Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (35 page)

While acknowledging the nation’s diverse and composite character, we saw that the narratives of most Indian nationalists drew predominantly from the cultures of the Hindu groups with which they were most closely engaged. Moreover, many of them equated the Hindu and the culturally indigenous, and took groups practicing religions of foreign advent—Muslims, Christians, Zoroastrians, and Jews—to have stronger links to their transnational religious
communities and traditions than to groups practicing religions originating in South Asia, or to the Indian cultural soil. They emphasized the pride that Indian Muslims were said to take in memories of Muslim dynasties of Central Asian origin and their affinity with the Islamic normative and jurisprudential traditions that emerged from the Arab world as signs of their uncertain relationship to the Indian nation. In a similar vein, they took Indian Christians to have a close affinity with Europe an colonizers, churches, and missionaries. This made such apparently pluralist Indian nationalists uncertain about the role of these minorities in initiatives to give the nation a cohesive and indigenous cultural identity. It inclined them to consider the mobilization of the minorities as religious communities in tension with building national solidarity, although many Muslims and Christians participated in cross-religious initiatives against colonial rule. As a result, some of them believed that these groups needed to be specially accommodated to ensure their commitment to the nation. But others felt that such commitment was unlikely and so were predisposed to limit the public influence of these groups, as were the Hindu nationalists who more openly promoted Hindu hegemony.

Perceptions of the postcolonial roles of Muslims and Christians were similar in these ways, but differed in certain other respects. Muslims were not only much more numerous and politically influential, efforts to mobilize a national-level religious community had also proceeded further among them and created stronger demands to maintain the separate electorates through which minority political identity was recognized in the early twentieth century. Moreover, a movement to form a separate country for the group grew among Muslims, and was eventually successful. These were among the reasons why Hindu mobilizers came into conflict much more frequently with Muslims than with Christians. As a result, various Hindu political elites were more concerned about the political trajectories of Muslims, leading some of them to attend more to accommodating them and others to focus more on marginalizing them.

The majority of colonial intellectuals understood Islamic traditions to have taken shape through prolonged involution that rendered Muslims particularly resistant to post-Enlightenment modernity. The call of various
ulama
to resist Western education and maintain connections to Islamic learning
and
shari’a
lent these discourses greater credibility with various Indian nationalists, who nevertheless drew different conclusions from them. Influenced by such claims as well as by certain secularist narratives that devalued religious norms, pluralist Indian nationalists such as Nehru felt that attachment to Islamic law was an aspect of Indian Muslim backwardness that needed to be temporarily accommodated. But their secularized outlook made them unreceptive to most distinctly Muslim cultural forms, and they believed that a UCC based on universalistic reasoning could be introduced once the postcolonial state promoted the socioeconomic status of Muslims and inculcated in them and others the virtues of modern national citizenship. The predominant colonial discourse about Muslims encouraged Hindu majoritarian Indian nationalists to associate the defense of Islamic law with a propensity to polygamy and unrestrained fertility, and to nurse fears about the Muslim demographic presence and its imminent growth. These impressions impelled them to quickly impose a UCC, drawn largely from Hindu norms, on Muslims and other minorities as part of an enforced assimilation into Indian modernity.
¹

Muslim Indian nationalists, such as Maulana Abul Kalam Muhiuddin Ahmed (popularly called Abul Kalam Azad), had rather different preferences about the roles of Muslims in the Indian nation and the course of Muslim law. They wished to retain a distinct Muslim law indefinitely and continue the pattern of Muslim law reform of the early twentieth century, which relied on widely recognized Islamic norms and interpretive methods to respond to various contemporary predicaments. They believed that Indian Muslims could thereby develop a distinctive approach to modernity and contribute to the ongoing development of a composite Indian national culture. Other Muslim leaders had played more central roles in initiating the Muslim law reforms of the 1930s, such as Maulana Husain Ahmad Madani of the Jamiyat Ulama-i-Hind (Association of Indian
Ulama
), or wished to promote more extensive culturally grounded changes in Muslim law after independence, like the jurist Asaf Ali Fyzee. While relying on the support of such leaders to counter the Pakistan movement, policy makers did not involve them in shaping postcolonial Muslim law or designing other forms of Muslim accommodation.
²

