Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (15 page)

When Dutch Orientalists began to systematize their understandings of local practices in the late nineteenth century, just as colonial officials sought to regulate Indonesian society more closely, they saw
adat
rather than classical Islamic law as the main basis of family practices, particularly inheritance patterns. Some of them claimed that Islamic law had not influenced Indonesian practices much, while others more accurately took Islamic law to have interacted with prior customs to shape the lived Islam of Indonesia. On these bases, they encouraged the recognition of
adat
in the religious courts, urged
that Islamic law be applied only to those practices that it had shaped, and transferred inheritance from the jurisdiction of the Islamic courts to that of the civil courts in 1937. While accommodating
adat
in these ways, Dutch officials also formalized a system of Islamic courts in 1882 and helped implement their verdicts.
¹⁰¹

Colonial intellectuals tended to understand Hindu religious practices as based in Indian spiritual traditions, in contrast with the religious practices of India’s Muslims, Christians, Parsis, and Jews, which they took to have originated outside South Asia. This led the colonial courts to apply a partly homogenized Hindu law to all residents of India who practiced religions of South Asian origin, including the Sikhs, Buddhists, and Jains, although these groups did not claim a Hindu identity. These courts recognized various customs specific to region and caste among all religious groups. When doing so among Hindus, they understood many of these customs as aspects of territorially rooted schools of Hindu law—the
Dayabhaga
school applied mainly in Bengal, and different versions of the
Mitakshara
school applied in northern, western, and southern India. But they saw the regionally rooted customs of groups practicing religions of foreign origin as departures from their religious traditions and religious laws, rather than as specific South Asian Muslim, Christian, Parsi, and Jewish religious practices. These understandings created a tendency to equate the Hindu and the culturally indigenous, and sometimes to place all groups practicing religions that emerged in South Asia in the Hindu category.
¹⁰²

The main responses of nationalist and religious mobilizers to these features of colonial knowledge and colonial institutions had a bearing on personal law. Although certain colonial officials hoped to promote ethnic solidarities as alternatives to Islamic identity by recognizing
adat
rather than Islamic jurisprudence, Islamic norms remained significant to how most Indonesian Muslim intellectuals and political mobilizers constructed their cultural repertoires. Nevertheless, colonial understandings that
adat
represented practices on the ground reinforced the tendency of Indonesian Islamic scholars and
qadis
to construct Islamic law in light of
adat
. Moreover, these ideas led many of these actors not only to return to the Qur’an and the
hadith
(reputable accounts of the early Islamic community) to construct purified Islamic traditions as many Islamic scholars did elsewhere, but also to demon
strate the relevance for contemporary Indonesian contexts of the principles they derived from these sources. This led certain influential scholars, especially Hasbi Ash Shiddieqy and Hazairin, to point toward the development of an Indonesian
madhhab
that would replace the patrilineal Arabian customs incorporated into classical Islamic jurisprudence, especially its inheritance provisions, with bilateral Indonesian customs. Many other religious scholars gave considerations of
maslaha
(public interest) greater importance in their reformulations of Islamic law. These approaches were meant to help create an official Islamic law sufficiently connected to current social practices and predicaments that it could more effectively promote social change and thus be the country’s living law. The efforts to develop a distinct Indonesian
madhhab
were unsuccessful, but led Islamic scholars to connect their jurisprudence systematically to the findings of cultural anthropology. They also encouraged scholars trained in
pesantren
(Islamic schools) to engage significantly with those trained in secular institutions, and Islamists to engage with secularists in developing their policy perspectives.

