such discriminatory norms. Muslim women in India are already campaigning for the expansion of legal recognition of religious ADR. 36 This legal recognition could be coupled with threshold requirements for the recognition or enforcement of the outcome of a religious ADR process. Indian law already requires that that ADR processes that seek legal recognition follow natural justice 37 and that their outcome not be contrary to public policy. 38 Indian law should require still more of ADR processes (including religious ADR processes) in family law. For instance, in the Canadian case Miglin v Miglin , 39 the Supreme Court, faced with a spousal separation agreement, assessed not just whether the agreement was entered into freely but also the substance of the agreement, including the extent to which the agreement was in compliance with the objectives of Canadian family legislation. The court thus acknowledged the need to ‘recognize economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.’ 40 If it were a condition for the enforcement of every ADR agreement, including a religious ADR agreement, that it be substantially compliant with conditions such as those identified by Miglin , then agreements which are unfair or discriminatory are highly unlikely to be enforced.
Safeguards against the coercion of women and vulnerable people are also needed. Gopika Solanki’s account of the ADR systems of three communities in India shows that they are sometimes coercive, using tactics of social boycott, shame, intimidation, and ridicule ( Solanki, 2011 : 329). The common law rules of contract, including doctrines of unconscionability, coercion, undue influence, and duress, may be used to invalidate an ADR agreement, or any contract, award or settlement arising out of the ADR (see generally Bakht, 2004 ). Further safeguards would allow courts to intervene even in circumstances that do not rise to the level of unconscionability. 41 For instance, the Supreme Court of Canada has held that courts are to consider ‘circumstances of oppression, pressure, or other vulnerabilities’ when reading family law agreements, and to ‘assess the extent to which enforcement of the agreement still reflects the original intention of the parties’. 42
Different safeguards may need to be developed for religious ADR depending on whether it takes the form of mediation or arbitration. While mediation in family disputes is fairly well established in common law jurisdictions, there has long been suspicion of arbitration of family disputes. As a result, there is currently some uncertainty about the degree to which courts in the UK are bound by arbitration awards on family law matters ( Ferguson, 2013 ; Ferguson, 2015 ). Arbitration of family disputes certainly requires particular sensitivity to imbalances of power and the potential for coercion, which may not be salient in the typical commercial arbitration ( Kennett, 2016 ). The experience (including the hiccoughs) of other common law jurisdictions, such as the UK, in developing family law arbitration regimes could be useful in developing safeguards for religious arbitration in India. The judgment of AI v MT43 decided by the English High Court might offer a good example of how religious arbitration could operate with appropriate safeguards. Here the parties wished to resolve their family disputes through religious arbitration at the New York Beth Din . The judge sought information from the parties on the principles the Beth Din would use in the arbitration, clarified the legal status of the arbitration to the parties and decided urgent interim matters while the arbitration was underway. The judge concluded:
… at a time when there is much comment about the antagonism between the religious and secular elements of society, it was notable that the court was able not only to accommodate the parties’ wish to resolve their dispute by reference to their religious authorities, but also buttress that process at crucial stages – by adjourning the case for arbitration; by using wardship as a protective mechanism for the children pending the outcome of the arbitration; by making the ‘safe harbour’ orders that enabled the mother to travel to New York with M for the purpose of taking part in the process; by holding an emergency interim contact hearing; and by giving provisional approval of the draft final order to facilitate the granting of the Get. In this respect, this case illustrates the principle propounded by Archbishop Rowan Williams in his 2008 lecture ‘Civil and Religious Law in England: a Religious Perspective’ … that ‘citizenship in a secular society should not necessitate the abandoning of religious discipline, any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship’. 44
Beyond introducing the safeguards already discussed, the Indian state could also accredit or license religious ADR organizations such as the Bharatiya Muslim Mahila Aandolan who operate on gender-just principles, so that the outcomes of their processes are readily recognized and enforced by state courts. Equally the state could refuse to accredit or license religious ADR organizations that do not operate on gender-just principles. The state could also offer free or subsidized professional development courses to religious ADR organizations that educate arbitrators, conciliators and mediators on the requirements of Indian family law, including the safeguards proposed above, and the threshold requirements ADR processes must meet for their outcomes to be enforced in India. Additionally, the state could subsidize and provide funding to gender-just religious ADR organizations, and publicize the availability of their services. This will give all religious ADR organizations an incentive to provide gender-just ADR services to those who use them.
