Constitutional Pluralism: Codifying the Future Indian Identity

Abstract

This paper examines the constitutional, cultural and jurisprudential dimensions of the future application of personal law in India. It traces the debates in the Constituent Assembly on a uniform civil code and considers the most recent development, the enactment of such a code in Uttarakhand. The analysis addresses the persistent conflict between individual freedom and state-led secular reform, and examines the practical difficulties a single code would face across a diverse society in which, as survey evidence suggests, communities live tolerantly but separately. The argument advanced is that religion, culture and law are closely intertwined in India, so that an attempt at complete uniformity is impracticable and may unsettle the identity of the civilisation itself. That argument is developed through the record of earlier legislation, in particular the Special Marriage Act 1954 and the difficulties it has encountered. The paper also identifies the need for reform of rules of personal law that have not been revisited by the legislature. It then sets out an alternative to the impasse over a uniform civil code, namely the codification of the personal law of each community on the model of the Hindu Code Bill, and considers the advantages such codification would bring, contending that codification is the more faithful means of giving effect to the principle of unity in diversity on which India rests.