Gender and Community: Muslim Women's Rights in India [1 ed.] 0802048692, 9780802048691

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VRINDA

NARAIN

GENDER and COMMUNITY

Muslim Women’s Rights in India

GENDER

and COMMUNITY

Muslim Women’s Rights in India

In India, the legal status of Muslim women within the family is a topic of considerable controversy

and debate. It is a complex issue that has implications for matters of not only gender equality, but also religious freedom, minority rights, and state policy regarding the accommodation

difference. Whereas

of

the Constitution of India

guarantees equality rights to all women, trrespec-

tive of religious affiliation, Muslim personal law, argues Vrinda Narain, explicitly discriminates on

the basis of an individual's sex and religion. Narain provides an analysis of the historical development Muslim

and contemporary

personal

framework

and

law within

examines

expression of

a constitutional

the assertion

that

women’s rights are a divisive force preventing the evolution of larger collective rights. She contends that an interrogation of the dominant religious ideology is necessary to prevent legislation from binding Muslim women to an essentialist notion

of identity that denies them the possibility of

challenging Muslim tradition. Combining feminist analysis and post-colonial and critical race theory with legal analysis, Gender and Community critically assesses issues of gender equality and minority rights within the larger social fabric. It offers a fresh look at the conceptualization of

women as the markers of cultural community in Muslim India and advocates a perspective that seeks to unite the recognition of women’s rights with respect for group integrity. These issues are significant not only for Muslim women in India,

but also in the broader context of the accommodation of cultural diversity in pluralist democracies.

GENDER AND COMMUNITY: MUSLIM WOMEN’S RIGHTS IN INDIA

a

GENDER AND COMMUNITY Muslim Women’s Rights in India

Vrinda Narain

UNIVERSITY Toronto

OF TORONTO

Buffalo London

PRESS

© University of Toronto Press Incorporated 2001 Toronto Buffalo London Printed in Canada

ISBN 0-8020-4869-2

Printed on acid-free paper

National Library of Canada Cataloguing in Publication Data Narain, Vrinda, 1965-—

Gender and community : Muslim women’s rights in India Includes bibliographical references and index. ISBN 0-8020-4869-2 1. Muslim women - Legal status, laws, etc.— India. rights — India. 3. Islamic law — India. _I. Title. HQ1236.5.14N37 2001

305.48’6971054

2.Women

C2001-901094-X

This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. The University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council.

University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

For Zai and Kaleem

Contents

ACKNOWLEDGMENTS

Introduction

ix

3

1 Contextualizing Muslim Personal Law

8

2 Muslim Personal Law and the Constitutional Framework 3 Naming the Issues

75

4 Negotiating the Boundaries of Gender and Community: The Role of the State 106 NOTES

141

REFERENCES

185

CASES CITED

195

INDEX

197

36

Acknowledgments

I would like to thank Colleen Sheppard for her critical insights, guidance, and support. I am grateful to Jeremy Webber for valuable discussions on social diversity and the accommodation of difference. I am grateful to Yale Law School for giving me access to its research facilities. I would especially like to thank Liliane McClenning of the Yale law library. I would like to thank the University of Toronto Press,

and in particular, Siobhan McMenemy. I am grateful to Jacqueline du Toit for her contribution to this project and for her friendship. Finally, I would like to thank my parents for their love and encouragement.

aa

GENDER MUSLIM

AND COMMUNITY: WOMEN’S RIGHTS IN INDIA

Introduction

In India, the legal status of Muslim women within the family is a topic of considerable controversy and debate. It is a complex issue that involves not only questions of gender justice, but also those of religious freedom, minority rights, and state policy towards the accommodation of difference. Personal law, based on religious laws as modified by state legislation and judicial precedent, governs family relations. Personal law is the only law in India that applies to individuals on the basis of their religious identity. Although the Constitution of India guarantees all citizens equality and freedom from discrimination, personal law denies women equal rights within the family and the community. Despite the recognition of formal constitutional rights, the actual experience of Muslim women, as determined by personal law, is one of inequality and subordination. This separation of ‘public’ and ‘private’ spheres is maintained by the state and supported by religious leaders; personal law is preserved as a measure of group autonomy and serves to deny equality to Muslim women. The convergence of personal law and religious identity and the conceptualization of women as markers of the cultural community have profound implications for the position of Muslim women. In this context, any claim for Muslim women’s rights must necessarily confront dominant religious traditions and state policies that support patriarchal structures of authority. The focus here is on the situation of Muslim women in India. This book critically assesses the constitutional validity of discriminatory personal law, the perceived oppositionality between women’s rights and group rights, the manipulation of personal law reform to reify

4

Introduction

patriarchal notions of culture and identity, and the implications of state policy towards the accommodation of difference for women’s rights. The premises are that personal law is discriminatory against women, gender equality is a legitimate goal, and recognition of group difference is essential in a pluralist democracy. This book aims to take a fresh look at these problems through the situation of Muslim women and to thereby improve understanding of some of the critical issues in the current debates on gender justice and minority rights. Muslim women’s claims are seen as inimical to group identity, and the state’s privileging of group rights fails to address the vulnerability of women. I advocate a perspective that unites the recognition of women’s rights with respect for group integrity. This perspective contends that India’s state policy, by exclusively taking into account group difference, is detrimental to the rights of women as citizens. A historical overview of the development of Muslim personal law in colonial India demonstrates how personal law became an instrument for demarcating politicized group identity. Personal law reform has been used to assert community boundaries, rather than to address women’s systemic disadvantage. Muslim women’s inequality within the family and the community is, indeed, enforced by inequitable personal law. Women’s claims for progressive change in their legal status have been continually denied. In Shah Bano,’ the Supreme Court considered the relationship between personal law and secular law and the applicability of secular law to Muslim women. Subsequently, the government passed the Muslim Women’s (Protection of Rights on Divorce) Act in 1986. The circumstances of the passage of this Act* highlight how the continued emphasis by both fundamentalist leaders and by the state on personal law, minority rights, and the discourse of ‘protection’ serves to marginalize gender issues. The validity of Muslim personal law under the Constitution, indeed,

of the entire personal law system, is a subject of great debate. The continued existence of personal laws arguably violates constitutional injunctions of equality and freedom from discrimination. The relationship between personal law and the fundamental rights to equality, freedom from discrimination, and religious freedom is a matter of controversy. The fundamental right to freedom of religion is cited as justifying the continuance of personal law. Arguably, however, the Constitution does not permit the continuance of discriminatory personal law — and freedom of religion is not an absolute right. It is here that the state’s policies of secularism and religious neutrality confront

Introduction

5

its commitment to the constitutional principle of gender equality. Constitutional challenges to the personal law system have been dismissed on the ground that personal law is not subject to fundamental rights. Reviewing key judicial decisions, I assert that laws that contradict constitutional principles of, inter alia, equality and freedom from discrimination are void to the extent of this contradiction. I examine the scope of the guarantee of religious freedom and assess the extent to which this right permits the state to regulate religion and reform personal law. Outlining the development of the concept of a Uniform Civil Code, I argue that the drafters of the Constitution did not intend to

make personal law immune from the provisions of fundamental rights. The independent Indian state has retained personal law as a means to regulate gender roles, the family, and the community. Motivated by the exigencies of governing a pluralistic, multireligious nation, the state privileges group rights over individual rights. Muslim women’s interests are subsumed under the presumed needs of the Muslim collectivity. The state thus reinforces women’s subordination by buttressing patriarchal structures of authority with discriminatory personal law. Arguments of ‘religion’ and ‘culture’ are deployed by fundamentalist leaders to undermine women’s rights and to support patriarchal interests. By focusing exclusively on collective rights, the state has disregarded internal divisions within the group and has marginalized women’s interests. I maintain that, to forward women’s equality without compromising group claims, we need to move the terms of the debate away from simplistic blanket categories to a more nuanced understanding of the links and contradictions between gender equality and group autonomy. The opposition constructed between women’s rights and group rights is misleading and has served to perpetuate the inequality of Muslim women. Fundamentalist discourse, predicated on the notion of an essential Islamic identity, views any challenge to personal law as a betrayal of the community. In seeking to homogenize the group and in rejecting difference within the group, fundamentalist leaders have refused to acknowledge or address the systemic disadvantage of Muslim women. Thus, fundamentalism has marginalized Muslim women’s interests, by failing to address the reality of their social and economic vulnerability. As a result, there is a critical need to interrogate hegemonic categories that bind Muslim women to an essentialist notion of identity and that deny the possibility of internal challenge toMuslim tradition.

6

Introduction

The issue of personal law reform has been manipulated for political gain by both the state and religious leaders. The negotiation and construction of religious identity must be understood asa political process rather than as a purely spiritual undertaking. The state’s uncritical acceptance of fundamentalists as the sole representatives of Muslim interests has resulted in the continued subordination of Muslim women. This has served to exclude Muslim women’s voices from the very discourse that seeks to define their identity and to circumscribe their rights. It is within this communal, patriarchal system of laws that fundamentalism’s implications for women’s rights must be located. The alliance between the state and fundamentalists is both conflicting and mutually reinforcing. Fundamentalists have recast the realm of Muslim personal law as autonomous, and they seek to safeguard it from state hegemony and from the assimilationist impulse of the larger society. At the same time, fundamentalists enlist state support in asserting their authority within the community through the retention of discriminatory personal law. The state, for its part, is torn between

upholding policies of nationalism and secularism (which demand an adherence to the ideology of the nation-state) and contending with the reality of conflicting allegiances to creed and community. This ambivalence has critical implications for women, who are the discursive terrain upon which religious identity and tradition are contested and constructed. The manner in which the discourse of religious fundamentalism has left no space for the articulation of an egalitarian, emancipatory dialogue and the readiness with which the state has accepted the fundamentalists as the representatives of the community demonstrate the critical need to separate religion from law to move towards gender equality. The state must take the initiative to enact a Uniform Civil Code? premised on the principle of gender equality. It is imperative for the state to restructure the frameworks in which inequality and discrimination are addressed. Such a new perspective must begin by problematizing the notions of ‘culture’ and ‘group identity.’ To do so does not require a rejection of culture or of group identity but, rather, a rejection of those aspects and practices that serve to subordinate and oppress women within a cultural community. While acknowledging diversity among women and recognizing the importance of cultural identity, I argue that the state should proactively guarantee women’s equality and that ‘culture’ and ‘religion’ ought not to be used as shields against women’s rights.

Introduction

7

While critically assessing state policies of neutrality and secularism, I suggest that the state has to play a positive role in accommodating difference and in enforcing the principle of gender equality if Muslim women are not to be denied their rights as citizens. The recognition of group difference must be informed by an understanding of both the situation of women within the collectivity and of the systemic disadvantage of women as a group. In acknowledging the limits of rights claims and of legal reform — in order to address Muslim women’s legal inequality — there is a critical need to continue our engagement with the law and with the language of rights. Finally, I explore the principles that should inform the formulation of state policy to ensure women’s equality while concomitantly respecting group difference. In the final analysis, the state’s commitment to uphold constitutional principles of equality, freedom from discrimination, and religious freedom must be measured against its commitment to recognize the plurality of voices that make up the community.

chapter one

Contextualizing Muslim Personal Law

Muslim law as it developed in South Asia differs considerably from the strict Islamic law of the Shariat. J.D.M. Derrett prefers to refer to it as Muhammadan or Muslim law rather than Islamic law, noting that ‘The term Islamic law is not incorrect but could give the false impression that anywhere in South Asia the true Shariat, (shari’a) or fiqh, the jurisprudence of Islam, was in force unamended.”! Joseph Schacht describes the Shariat as ‘an all embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects.” In India, only a portion of Shariat laws are in force. Those Shariat laws that are in force have been modified by principles of English common law and equity as well as by the specific cultural contexts of the communities to which they apply. Thus, Islamic law in British India developed into an autonomous legal system, substantially different from the strict Islamic law of the Shariat, and it is appropriately called Anglo-Muhammadan law.* Over the centuries of its development, Muslim law in India has become an autonomous legal system diverging considerably from its original sources.” Although Islamic law is a sacred law, judicial rules were created through the interpretation of sacred revelations and through the application of religious conventions and modern rules introduced by political and social developments.® There are two main theories of the origins of Islamic law: the classical theory and the modern theory. The classical theory considers the law to be divine because it is based upon revelations made by God to the Prophet; the modern theory is that Islamic law has developed over time in response to the changing needs

Contextualizing Muslim Personal Law

9

of society.” According to the classical formulation, Islamic law is based on four sources: Koran, sunna, ijma, and kiyas.’ As the word of God revealed to Mohammed, the Koran is the primary source of the law.” However, only a few verses of the Koran deal specifically with legal questions, and the Koran is not a code of law.!° The Koran establishes

moral and ethical norms and duties, and so, its importance is religious and spiritual, as well as legal. '' The sunna is the second source of

law.'? Sunna refers to legal rules derived from the example of the Prophet, his pronouncements

and incidents from his life, known

as

hadith or tradition. Sunna may also include traditions coming from the Prophet’s Companions. The Koran and the sunna represent direct and indirect revelations. Together they are the two fundamental sources of the law. The third source is ijma or the consensus of the opinions of scholars. A major portion of Islamic jurisprudence is made up of the opinions of scholars on legal questions.'? The fourth source of Islamic

law is kiyas or reasoning by analogy.’* Legal reasoning by kiyas is called ijtihad, and it includes ray or individual considered opinion.”

Kiyas is subordinate to all other sources of Islamic law."°

Although the four sources of law in the classical formulation were developed over two centuries of experience, classical Islamic theology denies this historical approach. Fundamental to this theory of Islamic law is the belief that the Shariat was laid down from the beginning of

the Muslim exegesis.” However, the modern theory of the origins of

Islamic law traces the historical development of the law.'® The Koran is not a comprehensive legal code, therefore, to fill in the gaps of Koranic legislation, Islamic rules of law had to be formulated. Thus, in addition to the four formal sources of law, there are the material sources from

which Islamic law and legal rules developed.’’ These material sources

are pre-Islamic custom, other legal systems, and the rulings of the judi-

cial officers of the state or Qadis (Kazis in the Indian subcontinent).”°

Muslim religious authorities do not acknowledge custom as a source of law. It is, however, now generally accepted that custom, in fact, played an important role in the development of the law. In adjudicating disputes, political leaders, while drawing on the Koran, continued to apply Arab customary law.” Regional and cultural customs also continued to be enforced in the various territories professing Islam.” With the growth of Islam and the extension of Muslim rule to nonArab territories, foreign legal concepts came to influence Muslim legal philosophy.”? Although the early Muslim jurists did not consciously adopt any principle of foreign law, many aspects of Roman and Byzan-

10

Gender and Community

tine law, Talmudic

and

Rabbinical

law, and

Sassanian

law

were

grafted onto the newly developing religious law of Islam. The Umayyads of Damascus started the system of appointing judicial officers. Their interpretations and opinions reached by the exercise of individual reasoning, based on the Koran, and customary law, formed the

basis of Islamic legal rules.” Existing customary law was Islamicized because the Kazis (judicial officers) took care to subject customary law to Islamic norms and Koranic precepts.”° As Schacht writes: ‘They impregnated the sphere of law with religious and ethical ideas, subjected it to Islamic norms, and incorporated it into the body of duties incumbent on every Muslim ... As a result the popular and administrative practice of the late Umayyad period was transformed into the reli-

gious law of Islam.’”” Four main schools of orthodox or Sunni law emerged. The Hanafi school, named after its founder, Imam Abu Hanafi, is the oldest of the

four schools of Sunni law and reputedly the most liberal.*® Hanafi stressed legal reasoning and emphasized the principle of kiyas (reason-

ing by analogy).”’ The Maliki school was founded by Malik ibn Anas.

He placed great reliance on reasoning combined with living traditions.*? His method of reasoning was influenced by material considerations, practical necessity, and the tendency to Islamicize.*! The founder of the third school was Shafii, a student of Malik. Shafii is con-

sidered to be one of the greatest Islamic jurists, and he is regarded as the founder of the classical theory of Islamic jurisprudence. For him, even the Koran could not override the traditions of the Prophet, and it

had to be interpreted in light of these traditions.** Shafii denied any

place to discretionary personal opinion. Finally, the Hanbali school of Ahmad ibn Hanbal emphasized the strict and literal following of hadith (tradition). Hanbal went even further than Shafii in denying

any role to individual reasoning and presented the most extreme reaction to the principle of ijma (consensus of opinion). Outside the four schools of orthodox or Sunni law there developed sectarian schools of Shia Islam. The Shiite movement grew out of a political schism.** The Shias represent the group that supported Ali, the son-in-law of the Prophet, in the struggle for power following the death of the Prophet. To a great extent, the Shias adopted the positive doctrines of Islamic law from the doctrines of the Sunni schools, mak-

ing only those modifications that were required by their particular political beliefs.** Shias are divided into three main schools, Ithna Ashari, Ismaili, and Zaydi.*

Contextualizing Muslim Personal Law

11

The overwhelming majority of Muslims belong to the Sunni school of Islam.*© Today, of the Sunni schools, Hanafi law predominates in Turkey, the Middle East, and the Indian subcontinent; Maliki law predominates in north, west, and central Africa; and Shafii law pre-

dominates in east Africa, parts of the Arabian peninsula, the Indian coastline, Sri Lanka, Malaysia, and Indonesia. Hanbali law prevails

only in Saudi Arabia.*” Of the Shia schools, the Ithna Ashari school is the largest and prevails in India, Iraq, and Iran.** Ismailis are found in India, central Asia, Iran, and in some Arab Gulf countries. Zaydis exist only in Yemen. In India, the majority of Muslims are Hanafi,

and ordinarily the Hanafi law is applicable. However, Sunni jurists

consider each of the four subschools of Sunni Islam equally valid.”

