In South Asia, personal laws are manly based on religion, to such an extent that they differ depending on religious communities. On the one hand, these laws testify the way in which religious traditions have been part of the process of legitimation and cultural elaboration of State legal systems. On the other, personal laws link the worldwide debates about religiouscultural plurality and national uniformity to equality, human rights and secularization. From these points of view, India’s experience on constitutional protection of and from religionbased personal laws provides valuable sources of empirical information. In India, personal laws refer to the private sphere of family and related matters such as marriage, divorce, maintenance, adoption, and inheritance. At the same time, Article 44 of the Indian Constitution affirms that «[t]he State shall endeavour for the citizens a uniform civil code throughout the territory of India». To date, this Article has not been implemented. On the contrary, the litigation strategy and the related jurisprudence are “redraftingµ faith-based personal laws by declaring some of their rules as non-religious or as non-essential practices of a given religious group. In the meantime, the rise of a nationalist Hindutva ideology is set to rekindle debate yet again on the issue. With this essay, I will try to demonstrate that this debate has always suffered from epistemological obstacles that, far from meeting real requirements of both religious claims and individuals’ fundamental rights, tends to consider the uniform civil code and the system of personal laws as ends in themselves. The experience of India’s religion-based personal laws thus exacerbates the longstanding dilemma of secularised forms of constitutionalism, perpetually torn between the principle of equality and the right to be different; that is between the claim of religious groups to be autonomous within the state legal framework and universality of human rights moving towards one secular law for all.
Constitutional Protection of and from Religion-Based Personal Laws. The Case of India
Alicino
2023-01-01
Abstract
In South Asia, personal laws are manly based on religion, to such an extent that they differ depending on religious communities. On the one hand, these laws testify the way in which religious traditions have been part of the process of legitimation and cultural elaboration of State legal systems. On the other, personal laws link the worldwide debates about religiouscultural plurality and national uniformity to equality, human rights and secularization. From these points of view, India’s experience on constitutional protection of and from religionbased personal laws provides valuable sources of empirical information. In India, personal laws refer to the private sphere of family and related matters such as marriage, divorce, maintenance, adoption, and inheritance. At the same time, Article 44 of the Indian Constitution affirms that «[t]he State shall endeavour for the citizens a uniform civil code throughout the territory of India». To date, this Article has not been implemented. On the contrary, the litigation strategy and the related jurisprudence are “redraftingµ faith-based personal laws by declaring some of their rules as non-religious or as non-essential practices of a given religious group. In the meantime, the rise of a nationalist Hindutva ideology is set to rekindle debate yet again on the issue. With this essay, I will try to demonstrate that this debate has always suffered from epistemological obstacles that, far from meeting real requirements of both religious claims and individuals’ fundamental rights, tends to consider the uniform civil code and the system of personal laws as ends in themselves. The experience of India’s religion-based personal laws thus exacerbates the longstanding dilemma of secularised forms of constitutionalism, perpetually torn between the principle of equality and the right to be different; that is between the claim of religious groups to be autonomous within the state legal framework and universality of human rights moving towards one secular law for all.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
