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LEGAL EDUCATION FOR LAW REFORM
-ARCHANA PARASHAR
This article analyses the role of the Law Commission of India (here-
inafter referred to as 'LCI) and its effectiveness as an institution. The
central question being explored is whether or not the rectification of
flaws in how the LCI reaches its conclusions and recommendations
itself make it a successful institution. The article answers this ques-
tion in the negative by criticizing the replication of the instrumental
understanding of law and regarding it as responsible for perpetuat-
ing myths of pre-constituted laws. This critique is not of the LCI as
much as it is of the conception of knowledge that is used widely at
this juncture. The article recognizes the necessity of creation of a space
that would allow us to question how law is constituted in discourse.
Herein, the article suggests that there is potential for changing the
discourse revolving around legal education through re-conceptualiza-
tion of knowledge as a process of construction of meaning rather than
following a strictly positivist approach. The article also recognizes the
need for a shift in focus from the capabilities of institutions to achiev-
ing a fundamentally wider conception of law and reform at the level
of legal education by adopting an interdisciplinary and theoretical
approach to education that enables self-reflexive responsibility in the
construction of legal knowledge.
I. INTRODUCTION
The LCI is a significant legal institution and for that reason, it merits a
close scrutiny of its functions. It is therefore somewhat surprising that so little
has been written about the LCI. Professor Sarkar's study of the functioning
and reports of the LCI is one of the two main studies conducted on the insti-
tution.' The other is by Upendra Baxi, in the form of a chapter in his review
of the Indian legal system.2 Both authors lament the structural flaws in how
the institution is constituted and thus fails to deliver effective proposals for law
reform. In this article, I will argue that it may be possible that the identified
Associate Professor, Macquarie Law School, Macquarie University, Sydney, Australia.

Lotika Sarkar, National Specialised Agencies and Women's Equality: Law Commission of India
(Centre for Women's Development, New Delhi, 1988).
2 Upendra Baxi, The Crisis of the Indian Legal System (Vikas, New Delhi, 1982).
JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 6: Monsoon]
shortcomings of the LCI can be fixed at a structural or institutional level but

at an ideational level, a lot remains to be done. A broader understanding of
law is required to initiate a serious discussion of how law may be 'reformed'.
Otherwise, law reform will remain an instrumental enterprise invoking the
modernist assumptions about the nature of law. In view of the post-struc-
tural ideas about the constituted nature of knowledge, it is incumbent on legal
thinkers to engage with issues of how legal discourse is formed. However,
such an enquiry about legal knowledge can only be possible if legal education
is reconceptualised to engage with issues of knowledge formation. I will use
aspects of the 18 4 ' Report of the LC 3 on Legal Education to illustrate my
argument.
The article is divided into three broad parts. In Part I, a short over-
view of the institution of Law Reform Commissions (hereinafter referred to as
'LRCs') in a few common law countries is provided. This overview will serve
as a background to situate the discussion about the functioning of the LCI in
Part II. In this part, a brief survey of the kinds of projects undertaken by the
LCI is used to argue that the LCI primarily uses a positivist concept of law
and thus, of law reform. In Part III, an argument will be developed that there
is a need to reconceptualise the project of law reform. However, this requires
a change in the discourse about and of law. There may be many sites for such
reconstruction of legal discourse and thus, legal knowledge, but one of the pri-
mary sites is that of legal education. Therefore, the design of legal education
is crucial in recasting the debate about law reform. Post-structural arguments
including feminist scholarship can offer a way forward. In this part, a close
analysis of the LCI Report on legal education will illustrate these arguments.
11. THE CONCEPT OF LAW REFORM COMMISSIONS
LRCs are a part of the common law landscape and in part, a reflection
of the need to systemise law that develops through judicial precedents. This
is in contrast to the civil law systems that rely on codification in a more sys-
tematic manner. Alternative explanations for the existence of LRCs include the
modern faith in the possibility of systematizing law in a scientific manner and
the aspiration to make law serve the cause of social justice. All of these ideas
are present in the literature and are discussed briefly below.
Historically, it is accepted that the LRCs in England commenced in

their modern form as a result of the enactment of the Law Commissions Act,
1965.' However, institutions concerned with the specific task of law reform
184h Law Commission of India Report, The Legal Education & Professional Training and
professional training and proposals for Amendments to the Advocates Act, 1961 and the
University Grants Commission Act, 1956, (zooz).
William H. Hurlburt, Law Reform Commissions in the United Kingdom, Australia and Canada
(Edmonton: Juriliber, 1986).
LEGAL EDUCATION FOR LAW REFORM 3
existed prior to this legislation as well. For example, Hurlburt mentions the
Law Revision Committee of 1934 as one of the earliest institutions. A perma-
nent and firm institutional base was only provided by the Law Commissions
Act of 19656 that set up the English and the Scottish Commissions respec-
tively. It is worth noting that the colonial administrators from the 19th cen-
tury onwards robustly tried the concept of law reform in India.7 Similarly the
presence of law reform bodies in the erstwhile colonies of Australia is a reflec-
tion of the contemporary attitudes in England. One of the earliest bodies in
this respect was the New South Wales Law Reform Commission of 1870 that
was followed in 1920 by the appointment of a Law Commissioner and in time
replaced by the appointment of a judge to report on law reform issues in 1932.
In most other colonies/states, similar bodies were set up in step with the model
of the Law Revision Committee 1934.
Another plausible explanation for the LRCs is that they represent the
modernist aspiration to make law as scientific as possible. As a result of relying
on this view, the imperfections of law can be eliminated by a systematic anal-
ysis of and improvement of law.8 One recurrent theme in this way of think-
ing is that law can be made more responsive to the needs of the marginalised
sections of society and, in that sense, serve the function of achieving social
justice. In brief, this can be seen as the common thread running through the
institution of more recent specialised bodies of law reform. The 1965 Act in
Britain serves as the archetype. For example, in Australia, a commonwealth
initiative saw the establishment of the Law Reform Commission in 1973.10 As
a statutory body, the Australian Law Reform Commission (hereinafter referred
to as 'ALRC') enjoys independence from the government of the day but it
remains an agency in the Attorney General's Department. Moreover, within
the provisions of the Act, it undertakes references or enquiries at the request
of the Attorney General rather than having the option to choose to pursue any
matter of interest.
Within Australian legal scholarship, there are many examples of the

optimism about the possibility to reform law through such specialized bodies."
5 Law Commission of Ontario, The LCO's Approach to Law Reform, available at http://ozdev-i.
osgoode.yorku.ca/fr/node/1671, Law Commission of Ontario (last visited on September 16,
2001).
6 Law Commission Act, 1965, c. zz (Eng).
7 Discussed in the following section of this article.
8 For a general introduction see Joel F. Handler, Social Movements and the Legal System: A
Theory of Law Reform and Social Change (New York: Academic Press, 1979).
9 Supra, note 7.
n This was done under the Law Reform Commission Act, 1973 (Cth). It was subsequently
reconstituted under another statute, the Australian Law Reform Commission Act, 1996 (Cth).
Michael Kirby, Reform the Law: Essays on the Renewal of the Australian Legal System
(Melbourne: Oxford University Press, 1983); M. Kirby, The Law Reform Commission and the
Essence of Australia, 70 REFORM 6o-6i (zooo); Ronald Sackville, The Role of Law Reform
Agencies in Australia, 59 AuST. L.J. 151 (1985).
4 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 6: Monsoon]
The success and high visibility of the commonwealth's ALRC is sometimes

attributed in part to its high profile first Commissioner, Justice Michael Kirby.
In his own words the ALRC was concerned with:
"...first Aboriginal Australians and Torres Strait Islanders, too

often the victims of the inequality of the law as it works in prac-
tice; women; the young and the aged; the humble citizen overborne
by big and powerful government; the insolvent and those who cannot
cope with the credit economy; consumers; victims of domestic violence;
people dislocated by marriage breakdowns and property disputes; an
accused criminal suspect facing the mighty power of the state; a brave
citizen who makes a complaint againstpolice; prisoners; members of
our multicultural society not fluent in English - in short, the people
who otherwise often lose out in the law. They were all a majorfocus of
the ALRC's early endeavours. Justice for them was an important moti-
vation of the Commission."12
He goes on to say that equal justice under law is an aspiration yet to be

realised in Australia. This fact notwithstanding, the optimistic view about law
reform and LRCs, however, has undergone a revision in many of the countries
and there prevails now an atmosphere of questioning the necessity or utility of
LRCs. It may be explainable as an effect of the ascendance of the neoliberal
discourse that calls for the state to retreat from many of its social welfare func-
tions. For example, in an article titled 'The Changing Fortunes of Law Reform
Commissions', Tilbury traces these developments.13 He, in another context,
says that as a consequence of the dominance of this discourse, in 1990s, in
many jurisdictions, LRCs as permanent bodies have been abolished or reduced
in size.
The issue therefore is whether this is a desirable or undesirable devel-

opment and whether any justification can be found for the continued rele-
vance of LRCs. This is particularly so as many other governmental agencies
engage in the process of law reform, e.g., the Parliamentary legislative commit-
tees. Tilbury seeks to answer this question by saying that there are two ways
of approaching this issue: either we can ignore the models of various LRCs
2 Kirby, The Law Reform Commission, id., 61; See also, The House of Representatives Standing
Committee on Legal and Constitutional Affairs Report, Law Reform - The Challenge
Continues: A Report of the Inquiry into the role and Function of the Law Reform Commission of
Australia, (Canberra1994).
3 Michael Tilbury, The Changing Fortunes of Law Reform Commissions, 19 ALTERNATIVE L J.
202(1994);However, the main message in this article is that LRCs have weathered the worst
and are again in favour. I will return to this issue later. See also, Roderick Macdonald,
Recommissioning Law Reform, 35 ALBERTA L. REV. 831, 839-40 (1997) (For another set of expla-
nations for the declining and regaining fortunes of LRCs in Canada).
Michael Tilbury, Why Law Reform Commissions? : A Deconstruction and Stakeholder Analysis
From an Australian Perspective, 23 Windsor Yearbook Access Just. 313 (2005).
and compare their functions; or we can compare the models themselves." He

accepts the first option as the only viable option to find justifications for the
LRCs but then admits that it is not really possible to articulate these func-
tions with precision and cohesion. Moreover, the two approaches have to be
pursued simultaneously and even then the justifications for the existence of
LRCs have to be a combination of the stated functions (often in the founding
statutes) and the interpretation of such functions in their structures and prac-
tices. After reviewing the examples from Australia and Canada, he argues that
the function of LRCs can only be to provide policy advice, because unlike the
legislatures, they do not make laws and unlike the courts, they do not decide
disputes. 6 He goes on to say that it is not feasible to compare LRCs in many
Asian and African countries as the political, economic, and social conditions
that they deal with are very different than those prevailing in the Western
countries like Australia and Canada.17
This observation brings me to the next part of this article that deals with
the LCI. In assessing the function of this institution in India, one of the per-
tinent questions is whether the LCI is a replica of its counterparts in other
common law countries, or is it tailored and adapted for its particular context.
III. LAW COMMISSION OF INDIA
The LCI has not been a major focus of analysis by legal scholars with
two notable exceptions mentioned above." The history of Law Commissions in
India may be divided into two distinct phases, viz. during colonial time, and
after India became an independent country. Of necessity, the aims of these
institutions must have been different as well.19 In this article, I will focus pri-
marily on the institution since the independent state was constituted.
It is commonly mentioned that the colonial administrators realised early

on that the laws in operation in different parts of India were many and varied.
The first Law Commission was constituted in 1834 to codify the substantive
and procedural laws and it used the then prevailing British laws as its source
of ideas. 2 0 Three more Law Commissions were appointed during the colonial
rule and it is generally accepted that the British utilitarian ideas that could not
be adopted in England were put into practice in colonial India. 2 1 One legacy
'5 Id., 324.
16 Id., 324
7 Id., 329; (Tilbury also talks about the relevance of the intellectual roots of Law reform in any
jurisdiction and I will return to his analysis in part III of this article).
* Sarkar, supra note I; Baxi, supra note 2.
* Also stated in the 14 h Report of the LCI. For a more detailed explanation see 14 h Law
Commission of India Report, Reform of the judicialAdministration, (1958) at F6.
20 MAHENDRA PAL SINGH, OUTLINES OF INDIAN LEGAL AND CONSTITUTIONAL HISTORY, IO6,
(Universal Law Publishing, Sh ed., 2006).
21 ERIC STOKES, THE ENGLISH UTILITARIANS AND INDIA (Oxford University Press, London,
1959).
of these colonial measures has been that we continue to be governed by laws

and legal system closely modelled on the then British laws.
However, after gaining independence, there was some reluctance on the

part of the decision makers to create a permanent body for law reform22 and
it was only in 1955 that the first Law Commission was formed. Lotika Sarkar
explains that at the same time, the Government of India had created several
specialised agencies to meet the needs of development in particular sectors and
most of them were established through Acts of Parliament.2 3 However, the LCI
was not given a statutory base and even now is constituted by the Cabinet. It
is a part of the Law Ministry in the Central government.
Sarkar has identified major structural issues with the constitution and
functioning of the LCI. Since there is no statutory provision, a Commission
is constituted every three years. The terms of reference, composition, and the
proposed methods of functioning are rarely, if at all, made public. As a con-
sequence, the functioning of the LCI fails to be transparent. For example,
since the terms of reference are not made known either by the Ministry or by
the LCI, any assessment of how the issues are selected remains unscrutinised.
Moreover, the LCI can and does sometimes decide to take up an issue suo
motu but does not have to explain the basis for its decision. As a result, most
of the reports are in mainstream areas rather than dealing with issues of social
justice concerning the marginalized sections of society. Similarly, the member-
ship of the Commission has varied over time. Initially part-time members were
appointed but over the years a convention has developed that the Chairman of
the Commission is a retired judge. There is very little effort to include as mem-
bers either legal scholars or academics from other social sciences.
The methods of functioning of LCI are equally inscrutable. There is

no evident effort made to choose and justify a particular method of research
in any topic. It is evident that often, not always, questionnaires are sent to
concerned persons and the responses considered before a report is finalized.
However, there is no justification provided as to why this particular method
of collecting information is chosen as the exclusive method. Moreover, how
the information is interpreted and whether it is impressionistic understand-
ing or statistical methods of analysis that are used remains unarticulated. It is
not surprising therefore, that the recommendations for changing the relevant
laws are often not supported with substantive arguments. Many a time, the
recommendations verge on being the personal preferred position of the rele-
vant commissioner. Baxi has described this as a culture of dogmatism and arbi-
trariness prevailing in the LCI. He asserts that the commissioners often fail
to give reasons for their recommendations and do not cite or consult relevant
22 SINGH, supra note zo, at 113-114.