In India, the Shias belong to the Ithna Asharis and Ismaili schools. The majority are Ithna Ashari and the terms ‘Sunni law’ and ‘Shia law’ are used in India to refer to Hanafi law and Ithna Ashari law

respectively. *° A matter of controversy in Islamic law is the extent to which the law as it is known today can be historically attributed to Mohammed.*! The controversy revolves around the divine nature of the traditions of the sunna.” The classical theory attributes the sunna and hadith to Mohammed himself, but modern research suggests that a major portion of the traditions attributed to the Prophet is of doubtful authenticity.“° Scholars such as Goldhizer and Schacht conclude that much of the hadith has been added later and attributed to the Prophet.“ Thus, the hadith may be a reform advocated by the Prophet or a practice put forward by jurists to support either their own theoretical views or the tradition of a particular community.” This controversy aside, the essential point is that the sunna is the second source of law after the Koran. It is of critical importance for all decisions in Islamic jurisprudence whether or not the material of the sunna isattributable to the time of Mohammed himself or to a later period of jurists and

administrators.”

The jurist-theologians who founded the schools of law sought to Islamicize the law. The sunna of the Prophet was elevated above living traditions and independent reasoning, and consistent doctrine and systematic thought gained pre-eminence.”” Shafii completely rejected the use of ray — the exercise of individual opinion — and restricted human reasoning to kiyas, that is, to making inferences and drawing conclusions from the traditions.*® Shafii’s normative view of the sunna,

asserting that a tradition of the Prophet overrules the prevalent usage

12

Gender and Community

of the community, was accepted.” The sunna became the primary code of Islamic jurisprudence. A parallel development was the growing importance of ijma, the principle of consensus.” This principle was elevated to the point of excluding any further opinions, and the right of independent reasoning (ijtihad) disappeared. This doctrine is known as the closing of the door of ijtihad. Jurists now had to accept

the doctrine established by their predecessors.°! To offer a variant

opinion was seen as contradicting the ijma, the infallible will of God, and thus was heresy. In this manner, classical jurisprudence halted the hitherto dynamic evolution of Islamic law. The Shariat became rigid and was cast in the classical mould.” It was seen as the ideal guide, spelling out norms of behaviour and controlling all aspects of Islamic society.” The fact that pre-Islamic customary law, the interpretations of individual scholars and judicial officers (Kazis), and the legislation of political rulers formed a large part of the Shariat was obliterated by classical jurisprudence. Nevertheless, there was a divergence between this ideal theory of the Shariat and actual practice. N.J. Coulson notes that ‘the classical Sharia texts were always accorded supreme respect and veneration as the portrayal of a pure religious ideal ... but from a realistic standpoint the classical doctrine never formed a complete or exclusively authoritative expression of Islamic law.’ The religious scholars (Ulema)™ and the political authorities established an expedient balance between

theory and practice.*® Although the Shariat was formally recognized as

the religious ideal, in practice it exercised varying degrees of control over the law. Family law was most strongly controlled by the Shariat. However, here too, Shariat doctrine has not been universally applied throughout the Muslim world, where customary law continued to be

observed to the total or partial exclusion of the Shariat.°” Shariat con-

trol was weakest if not non-existent in penal law, contracts, civil transactions, and constitutional law.*® In these areas, the strict classical

doctrine was considerably modified by the Kazis in keeping with contemporary political and social contexts, customary practices, and prac-

tical necessity.’ Legal fictions or juristic tricks (hiyal) were invented to circumvent strict Shariat rules — for example, in civil transactions to permit gifts and the charging of interest. Arguably, the classical doctrine merely represents a stage in the evolution of Islamic law.°! The rules of Islamic law were not created solely by divine revelation and immutable injunctions. This is of significance in refuting the claim of

Contextualizing Muslim Personal Law

13

the Ulema that Muslim personal law is an unchangeable code and that the Shariat

does not countenance

change.

Islamic law, as it exists

today, is the result of a process ofhistorical’ development and, to a great extent, of the efforts of jurists and scholars using their own methods of reasoning rather than religious principles. Arguably, the theory of Islamic law, by the principles of consensus and reasoning, permits the reinterpretation of legal rules to meet the needs of contem-

porary societies. Moreover, in India, only some of these rules remain

in existence, having been abolished or amended since 1772 when the

British, through the East India Company, first took over the administration of justice there. The development of Muslim law in India was greatly influenced by the colonial encounter: these influences included the impact of English common law and the legislative initiatives of the British; and also by the persisting influence of customary law. The evolution of Muslim personal law in the colonial period demonstrates the extent to which personal law, as it exists today, is the result of actively negotiated legislative initiatives. At the same

time, the distinction made

by the British between personal law and civil law is, in fact, what provides the basis of the claim by present-day Muslim religious leaders that Muslim personal law is divinely ordained and therefore immutable. The Historical Context

When the East India Company claimed sovereign rights over the Eastern Provinces of Bengal, Bihar, and Orissa from the Mughal Emperor the Shariat was the law in force.© In disputes between Hindus, however, Hindu law applied. The Mughal Emperor was the nominal head, and the law was administered by Kazis.©” However, the admin-

istrative system had degenerated into chaos, and the East India Company took over the responsibility for justice. After the British consolidated their position in India, the need for a unified system of laws emerged as one of their priorities in the governance of the subcontinent. An effective judicial machinery was seen as essential to the

continued prosperity of the Company.” The British believed that the rule of law was critical in regulating public policy and maintaining

political order.”” Warren Hastings, the Governor-General, reorganized

the courts by creating the Regulating Plan of 1772. The Regulating Plan established a judicial system whereby civil, criminal, and commercial

14

Gender and Community

law were made uniform, while family law and the laws relating to certain property transactions were left to the respective religious law of the Hindu and Muslim communities. The regulations guaranteed the continued validity of Islamic law in matters of family law, inheritance, and succession.”! Religious law was understood as consisting of those

laws found in the Brahminic Shastras”” for the Hindus and in the

Koran for the Muslims.”* Whereas before 1772 Hindu and Muslim religious systems applied to all aspects of life, the distinction between religious and secular law was now introduced by British administrators.”4 British magistrates trained in English law replaced the Kazis, and English legal concepts and principles of common law and equity began to infiltrate Islamic law. ” In this manner, Islamic law in British India

began its transformation into Anglo-Muhammadan law. The Regulating Plan listed certain matters, including inheritance and personal status, that were to be governed by religious law and on which religious scholars had to be consulted. The list of subjects governed by English ecclesiastical courts corresponded to those left to be governed by the religious laws of Hindus and Muslims, suggesting that the contemporary English division of law into ecclesiastical and secular matters prompted this distinction in India.” However, the regulations purporting to maintain native Hindu and Muslim laws did not always cover the same topics, nor was it clear which topics made up personal matters.” It has been argued that the British were reluctant to offend native religious sensibilities and therefore refrained from large-scale reform of personal law.” However, the argument that the British maintained personal law out of deference to the religious sentiments of Indians must be rejected because the claims of other religious groups, such as the Parsis and Jews, were not entertained until well

into the nineteenth century.”” Furthermore, suggestions that British conservatism, with regard to family law, was the consequence of a desire to maintain stability and to avoid unnecessary disruption in social relations have been rejected as being inadequate to explain colo-

nial policy on personal law.*”

Arguably, the reasons for the distinction between personal and secular law must be sought in the evolution of British control over India and in the efforts of the British to secure political and economic ascendancy.*? D.A. Washbrook suggests that the parallel enunciation of distinct public and private spheres governed by separate rules was premised on contradictory objectives. The objective of public law was to facilitate the freedom of the individual in the marketplace, while the

Contextualizing Muslim Personal Law

15

purpose of personal law was to impose strict social constraints upon individuals within the family and the community, based upon scrip-

tural religious norms.” The introduction of British legal structures established a framework that enabled the indigenous elite to maintain

their power over agrarian producers. In turn, these same legal structures were used by the colonizers to maintain control over this elite, who acted as the intermediaries of colonial power. Thus, the system of personal law served the political as well as the economic needs of the colonial state. Michael R. Anderson notes that ‘in such circumstances, the administration of Anglo-Muhammadan law was more than a con-

cession to “native opinion.”

With the consolidation of political power and the establishment of the machinery of the colonial state, Muslim law was significantly modified through statute by laws of English origin.** From 1860 onwards the British embarked on a process of codification as a way of establish-

ing certainty and uniformity in the law.® The Anglicization of indige-

nous laws through codification and the rationalization of the system of courts enabled the colonial state to maintain its political and economic power by providing a more precise and reliable legal system. Although prior to this period the court system was rationalized and there were attempts to systematize the law, it was only after the Crown took over the governance of India from the East India Company, in

1858, that significant progress was made.*° Commercial, criminal, and

procedural law were codified by 1882, while personal law was still exempt from this codification. However, certain topics that had previously been part of personal law were now governed by civil law. Muslim law had been transformed: Islamic criminal law was entirely abolished and replaced by British-based law; Islamic laws of evidence were replaced by colonial British rules; and slavery, which was permit-

ted by Islam, was abolished. Only family matters such as marriage and

divorce, inheritance and succession, religious endowments, and rules

iearate property transactions were left to be governed by Muslim

law.®

Both Muslim and Hindu personal law were further modified and influenced by the incorporation of substantive principles of English law. The common law maxim of ‘justice, equity, and good conscience’ had been applied since 1781 by English judges in deciding cases under

personal law.*® Where a rule of English law was deemed suitable for application to an Indian situation, the rule was applied. This principle of English common law was introduced initially as a residuary source

16

Gender and Community

of law, where no rule could be discerned from statute, the written sources of personal law, customary law, or precedent.®? However, it

soon became the vehicle for the large-scale introduction of English rules in deciding even those cases that were not similar to English circumstances.” Traditional Shariat doctrine was eclipsed, in certain respects, by English law because of the inability of courts to ascertain correct Shariat principles. In other cases, a partial understanding of Shariat rules led to their interpretation through English rules and principles.?! In addition, precedent was binding on the courts, and the Privy Council was the court of final appeal. This greatly influenced the law itself.?* Furthermore, because of the pattern of administration of Muslim

law

by Anglicized

courts,

Muslim

personal

law

differed

significantly from traditional Shariat law not only in form but also in substance.” The formulation of personal law was informed by the colonial conception of the Hindu and Muslim communities as oppositional, distinct, and homogeneous. This conception led to the privileging of scriptural authorities and textual law over custom and usage.”* The colonial state embarked on a series of modifications in personal law,

initiating a policy known as the Islamicization of Muslim law and the Sanskritization of Hindu law.” British administrators assumed that personal law could be determined from the scriptural texts rather than from the lived reality and the existing customs and usages of the various communities. The presumption of the British that Islamic scriptural texts applied to all Muslims in India was incorrect and, moreover, inadequate to respond to the reality of the diversity of sects and to the variety of practices, customs, and beliefs among those who regarded themselves as ‘Muslim.’”° Apart from the major distinction between Sunni and Shia Muslims, a number of Muslim groups in India did not follow strict Islamic practices. For example, the Muslim Jats of Punjab followed the Hindu practice of polyandry; the Cutchi Memons, the Khojas, and the Bohras of Western India observed Hindu laws of inheritance and succession; and the Mappillas of Kerala followed the regional proutice of a matrilineal family system in common with the Nayars.” The initial British practice of employing native clerics to interpret _ legal-religious texts resulted in the application of rules that were highly abstract and rigid and often biased in favour of the elite to which these informants belonged.”® Several Islamic texts were translated for the use of English judges. These translations from Arabic to

Contextualizing Muslim Personal Law

17

Persian and English were often incomplete and contained several inconsistencies and errors, leading to severe distortions of Islamic law. Furthermore, it led to a glossing over of doctrinal difference and trans-

formed the notion of the Shariat into a doctrine that was static and unresponsive to social change. This is the basis of the understanding, in present-day India, of the Shariat as ‘a fixed body of immutable rules beyond the realm of interpretation and judicial discretion.” Although the significance of custom was later accepted, in order to prevail, custom had to be proven according to strict common law rules of evidence. This practice, along with the emphasis on binding precedent, rigidified custom, rendering it inflexible and unable to respond to the changing needs of society or to the lived experience of the people subject to it. The reliance on scriptural authorities for establishing Muslim personal law had severe implications for the status of women. Anderson points out that ‘the focus on texts allowed administrators to ascertain general legal rules quickly, and it may have meshed with understandings of Islam found among sections of the indigenous elite, but it misunderstood the role of the sharia in the life of most South

Asian Muslims.’!! The distinction between public law and personal

law and the resulting contradictions between the freedom of the individual in the marketplace supported by public law and the reification of patriarchal community controls imposed by personal law, contributed to the continuing subordination of women within the family and the community. However, the boundaries between personal law and civil law were not strictly maintained and the colonial administration did not hesitate to modify religious law when and where it saw

fete

The oppositional communities of ‘Hindu’ and ‘Muslim,’ set up by the administration of the law and by the colonial legal structure, played an important role in establishing religion and personal law as the organizing principles of group identity. Those whose identity did not correspond strictly to either category of Hindu or Muslim, or those that combined aspects of both, had difficulty in accessing the legal system. They were forced to redefine themselves in accordance with the colonial legal structure which administered a unified Muslim law hitherto unknown in India. The category ‘Muslim’ thus became rigid

and set apart from other identities."

Personal law assumed an even greater political significance in the communal structures of political representation of the early twentieth

century.!° By this time, the primary concern of the colonial state was

18

Gender and Community

to preserve its political power. It sought to do so by extending the scope of the legislative process, allowing, for the first time, native rep-

resentation.’ The colonial government acknowledged the Ulema and the Muslim League™ as leaders of the Muslim community.'’ Denied

a voice in several aspects of national politics, ‘religion’ and ‘community’ were the only areas in which the Ulema could assert their author-

ity and stake a claim to political power.’” In the imagination of the Ulema, the sphere of family and family law was recast as autonomous and uncolonized. Family law remained the only area dominated by the Shariat. As a consequence, there was ‘a growing emphasis upon the religious and Islamic significance of the Shariat and a strengthening of its influence in those matters which remained under its sway.’"”° Thus, family and gender became the grounds on which culture and tradition were discursively created, with profound implications for women. It is here that the inherent contradictions in the colonial distinction between public law and personal law assumed an even greater signifi-

cance for Muslim women. The formulation of Anglo-Muhammadan law, together with the British political strategy of communal representation, fostered the development of Muslim identity politics.’"! To consolidate their power over the Muslim community and to reduce the role of custom over which they had no jurisdiction, the Ulema took the initiative to modify Muslim personal law through legislative enactment.” Two major new laws were passed: the Muslim Personal Law (Shariat) Application Act, (the Shariat Act), in 1937," and the Dissolution of Muslim Marriages

Act (the DMMA), in 1939.14 These Acts served to Islamicize Indian Muslim

law, and they represent the influence of the scripturalist

understanding of Islam."!° This Islamicized Indian Muslim law modi-

fied the rights women held under customary law, for the codification

of Muslim law held contradictory implications for Muslim women.'"® While it did offer some relief from oppressive social customs, Muslim

women also lost customary privileges and were ‘subjected to the more

rigorous control of the high culture Islamic law.’!!”

