Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (49 page)

A comparison of the forms of nationalism and secularism that the state adopted in India and Indonesia and the patterns of personal-law reform in these two countries highlights certain ways in which Indian policy makers could learn from Indonesian experiences. The personal laws of the religious minorities were changed earlier and more extensively in Indonesia. Certain features of the Indonesian experience enabled this outcome. Many religious scholars and policy elites incorporated in their constructions of indigenous Islam certain customs that were shared by the members of different religious groups and bore an uncertain relationship with classical Islamic traditions. Moreover, official constructions of the nation referred to elements of the different world religions present in the country, as well as various indigenous folk religious beliefs and practices. The prevalence of such nationalist and religious discourses led policy makers to draw from bilateral customs that gave women greater rights and nuclear families greater autonomy to reform the personal laws of both the Muslim majority and the religious minorities.

By way of contrast, nationalist discourses referred largely to Hindu cultures in India, and highlighted the transnational affinities of India’s Muslims and Christians. Moreover, Islamic scholars were reluctant to incorporate customs shared by India’s Muslims and non-Muslims into their constructions of religious tradition. These features of nationalist and religious discourse restricted
connections between the reformist initiatives that emerged among different religious groups even though these mobilizers sometimes promoted similar social practices, and specifically contributed to the limited engagement of most policy makers with minority initiatives and traditions. These conditions led policy makers to focus on changing Hindu law soon after independence although culturally grounded initiatives for personal law reform were not weaker among Muslims than among Hindus. The strength of support for changes in personal law among the minorities at the point of decolonization shows that political elites missed an opportunity to change minority laws then. However, the comparison with Indonesia indicates that such a course was likely to have been followed only if influential nationalist discourses had included the religious minorities and their cultures more in India. It also shows that if more extensive changes are to be made in the minority personal laws and in other aspects of minority accommodation in India in the future, pluralistic constructions of the nation must be mobilized more and reformist initiatives should connect the members of different religious groups and their normative traditions more closely. This is particularly necessary insofar as Hindu majoritarian visions are popular and well organized. Such changes would enable reformers to draw more fully from the aspects of the country’s diverse and dynamic cultural repertoires that hold promise for the democratic reconstruction of families, religious groups, and the nation, and thereby counter conservative efforts to resist such changes as contrary to indigenous cultures.

NOTES

CHAPTER ONE

1
.
Mohammad Ahmed Khan v. Shah Bano Begum
, AIR 1985 SC 945.

2
. For different understandings of the relative importance of these goals to democracy and how they might be reconciled, see Lijphart 1977; Horowitz 1985; Kymlicka 1995; Okin et al. 1999; Parekh 2006; Lipset 1981; Moore 1966; Rueschemeyer, Huber, and Stephens 1992.

3
. Kandiyoti 1991a; Glendon 1989; Hooker 1975.

4
. See: Hooker 1975; Mamdani 1996; Benton 2001; Asad 2003; Jacobsohn 2003; Taylor 2007; Bowen 2009; Beaman 2012.

5
. For details of developments in Morocco, Tunisia and Algeria, see Charrad 2001; Charrad and Goeken 2006; Buskens 2010; in Senegal, D. Robinson 1992; Creevey 1996; in Libya, Mayer 1977; Layish 1991; in Egypt, Tucker 2008; Lombardi 2006; in Syria, Berger 1997; Hinnebusch 1993; in Lebanon, Bilani and el-Gemayel 1985; Joseph 1994; in Jordan, Sonbol 2002; Welchman 1988; in Nigeria, Harnischfeger 2008; Peters 2001; in Sudan, Massoud 2013; Fluehr-Lobban 1987; in Iraq, Joseph 1991; Stilt 2004; in Iran, Osanloo 2009; Mir-Hosseini 2000; in Afghanistan, Ghasemi 1998; in Pakistan, Nelson 2011; Yilmaz 2005; Mehdi 1994; in India, Menski 2001, 2003; Solanki 2011; Agnes 1999; Subramanian 2008, 2010; Vatuk 2005; Williams 2006; in Sri Lanka, Goonesekere 1980, 1990; in Bangladesh, Bhuiyan 2010; Hoque and Khan 2007; in Malaysia, Mohamad 2010; Peletz 2002; Horowitz 1994; in Indonesia, Bowen 2003; Feener 2007; Cammack and Feener 2007; Salim 2008; in the Philippines, Feliciano 1994.

6
. Moore 1966; Huntington 1968, 1998; Rustow 1970; Rueschemeyer, Huber and Stephens 1992.

