Contextualism in Indian Political Theory: Lessons from and for the Family Law Reform Debate (For the Old Methods, New Problems Panel)

The Uniform Civil Code (UCC) debate in India has spanned seventy-seven years with minimal progress. This paper delves into Indian Political Theory (IPT) discourses surrounding the UCC debate, focusing on arguments rooted in secularism and gender justice. At its core, the UCC debate revolves around replacing India's diverse family law regime, based on tribal and religious affiliations, with a single, uniform code applicable to all citizens. The IPT discourse (Dhagamwar 1989; Bhargava 1998, 2010; Chandhoke 1999, 2017; Agnes 2011, 2017; Menon 2017, 2023; Narain 2007; Parashar 2008) often frames the UCC debate within the context of Muslim Personal Law, juxtaposing concerns about Hindu majoritarianism with those about Muslim "backwardness." Proponents of the UCC argue that a uniform code is vital for promoting national integration, gender justice, and secularism. Conversely, opponents contend that the UCC would erode the rights of Muslim minorities and infringe upon their religious freedom. Furthermore, they argue that the UCC has been co-opted by Hindutva nationalists, making it imperative to distance oneself from it. I contend that existing IPT responses to the UCC debate are marred by a profound methodological flaw. These responses rely on what I call "contingent contextual considerations," such as the political undertones of the UCC, its implications for Muslim minorities, and statements from religious organizations. These considerations have led to a polarized debate, with proponents and opponents engaging in a dialogue of the deaf. In contrast to existing IPT discourses, this paper proposes an abstract, principled approach to the UCC debate. I pose the question: what are the normative justifications for and against a uniform or diverse family law regime? Utilizing Sune Laegaard's (2019) concept of "critical distance," I diagnose IPT discourses on the UCC and transcend the deeply contextualist reasoning that has led to an impasse in the debate. I argue that focusing on contingent facts, such as the ruling government or the situation of Muslim minorities, provides little guidance on fundamental principles. I argue that the question of whether a uniform family law regime is preferable to a diverse one must be resolved through principled reasoning. Further, I argue that certain versions of secularism offer the most compelling principled arguments in favor of the UCC. Additionally, I demonstrate that pro-UCC arguments grounded in gender justice are, in essence, arguments rooted in secularism. Recognizing this helps to shift the conversation beyond the twin poles of Hindutva politics and Muslim personal law. By adopting this perspective, I reframe the starting point of the UCC debate. By maintaining a “critical distance” from the immediate political context, this research provides a foundation for further examination of the UCC debate on principled grounds. Ultimately, this paper seeks to contribute to a more nuanced understanding of the complex issues surrounding the UCC debate. By providing a framework for further examination of the debate on principled grounds, this research aims to facilitate a more constructive and informed discussion about the UCC, culminating in better policy solutions.