Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (2 page)

A number of research assistants enabled me to access and organize materials, gather citations, and complete the bibliography—Maren Zerrifi, Gopika Solanki, Aparajita Narain, Jaya Gupta, V. Sriranjani, Shiva Poudel, Julie Thekkudan, Sohini Guha, Zeynep Kadirbeyoglu, Pahi Saikia, Marie-Ève Reny, Arshad Amanullah, Shelly Ghai, Megan Gerecke, Alexandra Rallis, Alessandra Radicati, Parminder Chopra, and Clara Boulianne Lagacé. Juanita Jara del Sumar and April Colosimo guided me as I finalized the bibliography and ci
tations. I am grateful to Michelle Lipinski, Stacy Wagner, and Frances Malcolm for piloting the manuscript through two rounds of review and helping me edit and finalize the manuscript, James Cappio for copyediting it carefully to best convey the intended meaning, and Michael Haggett, Melody Negron, and Emily Smith for overseeing the production of the book.

The support provided by various people helped see me through the past decade and my work on the book—especially Dr. Douglass Dalton, T. K. V. Desikachar, Dr. V. R. Seshadri, Rose Toussaint, Dr. Patricia Csank, Nathalie Crevier Chabot, Sam Noumoff, Anthony Paré, Dr. Benjamin Zifkin, Pierre-Marie Toussaint, and Jean-Sebastien Langlois. This was above all true of Mini, who continued to give me her love and her companionship.

CHAPTER 1

INDIAN PERSONAL LAW

Toward a Comparative Theoretical Perspective

IN 1985, CONSERVATIVE MUSLIMS IN INDIA resisted a decree by the Supreme Court to grant alimony to a Muslim woman. They considered it contrary to Islamic law, and thus to depart from an important way in which the Indian state recognized religious identity. Women’s organizations and social reformers defended the judgment for upholding women’s rights, constitutional law, and universalistic moral principles, and Hindu nationalists supported it for prioritizing Indian national integration over a Muslim insistence on difference. The involvement of various organizations in nationwide demonstrations and debates over this case,
Mohammad Ahmed Khan v. Shah Bano Begum
, commonly called the
Shah Bano
case, brought the distinct personal laws that govern India’s major religious groups the greatest public attention they had received since the 1950s.
¹
The dramatization of a sense of damage to the Muslim community pressed the woman to renounce her alimony and parliament to pass in 1986
the Muslim Women (Protection of Rights on Divorce) Act (MWPRDA), meant to overturn the judgment. Hindu nationalists and some modernists claimed that the Act accommodated a misogynistic tradition and undermined the prospects of social reform. However, this was not so.

The woman’s lawyers demanded alimony based solely on particular interpretations of Islamic legal traditions, which were among the grounds of the court’s judgment too. Muslims had not reacted much to earlier alimony decrees in favor of Muslim women, but many of them opposed this judgment because it cited claims that Islam was incompatible with women’s dignity (albeit without supporting these claims), independently interpreted Islamic texts, declared that commonly applicable criminal laws could override Muslim law, and called for uniform family laws. The Muslim opponents of the judgment included some who favored or were at least open to the requirement of alimony, as well as the inclusion of other provisions favorable to women in Muslim law. Some reformers, including the leader of the woman’s legal team, had reservations about the judgment, but supported it nevertheless because they favored the requirement of alimony, they did not wish their reservations to be used to hinder Muslim law reform, the case pitted a prosperous lawyer against a house wife in her late sixties to whom he had been married for four decades, and the alimony decreed accounted for a small share of the man’s income. Although the MWPRDA was meant to relieve Muslim men of alimony obligations, the courts subsequently interpreted it according to reformist understandings of Islamic traditions and constitutional principles, to maintain Muslim women’s alimony rights. This reflected the grounds on which the personal laws of the religious minorities were changed from the 1970s—the concerned group’s statutes, traditions, practices, and initiatives, rather than commonly applicable laws alone. Some of these changes increased women’s rights and led to convergence in certain features of India’s major personal laws, even while these laws bore the influence of distinctive religious-legal traditions. This partly resolved the tension between the recognition of religious traditions in personal law and the reform of personal law, and weakened conservative resistance to social reform.

Why did many believe nevertheless that Muslim difference had undermined women’s rights? Ruling elites had focused their efforts to promote the modern Indian family on the laws of the Hindu majority since indepen
dence. They misunderstood Muslim demands to be governed by distinct personal laws as resistance to changes in these laws, and attempted no changes in the minority laws until the 1970s, although certain minority traditions and initiatives supported reform. These choices accompanied the growth of a public rhetoric that equated the Hindu, the Indian, and the secular-modern, and contrasted this triad with the Muslim, minority difference, and resistance to modernity. This discourse acquired force although the notions of Indian modernity that shaped Hindu law reform had mixed implications for gender relations, and although Muslim law gave women greater rights in certain respects than Hindu law even after Hindu law was reformed in the 1950s. It influenced how many people understood
Shah Bano
, but did not determine subsequent legal change and cultural mobilization. Rights organizations valued recognition more from the 1980s, and shifted their attention from uniform family laws to culturally grounded personal law reform, thus contributing to and reinforcing the pattern of legal change.

Nation and Family
explores personal law as an important arena in which official nationalism, multiculturalism, secularism, and citizenship were formed and expressed in India since independence. It poses the following questions: Why were distinct personal laws retained after independence? Why were changes made only in Hindu law until the 1970s? Why did minority law reform begin from the 1970s? Why was personal-law reform in India modest, yet significant, when viewed in a comparative perspective? What explains the specific nature of the major legal changes? What effects did these reforms have on gender relations and individual liberties, and thus on the quality of democracy?