23 Sarkar, supra note I, at xx.
scholarship.24 Sarkar suggests that it would be useful if the working paper

drafted by the Member Secretary with the assistance of research staff could
be circulated widely. In this way, persons working in an area could make their
expertise and views known to the commission.2 5
The question I wish to pose however is that even if it were possible that
the identified flaws in how the LCI reaches its conclusions and makes recom-
mendations for reform could be rectified, would that make the LCI a more
effective or more successful institution? It is obvious that how effectiveness or
success is measured is itself a contentious issue but more fundamentally, we
need to ask what concept of law is deployed in talking about law reform. This
is necessary so that a space can be created for asking how law is constituted in
discourse. Otherwise we will keep replicating the instrumental understanding
of law and participate in perpetuating the myth of a pre-constituted law.
A brief survey of all the Reports prepared by the LCI since Indian inde-
pendence illustrates that the task of law reform is mainly conceptualised as
either reforming specific areas of substantive law or institutional, including
judicial restructuring.2 6 For example, information gathered only from the titles
of various reports of the Law Commission show that reports directed at recom-
2 7
mending specific amendments to various statutes are the majority of reports.
Approximately 130 reports have a reference to a legislative Act or a specific
area of law requiring the enactment of legislation.28 Another 35 reports can be
described as dealing with aspects of rules required as procedural rules or in the
areas of law governed by general rules of common law. About 62 reports can
be identified as addressing issues of institutional change, mostly dealing with
aspects of the judiciary, the legal profession, and conceptualizing new institu-
tions.2 9 It is also the case that the subject matter of reports often reflects the
interests of the Commissioners.3 0 The volume of work produced can also vary
immensely.31
Legal education, as a main topic of a report, is identified in only one

report while the subject is addressed in a few other reports. For example, the
24 Upendra Baxi, The Crisis of the Indian Legal System (Vikas, New Delhi, 1982); Baxi, supra note
z, at z64-z66.
25 Sarkar, supra note i, at zz.
26 This information is taken from the official website of the Law Commission and there is some
overlap in counting a report as in one category or another. For further information), see http://
www.lawcommissionofindia.nic.in/main.htm#a7(Law Commission of India), available at http://
www.lawcommissionofindia.nic.in/main.htm#a7; See also, Baxi, supra note z, at 258 (For a
tabulation of the available reports as dealing with various broad areas).
27 Id.
28 Id.
29 Id.
30 Id. For instance, the Eleventh Law Commission's emphasis on institutional reform is evident
in that 17 of its reports deal with this area.
3 Id; For example, the Eighteenth Law Commission produced 32 reports in a period of approxi-
mately three years.
reports addressing judicial institutions could be included as invoking a particu-

lar conception of legal education. The 117t' Report3 2 deals with the issues of
setting up a judicial academy, the syllabus, and the faculty for such an insti-
tution. However, it does not refer to the level of education available in the
law schools or faculties that train the lawyers in the first place. The discon-
nect between teaching and training can only exacerbate the issue of how legal
knowledge is conceptualized.
In another example, in the 14t' Report," a review of the then exist-

ing state of affairs is deplored and, among other things, it is stated that the
antithesis between academic legal education and training for the law profes-
sion needs to be abandoned. The report suggests that our needs will be served
by first subjecting "our young men who have received a liberal education to
University courses in law which will teach them the science of law and the
principles underlying..." and that the law graduate should have a mastery of
legal theory and legal principles.3 4 The emphasis on science of law may be read
as an exhortation to include theoretical analyses of law, as the report goes on
to differentiate between the needs of a law student who wishes to pursue a pro-
fessional career and one who wants to become an academician. The relevant
point for this paper, however, is that this is an eclectic view of the particu-
lar Law Commissioner. The report does not explain how the author comes to
these conclusions, what are the research methods or results that enable these
conclusions, or what is the philosophy of education being promoted. How the
various Law Commissioners write their reports has not resulted in an institu-
tional ethos of legal research necessary to make various recommendations.
It is no doubt true that the Law Commission has from time to time,
addressed issues related to legal education,3 ' but its ideas about education are
also informed by the overarching view of law in positivist terms. That is, law
is a tangible or easily identifiable body of knowledge and it is for us to decide
how to impart this knowledge to the students of law. I will illustrate this in
detail in the next part but I wish to emphasize here that this critique is not of
the institution as much as of the conception of knowledge that is used widely.
In contrast, I wish to suggest that there is real potential for changing the legal
profession, scholarship, and institutions if we could conceptualize knowledge
as a process of construction of meaning and one in which all of us participate
continually. This is the topic for the following part.
32 114hLaw Commission Report, Report on the Trainingof Judicial Officers, (1986).

3 Supra, note 23, at 520-555.
3 Id., 525.
3 There are many reports of different government bodies that discuss aspects of legal education
but that is not the main topic here and for that reason I will not review the extensive liter-
ature. Although I am troubled by the emphasis on legal education as clinical education and
the curricula of the stand alone national law schools are similarly unable or unwilling to inte-
grate a broader conception of knowledge as informing their programs.
IV. DISCOURSE OF LAW AND REFORM
In this part, I explain how the discourse of law reform assumes a pos-
itivist understanding of law. This is amply illustrated in the proposals that
generally come out of the law reform inquiries and are also present in the
scholarship related to these agencies.3 6 In the following discussion, I use the
arguments by two authors about the continued relevance of LRCs. In the
context of their suggestions, I argue that rather than focussing on what these
institutions can or should do, a wider conception of law should be adopted at
the level of legal education. This is important as it is in legal education that
habits of thinking about law are formed. Moreover, the conception of legal
knowledge that is relied upon prevents one from understanding how legal dis-
course is constituted. In the last section, the LCI's report on Legal Education
is critiqued for its narrow conception of law and legal education. It is not a
particular shortcoming of the Chairperson or members of the LCI, but more
an illustration of how their understanding of law is constituted by their con-
text and education. Feminist insights into the situated nature of all knowledge
can help us rethink our conceptions of law.
The literature assessing the functions and fortunes of LRCs in Australia

and Canada shares optimism about the continued relevance of the institution.
For the following discussion, I will use two different viewpoints as examples
and will not survey the literature broadly. Tilbury 37 as mentioned above, takes
the position that the explanation for the success of the ALRC lies in its wide
consultation in its work. Briefly, he argues that it is the methodology of insti-
tutional law reform that explains the success of the institution in Australia.
The method of engaging with the community, including consulting with inter-
est groups widely, was adopted by Justice Kirby as the Chairman of ALRC.3 1
In another context, Tilbury argues that the success of Australian law reform
institutions has to be understood in the intellectual foundations of law reform
in various institutions. He says that these foundations are firmly rooted in
sociological jurisprudence that sees law as situated in society. This is closely
aligned to the sociology of law movement or the scientific study of law as a
means of social control. Among other things, this has meant that the LRCs
in Australia have not focussed only on lawyers' law and engaged with issues of
policy, social policy or political questions.3 9 He compares this with the focus
in England where similar institutions have adopted a more positivist under-
standing of law and a corollary to that is very little influence of social sciences
36 See for example, a collection of essays in THE PROMISE OF LAW REFORM (Brian Opeskin
&
David Weisbrot eds., Federation Press, 2005).

3 Tilbury, supra note 13.
3 Tilbury, supra note 13; (For a discussion of how the methods of public consultation can vary
widely); =See also Brian Opeskin, Engaging the public - community participation in the genetic
information inquiry, 8o Aus. L. REFORM COM. REFORM J. 53 (ZOOZ).
3 Tilbury, supra note 13, at 330, 332; (He goes on to argue that the distinctive function of LRCs
must be to provide independent and informed advice).
is accepted in legal literature and practice. I take this observation to mean

that the English institutions of law reform have been relatively less successful
because they have confined their attention to technical aspects of law and not
incorporated in their work the wider policy issues and this is because of the
narrow positivist understanding of law as an autonomous and closed system.
Thus, the reform proposals can suggest changes without having to engage with
the social aspects of any issue. Typically, the changes in legislation are sug-
gested in view of the identified shortcomings but there is no effort made at
understanding the wider social context that may have contributed to the laws
not working well. The legal thinkers have the option of saying that 'non-legal'
issues are not their concern.
Macdonald picks up a similar theme when he addresses the continued

relevance of the LRCs in Canada.40 He argues that a broader conception of the
law is required than that adopted in instrumental law reform programs. In a
nuanced argument he develops the idea that law is more than what is found in
the texts of legislation. He says that the contemporary challenge is to situate
the law reform activity in a wider context than the office of the institution or
the textuality of law.42 This further necessitates a recasting of our understand-
ing of law and accordingly would require that we refocus our ambitions of law
reform. Moreover, it is necessary to adopt a more heterogeneous view of where
ownership of legal knowledge resides. Thus, law is not only state law and LRCs
can and should conceive of law in pluralistic terms. It follows that law reform
in this understanding will not be about statutes but would involve asking 'bet-
ter' questions.43
In both cases, the authors are asking for a broader understanding of

what constitutes law. In slightly different ways both of them are saying that
the understanding of law used by the LRCs has to be broader than the positiv-
ist understanding and it should also move beyond a fixation with a statist view
of law. In the discussion below, I address the two separate though interrelated
issues, i.e., this need to argue for a broader conception of law and the sites of
such contestations. My aim is to demonstrate that a change in the discourse
of law is necessary. If it is accepted that the discourse of law needs to change,
then it has to happen at multiple sites. However, the primary site for such a
reflexive change must be the ideas about what constitutes adequate legal educa-
tion. Therefore, for any change to happen in the legal discourse, it is necessary
to examine and modify the way legal education is conceptualised.
The first issue concerns the fact that the positivist and the modernist
ways of thinking and talking about law continue to be the dominant discourse
" Roderick Macdonald, Recommissioning Law Reform, 35(4) ALBERTA L. REV. 831(1997).
1 Id.
42 Id.
3 Id., at 872-3.
LEGAL EDUCATION FOR LAW REFORM 11I
in legal writing. This is something that should be a cause for concern because
while the postmodern and post-structural genres of thinking are present in all
disciplines, they have a rather marginal existence in the legal universe. This is
notwithstanding that a vast body of literature loosely described as critical legal
scholarship that uses these genres is in existence but despite its proliferation,
is not able to displace the dominant positivist discourse of law. It is important
to ask how this state of affairs is achieved and for the purposes of this essay, it
partly explains the way the law reform project is understood.
The post-structural view of legal knowledge as constructed rather than

pre-given is marginalised primarily at two sites - firstly, in the mainstream
legal literature that analyses the role of courts as engaging in a special way
or reasoning, often described as legal reasoning and secondly, in legal edu-
cation conceptualised as an industry or a training school for the profession.
In both instances, a conception of legal knowledge as objective knowledge is
invoked. There are two broad strands of thought in legal writing, viz., treat-
ing legal doctrine as the primary source of law and treating legal theory as
abstract and a contextual idea about law. Both of these come together to create
the possibility of claiming that objective knowledge of law is available. It is
this confidence in being able to find the truth of law that allows a discred-
iting of critical views as biased, partial, or simply wrong. Conventional legal
scholarship and the design of legal education bolster this confidence as no
space remains for questioning what legal knowledge is. The discourse of law
is formed in the practices of lawyers, judges, and legislators but to a very great
extent it is the scholarly analyses of these practices and views that legitimise
ideas about what is true legal knowledge. It is this role of academic writing
about law and the design of legal curricula that is not emphasized enough. As
explained below, this is partly achieved through the insistence of common law
courts that the primary or real source of ideas about law come from precedents
and not through people writing about those precedents.
The distinctive feature of legal literature is that it manages to make a

distinction between law and scholarship about law. This distinction maps on
to the division between primary and secondary sources of law, where the rules
and precedents fall in the first and writings about them constitute the second
category of legal literature. In legal scholarship, primary sources like legisla-
tions and judgments of courts are also described as the doctrine that is the
core of legal knowledge. As the name indicates, the secondary sources are the
discussions about legal rules, whether in academic journals or in other litera-
ture.4 4 The mainstream view in common law countries sees law as an accumu-
lation of legal principles through the pronouncements of judges. The hierarchy
of courts, in turn, ensures that the lower courts are bound by the views of the
'The privileged position of legal rules as legal knowledge is to a large extent explainable as a
result of the history of development of common law in England. For a general discussion, see
GERALD POSTEMA, BENTHAM AND THE COMMON LAW TRADITION (Clarendon Press, 1999)
higher courts and, in technical terms, this is the famed doctrine of precedents
in common law. This is such a pervasive view of the substantive content of law
that very often it does not merit any attention and certainly does not need any
justification. Twin consequences of this view are that judges become the most
powerful interpreters of law but with the fiction that they simply apply the
pre-existing law and uphold the doctrine of separation of powers. The objec-
tivity of the judges is supposed to be based on them relying on legal reasoning
(rather than ordinary reasoning) and their task is simply to apply already exist-
ing rules.
This orthodoxy is maintained by the conventional legal scholarship that

concerns itself primarily with analysing what the courts have to say on any
particular topic and critiquing the particular interpretations of rules. Thus,
typically, legal treatises on any subject are a collection of judicial decisions
and their analysis. Legal education, in turn, dutifully teaches the next gener-
ation of lawyers the skills of reading and analysing court judgements and des-
ignates these as special legal skills. The famous case method of teaching law
and its offshoot, the problem method, are designed to give students the pri-
mary sources of legal principles, whether as interpretations of precedents or of
statutes. 5 Thus, legal education helps constrain views about legal knowledge
by focussing primarily on what the judges say and, by implication, making it
irrelevant to ask why the judges say what they say. In its most prevalent form
this pans out as the design of legal education that concerns itself only with law
and not with the social, political, or economic contexts that may shape these
laws. This is in turn supported by theoretical perspectives that see law as an
autonomous system.
Although most of these ideas are well debated, the significance of dis-
cussing them here is that they illustrate how legal education manages to
obscure that the truth of law is constructed through maintaining rather than
questioning the primary focus on the workings of the courts. Similarly, legal
knowledge is portrayed as beyond scrutiny by various other conventions of
legal education relying on the theory versus practice, doctrine versus inter-
disciplinary knowledge, historical versus a historical study of law, et al. For
instance, in common law countries there are perennial debates about the con-
tent of legal education and most schools tend to lean more heavily towards
6
teaching legal technical rules than theory.
That said, it is, however, also true that most legal curricula now include
some form of theoretical study, commonly described as a study of jurispru-
dence. In legal literature, the question 'what is law' is the staple question for
For an overview of this topic, see, Russell Weaver, Langdells Legacy: Living with the Case
Method, 36 VILLANOVA L. REV. 517 (1991).
16 There is vast literature on legal education but it is not my aim to survey that literature here.
For an introduction, see LEGAL THEORY AND COMMON LAW (William Twining ed., Basil
Blackwell, 1986).
legal theorists and is answered variously by different schools of jurisprudence.