Orientalist representations of
adat
(but not classical Islamic traditions) as crucial to indigenous culture also influenced nationalist discourses. They led many Indonesian nationalists to give indigenous customs shared by members of different religious groups, some of which had their origins in folk, Hindu, and Buddhist traditions, a central place in Indonesian national culture, construing such constructions of the nation as compatible with the Islamic identity of the majority of its citizens. Modernist nationalists such as Sukarno especially valued the more egalitarian customs, and this influenced how they presented
Pancasila
(five principles, including the recognition of a Supreme Deity) as a basis for the postcolonial nation-state. These features of religious and nationalist discourse influenced how certain religious as well as secular jurists envisioned an authentic national
adat
drawn from various customs of the archipelago that nonetheless had affinities with constitutional values such as equality and liberty; these jurists proposed the revision of both Islamic law and the rules applied to non-Muslim family life in light of this notion. These features crucially enabled the extensive judicial recognition of bilateral customs, the Supreme Court’s grant of equal inheritance shares to sons, daughters, and widows in some cases, and the serious consideration given at times
to the systematic legislative equalization of the inheritance shares of men and women with a similar relationship to the deceased (contrary to the 2:1 Qur’anic ratio to which most Islamic courts adhere).
¹⁰³

In contrast with Indonesian experiences, colonial knowledge about Indian society prompted many Hindu mobilizers to claim that Hindu traditions alone were based in indigenous culture, and to attempt to assimilate Sikhs, Buddhists, and Jains into the Hindu fold. It also influenced the tendency of many nationalists to justify giving Hindus primacy in the Indian nation not only because they account for the demographic majority, but also because they considered Hindu norms the most reliable elements from which to construct an authentic indigenous national culture. As a result, various individuals and organizations envisioned the Indian nation based mainly or exclusively on Hindu sources, and focused their projects on the Hindu community.
¹⁰⁴

Certain cosmopolitan Indian nationalists, of whom Nehru was most influential, rejected association of the Hindu with the culturally indigenous, and aimed to build a territorial nation not based on religious identity. However, they remained allied in the Congress Party with those who framed their pluralism in primarily Hindu idioms such as Gandhi, and with others who connected Hindu and Indian identity more intimately. The growth of conflict between religious groups through the last colonial decades reduced the engagement of Hindu political elites with minority initiatives, while the formation of Pakistan increased the weight of Hindus in the political elite, giving Hindu-centered understandings of the Indian nation greater influence.
¹⁰⁵
As a result, the postcolonial state framed its multicultural policies based on limited engagement with minority initiatives and traditions, centered its projects to build an indigenous and modern nation and reduce enduring social inequalities on the Hindu community, and focused its efforts to promote the modern Indian family on Hindu law reform.

Rather than contest the colonial view of Islamic traditions as foreign to local society by demonstrating that these traditions had taken root locally (as their Indonesian counterparts did), the majority of Indian Islamic scholars viewed South Asian customs for which they could not find justification in classical Islamic discourse as “Hindu,” and encouraged Muslims to abandon
them. Moreover, they highlighted the connections of their jurisprudence and religious reasoning to Arabic and Central Asian approaches more than to South Asian experiences.
¹⁰⁶
This distanced Indian Islamic discourse from cultural currents among non-Muslims; rendered it less comprehensible to non-Muslims; limited the realization among many Muslim and non-Muslim reformers that they shared common goals such as the reduction of the practice of dowry, the extension of marriage networks, and an increase in the age of marriage; and specifically led many non-Muslims to underestimate Muslim reformist initiative. These circumstances, combined with the tendency of Muslim reformers to associate some of their goals (such as the reduction of dowry and the influence of caste over marital alliances) with the abridgement of Hindu influence, limited alliances between Muslims and others over social reform even though certain practices that cut across religious boundaries could have served as bridges between the reform projects launched among different religious groups.

