Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (3 page)

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Pakistan until the 1970s

The different approaches taken to nation formation, the recognition of religion and cultural diversity, and the regulation of family life are part of the larger trend of the emergence of distinctive forms of modernity and reconstructed traditions across the world since the eighteenth century, in the course of state centralization, colonial and other transregional exchanges, and capitalist development. Scholars have noted the influence of differences in social structure and culture, and variations in cultural and political mobilization and state-society relations, on polity type,
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the nature and level of industrialization,
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patterns of secularization and change in religious practice and values,
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the nature of nationalism and politicized ethnicity,
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and the character of recently re-formed traditions.
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This book extends these considerations of
alternative modernities to the analysis of patterns of recognition of religion, forms of secularism, and approaches to social reform and the regulation of family life.

TABLE 1.2   Effects of Changes in Personal Law Since the 1970s on Women’s Rights and Individual Autonomy

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Most of Indonesia, but not Aceh over the past decade

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West peninsular Malaysia and nonpeninsular Malaysia (provinces of Sabah and Sarawak)

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East peninsular Malaysia (provinces of Kelantan and Terengganu)

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Especially under the rule of the Taliban, 1996–2001

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Especially soon after the Islamic revolution

India, with its complex and cross-cutting variations along the lines of religion, language, and caste, is the preeminent instance of the use of multicultural policies to maintain democracy and represent culturally inflected interests. It therefore offers a fine locus to consider the engagement of policy makers and political and cultural mobilizers with concerns of nation formation and recognition. The major forms of cultural accommodation are federalism, the formation of states largely along the lines of language use, the use of a range of official languages by the national government and the state governments, the introduction and later expansion of preferential policies in education and government employment largely based on membership in particular castes or tribes, the provision of political representation and special civil rights protections to the lower castes (called “scheduled castes” since 1936) and tribal groups (called “scheduled tribes”), the restriction of land rights to the members of certain tribal groups in the regions of their prolonged habitation, and the recognition of different personal laws governing the larger religious groups and many tribal groups. The book’s examination of the formation of postcolonial Indian personal law engages the literatures on nationhood and recognition, postcolonial cultural politics, secularism and contemporary religion, and legal institutions, social identities, and gendered citizenship. The book explores the influence of discourses about the nation and its religious
and other cultural groups and traditions, along with certain aspects of state-society relations on personal law, multiculturalism, and secularism in postcolonial India, in new ways.

The formation of personal law and certain features of nationalist and cultural mobilization under colonial rule set the stage for the construction of official nationalism, secularism, multiculturalism, and personal law in postcolonial India. The rest of the chapter outlines major features of these colonial experiences, as a background to the discussion of postcolonial personal law in the later chapters.

II. OVERVIEW OF EXPERIENCE IN COLONIAL INDIA

The colonial state recognized religious norms as the main basis of personal law in India. Certain religious norms were incorporated into the common-law framework in which the rest of the legal system operated, after being vetted according to the variously applied standard of compatibility with “justice, equity and good conscience.” Of the laws governing the major religious groups, Hindu law and Muslim law were based on common law-influenced interpretations of prior religious and religious-jurisprudential traditions and some aspects of British law, both English and Scottish, while the main statutes of Christian law, passed in the 1860s and 1870s, drew largely from British legislation of the nineteenth century. Hindu and Muslim personal law were sometimes called Anglo-Hindu and Anglo-Muhammadan law, to capture the ways in which they amalgamated British and Hindu or Islamic legal traditions. Distinct personal laws were also applied to Parsis and Jews, both of which were small communities in British India. The census estimates Hindus, Muslims, Christians, and Sikhs to account for 80.5 percent, 13.4 percent, 2.3 percent, and 1.9 percent respectively of India’s population currently, and Parsis and Jews for less than 0.1 percent of the population each. The population shares of the Hindus and the Muslims were 69.5 percent and 24.3 percent respectively in colonial India.
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The book focuses on the three major personal-law systems of India, the Hindu, the Muslim, and the Christian. Bodies of customary law were applied to various tribal groups, and to the majority of residents of certain regions, particularly in the Punjab and the North-West Frontier Province in northwestern colonial India. Personal laws were pre
sented as based largely on authoritative religious texts and the understandings of various religious scholars, Indologists, and Orientalists, while customary laws were said to be based primarily on the customs of various groups, gleaned primarily by anthropologists. Moreover, the state courts recognized certain customs specific to sect, language group, region, caste, and tribe as bases on which litigants might depart from the rules of their religious group’s personal law if they could demonstrate that these customs were undisputed and long lasting.

State courts considered personal-law cases, but administrators also provided space for various community courts to consider such disputes without necessarily accepting their verdicts or implementing them. Various social groups pressed their concerns in the state courts as well as in community courts, and certain new religious institutions and caste associations developed new community courts.