However, this is a very limited conception of theory that manages to claim
objectivity by relying on conceptual claims. Thus, the contours of legal edu-
cation do not necessarily change by including any theory. As explained by
Cotterrell, 4 7 most legal theory may be described as conventional jurisprudence
or lawyers theorizing about law. They are also classified as normative theories
and aim to explain the nature of law solely in terms of the conceptual struc-
ture of legal doctrine. Such theory also strives to explicate the relationship
between rules or principles, concepts, and values. Two features of normative
theory that should be noted are that it is a conceptual inquiry and it claims to
be objective and thus, tells the truth about law.
Any conceptual theory defines terms by necessary and sufficient condi-

tions. Therefore, empirical evidence cannot verify or rebut it.4 8 For example, by
definition, custom is not law. Secondly, the truth claims made by such theories
invoke a conception of objective knowledge, that is, it is possible to reach the
truth through a conceptual theory. Both of these outcomes are critiqued by
others, and furthermore it is necessary to remember that a conceptual claim
can only be assessed by reference to its stated or assumed purpose. For exam-
ple, in Hart's definition of law, a legal system must have centralised legislative
and adjudicative bodies.4 9 It is claimed to be a universal definition but there
are certain assumptions being made, e.g., law is about maintaining social order
in any community. Could one fault or critique this definition for being blind
to the economic disparities in a society? The conventions of theorising prevent
us from doing that and this is the point about being aware of the assumptions
on which any theory is operating. Thus, the contours of legal education are
drawn not only by privileging black letter law but also by dabbling in theory
of a particular kind and that also eclectically.o
The above examples can explain how the discourse of legal knowledge as
objective or neutral is maintained, but it does not shed any light on why it is
the case. It also leads to another related question - who would be interested in
7 ROGER COTTERRELL, THE POLITICS OF JURISPRUDENCE: A CRITICAL INTRODUCTION TO

LEGAL PHILOSOPHY 1-9 (University of Pennsylvania Press, 1992) (1989).
* It is also important to mention here the other broad category of legal theory-empirical the-
ory. Empirical legal theory is any theory that seeks to explain the character of Law in terms
of its historical and social conditions. It considers the doctrinal and institutional character-
istics of Law that are emphasized in normative legal theory as explainable in terms of their
social origins and effects. Still other authors make a further distinction between socio-le-
gal enquiry and sociology of law kind of analyses. See Roger Cotterrell, Pandoras Box:
Jurisprudence in Legal Education, 7(3) INT'L. J. LEGAL PROFESSION, 179 (2000).
9 Werner F. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and
Africa, 34, (Cambridge University Press, zoo6).
50 For an interesting report on how law schools in Australia 'dabble' in legal theory, see Richard
Johnstone & Sumitra Vignaendra, Learning Outcomes And CurriculumDevelopment In Law: A
report commissioned by the Australian Universities Teaching Committee, AUTC, (2003), availa-
ble at http://www.cald.asn.au/docs/autc-zoo3_johnstone-vignaendra.pdf (last visited F6 Sept,
2017).
answering this and with what kind of information could it be answered? The
lawyers and judges are too enmeshed institutionally to be able to examine their
role in the construction of the dominant discourse of law. The legal scholars,
however, have the necessary autonomy from the legal system to be able to
attempt an answer. Therefore, legal scholars have an important responsibility in
maintaining or challenging the dominant legal discourse. It is, therefore, also
the responsibility of these scholars to conceptualise legal education that equips
the future law persons to appreciate their role in maintaining or changing the
dominant discourses of law."
As a preliminary explanation, it is useful to explain how I understand

and use the concept of discourse developed by Foucault. In so far as Foucault
is concerned, he was interested in examining how various 'truths' emerged
about discreet or new subjects like madness or sexuality.52 His arguments
are of direct relevance to my claims here. 3 The issue for the present essay is
how the 'truths' of law are constructed and what may be the content of those
truths. In keeping with Foucault's understanding, it is also accepted that dis-
course is not simply the language or concept or even an internally consist-
ent set of ideas. "Rather, discourse determines what can be said and thought
within a discipline and who can speak and who can be considered to have
the authority to speak."" Thus, the importance of what the judges have to say
about law and the concepts of legal reasoning and separation of powers inter-
mesh to produce the dominant conception of legal knowledge. Therefore, when
legal scholars do not question the claims of objective truths of law and repeat
these ideas to the next generation of law students, they participate in consoli-
dating a particular conception of legal knowledge.
The dominant conception of legal knowledge within the discipline sees

it as pre-constituted even though post-structural critics challenge this vision.
Most of the critical theory scholarship is arguing, even if in different ways,
that law is made in its languages rather than something already existing which
the language merely describes." It must follow that if in view of this critique
of legal knowledge we keep ignoring it then we are complicit in maintaining
the dominant views about law. Another way of saying this is that law is not
separate from its discourse and therefore, it is relevant to examine how this
discourse is formed and what roles different institutions or individuals might
5 (For a contrary argument), see John Schlegel, Searching For Archimedes-Legal Education, Legal
Scholarship, and LiberalIdeology, 34 J. LEGAL EDU. 103 (1984).
52 MICHEL FOUCAULT, THE ORDER OF THINGS: AN ARCHAEOLOGY OF THE HUMAN SCIENCES
(Routledge, zooz).
53 Id.
5 ARCHANA PARASHAR, FRANCESCA DOMINELLO, THE FAMILY IN LAW z8 (CAMBRIDGE, 2017);
STEPHEN BALL, FOUCAULT AND EDUCATION: DISCIPLINES AND KNOWLEDGE 2 (ROUTLEDGE,
1990).
5 See for example, Dean Bell & Penelope Pether, Re/writing Skills Training in Law Schools: Legal
Literacy Revisited, (1998) 9 LEGAL EDU. REV. 113.
play in its construction. It is commonly accepted that discourse formation is

not intentional and the knowing subject does not simply produce a discourse. 6
It must, nevertheless, be the case that all of us are involved in maintaining or
constructing the discourse of law every time an idea is repeated and endorsed
or challenged. 7 While everyone of us is constituted by our contexts and can-
not step out of our cultural conditioning, it is nevertheless the case that we
have the capacity to be self-reflective about our practices and ways of thinking.
Returning then to the issue of why it is that the dominant discourse of

law as objective and pre-constituted is maintained in the face of trenchant cri-
tiques, the answer once again comes from Foucault's insight that power and
knowledge are enmeshed." Among other things, this insight means that what
is accepted as valid knowledge is a function of power. The combinations of
factors that have validated the modern conceptions of knowledge because of
their objective, scientific, or rational basis prevent us from challenging their
claims. 9 It is a function of their assumptions that any questioning is depicted
as biased. Thus, the brief of legal education is to teach about law rather than
about how something gets the label of valid knowledge. However, the conven-
tions of theorising are as important as what is said, since they point to the
assumptions on which any theory is built. At the very least, identification of
these assumptions can be one way of showing that things could have been
different. The fact that we do not consider this an essential part of education
points to our complicity in maintaining the hegemony of modernist conven-
tions of theorising. 60 Therefore, as researchers and teachers in the discipline,
it is incumbent upon us to take our responsibilities seriously as institutionally
endorsed speakers and be self-reflexive about what ideas about law we endorse
or critique.
16 GAVIN KENDALL & GARY WICKHAM, USING FOUCAULT'S METHODS 42 (Sage, 1999).
1 In a related sense this is the concept of performativity used by Butler; See JUDITH BUTLER,
GENDER TROUBLE (Routledge, 1990).
" MICHEL FOUCAULT, POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS
1972-197(Colin Gordon ed., Colin Gordon, Leo Marshall, John Mepham & Kate Soper
trans., Pantheon Books, New York, 1980).
" I do not have the space to develop this argument in detail here but the idea of knowledge as
objective or as something that comes into existence as part of discursive practices bears reiter-
ation. Post-structural insight that the claims of objective knowledge can only ever be claims,
points to the mechanisms of theorising. That is, how theory is constructed itself needs to be
scrutinised. Thus, the mainstream theorists of law, all base their theories on certain assump-
tions whether they are positivists or natural lawyers. Moreover, theory is supposed to be
abstract and a-contextual. It therefore applies universally and is not affected by who is doing
the theorising. Post-structural analyses on the contrary point out that it is not possible for us
to step out of our cultural, ideological, or social contexts. See for an introduction MARGARET
DAVIES, ASKING THE LAW QUESTION ( 3 d. ed., Law Book Co., zoo8).
60 Admittedly this statement is an over-generalisation but it is not meant to criticise individual
institutions or teachers. The argument is directed at the hold of the dominant paradigm of
legal education as teaching for the profession. The advent of national law schools in India
and the introduction of five year LL.B. programs is changing the contours of legal education
but the assessment of their conceptions of legal knowledge is as yet incomplete. It would be a
topic for a different article.
Coming back to the issue of law reform, it should be evident that if legal
knowledge is understood as constructed in discourse, it also follows that the
concept of reform would have to be understood differently. As discussed above,
the two authors, Tilbury and Macdonald, who ask for LRCs to conceptual-
ise law more broadly, would succeed if the change happened at a more funda-
mental level. That is, rather than expecting the LRCs and their personnel to
think of law differently, it is more relevant and may I suggest, necessary, that
the future legal thinkers are educated differently. Otherwise assertions like the
following statement made by an author reviewing law reform agencies are inev-
itable: "[D]espite the undeniable importance of this 'soft law' approach, it is
important to remember that law reform mechanisms must be realistic in their
goals-they risk becoming irrelevant if too theoretical and impractical in their
recommendations ."61
This is what Cotterrell describes as the limitations of empirical legal the-

ory, sometimes described as the limitations of socio-legal research. 62 The ques-
tions posed are not all that different from those asked in normative theory
scholarship. For example, socio-legal research largely focuses on the activities
of the legal profession, the administration of criminal justice, court procedures,
provision of legal services etc., and seeks to determine how far the legal norms,
as articulated in legislative or judicial pronouncements, are actually operative.
The underlying assumption, of course, is that the law ought to be reflected in
reality. It follows that when research discovers a disjuncture between the two,
the logical next step is to argue for either law reform of the substantive rules
or of court procedures. This is the genre that is most often adopted by law
researchers whether at LRCs or universities' postgraduate research programs.
The remedies proposed are, more often than not, in terms of specific policy or
law reform. The LCI is no exception to this, as is indicated by a cursory survey
of the titles of its reports mentioned above.
There are a few implications of adopting this theoretical stance that

should be evident. It necessarily involves a particular understanding of the law;
that it can and should deliver justice, fairness, non-discrimination etc. to the
previously disenfranchised or marginalized groups in society. This understand-
ing of the law is also described as a liberal view of the law as the means used
61 Laura Barnett, The Process of Law Reform: Conditions for Success, 39 FED. L. REV. 161,190
(2011).
62 The context of this statement becomes clearer if it is mentioned here that Cotterrell is
engaged in distinguishing between legal philosophy and legal theory. He says legal philos-
ophy may be described as any conceptual enquiry about law. Legal theory has a narrower
focus on systematic theoretical analysis of the nature of law, laws or legal institutions but
excludes moral justifications of law. He further designates two kinds of theoretical enquiry as
normative legal theory and empirical legal theory. According to him Empirical legal theory is
any theory that seeks to explain the character of Law in terms of its historical and social con-
ditions. It considers the doctrinal and institutional characteristics of Law that are emphasized
in normative legal theory as explainable in terms of their social origins and effects; Cotterrell,
supra note 48, at 181.
by the state to create and promote a fair society. In contrast are the critical
theorists who see legal knowledge as more than doctrine and jurisprudence.
In fact, primarily, they critique the dominant conceptions of legal knowledge
rather than formulate alternative theories of law. This literature, inter alia uses
the post-structural genre to challenge the concept of objective legal knowledge
as well as to show the constructed nature of this knowledge. 3
In contemporary mainstream legal scholarship, the dominant ways of