Colonial narratives presented Christians rather differently, as a group with a special affinity with modern values. The emergence of the most powerful
models of modernity in predominantly Christian societies, the promotion of Western education by Christian missionaries, and the leading roles of certain Indian Christians in social reform encouraged most Indian nationalists to internalize these narratives. The application of statutory laws based on British precedents to Christian personal life and the limited attention of late colonial Christian mobilizers to personal law led postcolonial policy makers to consider Christians likely partners in their efforts to promote modern family forms and introduce a UCC. Such orientations toward Christians were, however, in tension with the paternalistic attitude among most of these political elites toward the lower castes and tribes, the groups that converted to Christianity most extensively. Indeed, Indian nationalists such as Gandhi, who uneasily combined advocacy of a syncretic public spirituality with an inclination to protect Hindu community boundaries, came into conflict with Christian missionaries over their conversion of the lower castes. Moreover, the image of Christians as agents of modernization only reinforced the concerns of some Hindus that Christian elites might continue to link themselves to various Western forces and the extensive resources at their disposal, aid further Hindu conversion to Christianity, gain greater public prominence, and weaken indigenous cultural forms.

The impressions of the nation and its religious groups among the majority of policy makers urged them to accommodate the minorities, including in personal law. Their vision of Muslims and Christians suggested that they would promote reform and its agents more extensively among Christians. However, state elites considered Muslim accommodation more of a priority and found that Muslims gave personal law far more attention. This led them to base their approaches to the other minority laws mainly on their strategy regarding Muslim law soon after independence. Their limited engagement with minority initiatives and traditions, their inclination to build broad coalitions, and their stereotypes of Muslim backwardness led them not to change the minority laws in the first postcolonial generation, although reformist opinion was no weaker among the minorities than among Hindus. Moreover, they informally suggested that these laws would be changed only as a result of group initiative, and usually took conservative religious and political elites to be the voice of the minorities, particularly regarding personal law. Such a pattern of policy consultation seemed to make minority law reform unlikely.

However, the minority laws underwent some change starting in the 1970s. The growth of reformist mobilization among the religious minorities and the engagement of more Hindu activists, intellectuals, and policy makers with such initiatives made policy elites more aware that the traditions, practices, and initiatives of these groups offered bases for personal law reform. As a result, judges changed Muslim law to give divorcées alimony or a share of their ex-husbands’ property and to restrict men’s right to unilaterally repudiate their wives, and struck down statutory Christian law provisions that provided men and women the right to claim divorce on limited and dissimilar grounds. Moreover, in some states they also granted Muslim women divorces from their bigamous husbands and gave Christian couples the right to adopt children rather than to act only as their guardians.

Legislators continued to be influenced by the view that Muslims favor reform less than other groups; at times they accommodated the suggestions of reformist mobilizers and judges regarding Christian and Parsi law, but not with regard to Muslim law, especially as greater support emerged among Christians and Parsis than among Muslims for specific personal law reforms. They equalized the divorce rights of Christian men and women and provided Christians and Parsis divorce rights on new grounds including mutual consent. But they did not accommodate the demands of Muslim organizations, both conservative and reformist, to give Muslim women throughout India the right to inherit the shares of agricultural land that Islamic law prescribes. Nor did they clearly support judicial initiatives to increase the economic support that divorcées could get from their ex-husbands or to limit unilateral male repudiation among Muslims. Most legislators remained inadequately aware of the support that Islamic norms offered for these changes. Even while they introduced certain changes in Christian law, legislators resisted demands to make Christians eligible to adopt children, because they feared this would enable a growth in the Christian share of the population. The growth of Hindu nationalism as well as of conversion to Christianity since the 1980s had added to the fears among many political elites that Christians might use their transnational links to weaken Hindu hegemony and Indian national cohesion.

Both judges and legislators attended to cultural accommodation while they changed the minority laws. For instance, certain courts provided alimony to Muslim divorcées by taking the criminal law provisions concerning
alimony to apply to Muslims (in opposition to the contrary interpretations of other courts), by interpreting statutes concerning economic support for divorced Muslim women to require alimony, and by alluding to commentaries that took some verses of the Qur’an to require men to support their ex-wives for the rest of their lives. Judges and legislators changed Christian divorce law with reference to the more extensive practice and acceptance of divorce in mainline Protestant churches and among Christian laity, and the mobilization of many important Christian clerical and lay organizations in favor of increased divorce rights. While the courts also grounded these reforms on the constitutional rights to equality, equal protection, life, and personal liberty, policy makers changed the minority laws only when group laws, norms, or initiatives offered justification for the specific changes.

