Demands of diversity

AT least since the 2002 Supreme Court case of Shamim Ara vs State of U.P. 2002 (7), SCC 518, the position in Muslim personal law has been that arbitrary triple talaq is invalid. A man can only divorce his wife by formal performative utterance following attempts at reconciliation with arbitrators; and he must show reasonable cause for divorce.

Given this 15-year-old decision, the significance of the Supreme Court decision on August 22 that instantaneous triple talaq is legally invalid is not entirely clear. The divisions in the Supreme Court—there was no clear majority on the most important legal questions—mirror the deep divisions that characterise the contemporary public debate on personal laws.

Efforts to reform personal laws have reached an impasse. Those opposed to the existing system of personal laws advocate replacing it with a constitutionally directed uniform civil code (UCC). Proponents of such a reform seek to rectify perceived gender-related shortcomings of the current system as well as its supposed tendency to promote religious communalism and undermine national unity.

Those opposing a UCC worry that a negative subtext about Indian Muslims accompanies calls for its enactment and that a UCC would reflect Hindu norms to the exclusion of others. Others have questioned how any meaningful public debate around a UCC can occur in the almost complete absence of knowledge about its content; there is indeed an element of absurdity in this when we reflect on the heat and passion with which this debate—on a code with no agreed-upon content—is conducted. Those who oppose the enactment of the UCC and defend the personal law system cite religious freedom and minority group autonomy and anticipate the danger that a UCC will amount to forced and oppressive assimilation.

These competing views have resulted in a stalemate that seven decades of debate, activism and advocacy have not overcome.

Reorienting assumptions While the UCC debate in India is deeply divisive and polarised, its battle lines encourage a number of widespread and mistaken assumptions on both sides. One assumption that saturates debate is that uniformity is the highest virtue of any family law regime and leads to better and more just outcomes for women. This assumption has been thoroughly undermined by researchers in this area. As Flavia Agnes argues, “Rather than uniformity in law, women need an accessible and affordable justice system.” Once we set aside the blinkers that keep us transfixed to the ideal of uniformity, other options emerge. One in particular, alternative dispute resolution (ADR), holds out promise in family law disputes.

The constitutional directive to establish a UCC does not preclude ADR, which has a settled place in India. Private arbitration, conciliation and mediation are recognised, facilitated and encouraged in many areas of law—including, to some degree, in family law. Under Indian law, as in most jurisdictions, arbitration is binding on the parties to it. Mediation and conciliation are normally not binding unless parties sign a settlement agreement binding them to an outcome. Judicial decisions reveal a range of family law disputes that have been referred to binding arbitration. The provisions in the Family Courts Act, 1984, regarding counsellors may also point to an appetite for alternative forms of dispute settlement.

Another assumption that pervades debate about a UCC is that we have to choose between a family law regime that is just to women and one that is sensitive to religious and cultural difference; we cannot have both. This assumption can also be challenged. Families display diversity in their constitution, norms, values and practices. When disputes arise, families have different needs. A one-size-fits-all approach to family law is not suited to supporting family members to resolve their disputes while protecting their interests and respecting their values. Across jurisdictions, there is growing acknowledgement that family law must be sensitive to culturally and religiously diverse users. This is important because family law plays an important role in ensuring that minorities, including children, have access to meaningful means of practising their culture and religion. If minorities are compelled to follow state family law, and the law solely reflects the norms of the majority, minorities are disadvantaged to the extent that they are denied the opportunity to resolve their disputes in a way that aligns with their cultural and religious norms.

Sensitivity to the needs of minorities is important because state regulation is not the only game in town. If the state system of family justice is not sensitive to people’s cultural and religious values, there are alternative fora for the resolution of their disputes, including khap panchayats (caste-based village councils) and religious bodies such as the Dar ul Qaza . If the state system wants family disputes to be resolved under its supervision, it must be responsive to the demands of diversity.

As Farrah Ahmed has previously proposed in her scholarly work, a two-pronged plan for the reform of personal laws is needed. First, consistent with the constitutional directive, a uniform family law (or UCC) should be enacted in India that is sensitive to the needs, norms, culture and aspirations of minority groups. Second, and simultaneously, Indian family law should give people the option of using fair and just religious ADR mechanisms for their disputes. The outcomes of such religious ADR would be recognised by the state, and, through state-imposed threshold requirement, substantive and procedural safeguards would be guaranteed.

Not all disputes currently governed by the personal law system would fall within the ambit of religious ADR. For instance, statuses, such as marriage, divorce and adoption, are not usually subject to religious ADR. But many would. In particular, religious ADR could be used to resolve the financial terms of a divorce, disputes relating to the maintenance and division of marital property, and disputes relating to inheritance.

The contractual norms governing religious ADR, including the procedure to be followed, and selection of the person(s) who will arbitrate, mediate or conciliate the dispute, can be decided privately by the parties. This degree of autonomy is a celebrated characteristic of ADR as it provides for flexibility of process and party autonomy. But the parties could also approach existing organisations which conduct religious ADR. These organisations may have standard-form contracts that assist parties in establishing an ADR mechanism to resolve disputes. They can also provide access to arbitrators, mediators, conciliators, legal practitioners, social workers and other state actors such as the police.

Perhaps the most important component of this proposal is that outcomes of these disputes would be state-recognised. It is primarily through the process of recognition that the state can ensure that the religious ADR process meets certain minimum thresholds. In particular, there are three safeguards which must be introduced to avoid ADR processes and outcomes which are unjust or unfair. First, those who participate in ADR must be able to do so freely, particularly given that the account of dispute resolution systems in India shows that they are sometimes coercive, using tactics of social boycott, shame, intimidation and ridicule. Second, religious ADR recognised by the state must not use norms that disadvantage women. Third, the processes used in religious ADR must be procedurally fair and just.