The Ulema were concerned that Muslims in the Punjab, the Central Provinces, and the North West Frontier Province adhered to the cus-

tomary law of inheritance and succession rather than to Islamic law. They wanted to bring the Muslim population under the authority of

the Shariat and thereby under their jurisdiction."® The Shariat Act

sought to impose an Islamic identity on the Muslim population by the application of a uniform law. The Act was endorsed as a mechanism

Contextualizing Muslim Personal Law

19

for unifying Muslims - that is, as a recognition of the principle that all Muslims must follow Muslim personal law — but also as a reform measure that was to improve the status of Muslim women who under customary law were excluded from inheritance. However, wealthy agricultural landholders, who followed customary inheritance law, resisted the Shariat Act. They were reluctant to permit their daughters to inherit agricultural land in accordance with Koranic rules that recognized wives and daughters as heirs. The Muslim landed elite were represented by the Muslim League, which lobbied for the exemption of agricultural land from the application of the Shariat Act. Reluctant to alienate this powerful group, the British government accepted their demands, and the Shariat Act excluded agricultural landholdings from its application. Nevertheless, all other aspects of family law were to be governed by the Shariat Act, thus granting the Ulema a central role in the Muslim community. The Shariat Act enabled the Ulema and the Muslim community to strengthen their control over the women of the community by subjecting them to narrow interpretations of women’s rights under

high culture Islamic rules."? These strict rules clearly demarcated

women’s roles within the family and accorded fewer rights to women than to men. Although the Act was proposed by the Ulema as a way to enhance women’s inheritance rights and their economic position, the gains for women were more symbolic than real. It is significant that Muslim women did not gain the right to inherit agricultural land: more than 99 per cent of all property in India was agricultural holdings.’”° The Shariat Act affirmed, in the political arena, ‘the equivalence of

Muslim identity and a certain form of Sharia.’”*’ It demonstrated the

manner in which identities are discursively constructed both by the state and by members of a group who wish to assert their authority within the group in order to gain access to political power. The Act is of particular significance to understanding the manner in which women’s rights were used to construct identity as a fundamentally political process, and personal law was used to assert an understanding of ‘religion’ and ‘community’ that was essentially political rather than spiritual. The Ulema insisted on the Shariat being the sole authority for Muslim law. Colonial authorities accepted this demand and privileged the Koran as the sole authority for Muslim law. This approach overlooked the diversity within the Muslim community and the critical fact that

20

Gender and Community

‘Muslim communities in India were historically constituted in ways

that did not conform to strictly Islamic practices.” For the Ulema, the Shariat Act was a means to assert control over the Muslim community;

for the Muslim League, the concern was to protect the interests of the rural landholding elite; and for the colonial government, the primary interest was the preservation of its political power by playing off the nationalist religious elite against the landed elite in an effort to counter the forces of a growing nationalist opposition to colonial rule.’” It was within these coordinates, simultaneously conflicting and mutually constituting, that the issue of women’s right to inheritance was debated and negotiated. Although improvement in the status of women was the purported objective of the Shariat Act, it could be argued that, in fact, women themselves were never the primary subjects of the Act. The next legislative initiative of the Ulema, the Dissolution of Muslim Marriages Act, was another demonstration of their use of legislative procedures to consolidate their political authority as representatives of the Muslim community. Once again, women were the terrain

on which tradition was revised and reconstructed to fulfil political objectives. Under Hanafi law, applicable to the majority of Muslims in India, if women apostatized from Islam, their marriage would stand dissolved.'** Faced with the difficulties of obtaining a divorce under Shariat law, Muslim women resorted to religious conversion to get a divorce. The Ulema, however, were unhappy with this trend of Muslim women apostatizing from Islam in order to obtain divorces and

decided to puta stop to it.!°

The Ulema foregrounded a concern for women as the motivating factor for change, citing the ‘unspeakable misery [caused by apostasy] to innumerable Muslim women in British India.’"”° They demanded the enactment of the DMMA that would specify grounds of divorce for women. In codifying the grounds on which women could sue for divorce in a court of law, the Ulema rejected the traditional Hanafi rule

that permitted divorce upon apostasy and instead called for the application of the principles of the Maliki school of Islamic jurisprudence to all Indian Muslims. In Islamic jurisprudence, it is permissible to adopt the rules of another school of law in order to effect legal reform, in keeping with the doctrine of taqlid - the process of eclectic selection. However, such a claim of selection may become little more than a formality when, in fact, reformers proceed to include rules for which the

only authority is ‘an individual opinion of an isolated jurist.’!?”

Contextualizing Muslim Personal Law

21

In this case, although the Ulema claimed to have adopted Maliki rules, the majority of provisions of this Act were contrary to Maliki

principles;'7° although, in accordance with Maliki principles, the DMMaA recognized cruelty as a ground for divorce where the wife is one of many. However, the inclusion of the provision that ‘renuncia-

tion of Islam by a married Muslim woman ... shall not of itself operate

to dissolve her marriage’” contradicts all traditional doctrine. Certain

other grounds for divorce provided by the Act were substantial modifications of Maliki rules, such as the stipulations that the husband should have failed to provide maintenance for a period of two years, and that desertion or a failure to fulfil marital obligations should have existed for a continuous period of three years. Furthermore, the DMMaA completely disregarded Maliki procedures by which a wife

might be granted relief on these grounds.’ The Ulema proposed that only Muslim judges were to have the authority to regulate divorce under this Act. While the government accepted the Ulema’s demand that this law be applied to all Muslims regardless of their specific sects, it refused to concede that only Muslim judges could have the authority

to adjudicate divorces.'*! This refusal resulted in the Ulema condemn-

ing the DMMA

as un-Islamic. They tried to block the passage of the

Act, and, upon their failure to do so, withdrew their support for it. 134

The circumstances of the passage of the DMMA and the nature of its provisions demonstrate the political imperative motivating legal reform and the misuse of women’s rights issues to further political agendas while simultaneously marginalizing women’s interests. Whereas this Act defined Muslim women’s right to divorce, the grounds were limited and difficult to prove.'8? Moreover, women’s rights to spousal support were not addressed or amended beyond the traditional threemonth iddat period, leaving their situation unchanged.'** The DMMA denied women the relatively easy method of obtaining a divorce by apostasy. On the other hand, men’s right to divorce by apostatizing remained unchanged. The Ulema made no move to reform or check Muslim men’s unilateral divorce rights, and this had profound consequences for the status of women. Most significantly, the passing of this Act served to consolidate and strengthen the boundaries of the Muslim community and to increase patriarchal control over women by restrict-

ing their exit from the group.’

The importance of these legislative initiatives was that they set the tone for an increasing use of Islam by religious leaders to further their

political ends.'* The Ulema used legislative procedures to assert their

22

Gender and Community

authority over the community as well as to strengthen community boundaries. The passage of these laws signifies the state’s acceptance of the Ulema’s claim that the Muslim community is homogeneous and that all Muslims must be governed by personal law. The Shariat Act and the DMMA were described as having been passed to benefit Muslim women. Yet they, in fact, strengthened patriarchal, feudal interests and served to control women. In homogenizing the Muslim community, the law reforms, on the one hand, took away rights previously held by women

under the customary law, and on the other, circum-

scribed their rights according to strict Islamic textual rules as conceived by the Ulema - rules that hitherto had not been in force in South Asia. These legislative initiatives further demonstrate that it is too simplistic to view the development of law and legal structures in India as a transition from ‘tradition’ to ‘modernity.’ The colonial period was characterized by the quest for an authentic ‘tradition’ as a political

project.°” While the British formulation and administration of Muslim

personal law served to support patriarchal structures of authority by the imposition of ‘discovered’ existing scriptural norms and prac-

tices,!°* it also engaged Muslim scholars in ‘a self-conscious reassess-

ment of what was deemed authentic religion based on a rereading of

the classical texts.’!’ Although these new laws were initiated by Mus-

lim leaders, they reflected a view of the Shariat as shaped and influ-

enced by the British administration of Anglo-Muhammadan law.'° At the same time, in the nationalist imagination, the sphere of personal law was recast as pure and untouched by colonial hegemony. There was a dialectical relationship between the legitimating ideology of colonialism — one aspect of which was giving back to the natives their laws, albeit their laws as understood by the British - and the oppositional construction of a Muslim identity based on adherence to the

Shariat.'“! The colonial critique of Indian civilization, which characterized

Indian

men

as effete and

effeminate,

and

Indian

women

as

oppressed and in need of British protection, in turn, gave rise to a type

of cultural nationalism.'*” Indeed, Muslim religious leadership focused

on affirming the values of a tradition it believed to be under attack. Not surprisingly, the discourse of Muslim culture and identity became

a means

of formal resistance to colonization. Nevertheless,

Muslim religious leadership remained enmeshed in the colonial discourse. While on one level, it rejected colonization and its explicit critique of Indian society, on another, it used the colonial notion of the

Contextualizing Muslim Personal Law

23

centrality of scriptural authorities to define Muslim identity both to

entrench its power and to oppose colonization.’ In the colonial period, the quest for an authentic tradition often expressed itself in structures of modernity such as the codification of laws. These laws,

while purporting to be modernizing,

actually served to resurrect

‘tradition,’ albeit altered, and reinvented. Although framed as such, women were not the subjects of personal law reform. For the British,

the ‘protection’ of women was the ostensible ground for passing these laws and an explicit part of colonialism’s civilizing mission. However, for the indignous elite, these reformed laws were designed to safeguard women as markers of cultural integrity of the collectivity. The ‘protection’ of women’s status became an integral part of national-

ism.'“4 The enactment of these laws illustrates the role of the colonial

state in seeking support of religious patriarchies. The accommodation of such ‘tradition’ was to the detriment of women’s rights. Far from having a liberating potential, colonial law was the ‘state’s emissary’

and an accomplice in patriarchal domination.’

The Current Situation

By the time India gained independence, the personal law of various communities had been labelled ‘religious personal law.’ However, this law was either a result of state enactment or based on religious rules as

modified by the state.'“° Today, family law continues to impose an

identity on all Indians, defining them by their membership in religious communities. In sharp contrast to the equality and anti-discrimination guarantees of the Constitution, personal law sanctions gender discrimination and reinforces women’s subordination. Although Muslim per-

sonal law was codified in the 1930s, it was within the framework of

the Shariat, and it did not bring any significant gains for Muslim

women.” Whereas Hindu personal law was extensively reformed to give Hindu women greater rights, the independent Indian shown a remarkable resistance towards reforming Muslim law. The only major change in Muslim personal law after dence was the enactment of the Muslim Women’s (Protection

state has personal indepenof Rights

on Divorce) Act in 1986.48 It was passed at the insistence of Muslim

leaders to exclude Muslim women from the benefits of secular law which hitherto applied to all women irrespective of personal law. This new law is regressive and has curtailed the rights of Muslim women.

24

Gender and Community The question of reform of Muslim personal law was influenced by

the status of the Muslim community as a minority group,’ rather than

by the principle of gender equality. Muslim women’s rights were subordinated to the collective rights of the Muslim community.'”° The reluctance of the state to reform Muslim personal law was initially informed by the circumstances of the partition of India in 1947 along religious lines. These circumstances determined the state’s policy towards the accommodation of religious difference and the treatment of minorities. In addition, the religious identity of the Muslims became more pronounced — both the self-identity of Muslims and the identity imposed on them by the Hindu majority. The Muslim community was caught between asserting its group identity as a defence against Hindu hostility, and a heightened sense of difference that led to it being viewed with suspicion and hostility. A significant aspect of this assertion of difference was the emphasis on personal law as an integral part of Muslim identity.°! Although Article 44 of the Constitution” called on the state to create a Uniform Civil Code (UCC), the state was reluc-

tant to undermine the sense of security of the Muslim community by interfering in their personal law. The state’s attitude towards the reform of Muslim personal law and the rights of Muslim women was determined by the political considerations of governing a multicultural society and the imperatives of national unity and political stability. Adherence to the Shariat became the symbol of Muslim identity, and the preservation of personal law was presented by the Ulema as essential to maintaining this identity in secular India.! The state, in turn,

accepted this narrow definition of group identity and tacitly accepted the Ulema’s claim that personal law is divinely ordained and cannot be reformed. Yet, the Ulema enlisted the state’s support in changing certain aspects of personal law whenever they saw fit to do so. Muslim personal law thus became a forum for fundamentalist leaders of the community and the state to enter into Faustian bargains to consolidate and retain authority. Not surprisingly, this has had significant consequences for the status of Muslim women and for the definition of their rights within the family. Discriminatory Aspects of Muslim Personal Law Discrimination against women under personal law is a crucial factor in maintaining their subordination to men and in sanctioning the inequality of women within the family and in society. Although personal law

Contextualizing Muslim Personal Law

25

is only one form of discrimination, it constitutes a significant source of disadvantage for women. Under personal law, Muslim women as a group do not enjoy equal rights with Muslim men, and they are further disadvantaged compared with non-Muslim Indian women. Muslim women do not have equal rights of inheritance and succession.* The rules of succession are extremely elaborate and detailed; however, the general principle is that if there are male and female heirs of the same

degree, then the female heir receives half the share of the male heir.!° Widows take a quarter share in the property of their husband if there are no children. This rule applies regardless of the number of wives a man has. Thus, if there are two wives, they have to divide between

themselves the quarter share. If there are children, then Sunni widows receive one-eighth and Shias one-sixth of the deceased husband’s property. On the other hand, a Muslim husband stands to inherit one-fourth

of his wife’s property upon her death,’ if there are children, and one-

half if there are no children. A mother can never be the legal guardian of her children, although

she is entitled to the physical custody of her young children.” The father is always considered the legal guardian. Upon the father’s death, guardianship of the children does not pass to the mother, but instead to the father’s executor, the paternal grandfather, or the pater-

nal grandfather’s executor.'°® While the father may appoint a testa-

mentary guardian, a mother is not permitted to do so. Furthermore, the period of the mother’s physical custody of the children is prescribed and cannot be extended. For Sunnis, the mother has custody of her sons until they are seven years old. For Shias, the mother may have custody of her sons only until they are weaned, at the stipulated age of two. Sunni mothers have custody of their daughters until they attain puberty; Shias, until the age of seven. A mother’s right to custody of her minor children, however, is not an absolute right, and she may be

deprived of it if she is deemed unsuitable and unable to contribute to

the physical, moral, and intellectual development of the child.’

Muslim women are the only women in India whose right to monogamous marriage is not protected. Although no other personal law permits polygamy, and bigamy is now a criminal offence, Muslim men, in deference to personal law, are exempt from this provision of the Indian Penal Code.! Women’s groups have long demanded the abolition of polygamy, but the state has not made any move to do so. The right to polygamy has been regulated and even prohibited in several Islamic countries, yet the Indian State has not reformed the law and has placed

26

Gender and Community

no restrictions on polygamy.’® Scholars such as Paras Diwan have

unequivocally called for the abolition of polygamy; others, such as Tahir Mahmood, insist that polygamy is an essential part of the Muslim religion and cannot be abolished despite acknowledging it to be difficult for Muslim women. Women do not have the same rights as

men when choosing a marriage partner. Sunni‘ men are permitted to marry women who are not Muslims, but are kitabbiya (either Christian or Jewish). If Sunni men marry non-kitabbiya women, the marriage

will be merely irregular, but not void. However, for Muslim women,

marriage with a man of any other faith, kitabbiya or not, is ab initio void.’ Divorce laws discriminate against Muslim women. In sharp contrast to the husband’s unilateral right to divorce, women’s rights to divorce are limited and subject to several constraints; thus, divorce for Muslim

men is a relatively simple and straightforward matter, while for women it is particularly difficult.’ I shall outline the salient aspects of divorce laws which are crucial to an understanding of women’s rights.’ There are various forms of divorce (talaq) for Muslim husbands. Sunnis recognize a divorce which may be express, implied, contingent, or delegated. Shias recognize only the express and the delegated divorce. These various forms of divorce have been classified as more or less meritorious, but this does not affect their validity.’© Indian case law has established that a Muslim man may divorce his

wife ‘at his mere whim and caprice.’!” The talaq, in whatever form, does not require the consent of the wife and, under Muslim law, she

cannot resist talaq. The absolute power of a Muslim husband to divorce his wife unilaterally, for any reason or for no reason at all, without judicial regulation, and even in the absence of his wife, is rec-

ognized.’® Although it is considered to be religiously unmeritorious, the most common form of divorce in India is the triple talaq (talaq al bida), whereby the husband pronounces ‘I divorce thee’ thrice in one

sitting and is considered divorced on the third pronouncement.’