thinking about law continue to treat it as authoritative knowledge conceived as
either doctrine, or doctrine with unsystematic sprinklings of legal theory. This
is problematic because it does not allow the students to examine the 'nature
of knowledge' claims assumed in the legal literature. Even when the students
are acquainted with the multiple schools of jurisprudence, contemporary crit-
ical theories and their critique, they are nevertheless dealing with given and
authoritative knowledge. They are not enabled to learn about the formation of
knowledge. If, for example, the same students were equipped to see that ideas
are floated, accepted, endorsed, or rejected by individual agents like them, they
would grasp how knowledge is produced. This understanding is a prerequisite
for them to be informed participants in the production of legal knowledge.
Law students who are enabled to question every dogma and theory and
who can grasp their own role in the construction of authoritative knowledge
will also understand that they need to make their own ethical choices. Such
an understanding would aid in the making of a fair and efficient legal system.
It is, therefore, imperative that the design of legal education facilitates students
to understand and take their role in maintaining or modifying the legal sys-
tem seriously. Thus, the understanding of critical thinkers proposed here com-
bines the 'construction of knowledge' insight with the attendant responsibility
of the thinker to be reflective of their own actions in legitimizing or delegiti-
mizing certain views about law. In this manner, the views and theories of law
can contribute towards creating a fairer society as the option of distancing one-
64
self from the consequences of so called objective laws will no longer exist.
Therefore, an interdisciplinary and theoretical education is required as adequate
legal education because it enables self-reflexive responsibility in the construc-
tion of legal knowledge. In the context of this article, such an education would
enable law researchers to engage in the processes of reforming law at a much
more fundamental level than is possible now.
63 See for an introduction MARGARET DAVIES, ASKING THE LAW QUESTION (3 d. ed., Law Book
Co., 2008).
61 This is a very contentious topic and I can only mention it here. Any number of post-struc-
tural or postmodern writers challenge the idea that postmodernism can be a means for intro-
ducing normative ideas about fairness, justice or some other value. For an example of this
kind of stand see Tim Murphy, Postmodernism:Legal theory, legal education and the future, 7(3)
INT'L. J. LEGAL PROFESSION 357-379(2000).
18s JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 6: Monsoon]
I will now briefly analyse the 18 4 ' Report of the LCI on Legal
Education6 1 to substantiate my claim that the institutional design of legal edu-
cation needs to be reviewed for law reform to become meaningful. At present,
the law schools play a significant part in maintaining the schism between the
black letter and critical theoretical views about law. This is because the Bar
Councils, Judges, and other powerful legal professionals determine what is
taught to the law students. The following discussion is in no way meant as per-
sonal criticism of its authors. The point I wish to make is that it is necessary
to analyse the particular conception of legal knowledge and of law reform that
the Report assumes.
The LCI initiated this inquiry suo motu and issued a working paper
in 1999.66 After wide consultations, it finalized the 1 8 4 ' Report in 2002.67
Among its salient features is the recommendation that the two main institu-
tional bodies, the Bar Council of India (hereinafter referred to as 'BCI') and
the University Grants Commission (hereinafter referred to as 'UGC') charged
with responsibility for legal education should consult more effectively in set-
ting the standards for legal education.68 It is for this purpose the LCI rec-
ommended that the Legal Education Committee of the BCI should consult
the Legal Education Committee of the UGC in a meaningful manner so as
to fulfil the requirements of specified consultation process. The other major
recommendations are for introducing procedures for quality assessment and
accreditation of Law schools, for introducing compulsory training in alterna-
tive dispute resolution procedures for lawyers, judges, and students, appointing
part time adjunct law teachers from the pool of lawyers and retired judges in
law schools and professional training of law teachers.
At a glance, most of these recommendations deal with the procedural

aspects and not with the issue of the substance of legal education. However,
in the details of the report, there is an effort to engage in an analysis of the
existing literature on legal education within India and in some other legal sys-
tems in North America and the United Kingdom.6 9 The most striking aspect
of this discussion is its eclectic nature. In Chapter Five of the Report,70 the
LCI discusses the standards of legal education and proceeds to talk about 'pro-
fessional skills and professional values' with the help of a report prepared by
the American Bar Association, and reports by a few other professional bodies
65 18 4 th Law Commission Report, The Legal Education & Professional Training and Proposalsfor
Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956, (zooz).
66 Id, at z.
67 Id, at 125-135.
61 Id. at 99-115.
69 Id.
70 Id, at 53-61.
" ABA Section of Legal Education and Admissions to the Bar, Legal Education and Professional
Development-An Educational Continuum (Report of the Task Force on Law Schools and the
Profession: Narrowing the Gap), (1992), available at https://www.americanbar.org/content/dam/
including those in the United States of America and the United Kingdom.7 2
Among other things, the LCI quotes from MacCrate Report73 and says that,
"Law schools should be encouraged to develop or expand instruction in such
areas as 'problem solving', 'fact investigation', 'communication', 'counselling',
'negotiation', and 'litigation'."74 It goes on to exhort the relevant members of
BCI and UGC to study this report and literature related to it.75 However, it
is a little surprising that the authors of the report do not situate the MacCrate
report in its context. There is no discussion of the philosophy of education
adopted in the report or an acknowledgement that alternative views exist. Nor
is there any reference to the critiques of the report in the literature. Moreover,
in recognition of the new economy that entails globalisation, privatisation, and
regulation, the LCI recommends introduction of new interdisciplinary courses
in the curricula of first and second years of the five years LLB. programmes.
Missing from the Report is any discussion or even a nod to the issue of
understanding law in a non-positivist sense. This is a missed opportunity for a
significant institution to participate in changing the discourse of law. Instead,
it repeats, without any self-reflexivity, the received wisdom of legal education
as about training professionals.76 The LCI could have been the catalyst for
genuine law reform if it had engaged in an inquiry about the construction of
knowledge. It is probably a rhetorical question to ask why it did not do so.
However, the effects of its decision are very tangible in that they endorse the
view of legal knowledge as already available rather than as a product of discur-
sive practices. It follows that adequate legal knowledge is then conceived of as
professional training.
This is a rather impoverished view of legal knowledge and in view of

the extensive literature on the constructed nature of law, it seems like a some-
what incomplete view as well. It is possible to imagine that the LCI Chairman
and members may have approached the subject differently if they, in turn,
had been part of a legal universe that went beyond the professional bodies
like Bar Councils and the higher judiciary. In other words, the legal profes-
sionals construct a universe of law where practicing lawyers are the 'real' law-
yers. For example, the recommendation that universities should employ retired
judges and lawyers as part time teachers is a manifestation of this view and
aba/publications/misc/legal-education/zoJ3_1egal-education-and-professional-development-
maccrate-report).authcheckdam.pdf, (last visited Sept. 17, 2017).
72 Supra note 75.
7 Id, at 54.
7 Supra note 72, at 58.
7 See for example, Carrie Menkel, Meadow, Narrowing the Gap by Narrowing the Field: What
's Missing From the MacCrate Report - Of Skills, Legal Science and Being A Human Being, 69
WASHINGTON L. REV. 593 (1994); Russell Pearce, MacCrate' Missed Opportunity: the MacCrate
Reports Failure to Advance Professional Values, 23 PACE L. REV. 575 (2003).
76 The report does list all the significant reports on legal education in India by various bodies
and publications by universities. However, it does not analyse their substantive content about
the aims or goals of legal education.
in another sense, undermines the intellectual rigor required of any university

discipline.7 7 The history of how common law developed seemingly holds our
imaginations much more than any arguments about us being the agents of dis-
course formation. The repeated endorsements of the 'case method' and 'prob-
lem solving method' of teaching do not admit of the existence of an extensive
scholarly debate about the shortcomings of this form of education.78 It follows
that the focus of the Report does not extend to discussing the form and sub-
stance issues of legal education separately.
Similarly, there is no indication that the authors of this Report con-

sider it important to ask what should be the wider goals that legal education
should pursue. They define their brief narrowly to ensure that the two gov-
ernment bodies charged with the task of regulating standards of legal educa-
tion can work together in an efficient manner. However, having done that, the
LCI goes on to elaborate how the BCI should ensure that certain standards are
maintained. It is somewhat surprising that similar instructions are not issued
to the UGC except for asking it to constitute a legal education committee. An
optimistic interpretation of this stance could be that the LCI is mindful of
the high value placed on academic autonomy and does not wish to be pre-
scriptive about how the universities liaise with UGC in designing legal educa-
tion. However, various other recommendations in the Report go against this
interpretation of the LCI's actions. For example, the recommendation that law
teachers should be imparted professional training could only be seen as an
illustration of its main argument that legal education should produce compe-
tent practitioners. This argument for professional training is acceptable as far as
it goes but it does not go far enough. Competent professionals should not only
be able to deal with the technicalities of law but also be able to critique it in
order to strive for a fairer system of law.
This brings me back to a point made above by both Tilbury and

Macdonald that the LRCs can conceptualise law reform in a wider sense than
in an instrumental sense.7 9 However, for that to happen, I suggest that we have
to change the content of legal education rather than hope that the researchers
at a later time will be able to reconceptualise law. It is imperative to make a
connection between the kind of undergraduate legal education available and
the expectations of research that will inform law reform bodies and person-
nel. It cannot be a realistic expectation that anyone will start appreciating the
wider theoretical issues about legal knowledge once they commence research
in law. Therefore, if we want truly interdisciplinary research, the foundations
for it need to be laid down at the level of undergraduate programs. Thus, the
n See David Sugarman, Legal 7heory, the Common Law Mind, and the Making of the Textbook
Tradition in LEGAL THEORY AND THE COMMON LAW 29 (W. Twining ed., Basil Blackwell,
1986) for an analysis of how initially when legal education moved to the universities, the legal
academy had to justify its expertise to the profession.
7 Weaver, supra note 45, at 517.
7 See Tilbury, supra note 13; See also Macdonald, supra note 13, at 863.
arguments about the appropriate kinds of legal research are inextricably linked
with debates about the design of legal education. In his article, Macdonald
does make a similar observation that law reform in Canada has changed dur-
ing 1930s to 1970s and has replaced the colonial shackles of UK common
law with the influence of US law due to the disproportionate influence of the
Harvard LL.M.o In other words, the more contemporary law reformers' ideas
were formed during their studies at the Harvard University.
One of the aims of this issue of the Journal is to further Lotika Sarkar's
legacy of making legal education more sensitive to gender imbalances. This is
in the context of her analysis of the shortcomings of the LCI Reports where
they deal with issues of relevance to women. I believe that honouring that leg-
acy requires a serious engagement with the construction of legal discourse in
the education system. I take support for this from Finley" when she argues
that it is imperative for feminist legal scholars to ask how neutral or inclu-
sive is the structure of legal reasoning. If we keep using the existing terms of
law without questioning them, we will be unable to see how the language of
law constrains and undermines our goals of gender equality. Moreover, just
by grabbing at the existing language we are unlikely to tap the positive social
reform potential of law. Therefore, the main task of legal feminist analyses
must be to show how the so called abstract, universal, and neutral norms of
law come from the experiences and perspectives of only one group of human-
ity. Undeniably, the existing meanings in law are powerful but there is reason
for reconstituting legal language. Thinking about legal language enables us to
be self-aware and self-conscious about our decisions. It makes us aware of the
implications of arguing in a certain way, for example, if thinking about equal-
ity as sameness or as difference has negative consequences, maybe we need to
think outside the dichotomy.
I will conclude with a quote from Davies when she says, "It is possible to
think of legal change as transformational of the values and ideology of law and
of the very understanding of what law is: critical theorists have often regarded
this form of change as being of equal importance to legislative change."82 For
this kind of change and reform to happen, we need to focus our attention on
the substance of legal education.
so Macdonald, supra note 13, at

863.
Lucinda Finley, Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of
Legal Reasoning, 64 NOTRE DAME L. REV. 886(1989).
82 Margaret Davies, Legal Theory and Law Reform: Some Mainstream and CriticalApproaches,
28(4) ALTERNATIVE L. J.168, 171 (2003).
THE SPOILS OF MARRIAGE:
IRRETRIEVABLE BREAKDOWN AND
MATRIMONIAL PROPERTY IN THE LAW
COMMISSION OF INDIA REPORTS
-SRIMATI BASU*
This paper attempts to illustrate the reality behind the apparently

beneficial proposal to institute 'IrretrievableBreakdown of Marriage'
(hereinafter referred to as 'IRBM) as a groundfor divorce in India.
It contextualizes the possible ramifications of such an introduction
against the existing practical realitiesfor married women in India as
it explores the core question of whether the legal approach in such a
matter should be protectionist or gender neutral. The Law Commission
Reports have depicted the proposal merely as a necessary, contempo-
raneous reform while ignoring the cultural anxieties of both feminist
and men's rights groups that stem from the gendered socio-economic
inequality that permeates the Indian matrix. This deceptive projec-
tion has failed to address the severely disproportionatefinancial impli-
cations that might arise. This paper analyzes the Indian scenario of
divorce as it highlights the gender disparity in marriage and expounds
the feminist narrative on the nature of marriage and divorce as vehi-
cles of economic dependency and seeks to expose the systematic compli-
cations that challenge the conceptualization of "easy-divorce"in India.
I. INTRODUCTION
A good divorce is a complicated problem for gender justice. The ration-

ale that divorce enables getting out of violent, or otherwise bad marriages has
fueled the global trend for making it easier, much to the consternation of con-
servative religio-political forces. However, the negative (economic) effects of
divorce disproportionately affect women outside the labour market, which also
make it a cause for concern. In India, feminists have critiqued the institution
of marriage and championed gender-equitable provisions for divorce across per-
sonal laws. However, the same critics have also been worried about making
* Professor, Gender and Women's Studies and Anthropology, University of Kentucky, USA.
THE SPOILS OF MARRIAGE 23
divorce too easy. The haste of a quick divorce, they warn, can leave economic
and residential questions unsettled.
The proposal to institute IRBM as a ground of divorce in India (in the