7
. Gerschenkron 1962; Johnson 1982; Evans 1995; Amsden 2007.

8
. Asad 1993; Asad 2003; Casanova 1994, 2006; Taylor 2007; Brown 2008; Eisenstadt 1987, 2003.

9
. Anderson 1983; Smith 1986; Horowitz 1985; Marx 1998, 2003.

10
. Hobsbawm and Ranger 1983; Anderson 1983; Cohn 1996; Viswanathan 1989; P. Chatterjee 1993.

11
. India, Office of the Registrar General and Census Commissioner 2003; India, Census Commissioner 1943; Davis 1949; The population shares of religious groups changed significantly when predominantly Muslim Pakistan was partitioned from India at the point of independence. The population share of Christians changed considerably because of conversion, and there are very different estimates of the current Christian population. As the Indian censuses have estimated it, it rose from 0.7 percent in 1881 to 2.0 percent in 1941 (the last colonial census) and 2.3 percent in 2001. The censuses underestimate the changes since independence. Many recent lower-caste converts to Christianity from Hinduism do not officially claim a Christian identity even while practicing Christianity, because census officials usually provide those who declare themselves to be of the lower castes only three choices regarding religious identity—Hindu, Sikh or Buddhist. Many lower-caste Christians also do not declare themselves Christian to state officials because they would thereby lose preferences in education and government employment and special civil rights protections. The World Christian Database estimated the Christian share of the population to be as high as 6.7 percent in 2005 and to have increased sharply since 1995, when it was only 2.7 percent. Its estimates correct for the misreporting of religious identity to census officials by some practicing Christians. The Atlas of Global Christianity and Operation World, which rely on the figures provided by Christian churches rather than census officials, estimated Indian Christians to be 4.8 percent and 5.8 percent respectively of the Indian population in 2010. I rely hereafter on the figures of the World Christian Database which seem most reliable. See: Frykenberg 2008, vii; Lausanne Global Analysis 2011.

12
. Viswanathan 1989; Dirks 2001; Kaviraj 1992.

13
.
Qazi, a
word of Persian origin, is used most often in much of India, while the Arabic word
qadi
is used in much of the Muslim world.

14
. For further details, see: Ewing 1988; Gilmartin 1988; Zaman 2002; Metcalf 1982, 2009a; Kugle 2001; Robinson 2008; Moosa 2009; Nelson 2011; De 2009.

15
. See Halhed 2001; Strange 2007; Mulla 1975.

16
. Lingat 1998, 176–206; Davis 2010, 144–65.

17
. On the relationship of the
shastras
to colonial Hindu law, see: Rocher 1972; Cohn 1996, 57–75.

18
. Jones 1989; Derrett 1976; Menski 2003; Newbigin 2011; India. RHLC 1941, 1947.

19
. Derrett 1968, 1978; Menski 2003; Heimsath 1964.

20
. Nehru 1959, 1990, 1996.

21
. P. Chatterjee 1993; Tejani 2008; Jaffrelot 1996.

22
. M. Gandhi 2008; Parekh 1989; Sinha 2006.

CHAPTER TWO

1
. Pufendorf 1991; Bodin 1955; Filmer 1949.

2
. Weber 1968, 1006–69.

3
. Adams 2005 argued that early modern Europe an states had pronounced patrimonial features; Adams and Charrad 2011 provided a comparative survey of modern patrimonialism; Eisenstadt 1973 offered the classic understanding of contemporary neopatrimonialism.

4
. Cott 2000.

5
. Cretney 2005; Glendon 1989; Colley 2009; Thompson 1966; Bell 2003; Hill 2008 on Britain and France. See Yilmaz 2005; Kuru 2009, 161–246; Charrad 2001 on Turkey and Tunisia.

6
. Glendon 1989; Friedman 1994, 2004.

7
. Foucault 1978, 1980, 2007; Ong and Peletz 1995; Mitchell 1991a; Rabinow 1995; Asad 2003; Peletz 2009.

8
. Charrad 2001.

9
. While Cott focused on visions of sovereignty, Charrad seemed to consider visions of nation and modernity concomitants of institutionalized state-society relations.

10
. P. Chatterjee 1993.

11
. “The modern state, embedded as it is within the universal narrative of capital, cannot recognize within its jurisdiction any form of community except the single, determinate, demographically enumerable form of the nation. It must therefore subjugate, if necessary by the use of state violence, all . . . aspirations of community identity.” P. Chatterjee 1993, 238.

12
. P. Chatterjee 1993; Mamdani 1996.