Coulson emphasizes that the institution of talaq causes the gravest

prejudice to the status of Muslim women.!”°

A Muslim wife is permitted to divorce her husband if the right to divorce has been delegated to her by her husband, by asking for a khul, by asking for a mubaraat, or by seeking a judicial dissolution of the marriage under the DMMA. Divorce by delegation is a right that may be conferred by the husband on the wife as part of the marriage contract, either at the time of marriage or later. The khul is a divorce

Contextualizing Muslim Personal Law

27

‘with the consent, and at the instance of the wife, in which she gives or

agrees to give a consideration to the husband for her release from the marriage tie.’!”! Khul is not a unilateral right unlike talaq. It is essential

that the husband consent to the khul.!”* Mubaraat is a form of divorce similar to divorce by mutual consent. It may be initiated by either spouse. However, here too (as in khul), the wife has to give up all or part of her dower.!”? Thus, the khul and the mubaraat both confer greater rights on the husband. Although, theoretically, a Muslim wife may seek judicial divorce under the Dissolution of Muslim Marriages Act, this option is available to few women and under limited circum-

stances.'”* The Act makes no provision for maintenance or spousal

support for divorced wives beyond the traditional period of three months. Thus, while in some respects the Act has extended the rights

of Muslim women, it has not really proven effective.’”°

In contrast to most Muslim countries, the Indian state has failed to

address the excesses and abuses of the talaq system.’”° There have been

no efforts either by the Ulema or by the state to suggest ways in which the talaq may be amended, and women’s rights protected. David Pearl notes that ‘all attempts to reform this area of Muslim law, as indeed

other areas as well, have been met by allegations of interference in the political and religious rights of the Muslim minority community.’1”” Tahir Mahmood argues that the divorce laws are actually favourable to

women,!” but this conclusion is difficult to accept. His contention that

the good Muslim shuns divorce is of no help to the number of Muslim women divorced arbitrarily by their husbands and who have no recourse through the justice system. Finally, while Muslim men have a right to unilateral divorce, they are under no obligation to provide long-term spousal support to their divorced wives.!”? The limited right granted to Muslim women to divorce their husbands is rendered meaningless by the lack of provision for spousal support upon divorce. For the divorce option to be a viable possibility for women, it is critical that their economic security be ensured. However, under Muslim law, upon divorce, a woman

is

entitled to alimony for a period of only three months. Consequently, divorced Muslim women were resorting to the secular law of mainte-

nance under section 125 of the Criminal Procedure Code (the CrPC).1®

Until 1986, section 125 of the CrPC applied to all Indian women irre-

spective of personal law.'*! However, after the Shah Bano case, divorced

Muslim women have been denied access to this secular law. Muslim law pertaining to financial support for divorced Muslim women has

28

Gender and Community

been codified with the passing of the Muslim Women’s (Protection of

Rights on Divorce) Act in 1986.'** This statute reiterates the husband's duty to support his divorced wife for a period of only three months.’®?

If during this three-month period, she gives birth to a child conceived before the divorce, she is entitled to child support from her ex-husband for a period of two years from the birth of the child. There is, however, no provision for child support from her ex-husband if any of their children born before the divorce remain with the mother after the divorce.'** Beyond this three-month period, a woman is to be supported by her children, her heirs, or her parents.'®° If none of her relatives are in a position to support her, then the court can direct the Wakf Boards'® (Muslim charitable organizations) to support her.'®” Shah Bano and the Muslim Women’s (Protection of Rights on Divorce) Act The question of financial support for Muslim women has been a topic of discussion when considering issues of Muslim personal law reform, the relationship between secular law and personal law, and the enactment of a Uniform Civil Code. In 1973, the government sought to amend the secular law of maintenance under section 125 of the Crimi-

nal Procedure Code'® to protect the rights of Muslim women.!® Section 125 of the CrPC was intended as a welfare provision to provide maintenance to destitute women (as well as children and aged parents) irrespective of personal law.!” Hitherto, section 125 provided

only for support of wives in a subsisting marriage. The intention was to widen the scope of the law to include divorced wives to counteract specifically the practice of Muslim men divorcing their wives extrajudicially to avoid the liability of spousal support.'?’ However, Muslim leaders reacted sharply to this proposed change to Muslim women’s rights under secular law. They declared that Muslims must follow personal law and that if such an amendment were included in

section 125 Muslims should be exempt from its application.!?* Muslim leaders argued that the provisions regarding maintenance were divinely ordained and therefore could not be countered by the inclusion of the proposed amendment to the secular law.!”? It is significant that not only is change in the personal law itself resisted, but any change in the secular law which may be of help to Muslim women and provide them with greater rights is also resisted by Muslim leaders. The government gave in to the demands of Muslim spokesmen. Although section 125 was, in fact, amended to include divorced wives,

Contextualizing Muslim Personal Law

29

an escape clause was included to satisfy the leaders of the Muslim community.

Accordingly, section 127(3)(b) was inserted to provide

that if maintenance had been paid in accordance with customary law or personal law, the divorced wife was ineligible to claim any further

support.’ The issue of the sufficiency of the amount paid under

personal law was ignored. Thus, to accommodate

fundamentalist

demands, the government withdrew from its earlier position that sec-

tion 125, being a welfare provision for destitute women, cannot exclude Muslim women. Interestingly, the Supreme Court interpreted section 127(3)(b) so as to Sisco Muslim women’s rights in a trilogy of judgments: Bai Tahira,!”> Zohara Khatoon,'” and Fuzlunbi.'”’ In these cases the Supreme Court considered the issue of maintenance to Muslim women under section 125 of the CrPC, the relationship between personal law and secular law, women’s

disadvantage under personal law, and finally,

the need for a Uniform Civil Code (UCC) in the context of this disad-

vantage. In Bai Tahira, the issue was whether a Muslim husband is liable to pay maintenance if he has already paid the mahr’”® (dower) due under Muslim law. Justice Krishna Iyer held that although the payment of mahr affected the amount to be awarded as maintenance under section 125, it did not affect the liability of the husband to pay maintenance.’” Justice Iyer stated: ‘The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of the maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfillment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution.’”2” In Fuzlunbi, Justice Iyer categorically stated that the divorce proce-

dures under Muslim law needed judicial reform.”” He reiterated the

view that payments to a divorced wife under personal law had to be

adequate if they were to be covered by section 127(3)(b). In Zohara Khatoon, Justice Fazal Ali, on behalf of the full bench of the Supreme

Court, ruled that section 125 overruled the personal law of the parties.2° The specific provisions of Muslim personal law were discussed in none of these three cases. The Supreme Court came to its decisions based on the interpretation of the provisions of section 125 itself. The intent of section 125 as a welfare measure was held to be the overriding consideration.

30

Gender and Community The issue of maintenance for Muslim women was once again raised

in 1985, with the controversial

Shah Bano decision of the Supreme

Court of India.?°4 Shah Bano, a Muslim woman, was driven out of her matrimonial home after forty-three years of marriage. She claimed support from her husband, Mohammed

Ahmed

Khan, under section

125 of the Criminal Procedure Code. Her husband then divorced her under Muslim law, claimed that he had paid her the mahr?” amount due to her under Muslim law, and that as he had divorced her, he was

under no legal obligation to pay her maintenance. The District Court ruled in Shah Bano’s favour, awarding her maintenance, although the

amount awarded was the nominal sum of Rs. 25 per month.*” Shah

Bano then applied to the High Court for an enhancement of the amount, which was granted, and her maintenance was raised to Rs.

179.20 per month.””” Khan then filed an appeal against the High

Court’s decision in the Supreme Court. The issue before the Supreme Court was whether Shah Bano, as a Muslim woman, was entitled to maintenance under section 125, and,

correspondingly, whether Khan was exempt from the section’s application on the basis of Muslim personal law. The defence raised by Khan was that Muslim personal law did not require him to support a

divorced wife beyond the three-month iddat period.”°° He contended

that the secular law — that is, section 125 —- was contrary to Muslim personal law, and as Khan was a Muslim, it therefore did not apply to him. Relying on section 127(3)(b), Khan argued that mahr was a sum

payable upon divorce under Muslim law, and having paid it, he was under no further obligation, either under Muslim law or under section

125, to pay maintenance to Shah Bano. The court was, therefore, forced to consider Muslim law and the definition of mahr. The court rejected the argument that mahr is a sum payable upon divorce stating: ‘the provision contained in section 127(3)(b) may have been introduced because of the misconception that dower is an amount payable “on divorce.” But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.’7 Shah Bano was awarded maintenance on the basis of financial need. Relying on earlier Supreme Court decisions, and based on a purposive interpretation of section 125 as a welfare provision for destitute women, the court held that section 125 had to be interpreted so as to ‘ameliorate the conditions of suffering sections of the society.’”!° The court held that the purpose of section 125 was to provide financial support to those unable to support themselves and that the religion of

Contextualizing Muslim Personal Law

31

either spouse had no place in the scheme of these provisions.*"" According to the Court: ‘section 125 was enacted in order to provide a quick and summary remedy toa class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child, or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essen-

tially of a prophylactic nature, cut across the barriers of religion.’?”” The Supreme Court ruled that in case of a conflict between personal

law and secular law, secular law was to override the personal law.*”? However, the court also held that in this case there was no conflict

between the two and quoted several passages from the Koran to support its conclusion that Muslim law recognizes the husband’s obligation to support a divorced wife.” Although in the earlier cases, the Supreme Court did not consider the specific provisions of Muslim personal law, reaching its decision based on the provisions of the secular law of maintenance itself, in Shah Bano, the court was forced to con-

sider the provisions of Muslim personal law because both parties to the case relied on Muslim personal law and the Shariat.””° The secular argument that the provisions of section 125 were meant as a welfare provision to ameliorate the economic condition of destitute wives was not invoked. Forced to consider the secular right to maintenance in the context of Muslim law, Shah Bano sought to argue that spousal support for divorced wives is not precluded by Muslim law. The court stated that based on aiyats (verses) 241 and 242 of the

Koran, Muslim husbands have a duty to financially support their

divorced wives.” ‘These Aiyats leave no doubt that the Quran

imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argu-

ment does less than justice to the teachings of the Quran.’”””” The court rejected the contention of the All India Muslim Personal Law Board,** which intervened in the case on behalf of the husband, that a Muslim

husband is under no obligation to support his divorced wife even though she might be unable to support herself, and further, that it was irrelevant to inquire as to how divorced Muslim women might sup-

port themselves.7”

Finally, the court exhorted the government to honour the Constitution and enact a UCC, arguing that personal law needed to be

reformed because it was unjust and invidious.”? The court stated that

32

Gender and Community

‘it is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” ... It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.’”**1 The Shah Bano decision caused a furor in the Muslim community. 222 Although this was not the first time that the Supreme Court had decided in favour of Muslim women on this very issue, it was the first time that the court relied on passages from the Koran to support its

decision under secular law.’ Muslim leaders viewed the court’s

emphasis on a UCC as a threat to Muslim personal law. They denounced the judgment as an encroachment by the state on Muslim collective rights. Unhappy that the Supreme Court had taken it upon itself to interpret the Shariat, the Ulema issued a proclamation that the Supreme Court decision was contrary to the true principles of Islam.*”* Shah Bano threatened the Ulema’s authority and challenged their position as sole interpreters of the scriptures. The fundamentalists’ call for recision of the Shah Bano judgment was based on the claim that Muslim personal law is divinely ordained and therefore immutable.” Despite the argument that personal law was religiously ordained and could not be modified by human agency, a bill to modify Muslim law with respect to Muslim women’s right to maintenance — and to exclude them from the purview of the secular law of maintenance - was introduced by a Muslim League member of Parliament.””° Muslim fundamentalists organized a massive canes against the

Shah Bano decision and in support of the proposed Act.””” Thousands of Muslims were mobilized across the country to stage demonstrations. In response, women’s

organizations, progressive Muslims, and

civil liberties organizations grouped together to support the Supreme Court decision. The government supported the Supreme Court decision until it became clear that the conservative Muslim leadership was completely opposed to it. Then the government changed its stand. That the government had also lost a by-election in a constituency with a sizable Muslim population was also a determining factor.””8 Persuading the Muslim League member to withdraw his private bill, the government

introduced

its own

bill in 1986,

the

Muslim

Women’s

Protection of Rights on Divorce Bill.””’ It was based on the views of the Muslim Personal Law Board and the Ulema’s interpretation of the Shariat in the arguments before the court in Shah Bano, that the respon-

Contextualizing Muslim Personal Law

33

sibility of supporting a divorced Muslim woman should fall upon her children, heirs, and her natal family.?°°

;

Despite strong opposition to the proposed law, with no public debate and no representation of women’s groups or of moderate Muslim leaders, the government hastily passed the Muslim Women’s (Pro-

tection of Rights on Divorce) Act.”! For the first time in the history of modern India, a Supreme Court judgment was abrogated by the state. The state and fundamentalist leaders portrayed this new Act as protecting the rights of Muslim women as well as the rights of the Muslim community.” In reality, this new law excluded Muslim women from the purview of section 125 of the Criminal Procedure Code, thus denying them the previously held right to seek spousal support under secular law. Furthermore, by absolving Muslim men of the duty of spousal support, it reinforced their right to divorce their wives without fear of judicial regulation. Muslim husbands’ duty of spousal support was

restricted to the three-month iddat period.**’ Beyond this period, a

divorced Muslim woman was to be oes by her immediate heirs, her natal family, or by the Wakf Boards.*™ By refusing to cast the duty of spousal support on Muslim men and instead shifting the responsibility to a woman’s relatives, this new law confers no real economic security on divorced Muslim women.

It is, moreover, extremely diffi-

cult for women, emotionally and financially dependent upon their relatives, to engage in adversarial legal proceedings against them for

financial support.?*

The provision for the Wakf Boards to support Muslim women is also problematic because the Wakf Boards are chronically without funds

and cannot easily take on any additional financial burden.”° More-

over, the funds of the Wakf Boards are donated by pious Muslims for

specific religious charitable purposes, and these funds cannot rightly be used for purposes other than those stipulated by the donors. Therefore, for this provision of the law to have any real meaning, it would mean that the state would have to provide funds for the maintenance

of divorced Muslim women.”*”

Although the Act was portrayed as being a return to the true princi-

ples of Islam, it was, in fact, not in conformity with strict Shariat rules.

Nowhere in the Muslim world is maintenance for divorced wives the responsibility of either the community or the state as laid down in the Muslim Women’s Act.”*® The state ignored the Wakf Boards’ protest against their liability to support divorced women because of a paucity of funds.22? Furthermore, the provision that a Muslim couple could

34

Gender and Community

agree to opt out of the application of the Act and instead be governed by section 125° has been criticized by Tahir Mahmood as being contrary to Islamic principles.’ In any event, the inclusion of this provision is meaningless because it is unlikely that a man would willingly agree to be bound by a law which would compel him to support his exwife. If such compliance were a possibility, it would not be necessary for the divorced wife to initiate legal proceedings against her former husband. The inclusion of this provision signifies an important aspect of the relationship between fundamentalist leaders and the state. By permitting Muslims to opt out of personal law, the Ulema have conceded authority to regulate family relations within the Muslim community to the state. They have further implicitly conceded the authority of the state to modify and regulate Muslim personal law, thereby undermining their own argument of immutability.” The circumstances of the enactment of the Muslim Women’s Act are testimony to the manner in which the Ulema seek state support in modifying personal law and to the complicity between the state and religious patriarchies in subordinating women’s interests. As a consequence, the Muslim Women’s Act has circumscribed Muslim women’s rights, while the interests of Muslim men have been preserved under

the guise of safeguarding the rights of the Muslim community and enforcing the law according to religious sanction. The persistence of the colonial discourse is evident in the reaction to Shah Bano and in its

culmination in the Muslim Women’s Act.2 In continuity with issues

raised by the Shariat Act and the DMMA, the Muslim Women’s Act reflects the convergence of the status of women, the law, and scriptural authority. It reveals how a discourse of protective legislation regarding women mediates the tension between Shah Bano’s rights as an individual and as a member of the Muslim community, while reinforcing the

emphasis on women as the symbol of ‘culture’ and ‘tradition.’"“4 Here, too, the state accommodated fundamentalist demands and supported

patriarchal forms of control within the Muslim community. This Act highlights the continued significance of the discourse of protection among supporters of traditional Muslim gender roles, as well as their continued reliance on notions of culture and identity as oppositional to state authority, albeit with respect to a national government rather than a colonizer. Personal law was a political construct of the colonial state, but it has been maintained and perpetuated in COED arety India to regulate gender roles, the family, and the community.“ Muslim personal law

Contextualizing Muslim Personal Law

35

reinforces the male-dominated power structures of the family.”*° It keeps women in their place: within the patriarchal family. Despite formal guarantees of equality and freedom from ‘discrimination on the basis of gender and religion, the lived experience of women as determined by personal law, is one of inequality and subordination. While secular laws govern the so-called public sphere, women continue to be denied equal rights in the private sphere, as regulated by personal law. It is within this communal, patriarchal system of laws that the rise of fundamentalism and its implications for women’s rights must be located.”4” Personal law has become the terrain on which ‘authentic’ Muslim identity is constructed as well as defended. However, the history of the development of Muslim personal law suggests that in contemporary India, although personal law has come to signify ‘authentic’ tradition, in fact, tradition has been selectively reinvented

and discursively created.