Safeguards for consent are already built into Indian law. Contract law doctrines of unconscionability, coercion and undue influence offer some protections for ADR agreements, or any contract, award or settlement arising out of the ADR that were not entered into freely. Further safeguards must be developed which would allow courts to intervene even in circumstances that do not rise to the level of unconscionability. As the Canadian Supreme Court suggested in Miglin v Miglin [2003] 1 SCR 303, it is important that courts are alert to “circumstances of oppression, pressure, or other vulnerabilities” when reading ADR agreements and “assess the extent to which enforcement of the agreement still reflects the original intention of the parties”.

The state must not recognise ADR processes, whether religious or not, which are procedurally unfair, based on unjust norms, or which have a patently unjust outcome. Beyond this, steps must be taken to foster, encourage and assist organisations such as the All India Muslim Women’s Personal Law Board, women’s Sharia courts and “jamaats” run by women across the country. These organisations develop gender-just interpretations of religion suited to religious ADR. They have also demonstrated a willingness and capacity to offer practical assistance to Indian women in conducting ADR and assisting with legal aid as well as in advocating legal reform. The state must license or accredit their ADR services so that the outcomes of their processes are readily recognised and enforced by state courts. Equally the state could refuse to accredit or license religious ADR organisations that do not operate on gender-just principles. The state must also offer free or subsidised training to these organisations on the threshold requirements their processes must meet for state recognition and enforcement. Finally, the state must fund such organisations and publicise the availability of their services.

Merits of the proposal The proposed model of personal law reform has two clear virtues. First, its incorporation of state-sanctioned religious ADR ensures an accessible and just family dispute forum for women. The benefits of religious ADR for women must be assessed against other dispute resolution alternatives. One option is to go to court. However, state courts do not currently offer disputing family members, particularly women, accessible and affordable justice. The reasons for this are complex.

Flavia Agnes notes that courts may be perceived as “distant [and] alien” and there is distrust and “fear among the general public regarding courts and lawyers”. Courts are not seen as efficient or accessible options for dispute settlement since it is widely known that litigation in courts involve intractable delays and great expense.

These reasons are why many prefer another option: cheaper, speedier and more accessible dispute resolution from bodies such as khap panchayats and religious bodies such as the Dar ul Qaza . These bodies have little or no interaction with the state courts though, and they therefore lack important safeguards, such as access to courts, natural justice, prospective rules, and other threshold requirements. These safeguards would be available to the bodies governed by the religious ADR mechanisms. Thus, religious ADR has the unique potential to offer dispute resolution that meets the requirements of accessibility and affordability as well as justice and fairness.

The second virtue of the proposed reform is that religious ADR affords autonomy and recognition to religious minorities to a greater extent than the personal law system can. A recent survey on Muslim women’s views on Muslim personal law conducted by the Bharatiya Muslim Mahila Aandolan found: “An overwhelming 86 per cent wanted the community-based legal dispute resolution mechanism to continue but at the same time wanted the functionaries to be made accountable to law and to principles of justice. They wanted the government to help ensure this accountability through a legal mechanism. While 88.5 per cent women wanted a partnership between the court and the qazi, 90 per cent women wanted qazis to be brought under legal accountability mechanisms.”

This overwhelming view accords remarkably closely with the proposal defended here. Religious ADR would allow community-based organisations to retain a role but hold them “accountable to law and to principles of justice” using the “carrot” of legal recognition.

As Farrah Ahmed has argued in Religious Freedom under the Personal Law System , religious ADR leaves room for more autonomy for religious communities than the personal law system currently does. Under personal law, communities are unable to determine the boundaries of their own membership, the norms by which they are governed, or their representatives and leaders. In each case, the state assumes sole decision-making responsibility. If community organisations offered religious ADR, the state would recognise processes which were created and developed by religious communities, and were up to them, within the limits of the thresholds discussed earlier.

Moreover, since religious ADR allows parties to resolve disputes on the basis of religious norms aligned with their beliefs, it facilitates religious practice. Parties could use religious ADR to ensure that their disputes are settled according to their own religious norms, and, furthermore, settled by people that they trust to interpret those norms. Further, those who reject religion or have no religious beliefs would be free to make ADR arrangements on the basis of other norms, or indeed to follow uniform family laws. Thus, supplementing uniform family laws with religious ADR gives an opportunity to practise religion in family law matters to those who want it. This would allay the concerns about oppressive assimilation that are often raised against the enactment of uniform family law.

The need for reform of personal laws is clear: their rules are unjust, harmful, discriminatory against women, and contrary to constitutional guarantees of gender equality. Once assumptions that have become entrenched in the UCC debate are questioned, the merits of the proposed model of family law reform are evident. This article has defended a proposal that seeks to address the stalemate that has arisen in Indian family law from the tension between a constitutional directive to enact a UCC and the deep concerns about the UCC as well as how it is debated. The article has defended the implementation of a UCC in India supplemented by a well-regulated state-recognised regime of religious ADR. The hallmark of this proposal, setting it apart from informal dispute resolution systems already widely practised in India (in khap panchayats, for instance), is that its outcomes would be recognised and enforced by the state if minimum thresholds of justice and fairness are met. It is hoped that a proposal of this kind would help the many citizens who lack access to affordable, speedy and accessible justice.

Dr Farrah Ahmed is an Associate Professor at Melbourne Law School, University of Melbourne, and the author of Religious Freedom under the Personal Law System published by Oxford University Press in 2016.

Luke Chircop is a JD student at Melbourne Law School.