Hindu Marriage Act and the Special Marriage Act) stands at the crux of these
issues by generating responses that illumine women's economic reliance on
marriage and the nature of matrimonial property. In this chapter, I trace argu-
ments around irretrievable breakdown (or no-fault divorce, to use the more
global term) through the Law Commission Reports and their contestations to
evaluate feminist debates on whether marriage law should be gender-neutral or
protectionist, and the forms protection should take. By reading these concerns
in the context of global research on no-fault divorce and matrimonial prop-
erty, this paper traces the difficulties of treating divorce settlements as vehi-
cles to remedy problems with inequitable human capital and assets produced
by marriage. Forms of marriage and property in India further compound such
difficulties.
Whether divorce law should be based in gender equality or whether it

should provide gendered protection has been a longstanding conundrum in
feminist jurisprudence. We might think of these concerns as a subset of ques-
tions about whether marriage laws should be formally equal in all aspects, or
whether they should bring about equity through providing for the economi-
cally weaker group (typically wives). While strict equality standards have
symbolic significance for gender equity, they often fail to consider inequities
in paid and unpaid labour and resultant asset gaps: as Okin famously claims,
"gender-structured marriage involves women in a cycle of socially caused and
distinctly asymmetric vulnerability," meaning women "are made vulnerable by
marriage itself".2 On the other hand, protection-based standards which attempt
to remedy such inequities may re-inscribe feminine dependence and social
3
secondariness.
The global trend has been in favor of gender-neutral marriage law, mov-
ing away from deeply patriarchal, heteronormative visions of marriage in which
men received income and property in exchange for maintaining families, and
in which women's relationship to property was thereby mediated by marriage.
As a result, no-fault divorce regimes, with some form of property division
and the elimination of long-term alimony have emerged. However, critics of
no-fault provisions point out that such gender-neutrality might have very dif-
ferent consequences for men and women, given the segregated labour (and
property) markets.
Feminist theories discussed here deal not with broader structural reform of market and asset
bases, which are outside the purview of this paper, but more narrowly on assets in private
property ownership.
2 S.M. OKIN, JUSTICE, GENDER AND FAMILY, 138 (1989).
W.W. Williams, The Equality Crisis: Some Reflections on Culture, Courts and Feminism 71, 92,
in THE SECOND WAVE: A READER IN FEMINIST THEORY (L. Nicholson ed., 1997).
One of the most crucial questions in no-fault divorce concerns the dis-
tribution of assets. Does the economic responsibility for wives' sustenance shift
on marriage to husbands or affinal families, rather than staying with natal
families or wives themselves? How early do these responsibilities get triggered,
and are they contingent on some exchange of labour? How long should such
support continue, and on what basis? Depending on one's perspective on the
protective function of marriage, alimony/post-divorce maintenance may be
seen as a remnant of patriarchal protection to dependents, a public interest for
preventing economic destitution to weaker sections, or as just compensation for
women's reproductive and productive labour to the household. Many feminists
in India have preferred the latter criterion, but the metrics for determining
such compensation are formidably challenging, given the blurred lines between
individual and family resources, and formal and informal income.
11. THINKING WITH THE LAW COMMISSION REPORTS
The proposal to add IRBM was first considered by the 71't Law
Commission in 19784 as a provision which would simplify procedures and
reduce conflict. Focused on clarifying procedures for divorce grounds, the
Law Commission left issues of economic distribution at the end of marriages
murky. Irretrievable Breakdown did not go on to formally become law, but
acquired informal validity as a principle evoked in a number of judicial deci-
sions granting divorces. The resultant legal confusion was one of the main
reasons the Law Commission took up the question again as a suo motu issue,
with the 2 17 h Law Commission of India Report6 in March 2009 recommend-
ing (again) that irretrievable breakdown be added as a ground of divorce to
existing provisions. The Marriage Laws Amendment Bill, 2010 followed from
this recommendation, though it also echoed many elements of the 1978
Report. In the face of various critiques, it was withdrawn and evaluated by
a Standing Committee, which issued new guidelines that were passed by the
Cabinet. For the last couple of legislative sessions, the revised Bill has hovered
on the docket without actively coming up, allowing various political regimes
to seem responsive to the issue without actively debating the resultant changes.
Meanwhile, a variety of social movement groups await the Bill with anticipa-
tion and consternation. This legal change, which might seem welcome for its
convenience, evokes alarm among bitterly opposed constituencies: both femi-
nist groups, as well as emergent men's rights groups who challenge feminist
governance. Feminist groups worry about the facile adoption of equality as a
liberal legal norm, given that marriage in India often involves highly gendered
71" Law Commission of India Report, The Hindu MarriageAct 1955 - IrretrievableBreakdown
ofMarriage as a Ground ofDivorce, (1978).
Chitkara R., Between Choice and Security: Irretrievable Breakdown ofMarriage in India, 21(3)
JURISPRUDENCIJA/JURISPRUDENCE 847, 865 (2014).
6 217 h LAW COMM'N OF INDIA REP., IRRETRIEVABLE BREAKDOWN OF MARRIAGE - ANOTHER
GROUND FOR DIVORCE (2009).

socio-economic inequality. They contend that making divorce too easy will
enable men to get out of marriages quickly without making any economic
provisions for wives, increasing abandonment and impoverishment. To them,
"fault" in divorce functions as leverage to negotiate alimony and residence.
Thus, they argue that no-fault legislation should not be put in place without
systematizing matrimonial property division.
Men's rights groups direct the force of their consternation not to eas-
ier divorce but to the question of matrimonial property division, alleging that
this provision would cause husbands and their families to lose substantial
individual and ancestral property. Anointing it ICBM - "an Intercontinental
Ballistic Missile of a Bill," they portend, and threaten that the end-result will
be to increase divorce and to make men marriage-averse. 7 In my recent field-
work across various Indian cities, I found concerns surrounding this law to be
one of the most prominent worries drawing people to meetings of such men's
groups. A Delhi mother, whose son faced divorce (and would be liable for pay-
ing maintenance) asked, "Should I disinherit him now, and just make a will
naming the other sons?" That is, the parents contemplated, the unprecedented
act of cutting off a son from his share of patrilineal property in fear that the
daughter-in-law might claim all the parents-in-law's property as part of the set-
tlement (note that only the sons were considered as incipient heirs). I heard one
parent be advised not to do anything that would seem to be a blatant effort to
escape sharing property resources. Contrarily, in another case the parents were
told that they ought to act before it was too late, just in case. Many of these
families were involved in multiple criminal and civil cases,9 might have been
jailed without investigation, and were often bargaining in terms of huge set-
tlement amounts, hence prone to be paranoid about nasty legal surprises that
might lie in store for them. The Save Indian Family organization, the largest
men's rights group in India, which devotes a lot of attention to legislative lob-
bying, regularly sought volunteers to go speak to individual Parliamentarians
against the Bill. In one such Delhi meeting, the call for volunteers was pref-
aced by a description of the upcoming law as giving husbands no say in their
divorces while subjecting their bids for no-fault divorce to greater scrutiny,10
and allowing wives to claim in-laws' property by filing for divorce after only
7 Gayatri Jayaraman, Marriage Law: An IntercontinentalBallistic Missile' of a Bill, INDIA TODAY

(Aug. 28, 2013), http://indiatoday.intoday.in/story/rajya-sabha-passes-marriage-laws-amend-
ment-bill-zoio/J/30427i.html.
8I draw here on my 2013-2015 fieldwork involving participant observation and interviews with
Men's Rights Associations in India, a project that was an offshoot of my previous fieldwork
on Family Courts and the workings of the laws of divorce and gendered violence.
9 SRIMATI BASU, THE TROUBLE WITH MARRIAGE: FEMINISTS CONFRONT LAW AND VIOLENCE
IN INDIA, (2015).
As I discuss in previous work, criminal and civil cases are often filed simultaneously, with
the threat of criminal sanctions (incarceration without investigation, job loss, general social
embarrassment) (Basu 2015).
This interpretation refers to the lack of gender-neutrality in the Bill: there are some safeguards
against men filing for no-fault divorce with little seeming cause (especially if no alimony or
a few days of marriage. These concerns balk at easy divorce by women while
simultaneously resisting matrimonial property division."
As the positions of these very different groups might indicate, the legal
directive on no-fault or irretrievable breakdown focuses on the ease of pro-
cess, while cultural anxieties are fundamentally centered on ancillary issues of
matrimonial property. Feminist groups resist irretrievable breakdown largely
for the potential to free husbands of post-divorce settlements, echoing a body
of scholarship on the negative fallouts of no-fault regimes. Men's right groups
are much more worried about precedents for property division that may result
than about easy divorce which is the manifest cause behind the legislation.
These two positions broadly represent protectionist and gender-neutral views of
marriage law respectively.
This section uses debates around the Law Commission's proposal of

IRBM to consider the economic entitlements of marriage, and associated ques-
tions of equity and responsibility. In the following sections, I first provide
background on the 1978 and 2009 Reports. Then, I read them through the
scholarship on no-fault divorce and post-divorce property distribution, and the
specific complications of the Indian context. I argue that the Law Commission
Reports' focus on ease of process and silence on property/alimony miss the
fundamental crisis that irretrievable breakdown might precipitate, namely the
nature and basis of matrimonial property division. This is the primary anx-
iety for groups which contest the recommendation, including deep conflicts
between feminists. Through these debates, this chapter underlines the problems
generated by women's profound material reliance on marriage to the exclusion
of other sources.
III. NO-FAULT DIVORCE: A LAST RESORT, A BETTER BARGAIN
Irretrievable breakdown or no-fault divorce has become increasingly pop-

ular because it appears to offer both procedural advantages and better custom-
ized outcomes. In some arguments, such as the Law Commission Reports, it
is the quick and easy fix of last resort, bringing indubitably failed marriages
property has to be given during divorce), while women can file for no-fault divorce without
such scrutiny.
'While the movement is not allied with religious majoritarianism, the anxiety also spills over
into Hindutva discourses of religious genocide, such as this comment to Jayaraman's article,
"This is being done by powerful Muslim lobbies so Hindu men stop marrying and Muslim
population soars. Hindu families with daughters won't object to this law. In zo years Hindu
population will be finished. The rest will be converted by force/rape and torture." For the
spectre of population genocide in Hindu majoritarianism despite the weight of demographic
evidence to the contrary, see for example Lies, Damn Lies, and Statistics on Hindu and Muslim
Babies, Editor's Pick, CARAVAN, (Jan. 25, 2015) http://caravandaily.com/portal/lies-damned-
lies-and-statistics-on-hindu-and-muslim-babies/Lies, Damn Lies, and Statistics on Hindu
and Muslim Babies, Editor's Pick, CARAVAN, (Jan. 25, 2015) http://caravandaily.com/portal/
lies-damned-lies-and-statistics-on-hindu-and-muslim-babies.
to an uncomplicated end with minimal rancor. To many economists and legal

scholars, it allows for a more efficient individual bargaining over exit solutions
and avoids the heavy hand of the State, thereby minimizing conflict by avoid-
ing law. It does not necessarily increase the divorce rate, may help facilitate
women's labour-force participation, and increase societal gender equality.
The Law Commission Reports are deeply ambivalent about divorce. The
sanctity and beneficence of marriage is posited as a transparent good even
in promoting the ground of irretrievable breakdown as a form of modernity
and as a necessary measure to bring Indian laws on par with global trends.
This uneasy negotiation is exemplified in the introduction to the 2 17 t' Law
Commission Report:
"The foundation of a sound marriage is tolerance, adjustment and

respecting one another. Tolerance to each other's fault to a certain
bearable extent has to be inherent in every marriage. Petty quibbles,
trifling differences should not be exaggerated and magnified to destroy
what is said to have been made in heaven".1 2
The 71s' Law Commission Report, similarly, depicts the change as a nec-
essary one for marriages which seem beyond repair, with a lot of nostalgia and
praise for marriage.
No-fault divorce or "irretrievable breakdown," the Reports contend, is

to be reserved only for marriages which appear truly broken, where "it has
become impossible to resurrect the marriage," or "the marriage has proved to be
a complete failure," or "when the emotional and other bonds which are of the
essence of marriage have disappeared" and the marriage is merely a shell out
of which the substance is gone". 13 I italicize the phrases above to emphasize
the Reports' representation of marriage as a fundamental good, of there being
success in some marriages, and the chance that mediation can bring about
reconciliation for those with occasional tiffs.
Such statements preemptively defend accusations that the new provision

would be anti-marriage. The 2 17t' Report argues for irretrievable breakdown
as a public policy interest and a humane intervention, not merely a conveni-
ence of modern life: "Public interest demands not only that the married status
should, as long as possible, and whenever possible, be maintained, but where a
marriage has been wrecked beyond the hope of salvage, public interest lies in
the recognition of that fact"." "The goal of the legislation," the Report insists,
"is a focus on rehabilitationand forward movement, rather than rec-

onciliation. Such divorce is unconcerned with the wrongs of the past,
13 Supra note 6, at z.
" Supra note 4, at 12-13.
but is concerned with bringing the parties and the children to terms
with the new situation and developments by working out the most sat-
isfactory basis upon which they may regulate their relationship in the
changed circumstances"."
The measure is also cast in terms of uniformity in Personal Law, claim-

ing that Muslims, Christians and Parsis have "easier" divorce than Hindus,
and arguing that Hindus have a particular need because marriages may
be arranged at a very early age and "in consequence, break down at a later
stage". 1
The Commission's task is 'thus' depicted as the deceptively simple one

of expanding already available options,17 as the title "Another Ground of
Divorce" indicates. The new ground would transcend false and painful evo-
cations of "fault" to end marriages, "obviat[ing] the necessity of producing
evidence of acrimony and other incidents during the married life, which the
married couple may not like to produce"."' The 2 17t' Report emphasized that
unlike "fault" grounds, in this case there was no determination of "guilt", but
rather an acknowledgment of an end. Hence, not to act accordingly would be
negligent:
"Where there has been a long period of continuous separation, it may