13
. P. Chatterjee 1993, 1994.

14
. Benton 2001; Merry 1991, 1999; Chanock 1991.

15
. Everett 1979; Basu and Ray 1990; Nair 1996. Sinha 1999 and Nair 1996 equate the approaches of the major male leaders with those of Indian nationalists
tout court
, although understandings of Indian nationalism influenced the strategies of the AIWC and the WIA.

16
. For an overarching view of multiple modernities, see Eisenstadt 1987, 2003. See also Chapter 1, notes 5–9.

17
. Gerschenkron 1962; Johnson 1982; Evans 1995; Amsden 2001; Hill 2008.

18
. Easton 1953; Almond and Coleman 1960.

19
. Especially Nordlinger 1981; Krasner 1978.

20
. Skocpol 1985, 1995; Bates 1981; Evans 1995.

21
. Mitchell 1991b and Migdal 2001 highlight these problems.

22
. Tilly 1975; Goldstone 1991; Marx 1998.

23
. Friedman 1994, 2004.

24
. Migdal 2001 is a particularly nuanced expression of this approach. Collier and Collier 1991; Migdal, Kohli, and Shue 1993; Jackman 1993; and Kohli 2004 are other important instances.

25
. Various other theories also advance the first three claims. It is the combination of these and the fourth claim that is distinctive of the state-in-society school.

26
. Khoury and Kostiner 1990; Charrad 2001; Adams and Charrad 2011.

27
. Jackman 1993; Breuilly 1994; Marx 1998, 2003.

28
. Microlevel discipline was the focus of his earlier work (Foucault 1973, 1977, 1978). His later lectures (Foucault 2007) emphasized macrolevel regulation.

29
. Mitchell 1991a; Rabinow 1995; Peletz 2002, 2009; Asad 2003.

30
. Scott 1998.

31
. Said 1978; some of the essays in Hobsbawm and Ranger 1983; Cohn 1996; and Stoler 2009 explore colonial knowledge. Poststructuralist theory especially shaped Stoler’s analysis, and bore affinities with the work of Said, Cohn, and Ranger. Cohn 1996; Appadurai 1996; Mamdani 1996; Nobles 2000; and Dirks 2001 discussed forms of colonial and postcolonial social classification. Dirks 2001; P. Chatterjee 1993; Mitchell 1991a; and Stoler 1985 highlighted ways in which social groups appropriated features of colonial discourse for counterhegemonic purposes.

32
. Benton 2001; Merry 1999; and Chanock 1985 detail such trends in various societies.

33
. Friedman 1994, 2004; Glendon 1987, 1989 and Goode 1993 agree with many of Friedman’s claims, but offer more nuanced accounts.

34
. Schwartz and Skolnick 1970; Stein 1980; Elliott 1985; Lowe and Douglas 2009.

35
. Parashar 1992 also mistook the greater role of statute after decolonization to mean that the state modified religious rules and limited religious authority to a greater degree. Even colonial personal law was formed through considerable changes in prior norms and religious elites had limited roles in the state’s legal system from the late nineteenth century, but various religious leaders continued to run community courts.

36
. Women in matrilineal groups lost certain rights through the application of official Islamic law, but they were a small minority of Indian Muslims, mostly in Kerala and Lakshadweep. See Arunima 2003; Miller 1976.

37
. Sunder Rajan 2003, 148–49 and Okin 2001 claimed that Muslim women had lost alimony rights over a decade after courts had increased these rights.

38
. Bowen 2003; Cammack and Feener 2007.

39
. But policy makers seriously considered the equalization of these shares in Indonesia.

40
. Peletz 2002, 2009; Bowen 2003; Brewer 1999; Feliciano 1994.

41
. Charrad 2001.

42
. John Bowen especially helped me understand this.

43
. Coulson 1971; Tucker 2008; Zaman 2002.

44
. Sreenivas 2008.

45
. For instance, she did not distinguish the greater orientation to reform among the less conservative traditionalists (e.g., C. Rajagopalachari, the first Indian Governor General (1948–50), who supported a minimum marriage age, inheritance rights for Hindu women in property earned by their parents, and the right of Hindus to a divorce after a period of judicial separation, while opposing giving daughters access to jointly owned ancestral property) than the more conservative ones (e.g., Rajendra Prasad, India’s first President (1950–62), who opposed all of these proposals); nor did she distinguish variations among modernists, of whom the majority supported the right of males alone to partition jointly owned family property but a minority, including B.R. Ambedkar, the first postcolonial Law Minister, wished to extend this right to females as well.