By Bhishm Khanna
Customs and cultures are perceived as traditional, which are not amenable to change or challenge. Change is associated with laws, evident from the preoccupation to understand law as an instrument of social change. However as argued in this article, the perception that customs are ridden with orthodoxy on one hand and law heralding progressive changes on the other, requires reconsideration. This reconsideration requires distancing from the Euro-centric understanding these concepts. Another concern that has been examined in the article is the deeming of cultures as homogenous, disregarding the multiple versions within them. Lastly, the idea that customs and cultures are in a continual state of change has been discussed.
Introduction
Customs and cultural identity are important for people’s sense of self and how they relate to others. They play a critical role in ensuring people’s wellbeing, especially in terms of a sense of a security.[1] By giving us proof of our belongingness, our culture allows us to delimit and develop our identity.[2]
However, customs and culture are often viewed as an impediment to changes in society. Antiquity and continuous usage are two important characteristics of customs, and by their very nature they accord positive value to the past.[3] The result is that when new values spread in a society, they tend to clash with customs. The outcry by Hindus in the 1950s when the Parliament decided to pass the Hindu Code Bill, the protests by Muslims after the Shah Bano judgement, or protests against the ban on the Jain practice of Santhara are a few of the examples that displayed the popular resistance to legal reforms, led by communities that perceive these practices as essential to their culture.
Customs and cultures assert strong influence in ordering public and private lives. This is evident, for instance., from the cases of honour killings and excommunications sanctioned by khap panchayats. An attempt to challenge this is met with resistance that finds its justification in the preservation of age-old traditions. These customs present the myriad problems that are prevalent today, impediments that make the enforcement of law strenuous. They undermine the machinery of the state and the values of the Constitution.
However, if we think of the problem posed by our customs and cultures as structural impediments, we are liable to think that the remedy lies somewhere else. The question of whether these customs and cultures are stumbling blocks to positive law, requires deeper scrutiny.
In this article, law is used to refer to rules that are different from other prescriptive systems (religious, moral etc.). One of the defining features of such law as recognised by H.L.A. Hart is their ability to be “recognised, adjudicated and replaced by another rule”.[4] Furthermore, even though moral and ethical influence on law is recognised, the existence of law is conceptualised independent of it. However, these influences in Indian law making, like many other erstwhile colonies, is profound. Law, as we understand today as a state backed concept, emerged in India as a result of workings of legal scholars during the colonial rule. It, therefore, emerged in a specific social, political, and moral context dictated by the exigencies of the colonialists. This is evident from heavy reliance on legal transplants with the belief that legal concepts possess transnational characteristics.
I. Law As A Western Enterprise
It is important for us to recognise that the rhetoric of legal reforms has underpinnings of western thinking, which has, historically speaking, identified customary practices and cultural belongingness with regressive and orthodox values.[5] The concept of cultural identity has been shaped primarily by studies in countries with a history of imperialism and neo-colonialism, as amply demonstrated in works like Orientalism by Edward Said.[6] The UK and the USA have been the commanding centres for theoretical and empirical studies of this concept, heralding nuanced versions of the othering approach.[7] Law and legal reform, as concepts, are loaded with Western philosophy, especially considering the history of colonialism which was marked by the imposition of Western models on the colonised states, albeit with caveats and possibilities of interpretation and reinterpretation. There is, therefore, a tendency to frame our conceptions of legal reform while emulating the West, thereby submitting further to the imperialist hegemony. Ideologies and practices aberrant to this framing then become undesirable.
The narrative surrounding “oriental” customs and cultural identity is understood as antithetical to “law,” which is seen as an embodiment of progressiveness and rationalism. Law is seen as an instrument for advancing ideals of development and/or modernisation. The West asserts its proprietorship over these ideals, deeming both goals of law as its “domains”.[8]. This aim of law emerges from Euro-American philosophy, which underlies their assumption of and their insistence on universality. Therefore, cultural identities and customs of the East become barbaric, in stark opposition to ideas of the civilised (enhanced further by geographical and geopolitical distances). This perceived barbarism will therefore always be in defiance of intended legal reforms. Hence, we need to reconsider the way we understand reform, culture, identity and custom. Who seeks reforms, and from whom? Do reforms stand for justice, or do they stand for equality? Who demarcates the perimeter of any given culture? At what level are disparities between individual and cultural identity to be addressed?