If the state supports gender-just religious ADR organizations, if courts develop a robust jurisprudence ensuring that religious ADR outcomes in family law matters are only enforced when they are substantively just, and if safeguards ensure that the ADR processes are entered into freely, religious ADR has the potential to deliver better outcomes for women than the personal law system currently does. It also has the potential to deliver better outcomes than a regime of uniform family law alone. Given the pressure that women in India have traditionally faced to support personal laws ( Ahmed, 2010 ), there is a danger that in the absence of accessible religious ADR, women would be coerced into unofficial informal forms of dispute resolution ( Bader, 2009 : 50–53) which operate ‘under the radar’ of state law and may well be unjust and harmful. In other words, if personal law is abolished, uniform family law is not the only option. Religious or cultural communities or families could serve as informal forums of dispute resolution. Many Indian societies feature well-established unofficial forms of dispute resolution ( De 2013a ). 45 For instance, khap panchayats (caste-based village councils) are both a widespread and controversial forum for resolution of disputes, including those on family matters ( Bavinck, 2001 ; Baxi, 2006 ). Religious bodies such as the Dar ul Qaza settle some disputes between Muslims and have little or no interaction with the state ( Redding, 2010 ; Rajalakshmi, 2013 ). These dispute resolution fora would lack the important safeguards – access to courts, natural justice, prospective rules, and other threshold requirements – available to those governed by the religious ADR mechanisms described in this paper. Moreover, religious ADR organizations, as sites for women to organize collectively, have the potential to offer women access to justice and support; the enactment of uniform family laws alone cannot achieve this.
VI. GROUP AUTONOMY
The personal law system is sometimes thought of as a form of autonomy for religious groups ( Lijphart, 1996 : 260–61). Group autonomy is the ideal of a group governing itself and shaping its own path. Group autonomy is diminished when a group is coerced or dictated to by an outside force such as the state, a person or another group. 46 While a group does not need to be perfectly democratic in order to be autonomous, it does need to have to be minimally representative and deliberative. In other words, group autonomy is ‘something that can be exercised by a collective as a whole , rather than individually by persons in a group’ ( Wellman, 2003 : 273).
There are many reasons why the personal law system does not, in fact, promote group autonomy. First, the personal laws are applied by state courts and, generally speaking, administered by state officials. Under the personal law system, the state, rather than the religious group, decides on who qualifies as a member ( Ahmed, 2016 : ch 2). The personal law system thus does not allow groups to decide on the boundaries of their own membership, which is a necessary precondition for group autonomy ( Réaume, 1995 : 121). Second, the state, not the group decides which norms the personal law system applies to religious groups. If group autonomy means anything, it surely means that the group should decide for itself the norms by which it is governed. But the personal law system ossifies the state’s interpretation of each religion into law. Third, unlike millet- style arrangements ( Kymlicka, 1992 ), India’s personal law system does not recognize representatives or leaders from amongst the recognized religious groups. Nor is there a process for choosing leaders. It is true that there are those who claim to speak for minority groups and that their opinion has been taken as the opinion of the group by the Indian state in debates about the future of the personal law system. But the personal law system itself does not recognize them as group leaders. In any case, a group is not autonomous when group leaders are identified by the state , rather than the group itself ( Ahdar and Leigh, 2005 : 338–46). Leaders whose positions are dependent on the state’s identification of them as such are less likely to represent the group’s interest, especially if it involves challenging the state. Since under the personal law system, religious groups do not benefit from control of the boundaries of their membership, their norms or representative leaders, it is difficult to argue that the system promotes group autonomy.
Religious ADR, meanwhile, does have the potential to enhance group autonomy. When a religious group has members that consent to ADR arrangements, it can be said to govern itself or be autonomous at least over matters amenable to ADR. By enhancing group autonomy, religious ADR organizations have the potential (but only the potential) to benefit their members through better representation. This can occur at two levels ( Ahmed, 2013 : 41–42). The first is at the level of the religious group as a whole. That is, religious ADR organizations representing each religion could develop into organizations of governance. For instance, the All India Muslim Personal Law Board, which initially was concerned only with the preservation of Muslim Personal Law, eventually developed into a lobbying group on general issues relating to Indian Muslims. 47 The group’s representatives in these organizations might give group members the opportunity to be governed, at least in some matters, by those who share their values, and who therefore represent them better.
