Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (47 page)

Thus, regimes engaged with society in significantly different ways although the prior histories of state-society relations were similar in various respects in the countries they governed. Nevertheless, the extent of state autonomy at the point of regime change from the social institutions authorized by the inherited personal-law systems mediated the influence of the coalition-building ambitions of governing elites over the approaches taken to reforming society and personal law. Thus, regimes that wished to maintain broad support varied in their strategies, with the rulers of Libya, Egypt, Jordan, India, Malaysia, and Indonesia changing personal law much more than those of Algeria, Lebanon, Syria, and until recently Morocco. The crucial reason for these different strategies was that the first set of regimes inherited states that were more autonomous of the social institutions that colonial personal laws had
authorized, and were eager to consolidate such autonomy while they continued to engage with these institutions. These circumstances made them willing and able to gradually promote the culturally grounded forms of modernity they valued, although they encountered some resistance from conservatives. However, their preference to maintain broad coalitions led them to forge compromises to contain such resistance and prevent much erosion of their support. The second set of regimes relied too much on the social institutions invested in the personal law systems they inherited to be able to pursue even moderate reforms.

If regimes engaged with society in significantly different ways although state-society relations were similar under their predecessor regimes, this was principally due to the discourses about the nation, its cultural groups, and their traditions that oriented regime actors. Aside from influencing the kinds of social coalitions these actors wished to assemble, such discourses exercised independent influence over the approaches the regimes took to make the nation, recognize its traditions, and shape family law.

The effect of discourses of community on regime strategies to build social coalitions and regulate society is highlighted by a consideration of the alternative forms these strategies might have taken if governing elites had operated with different understandings of the nation and its traditions. Turkey’s early republican regime included individuals who conceived the nation, its traditions, and its destiny differently—some wished to rebuild the nation based on reformed religious norms, others aimed to revive aspects of pre-Islamic Turkish social life as they imagined it, and yet others wanted to adopt Western institutions and drastically reduce the public roles of religion. If the religious reformists or indigenist secularists had retained significant space in the regime, they would most probably have restricted the extent to which Western civil codes and elements of French secularism were adopted. They might have reformed religious laws to a significant degree as happened in Tunisia, or on a less extensive scale as in Egypt and Jordan. Or they might have incorporated existing or imagined indigenous customs, whose relation to religious traditions was unclear, into religious law, along the lines of the Indonesian experience. Under any of these scenarios, the state would have engaged more closely and tolerantly with religious norms and religious institutions than it did under the hegemony of the Westernizing secularists, and
Turkey might have adopted a form of secularism akin to the Indian and Indonesian variants. The religious reformers and indigenist nationalists also valued broad support more than the Kemalists did, the reforms they favored would likely have been more popular, and their influence would have made the regime more stable in a society in which many citizens valued various religious norms and ethnic customs. As the Kemalists consolidated their control, they promoted their vision of a substantially secularized nation, represented by a highly centralized state. But they could not ensure that state institutions enjoyed popular legitimacy or regulated social life as closely as they wished, because many citizens continued to take their disputes to community institutions. Neither could they prevent the emergence of movements that sought to restore some of religion’s public roles.

Alternative constructions of the nation and its traditions would also have led other regimes to engage differently with their societies and adopt different forms of multiculturalism and family law. In Tunisia, if the modernists had envisioned the nation less exclusively in terms of the cultures of the middle- and working classes of the coastal towns, they might have tried to retain the support of conservative rural groups, infringed less on the autonomy of lineages and religious elites, centralized the state less, and changed family law less extensively. If the Free Officers regime and its successors had emphasized the secularist and egalitarian features of their Arab nationalism more in Egypt, they might have paid less attention to allying themselves with major
ulama
and Coptic religious elites and introduced more extensive personal-law reforms. If proponents of an Islamic state such as the Sarekat Islam and the Masjumi had acquired greater influence over the early postcolonial Indonesian regime, they might have ensured the state’s symbolic or substantive association with Islam, rather than with a nondenominational monotheism. While this would not have precluded the recognition of minority cultures, including in personal law, it would have made the regime less popular among religious minorities and less stable in the regions where they were concentrated. It might also have made the government less receptive to the imagination of national culture and religious traditions in light of a variety of indigenous customs. The bilateral and matrilineal customs of certain ethnic groups were important sources from which religious scholars and policy makers developed ideas of a national
adat
and framed changes
in personal law, and an Islamic understanding of the nation was likely to have limited such changes. The more restricted space for the religious minorities in the ruling elite and the less extensive recognition of
adat
are likely to have particularly limited reforms in the personal laws of non-Muslims and given Indonesian secularism the kind of majoritarian bent seen in India.

If the cultural pluralists who led India’s postcolonial regime had engaged more with religious minorities and woven more minority cultural threads into their national tapestries, they probably would have recognized these groups and framed social reform differently. Policy makers would most likely have recognized minority cultures in light of a wider variety of social currents among these groups, including emergent cultural forms, and relied less exclusively on Hindu concerns and initiatives to understand and reduce deep social inequalities. This would have enabled earlier and more extensive changes in the minority personal laws, along lines that enjoyed greater support among the concerned groups. Moreover, under these circumstances the state was likely to have better understood and accommodated minority autonomist initiatives, its preferential policies and other redistributive measures might have reached more members of the religious minorities, and these groups might have extended the state more enthusiastic and enduring support. This would have brought the Indian state closer to realizing its promise to engage similarly with various religious groups and thus made the Indian and Indonesian versions of secularism more similar. Such approaches would have helped the cultural pluralists represented in the regime link initiatives among different religious groups better, and thus have enabled them to counter Hindu majoritarianism more effectively.