Chapter two Muslim Personal Law and the Constitutional Framework

In sharp contrast to Muslim personal law, the Constitution of India!

guarantees to all citizens the fundamental right to equality under Article 14,7 and the fundamental right to freedom from discrimination on the grounds, inter alia, of religion and sex under Article 15.3 In recognition of the conflict between the principle of equality and the discrimination

sanctioned

by personal

law, Article

44 of the Constitution

directs the state to enact a Uniform Civil Code (UCC).* The Constitu-

tion also guarantees the fundamental right to freedom of religion under Article 25.° This right seeks to affirm the state’s commitment to safeguarding the integrity of religio-cultural communities, to secularism, and to the accommodation of difference. The retention of personal law despite constitutional strictures against discrimination has been justified under the right to religious freedom. As a consequence, the religious rights of members of the Muslim community have been protected, whereas the equality rights of Muslim women have been neglected.° The question that arises with respect to Muslim women is whether Muslim personal law, which discriminates between Muslim women and Muslim men on the basis of gender, and also between Muslim women and other Indian women on the

basis of religion, is constitutionally valid. Arguably, personal law must conform to the rights to equality and freedom from discrimination. Furthermore, the evolution of the notion of a Uniform Civil Code as

envisaged by the drafters of the Constitution demonstrates that the state is constitutionally bound to enact such a code in order to address discrimination under personal law. A related question is whether the

Muslim Personal Law and the Constitutional Framework

37

religious freedom guarantee prevents the state from regulating religion and reforming personal law. A close examination of the scope of this right suggests that the state indeed has the overriding authority to regulate religion and amend personal law to effect social reform. Any assessment of the discrimination experienced by Muslim women under personal law must, therefore, examine the constitutionality of

discriminatory personal law and the scope of the guarantee of religious freedom. Personal Law and the Constitution

Application of the Constitution to Personal Law

With the enactment of the Constitution in 1950, the basis of the applicability of personal law has been a matter of some doubt.’ The issue is somewhat complicated because no article in the Constitution specifically deals with the status of personal law.® Constitutional challenges to the personal law system, and to specific discriminatory aspects of personal law, have been rejected on the ground that even if personal law violates fundamental rights, it is not subject to the Fundamental Rights Chapter of the Constitution and therefore is not automatically void.’ The discussion turns on whether personal law is included in the expression ‘laws in force’ within the meaning of the Constitution and therefore must conform to fundamental rights. If personal law is within the definition of ‘laws in force,’ then it must be understood as

being governed by the Fundamental Rights Chapter of the Constitu-

tion as stipulated in Article 13.'° Article 13 holds that all laws must

conform to the fundamental rights guaranteed in the Constitution. It provides that ‘all laws in force in the territory of India immediately

before the commencement of this Constitution, in so far as they are inconsistent with this Part [the fundamental rights], shall, to the extent

of such inconsistency, be void."

So far there is no authoritative Supreme Court cation of the Constitution to personal law. In the Court decision, the focal point of discussion on law is the Bombay High Court’s 1952 decision

decision on the appliabsence of a Supreme the status of personal in State of Bombay v.

Narasu Appa.'”? This was the first time the judiciary examined the rela-

tionship between personal law and the Constitution. Because of the eminence of the judges deciding this case, as well as the fact that it was the only case until 199218 which considered the status of personal law

38

Gender and Community

in depth, the Narasu Appa decision has been regarded as authorita-

tive.!4 According to the Narasu Appa court, personal law is not subject

to fundamental rights. However, I argue that the court’s conclusion is based on a flawed interpretation of constitutional provisions. To determine whether personal law is subject to the fundamental rights guaranteed in the Constitution, it is necessary to examine and probably refute each of the specific constitutional arguments put forth by the Narasu Appa court. A Hindu man, Narasu Appa, had contracted a bigamous marriage. The case involved a constitutional challenge to the Bombay Prevention of Hindu Bigamous Marriages Act!’ which prohibited polygamy for Hindu men at the same time that Muslim men’s right to polygamy remained unchanged, as did the tacit denial to Muslim women

of a

corresponding right to polyandry. The issue before the court was whether this statute violated Articles 14 and 15, which guarantee equality and freedom from discrimination on the grounds of religion and sex, and if so, whether it had to be struck down as stipulated by Article 13. The court also had to consider the scope of religious freedom guaranteed under Article 25 and examine whether the state was empowered to reform Hindu personal law without making a corresponding change in other personal law. Furthermore, the court had to consider whether the prohibition of bigamy violated the defendant's right to freedom of religion. In this subsection, I consider the issue of

the relationship between Articles 14 and 15 of the Constitution and personal law. The issue of the power of the state under Article 25 to modify personal law so as to effect social reform is considered further on. The Narasu Appa case established the judicial view that personal law is not ‘laws in force’ within the meaning of Articles 372(1)'° and 13(1)!”

of the Constitution, and therefore, are not governed by the fundamen-

tal rights.1° The court concluded that Article 13 does not apply to personal law as it is not among the ‘laws in force,’ and therefore, when personal law conflicts with fundamental rights, it does not become void.” The focus of the debate is whether personal law is included in ‘laws in force’ within the meaning of the Constitution, and whether personal law is thereby subject to the constitutional provisions of the fundamental rights. The expression ‘laws in force’ is defined in Article 372 of the Constitution: ‘The expression “laws in force” in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this

Muslim Personal Law and the Constitutional Framework

39

Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular

areas.’2° Arguably, the Narasu Appa court’s conclusion that personal law is not governed by the Fundamental Rights Chapter of the Constitution is based on a flawed interpretation of the expression ‘laws in force.’ There is nothing in the provisions of Articles 13 and 372 to suggest that personal law is not among the ‘laws in force,’ or that it is beyond the amending power of the president of India. Article 372(2) of the Constitution authorizes the president to adapt or modify any laws in force to make them conform to the Constitution.”! The court, however, main-

tained that it could not have been the intention of the drafters of the Constitution to empower the president to amend personal law.”* Justice Gajendragadkar held that Article 372 was applicable only to statutory law, and

that as personal

law was

not statutory

law, it was

excluded from the amending purview of Article 372.” The distinction made by the court between statutory and nonstatutory law, and its view that personal law was not statutory law, has been challenged.”* The provisions of Article 372 make it clear that personal law is included in the expression ‘laws in force.’ The historical development

of Muslim personal law, as indeed of all personal law,

clearly establishes that substantial portions of personal law are statutory enactments. Muslim personal law is, arguably, covered under this definition as a law which was in force because it applied to the Muslim community from colonial times until the commencement of the Constitution. From the Regulating Plan of 1772 to the Shariat Application Act and the Dissolution of Muslim

Marriages Act, the courts have been

bound to administer this law to Muslims in matters of family law. That Muslim personal law has been codified further underscores the ability of the state to amend personal law.” The distinction made by the court between statutory and non-statutory law would lead to the anomalous situation whereby only certain portions of personal law are recognized by the Constitution. H.M. Seervai rightly argues that custom, usage, and statutory law are so inextricably a part of personal law that it is impossible to make a distinction between them. It is, therefore, neces-

sary to treat the whole of personal law as ‘laws in force’ under Article

372 and to hold it subject to the fundamental rights.”°

According to the court, that Item 5 of List III of the Seventh Schedule

to the Constitution”’ specifically mentions personal law as a subject of legislation indicates that personal law has been treated as a distinct

40

Gender and Community

legal concept and was not included as ‘laws in force.’*® However, argu-

ably the court’s reliance on Item 5 is misplaced.”’ Item 5 makes it clear that personal law was undoubtedly among the ‘laws in force’ at the time of the commencement of the Constitution. This provision lists the topics to which personal law applied: ‘Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and

partition, all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution sub-

ject to their personal law.’*° While Item 5 does mention personal law, it does not make any statement as to its continued existence. On the contrary, by giving the state the authority to make laws on specified topics that are explicitly stated to have been the subject of personal law, this provision points to the fact that personal law was among the ‘laws in force.” A further argument developed by the court focused on the interplay between constitutional provisions. The court argued that if personal law was among the ‘laws in force,’ and those provisions of personal law were thus to become void to the extent that they conflicted with the fundamental rights, then, read together with Article 15, all discrim-

inatory aspects of personal law should automatically become void. If that were the correct position, then, the court argued, there would have

been no need to provide specifically for the abolition of untouchability in Hindu personal law under Article 17 of the Constitution.** The court concluded that ‘the scheme of the Constitution, therefore seems to be

to leave personal law unaffected except where specific provision is made with regard to it and leave it to the Legislatures in future to modify and improve it and ultimately to put on the statute book a common and uniform Code.’? However, it has been suggested that this conclusion is based on the erroneous assumption that articles in the Constitution do not overlap. Seervai points out that ‘it is not uncommon in a Constitution to make express provisions for matters to which its makers attach great importance, instead of leaving them to dilatory and hazardous process of litigation.’** Therefore, merely because certain Hindu practices are specifically mentioned in Article 17 of the Constitution should not lead to the conclusion that personal law, in general,

is not subject to the fundamental rights.*° Finally, the Narasu Appa court interpreted Article 44 as implicitly

permitting the continuance of personal law.*° The court maintained that, if indeed the Constitution rendered personal law void to the extent that it conflicts with fundamental rights, then there would have

Muslim Personal Law and the Constitutional Framework

41

been no need to include Article 44 directing the state to enact a Uniform Civil Code. Relying on Article 44, the court held that until such time as a UCC could be enacted, the legislature has the competence to reform personal law and that personal law could be reformed differently for different communities. John H. Mansfield argues that the Narasu Appa court's reliance on Article 44 is based on an erroneous

reading of the article.*” There is nothing in the language of Article 44 to

justify the contention that it authorizes the continuance of personal law. On the contrary, Article 44 outlines the duty of the state to reform personal law and to introduce a UCC. It is therefore difficult to claim that till such time as a UCC is enacted, Article 44 can be read to mean

that personal law is beyond the control of the Constitution. There are later High Court decisions which hold that personal law is governed by the fundamental rights. In Abdullah Khan v. Chandni Bi 2 the issue before the Bhopal High Court was whether different alimony provisions for Hindu and Muslim women violated the equality guarantee. The High Court held that personal law must be consistent with the fundamental rights guaranteed in the Constitution, herein the right

to equality.*° In Sudha v. Sankappa Rai,*’ the Mysore High Court

accepted the proposition that personal law must be consistent with the fundamental right to equality, thereby implying that personal law is governed by the fundamental rights.** In Gurdial Kaur v. Mangal Singh® the custom whereby a mother was disinherited upon her remarriage was challenged as being discriminatory under Article 15. Although the Punjab High Court did not make an explicit pronouncement as to the impact of the right to gender equality on discriminatory personal law, by testing the validity of the gender discriminatory custom under the fundamental right to freedom from discrimination, the court implicitly accepted that personal law is subject to the fundamental rights.“ However, more recently, in a 1980 case, Krishna Singh v. Mathura Ahir; the Supreme Court followed the view of Narasu Appa and held that personal law is not governed by fundamental rights. The court stated that ‘Part III [the Fundamental Rights Chapter] of the Constitution does not touch upon the personal law of the parties.” The Supreme Court rejected the conclusion of the High Court judge that personal law is subject to the fundamental rights and is therefore void to the extent of its conflict with the fundamental rights.” However, the court did not explain its conclusion. The decision made by the Supreme Court in Krishna Singh was with respect to Hindu law, but it

42

Gender and Community

refers to personal law as the general category. Therefore, it has been seen by some as a binding decision on the relationship between ee sonal law and the Fundamental Rights Chapter of the Constitution.” The most recent judicial pronouncement on the constitutional a: of personal law is a 1992 Bombay High Court decision In re, Amina.” The High Court addressed the question of whether personal law is subject to the fundamental rights in the Constitution — specifically the right to equality—and whether, when in conflict with the fundamental rights, it is void. The court categorically stated that the decision in Narasu Appa ‘does not lay down the law correctly.’ Explicitly refuting each argument in Narasu Appa, the court concluded that personal law must conform to the Fundamental Rights Chapter of the Constitu-

tion.°! Amina ruled that the decision in Krishna Singh, which follows

Narasu Appa, is incorrect. According to the court, although Krishna Singh is a Supreme Court decision, it is not binding, because the court

was not called upon to decide the question of whether personal law is governed by fundamental rights. Therefore, the Amina court ruled that its observation on the matter is not a binding precedent.” In Amina, the court held that personal law is included within the

meaning of ‘laws in force’ under Article 13.°° According to Justice Dhanuka the definition of ‘law’ in Article 13 is an inclusive one. The judge categorically stated that ‘The Constitutional law is the supreme law of the land. No law, whether made bya legislature or Judge made, customary or otherwise, can be enforced by any court in our country if it is inconsistent with or repugnant to [the] guarantee of fundamental rights unless expressly saved under a specific provision of the Constitution itself.’-* The court concurred with Seervai’s argument that no distinction can be drawn between custom, usage, and statutory law within personal law as these are inextricably intertwined.” The court further expressed the view that Muslim law discriminated against Muslim women solely on the ground of gender and thus violates the fundamental right to equality and freedom from gender discrimination.°° Justice Dhanuka stated, ‘In my view, personal law shall have to yield to fundamental rights and all laws, whether made byalegislature or otherwise, must necessarily conform to fundamental rights.’°”

Several subsequent decisions of the Supreme Court™® have established the view that the expression ‘laws in force’ is used in an inclusive rather than in an exhaustive sense and that it covers statutory and non-statutory laws, custom and usage, as well as case law and the law

administered by courts.’ Although these cases do not specifically refer

Muslim Personal Law and the Constitutional Framework

43

to personal law, it would be a perverse reading of Articles 372 and 13 to exclude them. In light of these Supreme Court decisions, the Narasu

Appa opinion that personal law is not among the ‘laws in force’ and therefore not subject to the fundamental rights does not appear to be the correct position and should no longer be accepted as authoritative. Arguably, then, Muslim personal law, along with all other personal law, should be treated as being among the ‘laws in force’ within the meaning of the Constitution. It is reasonable to conclude, reading Article 13 together with Article 372, that Muslim personal law must con-

form to the fundamental rights guaranteed in the Constitution, and to the extent that it is inconsistent with the fundamental rights, it should be void. All laws in force at the time of the commencement of the Constitution, and all laws subsequently made by the legislature, have to be measured against the touchstone of the Constitution. Constitutional law is the supreme law of India, and all laws have to yield to the fundamental rights guaranteed in the Constitution. Muslim Personal Law and the Fundamental Rights to Equality and Freedom from Discrimination An understanding of the impact of the fundamental rights to equality and non-discrimination on the personal law system as a whole, and on specific discriminatory aspects of Muslim personal law in particular, is critical to forwarding Muslim women’s claim to equality. Drafters of the Constitution recognized equality as the fundamental organizing principle of a free and democratic society.°' The concept of equality was articulated without regard to religion, caste, or gender, demonstrating the intention of the drafters of the Constitution to end discrimination and invidious classification in Indian society based on religion, caste, and gender.® However, the personal law system continues to draw distinctions between groups on the basis of religion and between members of groups on the basis of gender. The question that follows is whether, in light of these distinctions, personal law vio-

lates Article 14 and Article 15 which guarantee equality and freedom from discrimination.” Equality as a concept, however, is difficult to define and means different things to different people.“ The Constitution nowhere defines the notion of equality or the principle of non-discrimination. Although particular understandings of equality have prevailed at different times, two broad approaches to equality may be identified in Indian

44

Gender and Community

judicial discourse: the formal model and the substantive model of equality. In recent times, the Supreme Court of India has developed a jurisprudence of substantive equality and has been increasingly critical of the doctrine of reasonable classification and the similarly situated test. Notwithstanding this shift, which has been strongly criticized by

courts and jurists,’ the formal model of equality predominates in Indian judicial discourse, especially in the context of constitutional

challenges to personal law. The courts continue to be influenced by a formal approach to equality. Marc Galanter observes that there is considerable confusion and disarray in the area of equality jurisprudence.® With regard to personal law, the situation is exacerbated by the fact that there is so far no authoritative Supreme Court ruling. Although several challenges to personal law are pending in the Supreme Court, none of them have been heard yet.”

I discuss the formal model of equality and certain key judicial decisions regarding challenges to personal law that are informed by this understanding of equality. These decisions reveal the manner in which the predominant formal model of equality has served to limit and restrict constitutional challenges to discrimination under personal law. I then discuss the shift in Supreme Court equality jurisprudence away from a formal towards a substantive notion of equality and examine its potential for forwarding the claims of Muslim women. Formal Equality and Discrimination on the Basis of Religion The formal model of equality is informed by the Aristotelian concept that ‘justice considers that persons who are equal should have

assigned to them equal things.’”’ Under this model of formal equality, ‘things that are alike should be treated alike, while things that are

unalike should be treated unalike in proportion to their unalikeness.’”

This conception has been translated into the similarly situated test and the doctrine of reasonable classification wherein equality is equated with the rule of law. Article 14 has thus been interpreted as permitting reasonable classification for the purposes of legislation.”* According to the Supreme Court of India, ‘this classification must be rational: founded on intelligible differentia which distinguish those grouped together from those left out; the differentia must bear a rational nexus

to the object sought to be achieved.’” There is a focus on sameness and difference, rather than an understanding of the need to address historical disadvantage through positive state action.” The interpretation of

Muslim Personal Law and the Constitutional Framework

45

equality under Article 14 based on the doctrine of reasonable classification has, in turn, determined the interpretation of equality under Artiele 15. : Thus, constitutional challenges to the personal law system as violating the right to equality before the law and freedom from discrimination on the basis of religion have been dismissed on the grounds that such differentiation in the application of laws is a reasonable classification and does not amount to adverse discrimination. Informed by a formal understanding of equality, courts have held that the classification of Hindus and Muslims, for example, into separate groups for the purpose of applying personal law, is valid.” Courts have also held that discrimination on the ground of gender is a classification based on a rational criterion. The inclusion of Article 15(3),”” which empow-

ers the state to make special provisions for women, is seen as a corollary to the formal equality approach in which women are seen as ‘weaker’ and therefore in need of special protection. As an acknowledgment of the exception to the sameness rule, women’s biological and social difference is seen as necessitating special protection clauses such as envisaged by Article 15(3). This completes the sameness/ difference understanding of equality predominant in Indian judicial discourse. The formal model of equality informed the Narasu Appa decision. The High Court in Narasu Appa held that Hindus and Muslims can be treated as separate groups for the purposes of personal law.’® Narasu Appa established the judicial view that a law introducing religious reform cannot be said to violate the rights to equality and equal protection of the law if it does not introduce similar reforms for all other personal law. The court concluded that as long as those similarly situated

were treated equally by the law, there was no discrimination.”