II. Animated Multiplicity Within
During the period of the Indian Renaissance in the nineteenth and twentieth centuries, figures like Raja Ram Mohan Roy, Ishwar Chandra Vidyasagar and Swami Vivekananda stood up against practices like child marriage, polygamy, and sati.[9] They presented an account of the Hindu cultural identity which was very different from the one considered essential by the Hindu orthodoxy of the time. This internal strife within Hindu culture paved the way for laws that banned these practices and were in consonance with values like equality and recognition of human dignity, values that were later incorporated into and legitimised by the constitution. These conflicts have become an integral part of the cultural evolution of the Hindu identity, evident from the writings of thinkers like B. R. Ambedkar, D.N. Jha, Kancha Ilaiah, Shashi Tharoor and many others.
In the twenty-first century, organisations like the Bhartiya Muslim Mahila Andolan (BMMA), that work to secure Muslim women’s rights, have investigated the perception of certain dogmas within Islam such as unilateral divorce or triple talaq.[10] They found an overwhelming majority of Muslim women demanding a ban on this vigorously upheld Islamic practice. At the same time, we have the All-India Muslim Personal Law Board (AIMPLB), which claims to be the representative of all Muslims in the country, condemning such a demand from Muslim women because in their opinion, triple talaq is an integral part of Islam and their laws cannot be rewritten since they are divine in nature.
The point is that cultures and customs are not homogenous phenomena, nor is their interpretation.[11] We cannot afford to disacknowledge the lens of gender, or of caste. There exist cultural pluralities and competing claims within any given community. Few insights can be gathered from peddling of a singular narrative, especially in recent times, in scenarios where strains of multiplicity have always existed. Such as singling out of beef among meat and meat products to be banned or insisting on a single victorious trajectory of mythological figure of Rama. The intra-group variation also comes to the forefront when one observes the ubiquitous consumption of beef in states like Kerala, Tamil Nadu, West Bengal, and the North-eastern states. It indicates that Hindus (like, arguably, followers of any religion) are far from being put into categorical, essentialised, identifiable boxes. The problem is not of customs and cultural identities being impediments to reforms, but rather of how we tend to look at them as internally uniform and rigid. This subsequently obscures the dissenting views within a culture.
These dissenting views instead ought to be fruitfully engaged with as counter-narratives and interpretations that a state can adopt as bases for reform.[12] The controversy surrounding the entry of women into the Sabarimala temple is a case in point. Policymakers should acknowledge the voices of women, and choose from competing accounts a claim that aligns with ideals of equality and liberty while rejecting discriminatory accounts. Even when it comes to the question of Dalits being allowed or denied entry into Hindu temples, the State can side with the Dalits on their version of custom and cultural identity, as it is more egalitarian and thereby secure their right to enter places of worship. For the State, this achieves the fulfilment of constitutional values. Customs and cultural identities can support legal reforms rather than obstruct them. It depends on which interpretation of cultural identity the State gives precedence to.
III. Sites Of Constant Construction, De-Construction And Re-Construction
A significant feature of customs and cultures is that they are constantly changing, criticised and improved upon by members from all strata of society. Since customs and cultural identities are changing they might sometimes not only be in conformity with the objectives of legal reforms but may also demand them. Take the example of the Gurudwara Reform Movement by the Sikhs. During the 1920s, the Sikh community came in conflict with the mahants for the mismanagement of Sikh shrines. Some of the allegations were the increased Brahmanical influence in practice of Sikhism and misappropriation of funds for personal use. Finally the government had to concede the control of the shrines to the Sikhs by legislating an Act in 1925.[13]
Moreover, every custom and cultural identity is constantly enacted, renegotiated, challenged and modified through communicative processes. These are sites of active construction, and they are constantly receptive to deconstruction. They may lead to the internalisation of foreign influences and impositions and therefore the appropriation of these into ideas. For instance the colonial experience resulted in imposition of more conservative policies around homosexuality as compared to the pre-colonial India.[14] Simultaneously, intercultural dialogues prompt self-reflection and critical assessment of one’s cultural affiliations.