I. A COMPARATIVE PERSPECTIVE ON THE FORMATION OF PERSONAL LAW

The forces that shaped Indian personal law become clearer when they are placed in a comparative context. States recognize difference in many societies by applying distinct personal laws to specific cultural groups. While recognition is particularly important to represent culturally inflected interests in diverse societies, multicultural institutions and policies often provide unequal rights to citizens, and impede individual liberty, policy change, and cultural
exchange. If multiculturalism has such consequences, it could erode some of the foundations of democracy, or prevent democracy from realizing one of its major promises—the attainment of levels of equality in rights and life chances sufficient for citizens to be autonomous political actors. Many consider both the recognition of cultural specificity and the reduction of social inequality crucial to the stability and quality of democracy in most contexts. A major task of democratic governance in culturally diverse societies is the reconciliation of the goals of cultural accommodation and the promotion of social equality.
²

The tensions between recognition, equality, and liberty are especially pronounced in the domain of personal law or family law. Personal-law systems govern practices like marriage, divorce, marital separation, alimony, property division on separation and divorce, adoption, guardianship, and inheritance. They support unequal rights for the genders in various ways because they are shaped according to understandings of group norms, and the norms of most groups that these systems govern give the genders unequal rights in family life, or at least did so when these legal systems took shape. Besides, policy makers particularly incorporated gender-unequal norms into group law during crucial phases of state formation when they did not prioritize gender equality, and conservative forces often successfully resisted efforts to change these laws thereafter, by presenting such changes as threats to group identity. Moreover, personal laws constrain individual autonomy, as they usually give individuals little choice about the laws that govern them, and accept dominant understandings of group norms.
³

Many colonial states in Asia, Africa, the Middle East, the Americas, and the Pacific Islands recognized distinct family laws for various cultural groups, and most postcolonial rulers retained many features of colonial personal law. The formation of postcolonial family law in these societies aroused many related tensions: between national consolidation and cultural accommodation; between the pursuit of modernity and cultural authenticity, variously conceived; between recognition and individual liberty; and between the aims of promoting gender equality, recognized in many constitutions and transnational human rights discourse, and the gender-unequal rights recognized by the existing personal laws. Moreover, personal laws that applied to specific religious groups and drew upon religious norms required reconciliation with
the aims of the secularist states that recognized these laws to limit and change the public roles of religion. Liberal-democratic secularist states (and states that presented themselves as such) also had to reconcile the recognition of religion in personal law with their goals, actual or proclaimed, to promote religious freedom and to treat different religious groups similarly. Some of these tensions became associated with policy debates in Europe and Canada too, with the growth of demands that different personal laws govern some recent Muslim immigrant groups, and the emergence of community courts that resolved some disputes within these groups.
⁴

Many of the cultural traditions that personal laws recognize are diverse and dynamic, and their implications for contemporary life are contested. This provides states considerable space to introduce culturally grounded personal-law reforms that reduce inequalities, promote liberties, and treat various religious groups similarly. Projects to build nations, maintain or change cultures, and form citizens influenced the forms in which contemporary states recognized traditions and the extent to which they appropriated the authority to regulate family and intimacy from lineages and religious elites. States retained much of colonial personal law, which upheld lineage authority in various ways in Lebanon, Syria, Algeria, and until recently, Morocco, where the social groups that valued the sources of these laws or had an interest in the types of family relations that these laws supported had considerable policy influence. In Turkey and Tunisia, ruling elites prioritized the promotion of their visions of modernity and the control of the state over religious, ethnic, and kin institutions, and changed personal law extensively soon after they came to power, although this reduced their support and generated much social conflict. They empowered the nuclear family and increased women’s rights through the secularization of family law in Turkey and the reform of Islamic law in Tunisia. In Senegal, Libya, Egypt, Jordan, Iraq, Iran under the Pahlavis, Pakistan (until the 1970s), India, Sri Lanka, Bangladesh, Malaysia, Indonesia, and the Philippines, ruling elites were allied with modernist urban elites, as well as with traditionalist religious, ethnic, and kin leaders, and wished to maintain and broaden their support. Their vision of indigenously rooted forms of modernity and their inclination to accommodate traditionalist leaders led them to make modest changes in personal law based on group norms, changes that increased the autonomy of the nuclear family and women
in certain respects and maintained the authority of patrilineages and men in other respects. (
Table 1.1
indicates these patterns of development in personal law in various representative countries soon after decolonization or soon after a regime that distinguished itself from its predecessors by claiming to be modern assumed power). Moreover, further reforms were introduced in the Philippines, most of Indonesia, west peninsular Malaysia, Bangladesh, India, Egypt, and Morocco a generation or two after independence because ruling elites became more oriented to social reform, and reformist mobilization grew stronger. Starting in the 1970s the increased influence of conservative leaders over either national or state governments induced changes in personal law that reduced women’s rights and constrained individual autonomy in Iran, Pakistan, Sudan, northern Nigeria, Afghanistan, east peninsular Malaysia, and Aceh, Indonesia.
⁵
(
Table 1.2
captures the trends in several countries since the 1970s).

TABLE 1.1   Nature of Change in Personal Law Soon After Independence/Regime Change

¹
Iran under the Pahlavis, not since the Islamic revolution