According to the court, the classification in Narasu Appa was reasonable as it was based not only on the ground of religion, but also on the differing historical and cultural context of the various communities.*

In Srinivasa Aiyer v. Saraswathi Ammal,*' decided by the Madras High

Court shortly after Narasu Appa, the court had to consider the constitutionality of an antibigamy statute in the state of Madras. The court thus had to resolve issues similar to those considered by the Narasu Appa court. The Madras High Court held that personal law does not discriminate between Hindus and Muslims because the classification between Hindu and Muslim was based on a reasonable and rational consideration and therefore did not offend Article 14 of the Constitu-

46

Gender and Community

tion.** Thus, both Narasu Appa and Saraswathi Ammal upheld the continuing validity of disparate rules of personal law as well as the power of the state to create new rules applicable to particular communities. The social context of these two cases is important in understanding the decisions reached. In both cases the courts were concerned mainly

with justifying the reforms in the law.® Challenges to personal law

were brought in both cases by Hindu men contesting law reform that took away their right to polygamy. The decision of the Narasu Appa court that personal law is not automatically void if it conflicts with fundamental rights, must be situated within the emphasis placed on law as an agent of social change in the newly independent state. The court did not rule against the statute prohibiting Hindu polygamy, as it was acutely conscious of the social reform aspect of this law.™ J.D.M. Derrett makes the point that in the reformist climate of the day, there was little doubt that the court would consider a provision banning polygamy to be unconstitutional.® This is evident from the observation of the court that, while it was desirable to have a uniform law pro-

hibiting polygamy for all religions, the inability of the government to enact such a law, for whatever reasons, does not invalidate a statute

prohibiting polygamy for Hindu men.® It is significant, furthermore, that the court noted that the state had a legitimate interest in regulating the law relating to marriage.*” Moreover, in view of the terms of Article 25, it was unlikely that the

court would have reached any other conclusion.*® The court expressed the view that ‘religion in a modern state is purely a matter between an

individual and his God.’*? Rajeev Dhavan suggests that this decision

was entirely consistent with the strongly reformist judicial line of ‘extending constitutional protection only to such beliefs and practices

as were consistent with the new “secularism.”’” The ultimate signifi-

cance of this judgment ‘lies in the intention of the judges to further the cause of social reform rather than to maintain anachronistic practices under various personal laws.’”’ Despite the reluctance to pronounce personal law void —- taken together with the judgment in Saraswathi Ammal — the view that a statute prohibiting polygamy only for Hindu males does not violate Article 15 demonstrates that the intention of the courts was, in the absence of a Uniform Civil Code, to permit the state to reform anachronistic aspects of personal law. However, the Narasu Appa court, in its reluctance to invalidate a statute introducing legal reform, thereby lost the opportunity to articulate the relationship between discriminatory personal law and the fundamental rights. The

Muslim Personal Law and the Constitutional Framework

47

court also lost the opportunity to demonstrate to the state that the enactment of a UCC was a constitutional necessity rather than merely a desired goal.” This failure set the ground for adverse rulings, based on the view established by Narasu Appa, resisting constitutional challenges to gender discrimination under personal law. Furthermore, based on the judicial view established in Narasu Appa, it has been argued that the classification of Muslims and Hindus into separate groups for the application of personal law, although it may result in discrimination between these two communities, does not vio-

late the fundamental right as the classification is not based on religion alone, but also on various other grounds.” In Abdullah Khan v. Chandni

Bi** and Sudha v. Sankappa Rai® the courts recognized that fundamen-

tal differences exist in personal law, yet they argued that the classification of the two religious communities into different groups was ‘based on the outlook of persons belonging to the two different communities’° and their ‘past history, difference in culture, etc.’”” The constitutional challenge that personal law violates Article 14 by discriminating on the ground of religion was rejected by the court, which held that it was not a case of discrimination, but rather of reasonable classification.

The court stated that ‘each of these laws has a history of its own. No section of the community is shown to have been subjected to hostile discrimination, to adversely affect the rights of a section of the people or an individual, but classification to advance the cause of a section of

the people without harming the interests of the others. The Legislature must be presumed to have acted in the interests of the community at large as well as all sections thereof.’ The courts were unwilling to reach a conclusion that would force them to rule personal law void to the extent that it violated the fundamental rights. This reluctance to recognize that personal law violates the fundamental right to freedom from discrimination on the basis of religion is again demonstrated in Gurdial Kaur v. Mangal Singh.” The issue before the court was whether a custom that discriminated between men and

women with regard to succession to property violated Article 15.’°°

The court rejected the argument that the enforcement of this custom discriminated among castes or that it discriminated against women, observing that ‘if the argument of discrimination based on caste or race could be valid, it would be impossible to have different personal law in this country and the court will have to go the length of holding that only one uniform Code of laws relating to all matters covering all castes, creeds and communities can be constitutional.’

48

Gender and Community

Some analysts have challenged the view that although personal law classifies Hindus and Muslims separately on the basis of religion it does not violate Article 15. It has been argued that personal law dis-

criminates between different religious communities.” Personal law is applicable solely on the basis of the religion of the individual, and

therefore, arguably, violates Article 15 which forbids discrimination on

the basis of religion. By contending that Muslims and Hindus are distinct communities

with

distinct

historical

and

cultural

traditions,

courts have served to homogenize the Muslim community. This understanding fails to account for the differentiation within the group or to acknowledge the commonality of tradition and culture between Mus-

lims and others.!3 The logical extension of this argument would imply

that the various groups and subgroups within the Hindu community are entitled to separate personal law. Yet, this was specifically denied when Buddhists, Jains, Sikhs, and various castes of Hindus demanded

exemption from Hindu law on the very principle that the court put forward as a justification for separate Hindu and Muslim personal law. 1 It is significant that when the Constitution granted fundamental rights to the citizens of India, these rights were not granted to citizens based on their religious and cultural differences.’ Muslim personal law clearly applies to Muslim women solely because they are Muslim. This is discriminatory because it deprives Muslim women of the right to state protection on several counts. It implies differential obligations on the part of the state. The most recent legislation that embodies this discrimination is the Muslim Women’s Act. While all other Indian women may claim the legal right to spousal support after divorce, Muslim women may not. While other women may criminally prosecute their husbands for bigamy, Muslim women, by virtue of being Muslim, may not. Arguably, the existence of personal law based solely on religious affiliation contradicts the guarantee of equality before the law and freedom from discrimination on the basis of religion. A.M. Bhattacharjee rightly argues that the personal law system is discriminatory and such discrimination is based solely on religious affiliation; thus violating Article 15. According to him, a correct interpretation of Article 14 and Article 15 would suggest that, as apprehended by the Madras and Punjab High Courts, ‘most of the personal law may have to go’! and that ‘only one uniform civil code’” relating to the matters covered by per-

sonal law would therefore be a constitutional necessity.

Muslim Personal Law and the Constitutional Framework

49

Muslim Personal Law and Gender Equality The next question to consider is whether Muslim personal law violates the gender equality guarantee. Some courts have applied the sameness rule of formal equality, to hold that laws treating men and women dif-

ferently are discriminatory and thus violate the equality guarantee.’”

However, most decisions have held that gender differentiation in personal law does not violate the constitutional right to equality. Judicial decisions have served to perpetuate gendered notions of dependency and women’s

‘difference,’

and to reinforce

stereotypical notions

of

women’s roles in the family and in society. The notion of formal equality, also identifiable in Narasu Appa and subsequent decisions, is that the biological and social differences between men and women necessitate differential treatment. These ‘differences’ are translated into a hierarchy and disadvantage based on gender, and they serve to justify the continuance of discriminatory personal law. Ratna Kapur and Brenda Cossman point out that ‘gender differences within the family are seen as natural and legitimate grounds on which to treat men and women differently.” In Narasu Appa, the court held that the right to polygamy did not discriminate against women because it was not based solely on the ground of gender, but also on social, economic, and religious grounds. Justice

Gajendragadkar held that the right to polygamy was based on the natural differences between men and women and therefore did not violate

Article 15(1).!" Furthermore, the public/private distinction has been

employed to keep the private sphere of the family free from the ‘intrusion’ of constitutional rights which are seen as belonging to the public

sphere. Thus, in Harvinder Kaur v. Harmander Singh Choudhary," the High Court rejected the challenge that Hindu law was discriminatory

to women, stating that the ‘introduction of Constitutional law into the

home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and

all that it stands for. In the privacy of the home and the married life, nei-

ther Article 21 [the fundamental right to liberty] nor Article 14 have any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of Constitutional law will have

the effect of weakening the marriage bond.’”” In Gurdial Kaur v. Mangal

Singh, the High Court observed that ‘it is too much to suggest that all

heirs belonging to any sex must have the same rights of inheritance.’!

50

Gender and Community

Judicial decisions have thus served to perpetuate women’s subordination within the family and to deny to women the fundamental right to equality guaranteed in the Constitution. The reasoning of the courts is premised on differentiation based entirely on gender. The conclusion of the courts that this discrimination was not based on gender, but

on social differences arising from gender, is a demonstration of the manner in which biological and social differences are conflated to perpetuate women’s disadvantage. It is evident that gender-based differentiation in personal law violates the equality guarantee under

Article 15."°

In a more recent judgment in Swapna Ghosh v. Sadananda Ghosh, the Calcutta High Court held that the provisions of the Indian Divorce

Act,6 applicable to Indian Christians, were ‘not only manifestly anachronistic, but have rendered themselves patently open to Consti-

tutional challenge.’”” The court was referring to section 10 of the Act

under which a wife may seek a divorce on the ground of her husband’s adultery provided that the adultery is coupled with cruelty, desertion,

or bigamy.'’® There is no such requirement for a husband seeking a divorce on the ground of his wife’s adultery. The court granted the wife’s divorce and noted that Article 14 might permit the differentiation between men and women in view of the differences in the social consequence of adultery for men and women. However, relying on the Supreme Court’s decision on gender discrimination in C.B.

Muthamma"? the court ruled that this provision violated Article 15 because it discriminated on the basis of gender. According to the court, ‘any discrimination on the ground of any liability, inability, disability or incapacity of women resulting from the peculiarities of their sex would amount to discrimination on the ground of sex alone.’!”° Nevertheless, the court did not strike down the law and held that the case

could be decided on the facts without going into the constitutionality of the law, stating that ‘my only endeavour is to draw the attention of our concerned legislature to this [sic] anachronistic incongruities and

the provisions of Article 15 of the Constitution forbidding all discrimination on the ground of Religion or Sex and also to Article 44 staring at

our face four decades with its solemn directive to frame a UCC.""7!

Although this decision held that the discrimination in the Indian Divorce Act was based on gender alone and thus violated Article 15, the court also conceded that biological differences, and the social con-

sequences thereof, might be a ground for reasonable classification under Article 14. This decision was clearly informed by a formal equal-

Muslim Personal Law and the Constitutional Framework

51

ity concept, although the court arrived at its decision based on the understanding that men and women are the same and must therefore

be entitled to equal protection of the law.!”* There was no interrogation

by the court of the manner in which biological differences are translated into social disadvantage for women. Nor did the court appreciate that the systemic discrimination against women, rather than their biological difference, might be a basis for differential treatment. However, in the most recent judgment on the status of Muslim personal law, in Amina, the Bombay High Court specifically rejected the Narasu Appa view that gender discrimination under personal law did not violate Article 15. The court noted that Muslim personal law discriminates against Muslim women solely on the ground of gender. The High Court further stated that gender discrimination in personal law was

unconstitutional.’”

There is, so far, no authoritative Supreme Court ruling on discrimination against women under personal law.'*4 Although gender discrimination in personal law has been challenged in recent years, the

Supreme Court has yet to hear these cases.'?° The Mary Roy'*° case was

a direct challenge to the discriminatory inheritance rules of the Travancore Christian Succession Act.!*” The petitioner, Mary Roy, challenged the provisions of the Travancore Act whereby a daughter may inherit an amount equal to a third of the son’s share or Rs. 5,000, whichever is

less, as violating her right to equality under Article 14 of the Constitution. However, the Supreme Court declined to rule on the constitu-

tional challenge, as it disposed of the case on a legal technicality.’

Ruling that the Travancore Act was no longer valid, the court stated

that therefore ‘it is not necessary to examine this challenge to the constitutional validity of the rules laid down in the Travancore Christian Succession Act, ... as that would bea futile exercise and would unneces-

sarily burden the judgment.” The result of the court’s decision was the invalidation of the Travancore Act, and thereby indirectly, a victory for women’s rights. However, the court did not articulate its position on gender discrimination under personal law, or on the validity of personal law that conflicts with the fundamental rights. Substantive Equality

Despite the prevalence of a formal understanding of equality in many judicial decisions, the substantive model of equality was also articu-

lated from the very outset of the framing of the Constitution.'°°

52

Gender and Community

Whereas formal equality is concerned with the rule of law and the equal treatment of those similarly situated, substantive equality is concerned with addressing the problem of systemic disadvantage. Substantive equality is based on the understanding that the interests of true equality might require differentiation in treatment. This model of

equality rejects reasonableness as a qualification on equality rights.’" There have been, thus, two competing understandings of equality articulated in the Constitution. The explicit constitutional principle of compensatory discrimination and the duty cast upon the state to promote the interests of the weaker sections of society to redress historical disadvantage'” represents the ability of the state to pursue a policy of

substantive equality.'*° There has been a shift in Indian Supreme Court

jurisprudence towards a notion of substantive equality. The reasoning of Narasu Appa with regard to gender discrimination has been cast in some doubt by recent Supreme Court decisions dealing with gender discrimination.'** Although these decisions do not deal with personal law, they are binding Supreme Court decisions on the matter of gender discrimination and gender equality, and should, therefore, be applicable to issues of gender discrimination under personal law. The Supreme Court has established the judicial view that constitutionality is determined not by the object of a law, but by the law’s effect on the fundamental rights of a citizen. In R.C. Cooper v. Union of India, the Supreme Court ruled that the validity of a law has to be judged by its actual operation and effect.'*° This view was reiterated in Bennett Coleman v. Union of India. The Supreme Court stated here that ‘first, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of that right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights forms the real test.’'°° The Supreme Court held that the issue is not whether a law is discriminatory solely on the ground of gender, but whether its operation might or, indeed, does result in a prohibition on such ground.1’” This view

was approved in the Supreme Court decision in C.B. Muthamma v. Union of India which involved the issue of discrimination against women in government employment policies.'°° The Supreme Court held that any discrimination on the grounds of any inability, disability, or incapacity of women resulting from distinctions of their gender would amount to discrimination on the ground of gender alone. As noted earlier, in Swapna Ghosh, the Calcutta High Court relied on the

Muslim Personal Law and the Constitutional Framework

53

Supreme Court’s decision in C.B. Muthamma to hold that the Indian Divorce Act was discriminatory against women. The Supreme Court's decision in State of Kerala v. N.M. Thomas}? is

accepted as being the culmination of this doctrinal shift.!4? Although this decision has been criticized by commentators, Supreme Court decisions continue to be informed by the substantive model of equal-

ity.“ The Supreme Court has recognized that equality necessitates

going beyond formal equality and that the application of a formal equality model might result in aggravating existing inequalities.'** In Thomas, Justice Matthew categorically rejected the formal model of equality, stating that equality necessitates compensatory measures to address the inequality of some sections of society. The Supreme Court observed that the difference in the social and economic conditions of groups justifies differential treatment.'*? According to Justice Matthew, the guarantee of equality ‘implies differential treatment of persons

who are unequal.’“* Although the issue before the court in Thomas was

not that of equality under personal law, it is a decision based on the notion of equality that is of critical importance to the development of equality jurisprudence in India. The importance of the Thomas case is that it emphasized the duty of the state to go beyond formal equality

and pursue substantive equality. According to the court, the princi-

ple of equality imposes a positive duty on the government, and ‘the government has an affirmative duty to eliminate inequalities and to

provide opportunities for the exercise of human rights and claims.’!*°

Thomas, by its explicit recognition that formal equality may not be sufficient in addressing historical disadvantage, is of crucial significance to constitutional challenges to inequality in personal law. In Roop Chand Adlakha, the Supreme Court once again considered the notion of equality in the context of compensatory discrimination in state employment of disadvantaged groups. The Supreme Court extended Thomas's criticism of the doctrine of classification under Article 14 in the interpretation of equality rights, and stated that ‘the overemphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its previous content and end in replacing the doctrine of equality by the doctrine of classification ... The idea of similarity or dissimilarity of situations of persons, to justify classification cannot rest on merely differentials which may, by themselves be rational or logical, but depends on whether the differences are relevant to the goals to be reached by the law which seeks to clas-