fairly be surmised that the matrimonial bond is beyond repair. The
marriage becomes a fiction, though supported by a legal tie, by refus-
ing to sever that tie, the law in such cases does not serve the sanctity
of marriage; on the contrary, it shows scant regardfor the feelings and
1
emotions of the parties".
The "death" that parts a couple is the demise of the marriage itself:
"people should be able to marry again where they can get a death certif-
icate in respect of a marriage already long since dead".2 0 The new provision
was defined through notions of unsustainable marriages (in counterpoint, an
imagined norm of sustainable ones). Temporality often marked unsustain-
ability, with a long period of non-marriage (such as non-consummation or
refusal to cohabit) being a proxy of failure, an inability to resuscitate.21 The
Report further emphasized exigent circumstances, with an injunction to exer-
cise "much care and caution in exceptional circumstances only in the interest
This rationale of greater Hindu burden is rhetorical rather than factual, as Hindu mar-
riage law has been subject to the most reform across decades.
7 Supra note 4, at zz.
' Supra note 4, at 3.
9 Supra note 6, at 12-13.
20 Supra note 4, at IS.
of both the parties". 22 These rationales were seen to prevail over the wish of
one of the partners to the marriage to prevent divorce, because "the sanctity of
marriage cannot be left at the whims of one of the annoying2 3 spouses" 2 4 . The
71't Report deemed such unilateral "dragging on" to be a form of "cruelty"
(hence a 'fault' ground of divorce) against the spouse who sought to get out of
the marriage.2 5
These characterizations of irretrievable breakdown as modern and neces-

sary rely on global precedents.2 6 Since the 1970s, divorce has become increas-
ingly liberalized in many countries by incorporating mutual consent and
unilateral (including no-fault) divorce provisions.2 7 This liberalization is in line
with changing social norms around marriage, intimacy and affect, 28 but is also
related to legislative trends of alternative dispute resolution, of allowing peo-
ple to customize their solutions to legal problems, with the added benefit of
de-cluttering courts and saving lawyer fees.
Many scholars of no-fault divorce depict it as a powerful modern trend

which foregrounds efficient process and harmonious resolution, beyond need-
less conflict, outrageous manufactured stories, and jammed courts. They praise
it because it "does not require one of the spouses to be considered 'innocent'
and the other 'guilty'," "reduce[s] acrimony," is "gender-neutral" in alimony
and custody [more on this to follow], links "financial awards" to "spouses' cur-
rent financial needs and resources," "improves the communication climate"
and "tempers the adversarial process"2 9,3 0 . Singer compares the institution of
no-fault regimes to changes in child custody norms: just as the shift from sole
custody to shared parenting created a criterion change from adversarial rela-
tions to optimizing the best interests of children, so too might no-fault reduce
conflict and diminish the impact of law. Changes in procedure, Singer argues,
can become constitutive of new understandings and attitudes: "the court sys-
tem largely abandoned its role as the moral arbiter of marital behavior and
ceded to divorcing couples themselves the authority to determine whether and
how to end their union.31 Yodanis bases her contention that positive effects
22 Supra note 6, at 13-14.

23 Sic - perhaps in the sense of "angered" or "querulous."
26 Supra note 4, at 11-13. The 71" Report lays out the global history (1978, 11-13).
27 "Mutual consent" divorce requires the assent of both parties, whereas "unilateral" divorce
may proceed at one person's decision. "No-fault" is one of the variants of "unilateral divorce,"
also called "irretrievable breakdown."
28 A. GIDDENS, THE TRANSFORMATION OF INTIMACY: SEXUALITY, LOVE, AND EROTICISM IN
MODERN SOCIETIES, (1993).
29 L.D. Wardle, No Fault Divorce and the Divorce Conundrum, I BYU L. REV. 79, 142
(1991).
30 P.A. Nakonezny, R.D. Shull et al., 7he Effect of No-Fault Divorce Law on the Divorce Rate
Across the 5o states and its Relation to Income, Education and Religiosity, 57(2) J. MARRIAGE
&
FAM. 477, 488 (1995).

3' J.B. Singer, Bargaining in the Shadow of the Best-Interests Standard: the Close Connection
between Substance and Process in Resolving Divorce-Related Property Disputes, 77 LAW
&
of such laws accrue even to couples not contemplating divorce through the
"enhanced equality hypothesis": the distribution of intra-household labour is
more equal in countries where divorce is accepted, and thus the possibility of
no-fault divorce gives women more equality in marriage.32
Critics of no-fault divorce focus on harm to children and on marriage

becoming more fragile. They argue that children experience a range of psycho-
logical and social harms from more liberal divorce even if adults might often
feel more free.33 While adults were able to get more autonomy and end dan-
gerous marriages, divorce increased in low-conflict marriages, leading to more
lone parenting and children raised in single parent families, 34 situations consid-
ered by these authors to be negative.
Much research in this field has been concerned with testing whether the
projected gains of no-fault have come to pass. Have divorce rates risen as a
result? Have there been unanticipated negative impacts on gendered labour
and property markets? The fact that rates of divorce should have gone up as it
became easier to get a divorce hardly seems surprising. Rather, the argument
ranges over whether the sharp rise in rates can be attributed to unilateral (as
opposed to fault-based) divorce. A longitudinal study of European data con-
tends that the long-term, stable rise in divorce rates is related to the adoption
of unilateral divorce, echoing work based on U.S. data.35 Some contend the
actual problem is a broader "divorce boom" in the U.S., which disproportion-
ately benefits those with higher incomes.3 6 Alternatively, no-fault might merely
be formalizing a change in marital norms, "a late and largely redundant step
in the lowering of moral, social and legal barriers to divorce."37 Thus, the rise
in U.S. divorces after no-fault statutes were broadly adopted might be attrib-
uted to socio-legal attitudes already in place. European rates appear correlated
with "variations in religious influence and women's economic status", availa-
bility of legal-aid, and administrative costs. 38 Coelho and Garoupa conclude
that the general trend of easier divorce, rather than the specific provision of
no-fault divorce, raised the rate. At its most hopeful, no-fault divorce is seen as
CONTEMP. PROBS. 177, 194 (2014).

32 C. Yodanis, Divorce Culture and Marital Gender Equality: A Cross-National Study, 19(5)
GENDER & Soc'Y 644, 659 (2005).
" J.S. Wallerstein & J.M. Lewis, The Unexpected Legacy of Divorce: Report of a 25 Year Study,
21(3) PSYCHOANALYTIC PSYCHOL. 353, 370 (2004).
3' A.J. Hawkins & J.S. Carroll, Beyond the Expansion Framework: How Same-Sex Marriage
Changes and InstitutionalMeaning of Marriage and HeterosexualMen's Conception of Marriage,
(Oct. 3, 2014) https://papers.ssrn.coM/sol3/papers.cfm?abstractid=25o5234.
3 L. Gonzalez & T.K. Viitanen, The Effect of Divorce Laws on Divorce Rates in Europe, 53 EUR.
ECON. REV. 127, 138 (2009).
SN.D. Glenn, A Reconsideration of the Effect of No-Fault Divorce on Divorce Rates, 59(4) J.
MARRIAGE & FAM. 1023, 1025 (1997).
3 C. Coelho & N. Garoupa, Do Divorce Law Reforms Matterfor Divorce Rates?: Evidence from
Portugal, 3(3) J.
EMPERICAL LEGAL STUD. 525, 527-8 (zoo6).
an opportunity that might generate greater gender equality by highlighting the

need to alter social and economic policies, such as encouraging the parenting
of fathers and delinking female dependency and motherhood.39
These optimistic views of no-fault divorce as providing greater agency,

improving women's status, and reflecting social change find little place in the
Indian Law Commission Reports. Nor do the Reports address explicit con-
cerns about whether the change will lead to higher divorce rates, although the
profuse attempts to qualify exigent circumstances are presumably meant to
stave off critiques that the Commission regards divorce too casually. The focus
of the Law Commission Reports, rather, is on identifying failed marriages that
will benefit from the change. However, as the following sections show, those
who object to the law - both feminist and antifeminist groups - do not expe-
rience the category quite so narrowly, arguing instead about radical economic
implications.
IV. THE UNEVEN ECONOMic EFFECTS OF NO-FAULT
Scholarship and policy on no-fault divorce focused on efficiency or exi-

gency or even the rate of divorces do not address the issues which have most
concerned scholars looking at gender equity: the disproportionate economic
consequences of divorce, and particularly the gendered impoverishment cor-
related with unilateral divorce. The Law Commission Reports dwell on these
issues minimally. Yet, such laws inevitably produce heightened anxieties over
how assets are to be divided under the new laws and whether contracts under-
lying matrimonial property are thereby under flux.
Given the widespread distress with the IRBM's distributive role in India,
it is ironic how little space is devoted to questions of maintenance or matrimo-
nial property in the Reports. The 2 17t' Report stated minimally, in a tone of
certitude that this is a matter to be settled elsewhere, that "economic arrange-
ments must be made"40 in the course of divorces using irretrievable break-
down as a ground. It specifies that the person initiating the divorce should
not merely get away without these arrangements and that children's financial
arrangements needed to be made. 1 The 71tLaw Commission Report addresses
financial arrangements in the context of two people's (including a High Court
judge's) suggestion that no-fault would lead to "tremendous insecurity"4 2 and
"grave financial hardship" 3 for women. The Report argues that these concerns
should not hold up no-fault divorce given the advantages of the ground. They
H.H. Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56(i)
U. CIN. L. REV. 4,85 (1987).
0 Supra note 6, at 17
Supra note 6, at z.
e Supra note 4, at 37.
claim that they had considered these objections and amended the law to spec-
ify that judges could hold off the divorce "until arrangements have been made
to its satisfaction to eliminate the hardship," typically to wives and children."
Such scant space devoted to financial arrangements seems tone-deaf

in retrospect, considering that the bulk of scholarship on no-fault divorce is
focused on its role in furthering the gendered asset gap. For many econo-
mists and quantitative sociologists, no-fault divorce brings greater "efficiency"
in bargaining. Drawing on the Coase theorem (based on the work of econo-
mist Gary Becker among others), they argue that people can strike bargains
better tailored to their needs in the absence of a court's heavy-handed deter-
mination,45 lowering "transaction costs" by reducing the amount of time and
evidence required.4 6 It allows partners to work out a deal, even though one's
assets and skills affect one's bargaining position.4 7 Gonzalez and Viitanen
argue that only the vectors of transaction shift and that the net effect is still
advantageous:
"Under mutual consent, for a divorce to take place the spouse who
wishes to leave would have to compensate the one who wants to stay
married. Under unilateral divorce, the separation will take place
unless the spouse who wishes to stay compensates the one who wishes to
leave. Thus the unilateralreform would only reassign existing property
rights between spouses, assuming full transferability, perfect informa-
tion and no transaction costs.'"
In these perspectives, no-fault is more efficient and customized even after

unequal bargaining positions are taken into account.
However, most of these scholars also acknowledge that marriage mar-

kets cannot simply be reduced to the language of supply and demand, because
it is often true that "transaction costs are high and opportunism is likely" in
divorce.49 Information and options are not perfectly exchanged in such highly
charged affective situations. Following the logic of game theory, negotiat-
ing outside the law comes with disproportionate disadvantage for the weaker
group, because the socially and economically stronger partner can bargain bet-
ter. Parkman demonstrates that fault grounds allowed courts to play a role in
evaluating the distribution of physical and financial assets, likely giving better
" Supra note 4, at 41.

5 S. Mechoulan, Economic 7heory's Stance on No-Fault Divorce, 3 REV. EcON. HOUSEHOLD 337,
344 (2005).
46 Supra note 37, at L28.
4' Supra note 37, at L28.
* Supra note 40, at 5z6.
consideration to the weaker partner's claims; in unilateral divorce, negotiation

falls mainly on the couple, with no safeguards for such distribution. 0
Many scholars find no-fault divorce to be highly ambivalent, at best. It

magnifies the gendered inequalities of marriage dissolution: among its effects
are "increased rates of divorce and significant inequities in the economic con-
sequences of divorce," which "disproportionately burden custodial mothers and
their children."" The worst effects fall on "non-wage-earning mothers of young
children and many wage-earning wives whose responsibilities as primary care-
takers limit their career choice,"5 2 Even those who praise no-fault divorce rec-
ognize the economic devastation it wreaks, though they contest the culpability
of the no-fault standard.
No-fault grounds magnify the impoverishing gendered effects of divorce

despite the language of equality and gender-neutrality. They mask the highly
gendered labour markets which are closely tied to marital decisions and to
matrimonial and individual property:
"the reality that homemaking is both gender-specific and career-

costly clashes with the rhetoric of equality underpinning no-fault
divorce laws, which supposes that if spouses receive equal treatment
and a clean break on divorce they will begin a new ife on an equal
footing,"5 3
The argument against this view is that the blame lies not with no-fault
but rather with the sex-gender system: that no-fault divorce "did not create
the sex-gender system" and is not "responsible for the depreciation in mar-
ketable human capital that ordinarily accompanies homemaking".54 However,
Starnes points out, no-fault does make the situation worse by "exacerbate[ing]
the effects of these factors by making divorce easier to obtain, thus increasing
the number of women who lose their male buffer when they are financially
vulnerable".55
Thus, no-fault divorce may ameliorate some of the procedural diffi-

culties with getting divorces, but it does not address the gendered economic
difficulties of divorce. On the contrary, it may enhance these difficulties by
delinking divorce from the distribution of assets and economic capital.56
50 A.M. Parkman, UnilateralDivorce and the Labor Force Participation rate of Married Women,
Revisited, 82(3) Am. EcON. REV. 671, 678 (1992).