We now examine the processes through which Muslim law and Christian law were formed and changed in postcolonial India, with greater attention to Muslim law.

I. CULTURAL AND LEGAL CURRENTS OF THE LATE COLONIAL PERIOD

A. Approaches to Muslim Law: Mobilization and Legislation

Religious mobilization addressed personal law most consistently through the colonial period among Muslims. Various Muslim elites, particularly in North India, felt that the decline of the Mughal empire, the defeat of the Great Rebellion of 1857, the attendant consolidation of colonial rule, the formation of partly secularized public arenas, and the sharpening of religious boundaries in a society in which they were a minority were signposts of community decline. To respond to these changes, many of them adopted somewhat novel approaches to Islamic reasoning, and built new religious and political institutions. Both
ulama
and Western-educated professional elites drew in innovative ways on earlier discursive traditions to change Islamic law in response to contemporary circumstances. These initiatives changed the ways in which disputes were resolved in the state courts as well as in the
ulama
-run community courts, made Islamic law more uniform, abridged the role of customs that did not have a definite basis in classical Islamic traditions and were often
shared with the members of other religious groups, and increased the rights of women and nuclear family members in certain respects. They were framed as ways to purify Islamic practices and revitalize the Muslim community. Concerns to build broad coalitions for various projects and maintain religious boundaries inflected these initiatives, limited the abridgement of custom, and shaped and restricted the promotion of women’s rights.

Paul Brass claimed that
ulama
educated in
madrassas
(Islamic schools) and Muslim professional elites educated in institutions run by the colonial government or Christian churches responded very differently to the changes under colonial rule.
³
He argued that the “traditionalist”
ulama
defended precolonial Islamic law, at least in the sphere of personal life to which the colonial state restricted it, while the “modernist” Western-educated professional elite fully accepted the incorporation of Islamic jurisprudence within a common law-framework and interpreted the contemporary meaning of Islam more innovatively. More careful analyses show that both groups approached religious texts and Islamic law in novel ways from the eighteenth century, although the
ulama
more often claimed to continue earlier religious traditions.

Various prominent
ulama
resorted with greater frequency to legal innovation from the eighteenth century onward, specifically employing
takhayyur
(selective borrowing from other
madhhabs
) and
ijtihad
(innovative legal interpretation) in a departure from the emphasis of most Sunni
ulama
until then on authoritative commentaries,
taqlid
(following interpretive precedent) and
qiyas
(reasoning by analogy). Shah Waliullah Dehlavi, a Delhi-based scholar of the eighteenth century, was an important forerunner of this trend, whose ideas influenced the major Islamic religious institutions thereafter. Western-educated Muslim elites also resorted to
ijtihad
, but in a somewhat different way. The orthodox view among the Sunni
ulama
was that only the founding figures of the major
madhhabs
and certain other major scholars who lived in the early Islamic centuries had the competence and authority to independently interpret the founding texts of Islam and its
madhhabs
. This led them, even over the last two centuries, to employ
takhayyur
and
ijtihad
only as a collective body, in response to major questions to which they found no satisfactory answer in the current approaches of their
madhhab
, with copious reference to authoritative commentaries, and after considerable dialogue.
Some Western-educated Muslims felt freer to engage in
ijtihad
in their individual capacity, referred more often to recent reformist commentaries, and oriented their legal reasoning to arrive at rules conducive to greater professional and material success, and to wresting from the
ulama
the authority to interpret the call of Islam. The educational reformer Sir Sayyid Ahmed Khan, the early Indian nationalist and jurist Badruddin Tyabji, the poet Mohammad Iqbal, and the legal scholar Asaf Ali Fyzee were among the prominent professional elites who engaged in or called for
ijtihad
along these lines. Most of them relied, however, on much the same interpretive methods and sources as the
ulama
, and some of them were closely allied with particular
ulama
. This was because some of them were trained by
ulama
in addition to attending Western educational institutions. This was true of Sir Sayyid Ahmed Khan and many other members of the Mughal ser vice gentry, Sayyid Mumtaz Ali (who interpreted Islamic law to provide women extensive rights in the late nineteenth century), and Abul Kalam Azad. As a result, many professionals and
ulama
jointly piloted various reform initiatives, although members of these groups also criticized each other sharply in other contexts.