Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (50 page)

46
. Birla 2009.

47
. Bourdieu 1977.

48
. Bowen 2003; Peletz 1996; Feener 2007; Feener and Cammack 2007; Peletz 2002.

49
. Powers 1986; Coulson 1971; Spooner 1966.

50
. Rocher 1972; Cohn 1996, 57–75.

51
. Agarwal 1995, 2008.

52
. They offer an alternative to understandings that the French or the American version of secularism is the exemplar. For this older view, see: Berger 1967; and, with reference to India, D. Smith 1963.

53
. Monsma and Soper 2009; Jacobsohn 1996; Asad 2003; Bhargava 1999, 2010; Casanova 1994, 2006; Taylor 2007.

54
. Madan 2003; Nandy 1988. Madan and Nandy inappropriately focused their criticisms on Indian institutions.

55
. Jacobsohn 1996, 2003.

56
. Peled 2001, 70–71; Woods 2008. While the rabbinical courts do not usually register polygamous unions, “courts” composed of a hundred rabbis permit certain Jews to contract polygynous marriages. Edelman 1994, 143.

57
. Jacobsohn 2003; Bhargava 2010; Brass 1991, 75–108; Chiriyankandath 2000; Mitra and Fischer 2002.

58
. Gilmartin 1988; Nelson 2011.

59
. The Muslim political elites who put forward the Shariat Act had said that they could not apply this central legislation to the inheritance of agricultural land, which was under provincial jurisdiction. But the Government of India Act of 1935 had placed the administration of agricultural land under provincial jurisdiction precisely due to the influence of one of the Shariat Act’s architects, Mian Fazl-i-Husain (Nelson 2011, 100–102). The Indian Constitution made succession to all forms of property part of the “concurrent list,” enabling either the national or the state governments to change laws regarding the inheritance of agricultural land. Bina Agarwal drew my attention to the implications of this change for amending the Shariat Act. Agarwal 2008, 337–38.

60
. This change was introduced in the largest West Pakistani provinces of West Punjab and Sind in 1948 and 1950 respectively, and in the rest of West Pakistan in 1963. Islamic law was applied to agricultural land inheritance even before the passage of the Shariat Act in East Bengal. Nelson 2011, 161–69. Nelson showed that landed groups bypassed this legislation and maintained patrilineal inheritance, but did not discuss the motivations behind this reform. In India, the Shariat Act was similarly amended in two states in which bilateral and matrilineal kin practices were widespread—in Madras Presidency in 1949 and in Kerala in 1963. Islamic law had already been applied to the inheritance of agricultural land under colonial rule in West Bengal, Assam, Bombay Presidency, and Hyderabad state.

61
. Asaf Ali Fyzee and Sharifa Hamid Ali were the chief proponents.

62
. This is discussed in
Chapters 3
and
5
.

63
. Pandey 1990, 2005; P. Chatterjee 1992; Mufti 2007.

64
. The significant gap between the estimates of the Christian share of the population offered by the Indian census and the World Christian Database (2.3 percent and 6.7 percent respectively) suggests that many from the lower castes nevertheless converted to Christianity, but avoided reporting this to officials to retain their eligibility for preferences and special civil rights protections, and perhaps to reduce the prospect of Hindu nationalist attacks, which targeted Christian conversion activity over the past two decades. Minority religious identity does not, however, make individuals ineligible for the scheduled tribe and “other backward classes” (i.e., lower-middle and middle caste) preferences.

65
. Most Nagas practice Christianity and folk religions, and the majority of Kashmiris are Muslim. See Galanter 1984 regarding preferential policies; Subramanian 1999
about the Dravidian movement; Baruah 1999 and 2005 concerning the Assamese and Naga movements; Brass 1991 and Singh 2000 regarding the Sikh movement; and Ganguly 1999 about Kashmiri nationalism.

66
. For instance, Galanter 1984 and Mendelsohn and Vicziany 1998 noted the unavailability of preferences for Muslim and Christian lower castes, but did not explore the reasons. Brass 1991, Ganguly 1999, and Baruah 2005 did not address these aspects of state responses to the Sikh, Kashmiri, and Naga and Assamese movements respectively. Bhattacharyya 2003; Roy 2007; Ruparelia 2008; and Stepan, Linz, and Yadav 2011 did not examine these features of Indian multiculturalism.

67
. See: Ahmed 1992; Ziadeh 1968; Kerr 1966; Tucker 2008, 65–77; Abu-Odeh 2004.

68
. Ziadeh 1968, 117, 138; Abu-Odeh 2004, 1095–1101, 1126–46; Singerman 2005; Badran 2009, 1–54; Wickham 2002.

