Some Thoughts on the Kite Model and Muslim Personal Law

Given the pluri-legal context set out in our original presentation, and in the present chapter, our core argument has been that the project of a Uniform Civil Code for India is not a feasible proposition and will only remain a nice law-centric fiction.¹⁹ Law-centric insistence on state law being the only source of law is never going to be a workable solution for rebalancing the relationship of India’s general state law with the country’s currently existing personal laws.

However, the absence of a central and uniform structure determining the rela­tionship between general state law and personal laws does not mean that either of the respective legal orders and/or their agents can have a free hand. Both legal spheres are subject to the same provisions of the very powerful and highly articulate Indian Constitution. Given that India has by now more than 1.3 billion people, in order to maintain a viable balance in such a deeply plural scenario, all agents of any particular combination of legal orders would do well to remember and recognise that all these types of legal orders are interconnected and need the other elements of this highly diverse structure for any part of the entire system to function smoothly. In other words, one could not manipulate only Muslim Personal Law and seek to abolish it while leaving the other personal laws as they are. In a society as plural as that of India, where the forces of all legal orders act simultaneously and in parallel, unilateral decisions are bound to fail, or would cause serious problems over justice and responsible governance. This is another reason why the official decision to declare the triple talaq illegal risks being per­ceived as an attack on Indian Muslims, giving rise to defensive Muslim rhetoric.

In this context, a pertinent observation would be that Islamist rhetoric is quite often ‘music to the ears of pious Muslims’.²⁰ Hopeful arguments, to the effect that ‘liberal’ Muslims will simply act as a responsible Muslim (khalifa) and should not engage in violence against others, individually and collectively, thus run easily into dangerous contradictions. If ‘fundamentalist’ Muslims con­tinue to argue that it is part of their responsibility to God to ensure that the whole world becomes Islamised, the ‘enlightened’ or ‘liberal’ response that this is a ‘wrong’ interpretation of what being a Muslim means will most likely fail to impress many of those who somewhat self-righteously push for global Islamisation. Such ideological struggles, which also rage among Muslims, are not irrelevant to the present discussion, as they resurfaced in the failed attempt of the ex-husband in the Shah Bano case to put Islamic law above India’s state law, for example.

A truly holistic ‘ecology of law’, however, reminds all voices in this contest to be truly ‘liberal’. As much as possible, it also needs to take responsibility for avoiding any form of suffering in efforts to strengthen the rule of law, including the promotion of human rights.²¹ Here, too, a major challenge remains that there is no complete agreement over what ‘law’ or ‘Islam’ actually mean and imply. Since both are evidently highly plural entities, the possibility of more or less violent disagreement always remains a latent risk. Arguing for a Uniform Civil Code for India with the hidden agenda of getting rid ofMuslim law is, thus, a red herring and risks being counterproductive.

The diversity-sensitive kite model of law insists on the need to consciously cultivate knowledge and awareness about the key role of individual agency, including freedom of religion, and demands constant alertness about the vari­ous intersectionalities of law and life. It also advises that knowledge from dif­ferent sociocultural and value-based contexts needs to be incorporated in the various, often highly liquid legal decision-making processes that people in India experience and partake in.

Aware of such lurking threats, this chapter argues that using the kite-flying methodology can help in making sense of such complexities and may offer guid­ance for responsible human action not only in lawmaking. To recapitulate, one may envisage this in three steps. Step 1 demands that any law-related actors first have to identify who or what they are, and what they want to achieve. A sub­sequent challenge will then become how to maintain a sustainable balance of expectations. The starting point of the mental kite journey locates the identity of the law-related acting self. This legal actor may simply be an individual Muslim living in India, located in kite corner 1, with certain religious and sociocul­tural values, beliefs and presuppositions. Such an individual Muslim cannot avoid accounting for the fact that s/he lives in India.

Alternatively, we may encounter members of a social group, such as a family, a particular community or society, or a business, all operating from a basis in corner 2. They face the same challenge as the individual Muslim. The revised argument here would be not that ‘I believe or expect something’, but ‘we’ would like to see or be this or that, under the umbrellas of Islam and of Indian laws. We may also encounter, perhaps hidden behind an official smokescreen of some official function or position, certain individuals, including Muslims, who make decisions as a citizen and/or agent of the state in corner 3.

And operating out of corner 4 we also encounter the possibility of law-related Muslim actors perceiving themselves as global citizen or representatives of certain global values and/or rule systems, including Islam. The common human predica­ment is in fact that as individuals, humans relate to a greater or lesser extent to all of the four corners of the kite at the same time, in different kinds of mixites and roles. Like judges who have to make decisions and cannot say they do not know, human kite flyers must constantly make up their mind about their own position, preferences and ambitions.

Having opted for any of the four previously mentioned possibilities of locat­ing oneself in terms of identity, the chosen kite corner now becomes the location for the second step or stage of decision making. Here appears the power kite model, which we explained earlier, in which the sub-kite located in any of the four corners still contains all four competing elements. Step 2 of decision mak­ing therefore demands that all four competing elements must again be assessed and examined in order to connect one’s chosen primary identity in some way to these other types of law, in a particular sequence. This process cannot be avoided, otherwise no viable decision would be reached. As shown, cutting out certain kite corners makes the kite crash.

This two-step process of decision making teaches three important lessons. First, it confirms that it is impossible to deny a voice or a role to any of the four competing kite corner elements. However much an individual may hate any par­ticular pluri-legal component, one cannot simply completely ignore it and liter­ally cut it out of the decision-making process. Secondly, responsible individual action cannot be anchored purely in belief structures, values and convictions, whether of a religious or secular nature, but has to connect in some form also to socio-economic, political and legal entities and domains.

For Muslims, this confirms that they cannot ignore the presence of Indian state law and their own interconnected situatedness in this pluri-legal space. Thirdly, this then also means that any responsible institutional law-related action, whether on the part of a state agent or an international organisation, cannot completely ignore value-based elements in kite corner 1 and sociocul­tural norms in corner 2. The resultant message for the Indian state here is that the presence of almost 200 million Muslims is without doubt a law-related fact that must not be ignored. Responsible law-related agency as kite flying therefore always involves specific combinations of 1-2-3-4. Responsible actors have to handle the competitive co-existence of values, norms and processes. As noted, in real life, this constant challenge seems to be managed quite strategically, simply by putting last in the numbering sequence what the decision-maker likes the least, or dislikes the most.

VIII.