Viewing the Constitutional Framework of India from the Mirror of Multiculturalism and Critical Theories of Democracy with Special Focus on Personal Law

Abstract

In this brief presentation, I intent to grapple with some seminal questions about the nature of personal laws in India. I argue that subordination of personal law to Fundamental rights enshrined in Part III of Constitution of India is based on a priori theoretical approach stemming from western liberalism and Hindu Majoritarianism. Abolition of personal law of Minorities or bringing it in line with so called reformed personal law of Majority is not a positive step in the way of formation or enactment of Uniform Civil code rather it would reinforce the ‘Majortarian construction’ of personal law of Minorities and be marked as a serious erosion of idea to bring into public domain for discussion the discriminatory character of personal law of Majority. In my opinion enactment of Uniform civil code is not a categorical constitutional obligation and both, legislature and the courts must be wary of the serious repercussions while attaching undue significance to the same during adjudication and the initiation of reforms in personal law. I would rather endorse the approach adopted in South Africa, where the issue of customary law has been tackled politically by ensuring active participation of all the communities during the process of law reforms and I see no reason why we can not adopt the same in India to engage with the reforms in Personal law of Minorities. I would also develop the argument that Personal Law as a socio-legal institution can co-exist alongside the written constitution and legal standards, doctrines and principles have to be evolved to deal with specific cases in which personal laws come in conflict with certain provisions of the constitution. For the same I would invoke the doctrine of Multiculturalism and critical theories of democracy.