69
. Regarding Malaysia, see Peletz 2002, Mohamad 2010, Sobotkova 2012, Horowitz 1994, and Hooker 1984, 48–60, 123–43, 148–50 on family law; Horowitz 1985, 398–440 and Camroux 1996 on ethnic politics and Islamism. Regarding Sri Lanka, see Goonesekere 1980; Goonesekere 1990 on family law; DeVotta 2004 on ethnic and religious politics; Bond 1988 on contemporary public Buddhism. Two of Sri Lanka’s three personal law systems (Kandyan and Thesavalamai law) initially governed the inhabitants of particular regions, but the courts came to apply them, in combination with principles of Roman-Dutch and English law, largely to the Sinhalese and (non-Muslim) Tamil ethnic groups respectively.

70
. Welchman 1988; Wiktorowicz 2001; Abu-Odeh 2000.

71
. Regarding Indonesian nationalism and
Pancasila
, see Darmaputera 1988; Anderson 1998, 77–173; 1999; and Bertrand 2004, 28–34. Bowen 1988, 1998, 2003; Cammack, Young, and Heaton 1996; Feener and Cammack 2007; Salim 2008; Cammack 2002; and Cammack 2008 discuss personal law. Bowen 2003, 53–55; Cammack and Feener 2007; and Cammack 2002 explore the judicial deployment of notions of a national
adat
.

72
. Of these countries, Malaysia comes closest to the Indonesian pattern. Both countries have Muslim majorities and significant religious minorities, widespread bilateral and matrilineal practices that colonial and postcolonial law recognized in some ways, the majority of Muslims adhere to the Shafi‘i
madhhab
, Islamic courts govern Muslims and civil courts govern the other religious groups, and policy makers gave Islamic law greatest attention, but also changed the minority laws.

73
. This proposal is discussed in Feener 2007, 141–46, and Cammack 2002. Some Muslim women get no shares or negligible shares of certain properties, the inheritance of which is governed by ethnic custom rather than Islamic law. This is the case regarding agricultural land in much of India, and for most forms of property among the Berbers of Morocco and Algeria.

74
. See Kuru 2009, 202–23, Kuru and Stepan 2012, and Berkes 1964 on Turkish secularism; Kandiyoti 1991b and Arat 1994 on its implications for women; and Yilmaz 2005, Yildirim 2005, Starr 1978 and 1989 on family law. The monarchy introduced very similar family law reforms just three years later in Albania, based on the French, Swiss, and Italian Civil Codes. Communist and postcommunist legislation increased women’s rights further. Zace 1995.

75
. Moroccan policy went further than the Tunisian precedents in giving spouses equal shares of matrimonial property on divorce, and making them jointly responsible for managing the nuclear family. Mir-Hosseini 2007; Wuerth 2005; Buskens 2010.

76
. See Charrad 2001, 201–32; 2007; Charrad and Goeken 2006 on Tunisian Islamic law; Anderson 1986 on Tunisian nationalism and the Neo-Destour Party.

77
. Arjomand 1989, 1988.

78
. Osanloo 2009, Mir-Hosseini 2000, and Halper 2005 discuss changes in Islamic law. Osanloo 2009, Mir-Hosseini 1999, and Paidar 1995 place them in the context of women’s changing experiences and debates on religion and gender.

79
. Weiss 1986 and Mehdi 1994 explore the changes in Islamic law. Shaikh 2009, 107–15, 150–79 and Esposito 1990, 170–87 relate them to the politics of the dictatorship. Regarding conservative changes in Islamic law in Sudan, see Massoud 2013; Fluehr-Lobban 1987; in Nigeria, Harnischfeger 2008; Peters 2001; in Afghanistan, Ghasemi 1998; Middleton 2000.

80
. Breuilly 1994, 390 elaborates on this connection.

81
. Kuru 2009.

82
. Yilmaz 2005.

83
. Edelman 1994; Peled 2001.

84
. The Pakistani state allowed Muslims to move from India to Pakistan and non-Muslims to leave for India soon after it was formed. The Israeli state encouraged the continued immigration of Jews, but denied Palestinians expelled when it was formed and their descendants a similar “right of return.”

85
. Important changes were made in 1938 in Orthodox Coptic Christian law, particularly in divorce rights. But further changes were not made in these laws, to accommodate the Orthodox Coptic Church. Shaham 2010; Rowberry and Khalil 2010; Hassan 2003.

86
. See Bhuiyan 2007, 2010, and Hoque and Khan 2007 about the personal laws. See Baxter 1984 about nationalism in Bangladesh.