A. Religious Mobilization and Colonial Personal Law

New forms of religious mobilization emerged in response to certain features of the colonial context: the exposure, particularly of Western-educated elites, to post-Enlightenment ideas; the formation of Europe an understandings of Indian religious traditions, primarily with reference to certain major texts; the presentation of British cultures and practices as civilized and superior; the dissemination of liberal Europe an and Christian missionary criticisms of various features of local religions and cultures; a decline in the influence of non-Christian religious norms and religious elites over governance; the classification of the population into enumerated religious groups in censuses; and the state’s tendency to allocate resources and make policy partly based on religious identity. These changes encouraged the mobilization of religious communities across wide territories, efforts to reform religious practices to meet certain standards of colonial modernity, initiatives to purify religious practice to conform more closely to particular interpretations of religious norms and texts, and attempts to gain official recognition for certain reformed / revived religious norms.
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Different South Asian words were translated as “reform” and “revival,” and served as flags for initiatives that had varying implications for social inequality and the relationships between religious groups. Some mobilizers interpreted
religious traditions or sought to change them to support the reduction of certain social inequalities—for instance, by urging greater education among women, the remarriage of widows, less authoritarian relations between spouses, and interaction on more equal terms between differently ranked castes. Others upheld the privileges of the upper castes and other groups of higher status, and restrictions on the rights of female kin and children. Efforts to reduce inequalities were more often presented as innovative among Hindus, and as a return to the egalitarian features of the religion’s founding texts and practices among Muslims. Religious mobilization enabled cultural exchange across religious boundaries in some respects, but policed these boundaries with greater vigilance in others.

Religious mobilization sometimes addressed personal law and the criminal laws pertaining to family life. It did so much more among Muslims than among Hindus, as traditions of religious law were better formed before British rule, and the authority of religious elites depended far more on their expertise in religious law, among Muslims. The
ulama
(Islamic religious scholars / religious elites) initially opposed the restriction of the scope of Islamic law to personal life, but shifted from the late nineteenth century to a defense of Muslim personal law as it operated in the state courts. They accommodated themselves thus to the rule of colonial law, and linked Muslim personal law to the recognition of Muslim religious identity. The adoption of such a posture by the guardians of the faith encouraged others to equate Muslim personal law with
shari’a
, the moral norms indicated in the Qur’an and the practices of the early Islamic community, which are the primary sources of Islamic jurisprudence. However,
qazis
(Islamic religious judges) continued to mediate family disputes.
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Moreover, the major religious institutions that emerged from the mid-nineteenth century, especially the Darul Uloom Deoband (DUD), built new institutionalized religious court systems and urged their followers to seek these courts rather than the state courts, particularly when they were disappointed with certain interpretations of Muslim law in the state courts. Muslim reformers educated mainly in secular institutions also contested certain ways in which the colonial courts interpreted Muslim law.

The common-law convention of following precedent became an important part of personal-law adjudication in the state courts, especially after the courts ended the regular consultation of Hindu and Muslim religious schol
ars in the 1860s. This reduced flexibility in adjudication and marginalized certain processes through which religious norms and approaches to adjudication had changed before colonial rule. It particularly limited the role in official Muslim law of
fiqh
(a form of jurisprudence as well as substantive rules developed on the basis of ongoing dialogue among Islamic jurists to construe the implications of authoritative texts for new social predicaments and new kinds of disputes) and
ijtihad
(innovative methods of legal interpretation that were used more often than orthodox Sunni religious scholars claimed). However, many Muslims revived such deliberative processes through which intellectuals tried to arrive at consensus. Some Muslims educated in secular institutions revived
ijtihad
as a way to wrest the authority to interpret the meaning of Islam for contemporary life from the
ulama
, and to arrive at norms conducive to greater economic success in the colonial and postcolonial contexts. Many
ulama
also continued their engagement in
fiqh
to orient Muslims in a context of growing secularization, state consolidation, and interreligious competition; to deduce ways to resolve disputes in religious courts; and to suggest approaches to Muslim personal law in the state courts. This gave classical forms of Islamic legal reasoning a continued and somewhat autonomous existence despite their incorporation into colonial law.

Both secularized Muslim intellectuals and the
ulama
piloted some changes in Muslim personal law. The former were primarily involved in the passage of the Mussulman Wakf Validating Act (MWVA) of 1913, which approved bequests to family members (parents sometimes used bequests to give property to their daughters rather than to extended kin). Both groups participated in passing the Muslim Personal Law (Shariat) Application Act (the Shariat Act) in 1937, which made Islamic law rather than local custom the basis of the regulation of Muslim personal life, and the Dissolution of Muslim Marriages Act (DMMA) of 1939, which increased women’s divorce rights. These agents passed the Shariat Act to limit the legal relevance of regional custom, which they tended to consider un-Islamic—perhaps Hindu—as well as to consolidate Muslims as a political and cultural community by applying the same laws to them in many respects. But landholding elites ensured the continued application of custom to the inheritance of agricultural land because they wanted patrilineages to retain control over such land rather than cede control to individual kin, especially women. The concern that the limited divorce
rights of the majority of Indian Muslim women, who followed the Hanafi school of Islamic law, would lead some of them to resort to apostasy as a means to access divorce led some major
ulama
to draw from the Maliki school of Islamic law, followed in parts of north Africa, to enable Muslim women to divorce their husbands if they were found to have abrogated their spousal obligations, for instance through adultery, desertion, or cruelty.
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