54

Gender and Community

sify.*” In Indra Sawhney v. Union of India, the Supreme Court ruled

that the state has a duty to secure substantive equality for the disadvantaged sections of society. The court noted that ‘equality postulates

not merely legal equality but also real equality.’'** Justice Sawant ruled

that equality ‘is a positive right, and the state is under an obligation to undertake measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged.’!*? Thus, the Supreme Court acknowledged that differential treatment is necessary in order to bring about real equality. In light of these judgments, the judicial view established by Narasu Appa with regard to gender discrimination in personal law should no

longer be regarded as authoritative.’ These decisions, taken together

with the constitutional intent of achieving gender equality, should lead us to conclude that discrimination against Muslim women under personal law violates their right to equality and freedom from discrimination on the grounds of religion and gender and is therefore unconstitutional. The mandate of Article 15(1) forbidding discrimination against

women is absolute.'°! The very existence of Article 15(3) permitting

affirmative action in favour of women emphasizes that the Constitution does not countenance discrimination against women. It is difficult to contend that the Constitution envisaged different rights for citizens based on gender. The fact that its drafters included Article 44 with its directive to introduce a Uniform Civil Code for all citizens indicates their recognition that personal law was in conflict with the secular and egalitarian principles of India’s new Constitution.? Gender equality was accepted as an important constitutional principle. The only differentiation between men and women was to be in the shape of affirmative action to address women’s historic disadvantage. Muslim personal law violates the gender equality guarantee of Article 15. Discrimination against Muslim women under personal law, whereby they are legally inferior to Muslim men, is premised on gender. The classification of men and women of a community into separate groups has to be understood as one based on gender.’ It cannot be argued that Muslim personal law which sanctions discrimination against women in all matters of family law (marriage, divorce, inheritance and succession, guardianship and custody, among others) does not violate Article 15. Whatever justification may be offered for such discrimination, the actual operation and real effect of Muslim personal law is to discriminate against women as women and, therefore, on the

Muslim Personal Law and the Constitutional Framework

55

ground of gender alone. The effect of, and operation of, Muslim personal law clearly affects women as a group, and the distinction cannot but be understood as one based on gender. Moving away from a focus on sameness and difference reveals that Muslim personal law discriminates against Muslim women, as the treatment of women as a group contributes to their historic subordination. By allowing greater rights to men than to women, Muslim personal law cannot be said to have

secured to Muslim women either equality before the law or freedom from discrimination on the basis of religion and gender. The critical import of this Supreme Court equality jurisprudence is the acknowledgment that equality is a positive right and that the state has a duty to take positive steps to address historic, systemic disadvantage.!°° Informed by the notion of substantive equality, the Supreme Court’s move away from the understanding of equality in purely doctrinal terms as rational and reasonable classification underscores that personal law justified in terms of the ‘reasonable classification’ of Hindus, Muslims, and others, into different groups is contrary to the principle of equality. It represents the potential of equality rights’ litigation to challenge discrimination

under personal law. However,

notwith-

standing these more enlightened Supreme Court decisions informed by a substantive notion of equality, as noted earlier, judicial decisions regarding constitutional challenges to personal law continue to be influenced by a formal understanding of equality. Equality is a site of contested meanings and conflicting definitions. The Thomas case is further significant because ‘by revealing the constitutional indeterminacy and doctrinal disarray in this field, it poses

new challenges for jurisprudence and policy.’”° The Indian constitu-

tional stance towards equality with its seemingly contradictory embrace of the principles of equality for all individuals, together with its commitment to compensatory discrimination in favour of women and disadvantaged sections of society, indicates the overriding concern of the drafters of the Constitution with addressing substantive inequality. The drafters left it to the state, through the legislature as well as though the judiciary, to reconcile these two seemingly antagonistic

principles of formal and substantive equality in specific settings. ©”

It represents their understanding that the systemic discrimination against women and other disadvantaged groups within society necessitates differential treatment. The critical importance of differences in the conception of equality in the context of forwarding Muslim women’s claims is that it provides the space for articulating a vision of

56

Gender and Community

gender-just laws and for using these paradigms as a site from challenge women’s subordination. The significance of the shift marked by Thomas is the acknowledgment of the right vantaged groups to pursue substantive equality and to force

which to doctrinal of disadthe state

to fulfil its responsibilities.°° The duty cast upon the state, both the

judiciary and the legislature, to move beyond formal equality towards an enforcement of substantive equality, is critical for the advancement of the rights of Muslim women. Uniform Civil Code

In light of the above arguments that personal law is unconstitutional and violates guarantees of freedom from discrimination on the basis of gender and religion, the state’s constitutional duty to enact a Uniform Civil Code becomes even more pressing. Justice Krishna lyer argues that Article 14, which guarantees a ality before the law, mandates a

UCC premised on gender equality.’ Article 44 represents the consti-

tutional commitment to replacing the system of separate personal law.'©° The duty is cast on the state through the legislature to phase out discriminatory aspects of personal law and to enact a UCC. It is useful, at this point, to trace the development of the idea of a UGG?)

The

UCC refers to the codification of the disparate family law rules under the existing personal law system. So far, however, there is no actual draft of provisions of a UCC nor any agreement as to what is to be included in it.!° The concept of a uniform civil code entered the realm of national political discourse when the Congress Party appointed a National Planning Committee

(NPC) in 1939 and 1940 to plan for economic

and social development in independent India.’ The subcommittee responsible for examining

the status of women,

‘Women’s

Role in

Planned Economy,’ made recommendations for the reform of personal law based on the idea of gender equality. Both the NPC, with the exception of one Muslim member, and the Women’s Subcommittee called for a uniform civil code which was to be optional during the ce ee phase, and would eventually replace the personal law system.’ However, other resolutions of both the Subcommittee and the NPC suggest that they foresaw practical difficulties with the enactment of a UCC. The Women’s Subcommittee recommended that the NPC appoint a panel of experts to frame such a code, but the NPC did not adopt this recommendation. Most of the recommendations of the

Muslim Personal Law and the Constitutional Framework

57

NPC focused on women’s disabilities under Hindu law. In response to the NPC’s general recommendation calling for gender equality in inheritance laws, three Muslim members of the NPC stated that Mus-

lim personal law should not be interfered with. In the end, the arrest of Congress leaders in 1940 interrupted the NPC project before its com-

pletion, and its reports were not implemented.!© By 1940, leaders of the All India Women’s Conference (AIWC) were demanding personal law reform and the application of equality princi-

ples to women’s rights.’ Established in 1927, the AIWC by the 1930s

was acknowledged as the most important women’s organization in India. Influencing public policy with regard to the status of women was the AIWC’s primary concern, and its two most important campaigns were in the areas of universal adult franchise and personal law reform, particularly Hindu law reform and the implementation of the Hindu Code Bill.!©” Some leaders — for example, Rameshwari Nehru,

in her presidential address of December 1940 - demanded the enactment of a uniform civil code based on gender equality to address women’s legal disabilities. In 1946, the AIWC formulated an ‘Indian Women’s Charter of Rights’ calling for gender equality to be the basis of citizenship rights in India. Demanding improvements in the status of women, the charter gave the highest priority to personal law reform. However the charter stopped short of calling for a UCC.’ The charter was prepared by AIWC leaders Hansa Mehta, Amrit Kaur, and Lakshmi Menon. The proposal to enact a UCC was introduced in the Constituent Assembly in 1947 by Minoo Masani, a member

of the Fundamental

Rights Subcommittee.’ AIWC leaders Hansa Mehta and Amrit Kaur were active participants in the Constituent Assembly debates. Both were members of the Subcommittee on Fundamental Rights, and Amrit

Kaur was also a member of the Minorities Subcommittee.'”! The impor-

tance accorded to the UCC is demonstrated by the fact that when the fundamental rights were being drafted by the Fundamental Rights Subcommittee, the UCC was sought to be included in the Constitution as a fundamental right.!” Minoo Masani, Hansa Mehta, Amrit Kaur, and Dr

B.R. Ambedkar wished to include the clause on the UCC as a fundamental right but were outvoted by the rest of the Subcommittee.’”? In the course of the debates, despite serious opposition, in deference to the wishes of community leaders, it was eventually included in the Consti-

tution as a directive principle rather than as a fundamental right.'”*

Minoo Masani, Hansa Mehta, and Amrit Kaur recorded their dissent,

58

Gender and Community

stating that ‘one of the factors that has kept India back from advancing to nationhood has been the existence of personal law based on religion which keep the nation divided into watertight compartments in many aspects of life. We are of the view that a Uniform Civil Code should be guaranteed to the Indian people within a period of five to ten years in the same manner as the right to free and compulsory primary educa-

tion has been guaranteed by Clause 23 within ten years.’’”° Further, in

Subcommittee debates regarding the freedom of religion clause, Amrit Kaur objected to the inclusion of the words ‘free practice and propagation’ of religion. Amrit Kaur and Hansa Mehta were concerned that there was a potential conflict between religious freedom and the state’s authority to legislate social reform.'”° They were concerned that certain customs that contributed to women’s subordinate status and that were practised in the name of religion — child marriage, temple prostitution

(the devadasi tradition), unequal inheritance laws, pardah (seclusion of women), polygamy, and prevention of inter-caste marriages - would be immune from future legislation. They also expressed the fear that existing legislation — for example, on widow remarriage and child marriage — might be invalidated.'!” Eventually, although the words ‘free practice and propagation’ were included, the Advisory Committee rewrote the provision of the clause on religious freedom to stipulate that the right to freely practise religion would not prevent the state from making laws providing for social welfare and reform. This is how it appears in Article 25 of the Constitution.’ As Granville Austin points out, the Indian Constitution is foremost a

document committed to social revolution. Together with the fundamental rights, the directive principles form the conscience of the Constitution. Although the UCC as a directive principle is non-justiciable,

it is of fundamental importance.” Outlining the importance of directive principles, Article 37 of contained in this Part shall principles therein laid down ernance of the country and

the Constitution states that ‘the provisions not be enforceable by any court, but the are nevertheless fundamental in the govit shall be the duty of the state to apply

these principles in making laws.’!®° The Constitution establishes the duty of the state to bring about positive social change.'®’ Article 38

calls on the state to ‘secure a social order for the promotion of the wel-

fare of the people.’

When the provision for a UCC was finally debated in the Constituent Assembly, it was vehemently opposed by five Muslim members.'® They proposed amendments to ensure that personal law would remain

Muslim Personal Law and the Constitutional Framework

59

unaffected by the provision for a UCC and that no community would

be obliged to give up its personal law.'®*4 They argued that the provision for a UCC would run against the right to freedom of religion.!® This charge was refuted by K.M. Munshi, who pointed out that the right to freedom of religion was not unrestricted. He stated that it was accepted that ‘if a religious practice followed so far covers a secular activity or falls within the field of social reform or social welfare, it would be open to Parliament to make laws about it without infringing

this Fundamental Right of a minority.’"8° Munshi further stated that if

inheritance and succession were treated as essential parts of religion and immune from reform then the gender equality clauses of the Constitution would be meaningless.'®” Vasudha Dhagamwar notes, that ‘it is thus evident that the framers of the Constitution did not consider all activities connected with a religious practice to be religious, and therefore protected by the freedom of religion guaranteed by Article 25. Instead, they distinguished between religious practices and secular

activities associated with it, but not an integral part of it.’"®8

Law Minister Dr Ambedkar rejected the argument that Muslim law was immutable and that it had been uniform throughout the territory of India. He pointed out that the Shariat Application Act had been enacted specifically to bring those Muslims who had hitherto been governed by Hindu law within the purview of Shariat law.” Significantly, the law minister stated: ‘It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in certain parts and it had been made applicable ten years

ago.’!”? However, after making this categorical statement, he sought to

allay the fears of the Muslim members of the Assembly, stating that the provision for a UCC ‘merely proposes that the state shall endeavour to secure a civil code for the citizens of the country. It does not say that after the code is framed, the state shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the Code may be purely voluntary.’!?! However, the proposed amendments of these three Muslim members were categorically rejected, and Article 44 was inserted unamended to read: ‘The state shall endeavour to secure for the citizens a Uniform Civil Code

throughout the territory of India.”

60

Gender and Community

The proceedings of the Constituent Assembly debates on Article 44 illustrate that it was not the intention of the drafters of the Constitution to render personal law immune to either reform or the fundamental rights. Muslim members of the Constituent Assembly tried unsuccessfully to have personal law protected by an express constitutional provision. They were also unsuccessful in preventing the insertion of Article 44 in the Constitution.’”? However, they were given the assurance that unless the community itself so desired it, personal law would not be abrogated, and no time frame was specified within which a UCC was to be enacted. In reply to the demands of the Muslim members, the law minister explicitly stated that no community should assume that its personal law could remain beyond the reach of the state.!”* Article 44 makes clear that it is the duty of the state to enact a UCC and implies that personal law is to be phased out. Mansfield remarks, ‘Indeed, the intention [of the Constitution framers] seems rea-

sonably clear, simply to encourage the legislature to move cautiously towards a uniform civil code, with full awareness of the delicate nature

of the subject.’!”° Minoo Masani, Amrit Kaur, and Hansa Mehta tried once again to

make the UCC a fundamental right. Citing the renewed need in the heightened communal context of the partition for national unity on the basis of acommon code, they urged the Advisory Committee to reconsider including the UCC as a fundamental right. However, they were unsuccessful,

and the clause remained

one

of the directive princi-

ples.’”° According to Granville Austin, the reason for not making the UCC a fundamental right was the wish to calm the fears of Muslims and Sikhs in the context of India’s partition in 1947.'”” It became clear that although national leaders were broadly committed to social reform, they were unwilling to offend minority religious sentiment by reforming personal law. On the other hand, women’s equality in citi-

zenship rights was sought to be assured.'”8 The Constituent Assembly

accepted the principle of gender equality, guaranteeing rights in political and economic spheres such as universal adult franchise and equal pay for equal work, but it was reluctant to extend this principle to the

sphere of marriage and family.’ The Fundamental Rights Subcommit-

tee’s report to the Advisory Committee included a clause immediately following the clause on the UCC, that marriage should be based on

mutual consent and premised on gender equality.” Although this clause, too, was to be a social policy goal of the state and non-justiciable, it was not discussed in the Constituent Assembly debates.”°! The

Muslim Personal Law and the Constitutional Framework

61

UCC was underscored as an instrument of national unity. Even the staunchest advocates of women’s rights and UCC supporters highlighted the unifying potential of the UCC rather than its significance for women’s equality. The arguments for and against a UCC focused on the power of the state to reform religion, and minorities’ right to be governed by personal law as an integral part of religious freedom. Conspicuous by its absence, however, is any discussion of the significance of a UCC for

women’s rights.”°* In the course of debates, it was noted that if per-

sonal law were treated as an essential aspect of religion that could not be regulated by the state, it would result in denying equality to women. However, the drafters of the Constitution failed to make the

link between a UCC and gender equality explicit. Although the principle of gender equality was accepted by them, the manner of inclusion of the UCC provision has made it difficult to translate it into concrete legal equality for women in personal law. The fact that no time limit was set, and the inclusion of a UCC as a directive principle rather than as a fundamental right in deference to minority fears demonstrates, once again, the manner in which women’s rights are subordinated to group interests.”°? Archana Parashar makes the point that ‘the same failure to emphasise the potential of a UCC to secure legal equality for women in personal matters has continued in much of the subsequent debate.’”?"4 The Supreme Court on the UCC In Shah Bano the Supreme Court called for a UCC, observing that it

would promote the cause of national unity and would address women’s legal disadvantage caused by discriminatory personal law. The court stated that a UCC ‘will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.’ The court noted that the failure of the state to enact a UCC had resulted in continuing discrimination against women. According to the

court, ‘inevitably, the role of the reformer has to be assumed by the

courts because it is beyond the endurance of sensitive minds to allow injustice when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.’”°° In Jorden Diengdeh v. S.S. Chopra, which was decided soon after Shah Bano, the Supreme Court