87
. Siraj 1994. The changes in Islamic law varied across states, reflecting differences in party strength (modernist in the western peninsula where the National Front was strong, and conservative in the eastern peninsula where the Islamists were strong) and prevalent customs (with the courts incorporating certain matrilineal and bilateral customs in Sabah and Sarawak). Peletz 2002; Horowitz 1994.

88
. State courts consider appeals of community court verdicts in many countries. This affects adjudication to the extent that appeals courts change community court verdicts.

89
. These contrasting images of Hindus and Muslims drew significantly from colonial understandings, discussed in Cohn 1996; Parry 1972; Pandey 1990, 1–65.

90
. Some of these groups were treated as minorities although they were numerically preponderant, such as the indigenous groups of settler colonies in parts of Africa and Latin America.

91
. Mufti 2007.

92
. For a discussion of varied group myths, see: Horowitz 1985, 141–84.

93
. These states engaged religious norms and prior social organization more successfully than they promoted equality.

94
. Their efforts to strengthen local government institutions were least successful.

95
. This was true of even political forces that focused on Arab rather than Muslim identity, and reached out at some points to Christian minorities, such as Egypt’s Free Officers Regime and Syria’s Ba’ath Party. Concerns to accommodate Christians did not prevent policy makers from incorporating
shari’a
into constitutional law and considering the application of uniform laws drawn partly from Islamic tradition in Egypt. This contrasts with the refusal of Indonesian rulers to make a constitutional commitment to govern Muslim family life according to Islamic law.

96
. Atatürk turned decisively against various Ottoman legacies, including the close association of the state with Islamic institutions, because of his confrontation with the Sultanate and the Allied Powers at the end of the First World War. See Barkey 2008 on the relationship of the Ottoman dynasts and the religious elite; Hanioglu 2011; Kuru 2009; Kandiyoti 1991b on early republican leaders’ approach to public religion; Kuru 2009; Kerslake, Oktem, and Robins 2010; Berkes 1964 on secularism and nationalism; and Yilmaz 2005 on family law in Turkey.

97
. See Hazard 1965 and Creevey 1996 on Senegal; Layish 1991, Mayer 1977, and Anderson 1986 on Libya; note 69 above on Malaysia and Sri Lanka; Sonbol 2002, Welchman 1988, and Abu-Odeh 2000 on Jordan; Joseph 1991 and Stilt 2004 on Iraq.

98
. The Istiqlal Party was ambivalent about the monarchy, but the restriction of its support to urban areas limited its influence over Moroccan nationalism.

99
. On Lebanon see Sulh 2004 and Joffe 1985; on Morocco and Algeria, Stora 2003, Maddy-Weitzman 2005, and Catalano 2010; on Syria, Devlin 1991 and Hinnebusch 1993; on Iraq, Joseph 1991 and Stilt 2004.

100
. Even when the Hindu nationalists, who had little support among Muslims and Christians, led the Indian government from 1998 to 2004, they had coalition partners that enjoyed significant support among these groups.

101
. Feener 2007; Hooker 2008; Cammack and Feener 2007.

102
. Cohn 1996; van der Veer 1994.

103
. Bowen 2003; Feener 2007; Cammack 2008.

104
. Jaffrelot 1996 discusses Hindu nationalist claims to a monopoly over indigenous Indian culture.

105
. Pandey 1990 highlights the forces that pulled Indian nationalists away from cosmopolitan modernism to Hindu majoritarianism.

106
. Zaman 2002; Metcalf 1982.

107
. This was the case although some civil society mobilizers demanded the incorporation of certain Islamic norms (e.g., regarding restrictions on testamentary rights) into Hindu law.

108
. This was also because more extensive changes had been made in Muslim law through the last colonial decades.

CHAPTER THREE

1
. Heimsath 1964; Jones 1989.

2
. Forbes 1981; Minault 1998.

3
. Sreenivas 2008; Newbigin 2009, 2010 2011; I. Chatterjee 2004 offers a more complex analysis.

4
. Some of the relevant pieces of legislation were the Hindu Widows Remarriage Act, 1856; the Indian Divorce Act of 1869; the Indian Christian Marriage Act of 1872; the Age of Consent Act of 1891; the Criminal Procedure Code of 1898, Section 488; the Waqf
Validating Act of 1913; the Child Marriage Restraint Act of 1929; the Hindu Gains of Learning Act of 1930; the Hindu Women’s Right to Property Act of 1937; the Dissolution of Muslim Marriages Act of 1939; and the Hindu Married Women’s Right to Separate Residence and Maintenance Act of 1946.

5
. Brass 1991, 75–108; Parashar 1992, 144–45, 158–60, 196–200; Jacobsohn 2003; Ruparelia 2008; Bhattaracharyya 2003; Mitra and Fischer 2002; Bhargava 2010; Chiriyankandath 2000.