Historical Considerations

The distinct sphere of “personal law” was codified under British rule. To administer their colony, they did away with various legal traditions to come up with a single legal code, yet allowed some limited legal pluralism in one sphere, the laws relating to the family. The colonial rulers persistently viewed India as made up of irreconcilable religious communities. Whether this was an accurate description or part of a policy of “divide and rule” is still a subject of debate. Given the varied peoples and practices subsumed under the categories of “Hindu law” and “Islamic law,” this notion of communities with singular legal traditions was problematic. With independence in 1947, British India was partitioned into two countries, Hindu majority India and Muslim majority Pakistan. Again, a neat division was impossible, and many thousands migrated in the violent days following Partition, a period in which thousands lost their lives. India’s leaders, many of whom opposed Partition, argued that India would be secular state, not just a state for its Hindu majority; yet many Muslims worried that the end of British dominance would only mean the beginning of Hindu dominance in India. Some lived in the regions that became Pakistan; others moved, but many, including those without the means to move, remained in even more reduced numbers as a minority in India. Although Muslims are a relatively small percentage of the population, India is still one of the largest Muslim countries in the world in terms of absolute numbers.

In the debates over how to govern independent India, the question of personal law arose. In an effort to accommodate religious diversity, especially in those early years, it was decided that personal laws would continue. At the same time, the ultimate goal of a unified civil code was included in the Constitution. In addition, the Special Marriages Act of 1954 offered couples a non-religious alternative to personal laws. Given the religious diversity even within Hinduism and Islam, varied customs made it hard to define a single code even for each community. The Hindu code underwent a major overhaul for this reason, to make it more uniform and also engage in some limited reforms on behalf of women (Sarkar 1999). The Muslim code was never reformed, however. “State policy with regard to the civil status of Muslims has been generally cautious” (Hasan 1999). The post-Independence Congress Party government, led by Rajiv’s grandfather, Prime Minister Nehru, did not want to further alarm the remaining Muslims regarding their status in independent India and, in more pragmatic terms, wanted to ensure that the Muslim leadership, which opposed such reforms, would remain loyal to the government. The Muslim leadership did not relish the idea of the Hindu dominated government reforming their laws for them. An understanding developed that any changes in personal code would be left to the community in question, leaving them a small sphere of autonomy, which, hopefully, would help hold the new country together (Lijphart 1996). The Shah Bano decision appeared to be whittling away at that autonomy.