Decolonizing Democracy: Transforming the Social Contract in India

Chapter 5 Legal Pluralism and Gender Justice

5 Legal Pluralism and Gender Justice In 1951, in a heated debate over Hindu law reform in newly independent India, B. R. Ambedkar, who had become the new government’s first law minister, urged his fellow legislators to reform Hindu marriage law in a way that was congruent with the goals of liberty and equality. “If you mean to give liberty—and you cannot deny that liberty in view of the fact that you have placed it in your Constitution and praised the Constitution which guarantees liberty and equality to every citizen,” he argued, “then you cannot allow this institution [of marriage] to stand as it is.”1 Ambedkar’s arguments failed to persuade the majority of the House, and the reform was postponed. In protest, Ambedkar resigned his post, explaining: For a long time I have been thinking of resigning my seat from the Cabinet. The only thing that had held me back from giving effect to my intention was the hope that it would be possible to give effect to the Hindu Code Bill before the life of the present Parliament came to an end. I even agreed to break up the bill and restrict it to marriage and divorce in the fond hope that at least this much of our labour may bear fruit. But even that part of the bill has been killed, [so] I see no purpose in my continuing to be a member of your cabinet.2 Ambedkar’s resignation from the cabinet reflected his despair, made more poignant by his own role in framing the constitution, over the inability of legislators to reconcile the discrepancy between women’s legal subordination in Hindu personal law and the constitutional clauses guaranteeing their freedom and equality. Although he could not persuade the legislature to pass reforms, Ambedkar himself refused to participate in the fraternal legal pluralism and gender justice 93 alliance that supported such a contradictory resolution of the “woman question” in the postcolonial social contract. Underlying the postcolonial social contract in India is a legal pluralist approach to governance in which separate religious groups or communities are governed by distinct laws in such family matters as marriage, divorce, and inheritance; for example, Hindu law (or “Hindu Code,” as it is often called) governs Hindus in these matters, and Muslim law governs Muslims. This pluralist approach can be distinguished from a legal universalist approach in which a singular set of laws applies to all citizens of a polity.3 In this chapter I argue that although the particular version of legal pluralism endorsed by the Indian constitution has discriminated against women, gender subordination is not a necessary feature of legal pluralism. I describe a competing, more liberatory version of legal pluralism that feminist and other progressive groups in India are working toward in order to reconcile group autonomy and gender rights as important collective goods. hindu law reform and competing approaches to legal pluralism In contemporary political theory, the legal pluralist approach to jurisprudence is often seen not only in contrast to a legal universalist approach but in deep opposition to it. Further, legal universalism is frequently understood as fostering gender justice, while legal pluralism is often seen as enabling gender subordination. This association rests in part on the fact that legal pluralist regimes may (and often do) countenance group laws that discriminate against women, and on the fact that legal universalist claims are often made in the name of gender rights. An analysis of the struggles for gender justice in India, however, reveals two different forms of legal pluralism, what might be called “fraternalist pluralism” and “egalitarian pluralism.” While gender and other forms of intragroup subordination constitute fraternalist pluralist modes of jurisprudence, egalitarian pluralism challenges such subordination. Fraternalist and egalitarian legal pluralism both share an embrace of the law as an important arena for group differentiation and autonomy in a multicultural framework. What marks a particularly “fraternalist” form of legal pluralism are substate (group, community, or territorial) laws that discriminate against women (or other vulnerable subgroups). These laws legitimate masculinist authority in the name of group preservation and differentiation . Similarly, fraternalist legal pluralism engenders masculinist 94 decolonizing democracy allegiance to the state to the extent that the approach countenances or fosters gender domination. In contrast, an egalitarian legal pluralist approach emphasizes intragroup equality and justice. While sharing with fraternalist legal pluralism a commitment to group-differentiated law, egalitarian pluralism works against the politics...