Commentary/Ashwin Mahesh

The laws as they exist are not only inadequate, they are derived from inaccurate premises about Indians

The traditions of any culture, over time, are codified into its laws. From marriage to punishment to holidays, many traditions are derived from religion. Beginning as the habits of the majority, they acquire a force of their own, until the moral convictions behind these are inevitably installed as the laws of the land.

Indian personal laws, created at the founding of our nation, were enacted without the consideration of this requisite evolution. Religious tensions in India are at least in part related to this monstrous stupidity -- personal laws that take no account of our cultural habits.

Laws are usually nothing more than social and economic contracts between the people; government merely provides them with sanctity and structure. At the neighborhood grocery store, we exchange the grocer's produce for our money. Implicit in this trade is the assumption that he will not part with his goods unless we pay him. Countless customers repeatedly participate in this contractual process, exchanging groceries for money. A tradition of doing so is thus established.

In recognition of this fact, a law is enacted (ideally, by representation) declaring it illegal to take the groceries and not pay the grocer. In other words, we can't steal the stuff. Most citizens already accept this principle, the law merely formalises a process that society has embraced. This illustration is childishly simple, yet has profound meaning.

A hallmark of democratic society is that the governing principles -- the laws -- are enacted by representation. In so doing, we ensure only actions that are endorsed by the majority of people can be promulgated into law. In adopting the British model of government at the time of Independence, the Indian Constitution implicitly assumed Britons and Indians seek similar social and economic objectives. In many instances, there is some truth to that, because majority opinions about wealth and health do track fairly well across the world. In religious matters, however, this reasoning is nothing short of a fatal flaw. Presupposing that mostly Hindu Indians expect the same religious mores to be codified into law as mostly Christian Britons is nonsense.

Religious differences are not unique to India, but our distinct culture means the bridges that span these differences will be distinct as well. The experiences of Western nations have been such that laws, largely derived from Christianity, have been expanded to permit the free expression of other religions as well. The morals of their stories have only limited validity for us. In adopting the general principles of modern Western democracy, we have ignored this crucial fact -- we are not a Western nation. We need to rephrase our personal laws in terms of our majority customs, and from there, to expand these to include the religious expressions of minorities. Only then will Indian personal laws conform to the mores of our citizenry.

The religious freedom Westerners enjoy suggests that although their laws may have been derived from one ethic, they can be tempered by compassion for other cultures. At the same time, there is a limit to the boundaries of this expanded ethic. Religious habits that are deviant from the mainstream are usually tolerated, but ones that directly call into question the conventions of the mainstream are not as permissible.

The sufferings of the Jewish people throughout the last two millennia exemplifies this problem. Despite the shared history of Christianity and Judaism, the Jews have been routinely ostracised and persecuted because at least one of their beliefs -- that the messiah has yet to arrive -- directly counters the Christian opinion. As a result, where Christianity has dominated, Jewish life has been fraught with danger. Polygamy among the Mormons of America, widely practiced between 1850 and 1950 and still claimed as a right by small numbers of the group, is another good example. The morality of most Americans of the time forbade polygamy, and as a result, despite the personal preferences of certain groups, the force of public antipathy killed the practice.

Contrast that with the situation in India. Not only do our personal laws have little bearing on Hindu customs or even widely held Indian opinions, they sometimes have significant relation to other sources. This is a bizarre twist of the democratic ideal, where the habits of the minority have been codified into laws, while those of the majority have been set aside. The morality of most Indians -- and I don't just mean Hindus -- holds polygamy to be an unwelcome practice. Yet, outlawing polygamy is an exercise steeped in all kinds of political posturing, most of which is rubbish.

Another aspect that is worth examining is the notion of freedom of religion. In countries dominated by one religion, at least originally, the right to propagate one's religion posed no threat to the majority. In the West, the only people who avidly try to disseminate their religion to others are Christians of some sort, and since western society is derived from the Christian ethic, their actions pose no great danger to society at large.