These features of Indian Islamic discourse reinforced the tendency of most Hindu mobilizers not to register ongoing Muslim reform initiatives and to consider changes in Muslim practices of marginal relevance to building the Indian nation. As a result, early postcolonial policy makers barely changed Muslim law until the 1970s. Certain civil society organizations that mobilized members of various religious groups engaged more with Islamic discourses from the 1980s; they helped increase awareness of these discourses among policy makers (particularly judges), and thus enabled some changes in Muslim law. However, these developments did not lend Islamic norms influence over the laws that regulated family life among most Indians—the matrimonial laws applicable to all citizens (such as those concerning alimony) or Hindu laws.
¹⁰⁷
Moreover, the view among most Islamic mobilizers that certain indigenous customs favorable to women, such as the matrilineal and bilateral practices prevalent among some Indian Muslim groups, were incompatible with Islamic traditions hindered the incorporation of those traditions into Indian Muslim law, in contrast with their adoption in Indonesia. The Indian experience contrasted sharply with the decisive influence that individuals trained in Islamic religious institutions exercised in Indonesia’s Ministry of Religious Affairs, which supervised the Islamic courts until 2004. Some of these individuals proposed reforms in Indonesian Islamic law framed
through innovative religious reasoning, and they ensured the implementation of some of their proposals.

The ruling elites of India and Indonesia shared the goals of building modern and culturally indigenous nations while maintaining broad support. Religious and nationalist discourses led them to view somewhat different personal-law policies as conducive to these goals, and to follow policy paths that differed in certain respects. Indonesian policy makers changed the rules applied to various religious groups, while in India, reform efforts remained focused on Hindu law, and the changes in minority law were limited especially until the 1970s. Moreover, various indigenous customs with uncertain relations to classical Islamic discourse were incorporated into Islamic law in Indonesia, increasing women’s rights in the process, but not in India. If governing elites had engaged more with minority initiatives and drawn their understandings of the nation from the norms of various religious groups, the minority laws could have been changed earlier and more extensively in India. Under these circumstances, the Indian state would also have been more likely to accommodate autonomist movements among the religious minorities effectively, and to have applied preferential policies and special civil-rights laws to Muslim and Christian lower-caste individuals, not only those that followed religions of South Asian origin.

VIII. VISIONS OF MODERNITY, AUTHENTICITY, RELIGIOUS NORMS, AND THE FAMILY IN INDIA

When projects for postcolonial state building and state-led social change were sharply outlined in India in the 1940s and 1950s, modernist nationalists who favored culturally grounded reform planned changes in personal law. B. R. Ambedkar, India’s first postcolonial Law Minister (1947–51), developed proposals for personal-law reform by building on the suggestions of the bureaucrats who manned the Hindu Law Commissions of the 1940s, and Nehru underwrote the path the Law Ministry sketched. Such modernists framed their plans in view of the preferences of the less conservative Gandhian traditionalists, with whom they were closely allied. The Gandhians wished to conserve many precolonial Indian traditions, which they envisioned in ways that justified moderate reductions in deep inequalities along caste and gender
lines. Conservatives inclined to retain many more forms of social dominance also occupied important positions in the political elite and the Congress Party. Prominent among them was Rajendra Prasad, India’s first President (1950–62).

The majority of the modernists wished to consolidate a competitive multiparty democracy, build a developmental state, promote industrialization, gradually redistribute life chances, and consolidate the Congress Party’s dominance. They gave these goals priority over changes in religious norms and family life. These priorities induced them to pursue economic redistribution and social reform in ways that did not alienate dominant groups. They thus sought to change personal law to signal the family norms that the state favored without rapidly restricting contrary practices, particularly until the 1970s.

The majority of the traditionalists shared certain goals of the modernists (to consolidate democracy, build broad social coalitions, introduce changes (albeit not extensive) in status hierarchies and economic relations based on indigenous traditions rather than solely on post-Enlightenment outlooks and Western precedents, and (with the exception of a few Gandhians) promote industrialization), enabling these groups to compromise over multiculturalism, social reform, and personal law. The modernists and traditionalists therefore readily agreed that they should not rapidly homogenize or secularize family law, or systematically change personal law based on egalitarian liberal principles. As a result, the Constituent Assembly placed an article that called for the introduction of a Uniform Civil Code (UCC) in the Directive Principles of State Policy, which could not be enforced through judicial mandate; and no branch of government vetted the personal laws systematically with reference to the Fundamental Rights recognized in the Indian Constitution. Rather, political elites agreed that they should maintain distinct personal laws, and change them gradually based on group traditions and initiatives.