Religious ADR also has the potential to enhance group autonomy at a second level by providing a locus for smaller groups, or movements within larger religious groups ( Ahmed, 2013 : 41–42). For instance, Anver Emon, a commentator on the debate over religious ADR in the Canadian province of Ontario, offers a proposal for how religious ADR can be used to allow Muslims to develop new and heterodox forms of sharia :
Imagine a political spectrum of Muslim family service organizations. Those on the left might critically engage the Islamic legal tradition, concluding, for instance, that the Sharia can accommodate same-sex marriage and divorce and offer those services to gay and lesbian Muslims. Those on the right might instead follow a more traditional or even patriarchal Sharia law regime. Other Muslim family service organizations might advocate positions between these poles. Ultimately, Muslims who desire religiously-based family law services would have different organizations to choose from, thereby giving them a choice between competing visions of Islamic law ( Emon, 2008 : 423).
Emon’s proposal, of course, could equally be applied to other religious groups. We can see signs of this already in India, with the establishment of the All India Shia Personal Law Board, women’s sharia courts and other Muslim NGOs which challenge the claimed authority of the All India Muslim Personal Law Board to facilitate religious ADR ( De 2013b ). Religious ADR, unlike the personal law system and uniform family laws, can thus allow religious persons to be governed (at least in family matters) by religious organizations whose values closely fit their own.
By providing religious groups with control over the boundaries of membership and the norms which it will apply to its members, as well as over who resolves disputes, religious ADR organizations have the potential to enhance group autonomy. The Indian state could nurture this potential by accrediting or certifying religious ADR organizations that have the potential to enhance group autonomy and offering these organizations subsidies or state funding. Besides promoting group autonomy, such support could relieve the significant case load pressures on the Indian court system.
Nearly seven decades after the adoption of its Constitution, India has yet to ‘secure for the citizens a uniform civil code throughout the territory of India’, even though the Constitution declares this principle to be ‘fundamental in the governance of the country’ and ‘the duty of the State to apply’. 48 This article offers a way around the stalemate that dogs attempts to fulfil the constitutional directive on the uniform civil code. That stalemate is largely the result of the association of uniform family law with the pejorative stereotyping and oppressive assimilation of Indian Muslims. The proposal defended in this article disrupts that association by supplementing the enactment of uniform family law with religious ADR, allowing those who seek to regulate aspects of their family life with religious norms to do so. This proposal offers significant advantages compared with both the retention of the personal law system and the enactment of uniform family laws alone. It has the potential to address major concerns raised by the personal law system and to provide a means of valuable recognition to religious identities, support religious practice and religious expression, promote justice for women, and enhance group autonomy. This article offers a number of recommendations that would help the proposed regime realize its potential. These include the certification and funding of religious ADR organizations that operate on gender-just principles, and are representative of group members; threshold requirements of fairness, justice and consent for legal recognition of religious ADR outcomes; and initiatives to educate arbitrators, conciliators, and mediators in religious ADR processes on the requirements of Indian family law. Overall, this proposal offers hope for progress on an old and intractable set of problems in India.
As the introduction to this article indicated, personal law systems in several jurisdictions face similar problems. The legal and political factors that preserve these systems despite their incongruence with human rights are highly contextual. However, the proposal presented in this article, which has enormous promise in the Indian context, might well contribute to the development of reform proposals in other jurisdictions with personal law systems. The arguments made here have implications for jurisdictions without personal law systems as well. Many states without personal law systems recognize them through private international law ( Parashar, 1982 : 192–93; Shah, 2003,Fournier, 2005,Fournier, 2010 ), where they do not contravene public policy, public order, and international conventions ( Fournier, 2005 ). By highlighting key concerns with personal law systems, the article suggests further limits to the reception of personal laws through private international law. Finally, this article draws attention to several advantages of religious ADR over both personal law systems and uniform family law, and defends a regime that involves religious ADR. Its findings could contribute to the fierce debates about the justifiability of religious ADR that continue to rage in many Western liberal jurisdictions.
The author thanks Tarun Khaitan, Jarrod Hepburn, participants at the ‘Regulating Religion’ workshop held at the National University of Singapore, and this Journal for very helpful feedback. The Law Research Service at Melbourne Law School provided invaluable assistance in preparing this article.
|I. Hindu||II. Muslim||III. Christian||IV. Parsi||V. Jewish|
|Adoption and Guardianship|
|I. Hindu||II. Muslim||III. Christian||IV. Parsi||V. Jewish|
|Adoption and Guardianship|