Inheritance Unbound: The Politics of Personal Law Reform in Pakistan and India

Nelson, Matthew J.

Abstract

This chapter describes the constitutional and political dimensions of formal legal change in Pakistan and India. The process of change referred to is one with an explicitly ‘religious’ dimensions: in effect, a process of changing ostensibly ‘transcendent’ or ‘God-given’ personal laws. What are the constitutional and political conditions under which the content of such laws can change in Pakistan and India? What are the constitutional and political conditions that might intervene to stifle or restrict such change? In Pakistan, how does the nature of the Islamic state constrain legal change in religious personal law? In India, is it possible for the Indian legislature, facing its own very different set of conditions, to easily change religious laws? The author examines such questions in the light of the special constitutional provisions in each country from the point of view of the issue of inheritance. The author concludes that both countries find it difficult to bring about personal law reforms even though their constitutions allow them to do so. In Pakistan, substantive religious-cum-legal reform was taken up and put into practice only in two contexts — military/non-military authoritarianism and one-party dominant regimes where the ruling party held more than 60 per cent of the seats in Parliament. The Indian government addresses the task of ‘substantive’ religious-cum-legal reform as a matter of routine civil society engagement and is often hindered by the pressures of coalition politics. The author points out that India under Prime Ministers Jawaharlal Nehru and Rajiv Gandhi and Pakistan under Generals Ayub Khan and Zia-ul-Haq pursued major ‘substantive’ reforms; Prime Ministers Benazir Bhutto and Narasimha Rao did not.

Citation

Nelson, M. J. (2012). Inheritance Unbound: The Politics of Personal Law Reform in Pakistan and India. In S. Khilnani, V. Raghavan, & A. Thiravengadam (Eds.), Comparative Constitutionalism in South Asia (219-246). Oxford University Press. https://doi.org/10.1093/acprof%3Aoso/9780198081760.003.0008

• Online Publication Date: Jan 1, 2013
• Publication Date: Jan 1, 2012
• Deposit Date: Oct 4, 2010
• Publicly Available Date: Jun 5, 2019
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Pages: 219-246
• Book Title: Comparative Constitutionalism in South Asia
• ISBN: 9780198081760
• DOI: https://doi.org/10.1093/acprof%3Aoso/9780198081760.003.0008
• Keywords: substantive religious-cum-legal reform, Pakistanreligious reform, Laws of inheritance, Indian personal laws, Islamic personal laws, authoritarianism, Coalition politics, Jawaharlal Nehru, Rajiv Gandhi, Ayub Khan, Zia-ul-Haq