Essay on Legal

18607 Words Nov 5th, 2014 75 Pages

The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda
By Werner Menski ∗

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 nonjusticiable 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
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09 No. 03

legal uniformity, but in considered, carefully weighed respect for diversity. Globalisation, we are told elsewhere, comes out prominently as localisation, 1 creating new hybrid entities of ever-growing plurality. Therefore, we must learn to handle and understand more deeply how plural legal arrangements operate and what their potential is for making progressive improvements to human lives and sustainable development. At first, India’s persuasively official postcolonial programme for introduction of a Uniform Civil Code seemed to follow the West, embodying a newly invigorated civilising mission, a clarion call for consolidated nation-building and the achievement of legal modernity through top-down state-driven secularising reforms. This exciting national vision for development was embraced with fervent enthusiasm by Eurocentric and Europhilic modernists everywhere in the world and India received much praise for this agenda item. Many Indians, including some Supreme Court judges, fired this supposedly “progressive” ambition with authoritative and seemingly persuasive calls for fundamental reforms, demanding less confusion in the jungle of personal laws, sometimes even claiming to be able to rid India of “culture” and “tradition”, “customs” and “religion”, all those contaminating and supposedly “extra-legal” elements that allegedly impede proper functioning of a state-led legal framework. But roughly half a century later, soon after the turn

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