' Supra note 31, at 81.
52 C. Stames, Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls,
Partnership Buyouts and Dissociation under No-Fault, 6o(i) U. CHI. L. REV. 67, 70 (1993).
5 Id, at 73.
5 Id., at 71.
5 Id.
56 S. Chang, Dreams of My Father, Prisonfor My Mother, the H-4 Nonimmigrant Visa Dilemma
and the Need for an 'Immigration-StatusSpousal Support', 19(1) ASIAN PAC. Am. L. J. I, z8
Economists argue about whether women's Labour Force Participation Rate

(hereinafterreferred to as 'LFPR') rises in no-fault regimes, 7" that is whether
more women maintain or improve their standing in the labour market when
they cannot implicitly rely on marriage to be the source of their well-be-
ing (although whether relying less on marriage and more on labour markets
is beneficial is not explicitly addressed). Parkman, in a nearly article, argues
that women's LFPR rises because they cannot count on courts to take reduced
future earning capacity into account: courts may recognize women s mar-
riage specific investment" or their contributions of labour to the marriage, but
not the "reduction in human capital" that comes from withdrawing from the
labour force. 9 Mechoulan contends that spouses (here mostly wives) have the
incentive to improve their marital partner's capital at the cost of decreasing
their own only if they might eventually share it. They are likely to do so where
their bargaining power is stronger, such as community property states (or com-
60
mon law states where the assets are in a husband's name) in the U.S.
The critical questions which emerge are those that dare not be articu-
lated: does the liberalization of marriage law, through no-fault grounds among
other changes, fundamentally change marriage as the prime shared property
fund? Do labour and other economic resources become increasingly important
to women's well-being as a result? Regardless of whether people get divorced,
do they still think of marriage as the main site of long-term accumulation of
property, acquired through pooled productive or reproductive labour? Where
women depend mostly on matrimonial or joint property rather than on their
own skills and assets, divorce poses a crisis (and no-fault provisions make the
gap worse). These arguments resonate with feminist legal scholars who have
represented divorce as both a freeing mechanism and an impoverishing one,
61 62 63
with the invisibility of "neutral" legal norms fostering impoverishment. , ,
To re-visualize marriage, therefore, requires one to consider whether it must be
tied to economic dependency, and whether labour or other resources (including
natal family property) should also be emphasized as significant sources.
(2014).
Indian immigrants face double jeopardy when rules pertaining to immigration catego-
ries exacerbate the impoverishing effects of no-fault provisions: for example, H 4 B "spouse
visa" holders are not allowed to have formal employment, and would be completely without
resources if divorcing, meaning they may be constrained to stay on in violent or otherwise
unpleasant solutions (Chang 2014).
1 Supra note 52.
* Supra note 47.
* Supra note 5z, at 672.
60 Supra note 47-
6' K. YOUNG, C. WOLKOWITZ ET AL., OF MARRIAGE AND THE MARKET: WOMEN'S
SUBORDINATION INTERNATIONALLY AND ITS LESSONS (1981).
62 Supra note z.
63 M.A. Fineman, Societal Factors Affecting the Creation of Legal Rules for Distribution of Property
at Divorce z65, 279, in AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (M.A.
Fineman & S. TIhomadsen eds., 1991).
In India, marriage law tends to include gender-neutral provisions in

many aspects as part of its modern cast, such as in custody and financial sup-
port. Many Indian feminist legal advocates and scholars strongly oppose gen-
der-neutrality, arguing that it is inappropriate to apply the standard where
there is a profound socioeconomic inequality between men and women.
Chitkara points out that the Law Commission Reports draw inspiration for
"irretrievable breakdown" law from California and the United Kingdom, where
marriage among equals is the norm [whether men and women are in fact
equals in these settings is a different matter],ignoring the "protective function
of marriage".
The Indian legal norm for maintenance/alimony has been to assert pat-
rilineal marriage itself as a vehicle of transfer of entitlements, mirroring reli-
gio-social understandings: wives' economic well-being, including residence, are
deemed to be transferred to the affinal family after the wedding, regardless
of their labour or capital contribution. Altering this system necessitates tak-
ing on political and economic change in education, employment, and natal
property distribution, and of course profound change in ideologies of gender.
Otherwise, merely introducing no-fault grounds is tantamount to subjecting a
large number of women to far greater vulnerability, as they may have weaker
formal labour market skills, get little natal family help, and would no longer
be able to count on marriage.
Dowry payments often signify the transfer of economic responsibility

to the affines, but are not eligible for compensation in unilateral divorce. A
likely outcome of unilateral divorce might be that husbands' families would be
potentially eager to cut ties quickly and move on to other matches with fresh
dowry, and thus wives' families would be disinclined to support divorce or to
spend further resources on daughters in successive marriages. Maintenance or
matrimonial property becomes crucial to women's families from this perspec-
tive because they are typically unwilling to include daughters as equal heirs
despite the law.65 The gendered inequity of natal property inheritance norms
is of a piece with the idea that marriage transfers women's property interest
to the affines, hence that women ought not to count on their natal families'
resources even to get out of bad marriages. To make women less dependent
on marriage, thus, requires simultaneous insistence on equitable property
distribution.
Indian feminist lawyers have insisted that the utmost consideration

should be given to economic distribution, and that "irretrievable breakdown"
should not become a tool for husbands to walk out of marriages and abandon
wives who have no other source of support, whether economic or residential.

65 S. BASU, SHE COMES TO TAKE HER RIGHTS: INDIAN WOMEN, PROPERTY AND PROPRIETY,
(1999)-
The potential danger of the "no-fault" or irretrievable breakdown ground in

this context is that "fault" grounds have served as a wedge to stave off uni-
lateral divorce (usually at husbands' will): an Economic Research Foundation
report contends that "not giving a divorce is the only tool that separated
women have to negotiate terms of settlement with their spouse as their legal
rights are insignificant." 66 Criminal provisions against domestic violence are
also used to seek leverage for better maintenance awards in civil courts. 67 At
present, adjudicating maintenance awards (or the preferred alternative of a
one-time large settlement) occupies the bulk of the work of Family Courts;6
,
69 that is, post-divorce alimony and recidivism in paying regular alimony
is already a massive problem. These pains are only likely to be magnified if

divorce rates increase substantially, and no strong guidelines for post-divorce
settlement are developed along with the law.
V. CALCULATING SHARES: BASES OF DIVISION
The criteria for making financial accommodations are, as the contesta-

tions of the law indicate, the crux of the problem. While the Law Commission
Reports have little to say on the topic, the IRBM Bill based on the Reports
allows for "wide discretion in judges to divide property between the spouses"70
Instead of naming a rubric or percentage for calculating shares, this principle
leaves the decision up to individual judges who would have access to the com-
plex facts of the specific case, seemingly a sound principle in not imposing a
one-size-fits-all formula on diverse cases.
But, it is this recommendation, that has been the eye of the storm. Some
feminists are alarmed that the "judicial discretion" standard "operates to the
detriment of women" because it focuses on maintenance/alimony rather than
property as marital assets,71 likely involving a torturous and protracted calcu-
72
lation process where gendered compliance looms large in judicial evaluations.
Other feminists have become unlikely allies of antifeminist men's rights
groups, objecting to judicial discretion as being too broad and vague, and
hence ripe for abuse in the hands of individual judges. Distinctions between
66 P. Raina, For Indian Women, Divorce is a Raw Deal, NEW YORK TIMES BLOG, http://india.
blogs.nytimes.com/2o12/o3/zz/for-indian-women-divorce-a-raw-deal/; See S. Deshpande

India Lags Behind the West in MatrimonialProperty Rights, TIMES OF INDIA (Oct. 20, 2011),
http://timesofindia.indiatimes.com/city/mumbai/India-lags-behind-the-West-in-matrimonial-
property-rights/articleshow/1o421989.cms
67 Supra note 9.
6' FLAVIA AGNES, A STUDY OF FAMILY COURTS, KARNATAKA, KARNATAKA STATE WOMEN'S
COMM'N, BENGALURU (2004).
69 FLAVIA AGNES, A STUDY OF FAMILY COURTS, WEST BENGAL, WEST BENGAL WOMEN'S
COMM'N, KOLKATA (2004).
7' Supra note 5, at 849.
72 Flavia Agnes, Bill without Benefits, ASIAN AGE, available at http://www.asianage.com/
columnists/bill-without-benefits-o43-
ancestral and individual property and the economic interests of wives versus
other kin categories pose particular problems.
Maintenance has long been a sticky issue among some feminists, who
see it as underlining the dependence of wives and marriage as a form of wom-
en's protection, in contrast to gender-neutral ideologies which seek to inscribe
spouses as equals. Others reject this perspective to argue that maintenance
presently stands as the only realistic solution to providing economic support.
Maintenance payments that accompany marital separation or divorce are nec-
essary financial safeguards, drawing on Constitutional principles of protecting
dependent groups, and on public policies for reducing poverty. Flavia Agnes
argues that the language of gender-neutral equality furthers gross inequali-
ties: "The roles, responsibilities and obligations within marriage are gendered.
Mere change of terminology does not transform relationships of inequality
into egalitarian partnerships. As per the constitutional mandate equality can
only be between equals. Treating those who are not equals as equals only
serves to widen the disparity between the two sections".73 Drawing on Martha
Fineman's analysis, Agnes argues that while equality standards have "symbolic
importance" because they reflect "broader ideals of placing equal value and
promoting freedom of choice in marriage roles," a "need based" norm, such as
maintenance, meets the criteria of "fairness and justice" that rise above norms
74
of symbolic equality.
Within these protectionist approaches, matrimonial property has recently

displaced maintenance as the preferred remedy. In the above 2009 article,
Flavia Agnes posed the right to maintenance as a fundamental claim of cit-
izenship, while acknowledging that maintenance decisions are governed by
evaluations of women's conduct, as well as the practical difficulties of monthly
recovery. Maintenance claims also have potential as leverage to get a one-time
settlement instead of monthly encounters. At the time, she dismissed the crite-
rion of contributions to marital property, arguing that determinations of "con-
tribution" would not work in wives' favour.
But since the IRBM Bill was formulated, feminist lawyers Flavia Agnes
and Kirti Singh have consistently promoted the superiority of developing mari-
tal property norms as a necessary corollary to "irretrievable breakdown."75 Kirti
Singh's policy claim draws on her data from separated, deserted, or divorced
Indian wives 76 : while arguably limited by its very small sample size and the
binary slant of many questions, the study makes a strong case that divorce or
7 Flavia Agnes, Conjugality, Property Morality and Maintenance, 44 (44) ECON. & POL. WEEKLY
58, 6o (zoo9).
7 Id., at 64.
7 T. Nath, Lies and the Law in Divorce Battles, THE NAVHIND TIMES (July 30, zoo) http://
www.navhindtimes.in/ilive/lies-and-law-divorce-battles.
76 K. SINGH, SEPARATED AND DIVORCED WOMEN IN INDIA: ECONOMIC RIGHTS AND
ENTITLEMENTS (2013).
separation precipitates widespread impoverishment. Women typically received

paltry amounts as maintenance regardless of husbands' incomes or wives own
lack of earnings,'77 despite the media hype about outrageous trends in main-
tenance awards.7 8 One of the main logistical problems with maintenance
included the requirement for wives to produce income certificates to validate
their claims; however, most women had little idea of their husbands' incomes,
getting income certificates was bureaucratically laborious, and determin-
ing income for the non-salaried, including business or self-employed income,
was almost impossible.7 9 Property settlements, she argued, could avoid such
monthly runarounds and acknowledge women's labour contributions to their
marriage, rather than evaluating their conduct at its conclusion.
However, the specific criteria for calculating matrimonial property in

India have been broad and confusing in these proposals. Purposefully or not,
they have not clarified how portions of joint versus individual property are to
be determined, or spoken of the duration of the marriage and forms of men's
and women's contributions that could go into reckoning property shares.
Flavia Agnes, for example, suggested that the IRBM Bill ought simply to have
declared
"that all property acquired by husband at the time of marriage or

in the course of marriage be deemed as 'jointproperty' to be divided
at the time of divorce, with an additional clause to secure the wife's
rights in the matrimonial residence, as is done in Britain and other
Commonwealth countries.'"o
Indira Jaising identified access to a matrimonial home as the crux of the

problem." Kirti Singh's formulation that women seek half of husbands' prop-
erty based on contributions to a marriage further raised the stakes to a half
share: "A mere 'share' in the property is not enough; our demand has always
been about an equal, or a 50 per cent share. Women are equal partners in the
marriage, and their contribution has to be recognised with an equal division of
7 R. Nagarajan, 86% of Women Are Left with Children but No Home, TIMES OF INDIA (Mar.
8, zon), http://articles.timesofindia.indiatimes.com/zoil-o3-o8/india/z8667734_i-cases-sur-
vey-findings-women; S. Verma, Divorce Dues, The Telegraph (Kolkata) (oz/oz/zon), availa-
ble at www.telegraphindia.com/iniozoz/jsp/opinion/story_13523674.jsp; Divorced Women in
Dire Straits: Survey, Deccan Herald (Dec. zo, zoz), available at www.deccanherald.com/
content/izzzo/divorced-women-dire-straits-survey.html. In Singh's study, only 54% percent of
women applied for maintenance for 37% for their children. 42 percent of divorced women
had no income at all, 8o percent of women with children to support lived below the poverty
line, and children lived with the mother in 86 percent of cases (with the father in 7 percent).
Women received between 4.5% to 13% of their husbands' incomes as maintenance.
7 D.P. Mehrotra, Marriages are Still Traps for 21st Century Women, THE NAVHIND TIMES (Feb.
21, 2011), http://www.navhindtimes.in/ilive/marriages-are-still-traps-zist-century-women.
so Supra note 74.
' N. Kohli, Law with Loopholes, THE HINDU 8 (Oct. 1, 2013) http://www.thehindu.com/fea-
tures/metroplus/society/law-with-loopholes/articleI86386.ece.
matrimonial property. It's not compensation, it's their right."8 2 But unlike com-
munity property divisions in other nations, in India, jointly held marital prop-
erty, or property/resources acquired by husbands since the marriage, may not
be the biggest asset source. 3 The issue is complicated by the fuzziness between
men's share of joint family property and their individual property." Many peo-
ple's largest assets are shared family homes and joint family property, affecting
the economic rights and obligations of many others. If determining income is
full of logistical obstacles, deciding property shares may pose infinitely more
complicated scenarios.
Globally, feminists have advocated for matrimonial property as a