The British colonial rule over India resulted in the interaction of Hindu culture with liberal European notions of women’s rights and led to the rise in demand from the educated Indian middle class to abolish sati, child marriage etc.[15] These examples indicate that the dynamic nature of customs and cultures can pave the way for legal reforms. They have values which enable them to renegotiate their own positions, thereby enabling reinterpretation.
Conclusion
To conclude, the idea that customs and cultural identities are not impediments to legal reforms must be taken seriously. Any law intended to bring about reform can and should proceed by finding allies within the cultural landscape. Culture, although represented by a single linguistic sign, is not a monolithic, fossilised, objectively oppressive reality. Cultures have characteristics that can be aligned with the purposes of reforms and champion the passage of progressive laws.
The author, Bhishm Khanna, is an independent legal researcher. He has previously worked at the National Law University (NLUD), Delhi as a Research Associate.
[1] Vivian Hsueh-Hua Chen, Cultural Identity, 22 Key Concepts in Intercultural Dialogue (2014), available at https://centerforinterculturaldialogue.files.wordpress.com/2014/07/key-concept-cultural-identity.pdf, last seen on 22/11/2020.
[2] Edmund W. Gordon, Cultural Identity and Behavourial Change, 47 Case Western Reserve Law Review 389 (1997), available at https://core.ac.uk/download/pdf/214085404.pdf, last seen on 22/11/2020.
[3] P Ramantha Aiyar’s The Law Lexicon – The Encyclopaedic Law Dictionary with Legal Maxims, Latin Terms, Words & Phrases, 413 (Shakil Ahmad Khan, 4th ed., 2017).
[4] Jean-Louis Halperin, The Concept of Law: A Western Transplant?, Theoretical Inquiries in Law 10.2 (2009), available at https://www7.tau.ac.il/ojs/index.php/til/article/view/714/673, last seen on 23/11/2020.
[5] Ibid.
[6] Edward W. Said, Orientalism, 196 (1st ed.,1979).
[7] Ibid, at 32.
[8] Kenneth B. Nunn, Law as a Eurocentric Enterprise, 15 Law & Inequality: A Journal of Theory and Practice 323 (1997), available at https://scholarship.law.umn.edu/lawineq/vol15/iss2/2/, last seen on 22/11/2020.
[9] Dr. Sujit Samanta, Child Marriage as Perceived by Pandit Ishwar Chandra Vidyasagar, 8 International Journal of Creative Research Thoughts 3992, 3993 (2020), available at https://ijcrt.org/papers/IJCRT2007418.pdf, last seen on 18/01/2021.
[10] 90% of Muslim women want ban on oral talaq, finds survey, Hindustan Times (12/06/2017), available at https://www.hindustantimes.com/india/90-of-muslim-women-want-ban-on-oral-talaq-finds-survey/story-KOqZCjWYx52D8ES1cSo7uI.html, last seen on 23/12/2020.
[11] Cyra Akila Choudhury, Beyond Culture: Human Rights Universalisms Versus Religious and Cultural Relativism in the Activism for Gender Justice, 30 Berkeley Journal of Gender Law & Justice 266 (2015), available at https://ecollections.law.fiu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1133&context=faculty_publications, last seen on 23/12/2020.
[12] Nivedita Menon, Is Feminism about Women? : A Critical View on Intersectionality, 50(17) Economic & Political Weekly (2015), available at https://www.epw.in/journal/2015/17/perspectives/feminism-about-women.html, last seen on 20/11/2020.
[13] Harnik Deol, Religion and Nationalism in India: The case of the Punjab, 78 (1st ed., 2011).
[14] Nathan Mcdermott, India’s debate: Can Hinduism and homosexuality coexist?, The Washington Post (08/07/2015), available at https://www.washingtonpost.com/national/religion/indias-debate-can-hinduism-and-homosexuality-coexist/2015/07/08/3e124270-25a5-11e5-b621-b55e495e9b78_story.html?noredirect=on&utm_term=.e3b598cf5f1b, last seen on 18/01/2021.
[15] K. Sangari & S. Vaid, Sati in Modern India: A Report, 16 Economic and Political Weekly 1284, 1285 (1981), available at http://www.jstor.org/stable/4370069, last seen on 18/01/2021.
The Journal of Indian Law and Society 