That's not the case in India. Hindus are generally not interested in converting other people to Hinduism. The universal nature of our religion makes such an exercise pointless. Yet Christian missionaries, not only Indian ones but foreign as well, have gone about trying to draw away millions of Indians from Hindu moorings. The morality of the majority does not address conversions at all, it is only the minority morality that does. Yet, in the process of conforming our society to western notions of equality, we have subverted our cultural basis for their laws. Somebody else's tradition has become our law -- how long do you suppose this will hold?

Some time ago, Amberish Diwanji argued Hindus who found little to gain from Hinduism will understandably convert to another faith. I agree, there is nothing wrong with that. But it is a different matter whether anyone should have the right to try to achieve that. That's like saying if half the population agreed to starve, the other half will be wealthier; therefore, let us ask half the people to fade out. The truth of a particular position does not make it a desirable outcome. Voluntary expression of faith is always welcome, it is even part of the Hindu ethic. But that's not the same thing as influencing someone to make particular religious choices. Organised evangelism should not be mistaken for religious freedom.

I suspect this is a particularly involved issue only because our personal laws are like a numbers game. The very worst face of personal law in India is the notion that a citizen must belong to a religious group. If we removed the need to classify citizens on the basis of their religions, then conversion becomes an internal choice and not a numbers game.

Since the laws are written to deal with varying religious preferences, it is convenient to put everyone in some category and make a law for each category. Implicitly, this requires that each individual in a category conform to the nature of that group. This is ridiculous -- in a country whose major religion has a stupendous variety of habits, it is entirely without basis.

Mostly, only the semitic religions have demanded conformity, Hinduism has always been quite flexible, and has always recognised the futility of forcing people into religion. Here too, the notions of a minority have been enshrined in law, and the desirable flexibility of the majority has been overlooked.

On the face of it, rewriting our laws to reflect their cultural ancestry might be harmful to minorities. But look a little deeper. The culture exists, whether or not the law recognises it. And since laws are derived from culture, it is only a matter of time before the traditions exert enough pressure that the laws become nothing but notional, and the people disregard the ones that are inconsistent with cultural preferences. Violence in the streets might be an unacceptable expression of protest, but is no more undesirable than unrepresentative laws that lead to the violence in the first place.

Apart from the entirely worthy objective of avoiding conflict, rewriting the laws will serve an additional purpose. When the law is based on the cultural foundations of the majority and is then expanded to include minority opinion, it provides a process by which minority expressions are integrated into the mainstream. By reversing the process and accepting minority opinions instead of majority ones, we will only ensure that minorities remain outside the realm of the mainstream. The debate over the rights of married couples in America offers some insight.

In a society where marriage, as defined by law, conforms to the Christian ethic, conservative opinion is not threatened by those who remain unmarried or have homosexual preferences. Their actions are essentially outside the law. But any effort to equate the children of unmarried partners with legitimate children, or to equate the union between partners of the same sex with marriage, is confrontational to the ethic behind the law. A sexually permissive society doesn't care much who you live with, but certainly does care when you attempt to change its ethical definitions.

If religious expressions are to be recognised as the choices of the citizenry, then we must exclude the religious establishment from exerting itself on the citizens. This is not pro-Hindu rhetoric. Do we really believe there are no Muslim women who feel relegated to second-class status by the personal laws that apply to them? Are there no Christian women or men who would like to obtain a divorce, but cannot do so because the Church will not sanction it?

It is thus not merely in the interests of Hindus to rewrite our personal laws, it is also the most expedient way to ensure that minorities are included in our national consciousness. When minorities are defined by their differences from the mainstream, their security is easier to guarantee. By defining the mainstream itself in terms of the minority, or by trying to create different streams for adherents of different faiths, we take the inevitable plunge towards a divided society on the brink of violent restructuring.

We need personal laws that conform to Indian ethics. This means that widely held Indian opinions, not Western ones, should form the core of our laws. If this means abolishing such practices as classifying citizens on the basis of religion, if this means abolishing the right to multiple spouses, if this means abolishing the right to propagate one's religion, etc., then so be it.

The laws as they exist are not only inadequate, they are derived from inaccurate premises about Indians. The very same Constitution which supports the bad laws also requires, ironically, that we establish civil codes independent of religion. Article 44 may seem like a bad thing when you factor in the possibility of religious rioting by minorities, but measured against the dangers of religious rioting by the majority, it will be a godsend.

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