means to alter representations of feminine dependence, to acknowledge wom-
en's unpaid labour and loss of human capital if they have withdrawn from
the workforce. These analyses, based primarily on (nuclear) families in the
U.S., critique maintenance because it marks wives as one category of finan-
cial dependents among many (such as children, other relatives, other obliga-
tions) rather than as majority claimants of assets. Feminist advocates argue
for a vision of matrimonial asset division which would regard wives as "equal
stakeholders entitled to share in marital profits" rather than as "suckers" who
are "incapacitated by their unpaid family labour" or "as economic casualties
of marriage, sometimes entitled to reparations"." Matrimonial property stand-
ards would recognize wives as partners to marital resources, including spousal
incomes and any other assets acquired during the marriage. In legal regimes
where these latter grounds are recognized, often called "community property"
regimes (though they are not as extensive "in the West' as Agnes and Singh
would have us believe 86 ), the division of assets typically includes what the cou-
7
ple acquired since marriage, not counting individual inheritance.
Provision may also be made for the contributions of spouses in terms of

both exchange value and use value. That is, both wage support provided by
82 Id.
" In Singh's study, 59.8 % of women lived in houses acquired by their in-laws, and only in 15.3
% jointly owned marital homes. 23 % women owned some land, but rarely exercised posses-
sion or control over it; other assets in their name were often wedding gifts.
" Supra note 9, at 144-5. These determinations already involve torturous calculations, presently
for setting maintenance amounts.
8 C.L. Stames, Mothers as Suckers: Pity, Partnership, and Divorce Discourse, 90 IOWA L. REV.
1513, 1551 (2005).
16 In the US, most "common law" states which do not have community property standards do,
however, have "equitable distribution" standards at divorce, and community property states
also follow equitable distribution standards for the most part (Milne 2007, 309, 314).
7 See Milne [E.L. Milne, Recharacterizing Separate Property at Divorce, 84 U. DET. MERCY L.
REV. 307, 312 (2007)] for a useful glossary of division terms: while most US states follows
a "binary" division between marital and individual property, a few others use a "hotchpot"
system of including everything or a "hybrid" system of drawing on separate property when
needed (2007, 312). See also Swati Deshpande, What Used to Be Mine Could Now Be Yours
Women - Laws, TIMES OF INDIA, (May 4, 2013) p. io for recent Bills in the UK attempting to
exclude inherited property in divorce, reversing previous practices. (Supra note 67).
one partner to the other which enhanced the latter's earnings and human cap-
ital, or housework and childcare and other unpaid work benefiting the house-
hold, may be deemed marital contributions. An innovative suggestion comes
from Starnes, who advocates a "parenting-partnership" model which treats
parents as equally responsible sharers who eventually benefit from parenting,"
thus including the children as assets to the marriage. These criteria are based
on positive contributions which compensate labour and resources, rather than
punitive damages for "loss of expectation" (such as the claim that the person
relying on a long-term relationship may have been unfairly shortchanged by
unexpected divorce).89
Other legal scholars have argued that a better standard than "contribu-
tions" would be to count compensation in terms of loss of "human capital,"
here meaning one's potential value in the labour market. The focus would be
on potential loss in earnings for spouses who took themselves off the labour
market, voluntarily or not, to help out the household: most often, "married
women [who] reduce their labour-market activities and increase their speciali-
zation in household production during marriage".90 Singh's study, for example,
included 62.7% women who claimed that their earning potential had signifi-
cantly gone down from marital families' disapproval of paid work or from the
extent of domestic chores.91 The duration of a marriage is also a consideration,
a common rule being a minimum time (often 3 years) for activating a com-
mon property fund. Other legal scholars recommend premarital or ex-ante
contracts. 92, 93 Milne proposes an elegant and elaborate formula in which indi-
vidual property might slowly begin to be counted as joint property graded by
the increasing length of the marriage.94 Notably, all of these criteria are best
applied in situations where only the property of the married couple is at stake,
and in marriages which have lasted a while. They may fit a limited number of
Indian divorces.
In July 2013, the Cabinet approved an Indian Parliamentary

Committee's (GoM or Group of Minister's) recommendation "to give manda-
tory compensation to wives from the husband's property share," and vowed to
pass the IRBM Bill in three years.95 The Committee, established to develop
a consensus about property shares, recommended that courts should decide
on compensation for wives and children from husbands' "immovable prop-

90 Supra note 5z, at 672.
" Supra note 5, at 86o.
92 Supra note 47.
9 J.U. Franck, So Hedge 7herefore, Who join Forever: Understanding the Interrelation of No-Fault
Divorce and PremaritalContracts, 23(3) INT'L J. L. Pof'y & FAM 235, 237 (2009).
9 Supra note 91.
9 N. Sharma, Wife May Get Share in Husbands'AncestralProperty, HINDUSTAN TIMES (July 18,
2013) http://www.hindustantimes.com/India-news/NewDelhi/Wife-may-get-share-in-husband-
s-ancestral-property/Article-1o94o99.aspx.
erty," and that they should consider "husbands' inherited and inheritable prop-
erty." This reversed the previous proposal for wives to "have equal share in the
husbands' property," seen as being too ripe for endless litigation, and placed
the onus on judges.
Some women's lawyers express qualms that such judicial discretion will
lead to narrow interpretations of property rights and small awards for wom-
en.9' Others fear that the guidelines are too unclear, particularly with regard
to the potential overlap between marital and non-marital assets, or the value
added to inherited property with marital resources.9 7 Bina Agarwal, arguably
the most significant scholar on women and property in India, strenuously cri-
tiques the IRBM Bill because it "ignores many complexities of the Indian con-
text and fails to protect various categories of women"' She points out that the
proposal focuses on conjugal rights to the detriment of other family usufructu-
ary rights: "in protecting the interests of the divorced wife, the bill can under-
cut those of the man's female relatives," including [female] relatives who have
statutory claims and who might also have contributed unpaid and paid labour
to the household. The "duration" of marriage or a minimum basis for com-
pensation is also unspecified. Moreover, Agarwal contends that wives' finan-
cial situations have to be better taken into account -- destitute women, whose
spouses may have few if any resources to share, may require special considera-
tion including State aid, because they are often most vulnerable to violence in
staying within marriage.
The lobbying and political organizing efforts of men's groups have also
been directed to the vagueness in matrimonial property policies. As described
in the introduction, the rallying force of these efforts is the spectre of families
losing their ancestral property, family homes and long-term assets following
brief and unsuccessful marriages when daughters-in-law file for divorce. These
seem to be rhetorical rather than practical fears when we remember data on
difficulties with getting maintenance amounts. But with several such cases (of
families and husbands having lost their homes) looming large in the lives of
the primary organizers in such groups, often from marriages that have lasted
days or weeks, their fears proliferate through (a few) lived experiences.
Judges have sometimes interpreted the "right to residence" provision in

the Protection of Women from Domestic Violence Act, 2005 to grant women
sole access to the extended family home, mandating that their husbands and
in-laws seek alternate residence (similarly, siblings may be disputing over fam-
ily homes under this law, or daughters may be asking for parents to leave).99
96 Supra note 81.

17 Deshpande, supra note 66.
98 B. Agarwal, A House Divided, INDIAN EXPRESS (Sept. 2, 2013) http://indianexpress.com/
article/opinion/columns/a-house-divided/.
9 A big thanks to Sonal Makhija for sharing with me her ethnographic experiences at Mumbai
PWDVA hearings: she reports that hearings around the law overwhelmingly deal with
While this may not be an extensive phenomenon, it is proposed as a legal rem-

edy often enough to cause widespread cultural alarm. Nor is this alarm con-
fined to men's rights groups or even to those going through marital problems.
It has become a broader cultural fear among those who are contemplating how
to divide their property. I have had several conversations, many with profes-
sional feminists, about the need to be very careful that older couples do not
lose their homes if their son's marriage goes bad, or for people to be vigilant
about formal and informal ownership of property and savings. Here, the res-
idential and financial resources at stake are often the sole means of support
for elderly people set aside from decades of labour, rather than abundant fam-
ily business resources stashed in creative accounting niches. In the interests of
gender justice, men's economic burdens also merit consideration: it seems fair
that husbands share their incomes in marriages where the couple built up a
resource base over time, or that they pay long-term child support, but extended
alimony or mortgage payments for brief marital lives is harder to justify.
VI. CONCLUSION: FAULT LINES OF PROTECTION
The Law Commission Reports frame no-fault or "irretrievable break-

down" in divorce as a matter of expanding options and increasing people's
quality of life, depicting marriage as "a relationship entirely of choice, the
free exercise which is obstructed by the law."100 They understate the profound
financial consequences that would accompany this legal change, in particular
the crisis of determining how matrimonial property should be calculated. The
conflict generated by the proposals and recommendations among feminists and
antifeminists, and the stirring up of widespread cultural anxiety, indicates the
crises they choose to ignore.
The concerns thrown up by this crisis reflect feminist conflicts over the
significance of marriage, and its place as the prime niche of women's property.
The feminist "protectionist" position that women are raised to be depend-
ent on marriage as the main fount of socio-economic wellbeing is challenged
here by other feminist concerns: whether sheltering wives' economic entitle-
ments shortchanges that of other women, whether improving women's labour
market position should not be a higher priority than marriage, or whether
women should be viewed as groups with a range of educational, employment
and property options rather than as a homogenous group. The nature of mar-
riage requires better calibration here. How can women's accrual of matrimo-
nial property through paid and unpaid labour which enhances conjugal and
family assets be systematized? What economic entitlements do women have
in natal families? "Equality" arguments which count women as equal par-
ticipants in modern marriage inadequately address these concerns: they hide
property and housing arrangements between spouses or parents/children or siblings, rather

than with questions of violence.
...Supra note 5, at II.
structural inequities of education and labour market disparities, hence huge

gaps in income and assets, as well as an asset gap from women's scant inher-
itance of natal family resources (also justified through the logic of depending
on marriage). The widespread disapproval of the seemingly beneficial addition
irretrievable breakdown as a ground of divorce traced in this chapter sympt-
omizes these systemic difficulties of rights and resources, labour and temporal-
ity, which continue to haunt marriage in an age of easy divorce.

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Associate Professor, Macquarie Law School, Macquarie University, Sydney, Australia.

shortcomings of the LCI can be fixed at a structural or institutional level but

11. THE CONCEPT OF LAW REFORM COMMISSIONS

Historically, it is accepted that the LRCs in England commenced in

Within Australian legal scholarship, there are many examples of the

The success and high visibility of the commonwealth's ALRC is sometimes

"...first Aboriginal Australians and Torres Strait Islanders, too

He goes on to say that equal justice under law is an aspiration yet to be

The issue therefore is whether this is a desirable or undesirable devel-

and compare their functions; or we can compare the models themselves." He

III. LAW COMMISSION OF INDIA

It is commonly mentioned that the colonial administrators realised early

of these colonial measures has been that we continue to be governed by laws

However, after gaining independence, there was some reluctance on the

The methods of functioning of LCI are equally inscrutable. There is

22 SINGH, supra note zo, at 113-114.

scholarship.24 Sarkar suggests that it would be useful if the working paper

Legal education, as a main topic of a report, is identified in only one

reports addressing judicial institutions could be included as invoking a particu-

In another example, in the 14t' Report," a review of the then exist-

32 114hLaw Commission Report, Report on the Trainingof Judicial Officers, (1986).

IV. DISCOURSE OF LAW AND REFORM

The literature assessing the functions and fortunes of LRCs in Australia

David Weisbrot eds., Federation Press, 2005).

is accepted in legal literature and practice. I take this observation to mean

Macdonald picks up a similar theme when he addresses the continued

In both cases, the authors are asking for a broader understanding of

The post-structural view of legal knowledge as constructed rather than

The distinctive feature of legal literature is that it manages to make a

This orthodoxy is maintained by the conventional legal scholarship that

legal theorists and is answered variously by different schools of jurisprudence.

Any conceptual theory defines terms by necessary and sufficient condi-

7 ROGER COTTERRELL, THE POLITICS OF JURISPRUDENCE: A CRITICAL INTRODUCTION TO

As a preliminary explanation, it is useful to explain how I understand

The dominant conception of legal knowledge within the discipline sees

play in its construction. It is commonly accepted that discourse formation is

Returning then to the issue of why it is that the dominant discourse of

This is what Cotterrell describes as the limitations of empirical legal the-

There are a few implications of adopting this theoretical stance that

In contemporary mainstream legal scholarship, the dominant ways of

At a glance, most of these recommendations deal with the procedural

This is a rather impoverished view of legal knowledge and in view of

in another sense, undermines the intellectual rigor required of any university

Similarly, there is no indication that the authors of this Report con-

This brings me back to a point made above by both Tilbury and

so Macdonald, supra note 13, at

This paper attempts to illustrate the reality behind the apparently

A good divorce is a complicated problem for gender justice. The ration-

The proposal to institute IRBM as a ground of divorce in India (in the

Whether divorce law should be based in gender equality or whether it

11. THINKING WITH THE LAW COMMISSION REPORTS

GROUND FOR DIVORCE (2009).

7 Gayatri Jayaraman, Marriage Law: An IntercontinentalBallistic Missile' of a Bill, INDIA TODAY