Thus, inherited levels of state autonomy and prior forms of state-society engagement did not determine how far and in what ways ruling elites consolidated state authority, and how they regulated social life and family life. Particular constructions of the nation, its cultural groups, and their traditions framed the visions of these elites, and influenced these outcomes. They specifically shaped the forms of state engagement with major social institutions, the social coalitions that these elites assembled, the norms they promoted among the majority of citizens, the groups they recognized, and the forms in which they recognized various groups.

III. FORMATION OF NATION AND FAMILY IN INDIA

The colonial state had devalued indigenous traditions, yet recognized a variety of them and engaged with the social institutions whose authority these traditions upheld in India, as in most colonies. It recognized the importance of religion in public life in different ways, and specifically in family life, to enable stable governance.

The responses of Indian nationalists to colonial institutions and colonial discourse influenced the forms that multiculturalism and family law took after independence. Like the majority of anticolonial nationalists elsewhere, Indian nationalists wished to build a nation that was identifiably based in indigenous cultures. However, those who led the early postcolonial regime retained more colonial legacies and built more institutions modeled after Western precedents than many other opponents of colonial rule did, even while they altered some of these legacies to suit indigenous circumstances and their postcolonial aspirations. They specifically retained certain forms of colonial multiculturalism, including the recognition of particular public roles for religion. But they abandoned certain colonial forms of recognition, such as separate religious electorates, because they considered them incompatible with secularism and national cohesion, and the majority of them sought to modify certain cultural norms to promote social equality and individual liberties much more than colonial officials had—for instance, by outlawing untouchability and fostering lower-caste uplift. Moreover, they wished to deepen the representative character of colonial self-government institutions, and prioritized the consolidation of democracy more than most anticolonial nationalists did. The majority of Indian nationalists conceived of a culturally indigenous nation primarily in terms of Hindu cultures for two reasons: they accepted the frequent equation in colonial discourse of the Hindu and the culturally indigenous and the association of Muslims with transnational cultures; and they engaged primarily with initiatives among Hindus, especially those who belonged to the social elite. This meant that they conceived the modern Indian family primarily in terms of certain Hindu visions and practices, both enduring and emergent, and did not consider the formation of the religious minorities crucial to making the postcolonial nation.

Such visions of the Indian nation, its religious groups, and their future led postcolonial state elites to retain distinct personal-law systems and focus their reform initiatives solely on Hindu law until the 1970s. They changed only Hindu law soon after independence, although initiatives for culturally grounded personal-law reform were comparably strong among Muslims and Hindus. As they prioritized the consolidation of democracy and the maintenance of broad coalitions, the modernists and the conservatives forged compromises over moderate reforms. These reforms increased conjugal autonomy and women’s rights in certain respects, for instance by giving individuals greater room to choose who to marry and whether to continue their matrimonial relationships, and by granting women rights to shares equal to those of their brothers in their parents’ separate intestate property. But they maintained the authority of lineages and men in other respects, especially over the inheritance and control of jointly owned family property. Moreover, they signaled the family practices the state valued, for instance by enabling intercaste marriages and equalizing children’s rights in intestate separate property, rather than enforcing their rapid adoption, such as by restricting testation. The moderate and culturally grounded nature of personal-law reform followed the predominant pattern in postcolonial societies, in contrast with the experience in former colonies that either retained much of colonial personal law (such as Lebanon), changed personal law more extensively (for example, Tunisia), abandoned distinct personal laws (as in Vietnam), or increased the scope of religious law and the authority of religious elites, men, and lineages (as Sudan did). The pattern of reform in India also differed from that in countries like Indonesia where the laws governing minorities were changed more extensively, in societies such as Pakistan and Bangladesh where they were not changed, and in societies like China and Turkey where distinct personal laws ceased to govern these groups.

Certain changes in patterns of mobilization, salient discourses of community, and values regarding the family enabled modifications in personal-law policy since the 1970s. Women’s organizations and other civil-society organizations grew, promoted support for women’s rights, and mobilized understandings of group tradition that provided grounds for extensive reforms. Moreover, ongoing socioeconomic changes made agrarian groups more open to the division of lineage property into individual shares. Hindu nationalists
grew in strength, and highlighted demands for the speedy introduction of a UCC, but did not specify the content of such a code or initiate such a change. In response to the growth of Hindu nationalism and intolerance toward religious minorities, certain rights organizations, social movements, and political parties increased their engagement with minority initiatives and traditions, and proposed culturally grounded changes in the minority laws. As a result of these changes, support increased among the political elite for the autonomy of individuals and women in certain aspects of family life, and more of them found the pursuit of these goals compatible with broad social coalitions. Moreover, some policy elites became willing to base Hindu law on a wider cultural repertoire, including emergent practices and novel interpretations of Hindu traditions, and others grew more aware of minority norms and initiatives that supported greater rights for women and individuals.

These developments enabled further changes in personal law that increased women’s rights and the autonomy of individuals and nuclear families, and departed from the primarily patrilineal constructions of kinship and inheritance that had shaped Hindu law. Besides, the later reforms extended to the minority laws. The main changes since the 1970s increased the divorce rights of Hindus, Christians, and Parsis; provided all women greater protection from domestic violence and gave them rights in the matrimonial home if they faced such abuse; gave Hindu daughters rights equal to those of their brothers in family joint property and in the ancestral home; made the inheritance rights of Hindu widows in their deceased husbands’ property independent of their current civil status; equalized the divorce rights of Christian men and women; gave Muslim divorcees greater claims on their ex-husbands’ income and property; and restricted unilateral male repudiation among Muslims.