Religion and Personal Law in Secular India: A Call to Judgment.

• Author: Rocher, Ludo
• Position: Book Review

Religion and Personal Law in Secular India: A Call to Judgment. Edited by GERALD JAMES LARSON. Bloomington: INDIANA UNIVERSITY PRESS, 2001. Pp. viii + 362.

This volume is the outcome of a conference held at Indiana University in the spring of 1999. Two papers were added, one by Lloyd and Susanne Rudolph (now also available in Religion and Democracy, ed. David Marquant and Ron Nettler, 2000), and one by Rajeev Dhavan (previously published in The Concerned Indian's Guide to Communalism, ed. K. N. Panikkar, 1999). The essays are ranked under four headings: (1) the secular state and legal pluralism: the current debate and its historical antecedents; (2) religious endowments, reservations laws, and criminal law; (3) personal law and issues of gender; and (4) cross-cultural perspectives. They are preceded by an introduction and followed by a bibliographical note by the editor.

The Indian Constitution contains a section (Part IV) called "Directive Principles of State Policy," i.e., fifteen Articles that are not enforceable by any court of law, but for which "it shall be the duty of the State to apply [them] in making laws" (Art. 37). Notwithstanding one of these Articles: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India" (Art. 44), more than fifty years after the Constitution came into effect Indians do not have a uniform civil code. The reason is that, in India, personal law and religion are closely intertwined, and "India is a land of religions, Hindus, Buddhists, Jains, Muslims, Parsees, and Sikhs ... They coexist as separate and distinct communities" (Supreme Court Justice Ruma Pal, p. 24; Jews should be added to this list). As early as 1951 the Supreme Court held that, by definition, the non-enforceable Directive Principles cannot override the Fundamental Rights laid down in Part III of the Constitution. Hence those opposed to the uniform civil code of Article 44 point to Article 25 which establishes the fundamental right to freedom of religion: "Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion." Add to this that, in 1976, the Constitution (Forty-Second Amendment) Act changed India from a "Republic" into a "Secular Republic"--"secular" being a highly ambiguous and debatable term--and it is obvious that there has been ample...