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Gender and Community

reiterated its position in Shah Bano, and emphasized the need for a

UCC. The court considered the discriminatory divorce provisions in

Christian personal law which give Christian women far fewer rights than Christian men, as well as women of other communities.”°” The court stated that ‘surely the time has now come for a complete reform of the law of marriage and [to] make a uniform law applicable to all people irrespective of religion or caste ... We suggest that the time has now come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law a way out of the unhappy situations in which couples like the

present have found themselves.’ Most

recently,

the question

of a UCC

was

considered

in Sarla

Mudgal, President, Kalyani and Others v. Union of India.” The Supreme Court had to consider whether a man originally married under Hindu law had the right to enter into a bigamous marriage by converting to Islam. The question before the court was whether such conversion was valid and, furthermore, whether the man could be prosecuted for bigamy. The Sarla Mudgal case, considered a landmark decision, high-

lighted the need for a UCC." It was a controversial decision and drew

strong criticism on the ground that it fuelled the anti-Muslim agenda of the Hindu right. The judgment called for a UCC but also unfortunately singled out Muslim personal law as in need of reform, while simultaneously drawing attention away from the discriminatory provisions of Hindu personal law. The court made unnecessary references

to Muslim identity and group commitment to the nation-state.”!! Not surprisingly, this decision was welcomed by the Hindu right.” Yet,

despite the problematic aspects of this decision the essential point remains that the court held that conversion to Islam cannot be used as a defence against bigamy. Ruling in favour of the petitioners, the Supreme Court stated that ‘Article 44 is based on the concept that there is no necessary connection between religion and personal law inacivilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee

enshrined

under Articles 25, 26 and

27.’"13 Justice Sahai, in his concurring judgment in Sarla Mudgal, stated

that although religious freedom was a central principle of the Indian state, ‘religious practices violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression. Therefore a unified code is imperative

Muslim Personal Law and the Constitutional Framework

63

both for protection of the oppressed and promotion of national unity and solidarity ... The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with the Minorities Commission examine the matter and bring about a comprehensive legislation in keeping with the modern day concept of

human rights for women.””/4 Sarla Mudgal is significant because it went

beyond Shah Bano and Jorden Diengdeh. The court cited both cases approvingly to emphasize the need for a UCC and deplore the lack of government initiative in that respect. It did not just admonish the state for its failure to enact a UCC, but issued a direction to the state to enact

such a code and to report compliance.” The court explicitly made the link between the absence of a UCC and the denial of women’s rights.””° Finally, the court reiterated that a UCC was essential for the protection of women’s rights and for national unity. The Supreme Court in all these cases was dealing with the disadvantage experienced by women under personal law, and it recognized that a UCC is essential to address women’s inequality. Yet, in each of these decisions, the cause of national unity was also emphasized as the reason for enacting a UCC. Despite a sensitivity to gender discrimination under personal law, these Supreme Court decisions reveal the manner in which the imperative for a UCC, although recognized as addressing women’s disadvantage, continues to be debated within the parameters of national unity and minority identity. Notwithstanding the powerful Supreme Court injunction to enact a UCC, the state itself has made no

effort to do so. After the adoption of the Constitution, a large part of Hindu law was reformed and codified to grant Hindu women greater legal rights in consonance with the constitutional principle of gender equality.” However, the state did not initiate reform in the personal law of minority religious communities. There was no significant activity on the part of the state to modify Muslim personal law until the Shah Bano controversy resulted in the enactment of the Muslim Women’s Act in 1986. Although various courts have acknowledged the gender discrimination inherent in the personal law system and in specific aspects of personal law, no court has gone so far as to declare the personal law system void.2!8 Instead, as in Shah Bano, the courts have left it to the legislature to enact a UCC and to phase out discriminatory personal law. Despite the indictment of the government by the Supreme Court for its failure to enact a UCC, it has not taken any steps towards either reforming dis-

criminatory aspects of Muslim personal law, or enacting a UCC.”

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Gender and Community

The Scope of the Freedom of Religion Guarantee The question of personal law reform has invariably been countered with the argument that the right to freedom of religion does not allow

for the reform of personal law.””? Reform of Muslim personal law has

been opposed on the ground that freedom of religion renders Muslim personal law immune from state regulation. The state further claims that its refusal to reform Muslim personal law is mandated by its policies of secularism, religious neutrality, and the protection of minority rights.”! The government uses the constitutional justification under freedom of religion to uphold personal law which is clearly discriminatory.“* Thus, although Hindu women have benefited significantly from law reform, the reluctance of the state to reform Muslim personal law has resulted in the continuing legal inequality of Muslim women. It is, therefore, essential to examine the scope of the religious freedom guarantee to ascertain the limits of this freedom and whether, indeed, the right to religious freedom allows for the reform of Muslim personal law. The intention of the drafters of the Constitution was clearly to give the state overriding authority to reform personal law to bring about social change. In the Constituent Assembly debates on the right to religious freedom, the discussion centred around the authority of the state to regulate religion and to reform the ‘secular’ aspects of religion. The reformists expressed the concern that religious freedom might be used to counteract the state’s attempts to invalidate customs which had the sanction of religion and were harmful to women.?” Among the reformists were three women members of the Fundamental Rights Subcommittee who were particularly concerned that the gains made by Indian women, with the banning of child marriage and the legalization of widow remarriage, might be now challenged on the basis of religious

freedom.?“4 This Subcommittee recommended that religious freedom

should not include the right to practice or propagate religion which the members feared could result in the invalidation of social reform laws. They also recommended that a proviso be added to the clause on religious freedom to the effect that ‘the right to profess and practice religion shall not preclude the legislature from enacting laws for the social

betterment of people.’”*° However, members of the Minorities Subcommittee insisted on the inclusion of the words ‘practice and propagation of religion.’ They felt this inclusion was necessary to protect minorities

against the imposition of the will of the majority community.?”

Muslim Personal Law and the Constitutional Framework

65

When the Constitution was finally drafted, the reformists succeeded to the extent that it granted the state wide-ranging power to engage in the social reform of religion. The power of the state to enact laws for the purpose of social welfare and reform was explicitly stated. On the other hand, religious groups were given the right to institutional existence, the right to manage their own institutions, to run educational establishments, to own property, and to propagate their religion.””” However, in order to reassure the minorities, especially the Muslim community, the drafters of the Constitution did not categorically define the power of the state to reform personal law. Significantly, the discussion of the right to religious freedom subordinated the fears of women and the other reformists that social reform legislation may be blocked by the right to religious freedom in deference to the minorities. The issue of women’s rights under personal law, in the context of reli-

gious freedom, was marginalized in this discussion which focused on the nature of secularism in India and on the power of the state to regulate religion.” The Indian constitutional stance towards religion is complex. The Constitution attempts to safeguard religious freedom while at the same time it explicitly sets limits on this freedom by giving the state broad regulatory power over religion in the interests of social welfare and reform. This is evident from the provisions of Article 25, which clearly

state that freedom of religion is not an absolute right and that the right

to regulate religion is specifically accorded to the state.”” The provi-

sions of Article 25 are as follows: ‘Article 25. Freedom of conscience and free profession, practice and propagation of religion. — (1) Subject to public order, morality and health and to the other Provisions of this Part,” all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law - (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character

to all classes and sections of Hindus.”

Although the Constitution guarantees freedom of religion as a fundamental right, the exercise of that right is ultimately subject to constitutional restrictions. Article 25(1) makes it clear that religious freedom is subject to the fundamental rights. Article 25(2)(a) of the Constitution

confers on the state the power to regulate any ‘economic, financial or

66

Gender and Community

other secular activity’ associated with religious practice. The right to freedom of religion is subject to the power of the state to impose restrictions on the grounds of ‘public order, morality and health.’ Under Article 25(2)(b), the Constitution, gives full permission to the

state to amend the personal law in the ‘interests of social welfare and

reform.’?* It is significant that Article 25 begins with the assumption

that it might be alleged that such interests would clash with the right ‘freely to profess and practice’ religion. The drafters of the Constitution were aware of the potential conflict between the fundamental right to freedom of religion and the right to equality and the consequent duty of the state to initiate and sustain social reform. It is significant, in the context of their awareness of this potential conflict, that the drafters of

the Constitution considered themselves competent to abolish certain religious practices that were — in their view — incompatible with the

modern values of the Constitution.’ So, for example, they specifically inserted Article 17 which abolished untouchability among Hindus and

declared Hindu temples open to all Hindu castes.” Under Article 44, the state has the duty to actively reform discriminatory aspects of religion. Yet, under Article 15, the state is expressly

forbidden to discriminate on the basis of religion.** Secularism is

accepted as the cornerstone of Indian democracy and is a fundamental organizing principle of state policy towards religion.” In Kesavananda Bharati, the Supreme Court unanimously held that secularism is an

essential feature of the basic structure of the Constitution.*”” Secular-

ism in India has been defined as the equal treatment of all religions rather than as the separation of religion and politics.7* The Constitution conferred on the state the authority to regulate and control

religion.”” The role of the state was envisaged to be that of a social reformer and therefore, by definition, a religious reformer.

It is clear from the broad constitutional mandate to the state to regulate religion that secularism in India is not based onastrict separation between church and state. The drafters of the Constitution, although they borrowed heavily from the Constitution of the United States, did not explicitly incorporate the doctrine of a wall of separation between religion and politics.““° This departure from the classical liberal model of secularism was necessitated by the specific concerns of the drafters of the Constitution to create a modern nation-state and to integrate a multireligious populace into a unified nation. Upendra Baxi states that, according to the Constitution, secularism denotes that the state

Muslim Personal Law and the Constitutional Framework

67

shall not espouse, establish, or practise any religion and that the state

shall not use public revenues to promote any religion.”*! Secularism in

India has been interpreted by the courts thus: ‘This Article [Article 25] recognises the principle that it is [the] policy of the state to protect all religions but to interfere with none. It enunciates [the] tradition of religious neutrality of the state. The state does not identify itself with any

particular religion but gives equal protection to all.’”* There are, how-

ever, differing opinions as to what exactly is meant by ‘secularism’ in the Indian context. Marc Galanter notes that ‘there is disagreement about what this secular state implies - whether it implies a severe aloofness from religion, a benign impartiality toward religion, a corrective oversight of, or a fond and equal indulgence of all religions. But there seems to be a general agreement that public life is not to be guided by religious doctrines or institutions. There is a widespread commitment to a larger secular order of public life within which religions enjoy freedom, respect, and perhaps support but do not command obedience or provide goals for policy." Nevertheless, as he further notes, ‘the nature of the emerging secular order is dependent upon prevalent conceptions of religion, and the reformulation of reli-

gion is powerfully affected by secular institutions and ideas.’**

While the power to sustain the social reform of religion was conferred on the state, religious groups were given the right to institu-

tional existence, to own property, and to propagate their religion.”

Yet, the drafters of the Constitution did not specifically define either

religion or the extent of state power to reform religious practices. This

was left to the judiciary.“ They left it to the Supreme Court to consider

what constituted religion and what the range of permissible constitu-

tional limitations on the right to religious freedom was.””” To deter-

mine the boundaries of state regulation of religious freedom, the courts distinguish between ‘essential’ and ‘non-essential’ parts of religion.

Only the essential parts of religion are entitled to state protection.”

This distinction is useful in delineating spheres of authority. However, determining what is ‘essential’ and what is ‘non-essential’ is complex and difficult: who determines what is essential to the religion - the court, the person herself, or the representatives of the religion? To better understand the scope of religious freedom in the Indian context, we must, therefore, turn to the judicial interpretation of the Constitution. The scope of the freedom of religion guarantee was first considered by the Supreme Court in the Shirur Mutt case? which is the focal

68

Gender and Community

point of constitutional discussions on religious freedom.” The Supreme Court established the judicial position that for a religious practice to merit constitutional protection, the practice must exist, and it must be ‘essential’ to the religion.”*! At issue in the Shirur Mutt case was the right of religious endowments to manage their internal affairs. The court ruled that the management of religious endowments was a secular activity and, therefore, the state had a right to regulate it. The

court made a distinction between essential aspects of religion that were entitled to constitutional protection and non-essential or secular aspects that were subject to state regulation. This was the first time the court used the term ‘essential’ to the religion. Rather than relying on a simple assertion that a practice was, in fact, essential, the court held

that what constitutes an essential part of a religion is a matter to be determined by the court with reference to the doctrines of the religion in question.” Thus, the Shirur Mutt decision left it to the state, through the judiciary, to regulate social reform by deciding what level of autonomy is permissible for religious authorities and what aspects of religion may be transformed or reformed.” At the same time, it served to appease religious leaders by its deference to their authority in determining what constituted an essential part of religion. Over the years the Supreme Court has further restricted its deference to religious authorities conceded in Shirur Mutt. In an effort to balance religious freedom with the right of the state to effect social reform, the Supreme Court has defined religious freedom in a manner that accords greater power to the state to regulate religious freedom and to set the parameters within which religious freedom operates.” In Ram Prasad

v. State of Uttar Pradesh”? the Supreme Court established the position

that the court had the power to decide what constituted an essential aspect of religion. The issue before the court, in this case, was whether a government rule requiring government employees to seek its permission before entering into a polygamous marriage, irrespective of whether the individual’s personal law permitted polygamy, violated religious freedom under Article 25. The court decided that polygamy was not integral to the Hindu faith and that therefore religious freedom was not violated. Further curtailing the power of religious authorities to claim immunity from state action, in the Durgah Committee case,” the Supreme Court imposed an additional ‘rational’ requirement to the ‘essential practices’ test. Justice Gajendragadkar denied validity to ‘practices which, though religious, may have sprung from

Muslim Personal Law and the Constitutional Framework

69

superstitious and unessential accretions to religion itself.’°” The Supreme Court held that certain religious practices may have their source in superstition and thereby are peripheral to the central core of

the faith and cannot be entitled to state protection.*** The court thus

reiterated the distinction between secular practices of a religion and essentially religious practices, the former being subject to state regulation. In Devaru, the Supreme Court held that the state had the authority to undertake social reform measures even with respect to alleged essential aspects of a religion. At the same time, the court noted that essential aspects of a religion were to be determined by the group in

question.**” In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay*® the Supreme Court considered the constitutionality of a law preventing religious leaders from excommunicating members of the group.”*! In this case, the challenge to the statute was brought by the Syedna, the head of the Dawoodi Bohra community (a Muslim sect). The Supreme

Court held that the authority to excommunicate members constituted an essential aspect of religion and that it was within the authority of the religious leader to do so. According to the majority judgment of the Supreme Court, although it was accepted that excommunication might affect the civil rights of the person excommunicated, a law which prevented the leader of the sect from excommunicating members could not be held to be a law providing for social welfare and reform.” The Sardar Syedna court reiterated the view that the court has the authority to determine the objective question of whether a particular religious practice forms an essential part of religion. However, the court went on to hold that Article 25(2)(b), which permits the state to

make laws providing for social reform, did not cover the essentials of a religion. According to the court, ‘a law intended for social welfare

could not be permitted to reform a religion out of existence.* How-

ever, this aspect of the decision of the Supreme Court is an unusual one and has not been followed in subsequent cases.” Dhagamwar calls Sardar Syedna one of the most unfortunate judgments ever to be

given by the Supreme Court.” In Tilkayat Shri Govindlalji v. State of Rajasthan*® the question before the Supreme Court was whether the right to management of a religious endowment constituted a secular

activity associated with religion, and if so, whether it could be regulated by the state. To counter the effects of Sardar Syedna, Justice

Gajendragadkar ruled that if a secular practice was alleged to be an

70

Gender and Community

essential aspect of religion, the court would be justified in rejecting such a claim. The Supreme Court has thus carved out the boundaries of the right to freedom of religion and has established the authority of the state to intervene in religious practices. However, the relationship specifically between personal law as an aspect of religion and the capacity of the

state to introduce reform has been a matter of some debate.”*”

Although the state’s right to regulate and control freedom of religion with respect to religious endowments and religious educational institutions is established, the issue of personal law reform has invariably been countered by the argument that it constitutes an essential part of religion and is therefore beyond the scope of state regulation. As of yet, there is no authoritative Supreme Court judgment on whether personal law constitutes an essential part of religion and is thereby immune from state action. As noted earlier, the focal point of discussion in this regard is the

case of State of Bombay v. Narasu Appa.”® In this case, the defendant

filed a constitutional challenge to the Bombay Prevention of Bigamous Marriages Act. This statute prohibited polygamy for Hindu men, while Muslim men’s right to polygamy remained unchanged.” It was contended by the defendant that the statute prohibiting polygamy for Hindu men,2” and not for Muslim men, violated the right to freedom of religion under Article 25. The court had to rule on the permissible limits of state intervention in religion. The court held that the Bombay Prevention of Bigamous Marriages Act was a measure of social reform and that the state was empowered to legislate with regard to Article 25(2)(b), ‘notwithstanding the fact that it may interfere with the right of

a citizen to freely profess, practice, and propagate religion.’*”? Making a distinction between essential and non-essential

aspects of religion,

the court rejected the contention that polygamy was an integral part of the Hindu religion and maintained that it could be regulated by the

state.?”? The Narasu Appa decision established the judicial view, which remains unchallenged, that the state is permitted to reform personal law and that it is within the power of the court to decide what constitutes an essential part of religion such that it is immune from state action. The constitutionality of a statute prohibiting bigamy for Hindu men was again considered by the Madras High Court in Srinivasa Aiyer v. Saraswathi Ammal.*”° The court decided along the same lines as the

Muslim Personal Law and the Constitutional Framework

71

Bombay High Court in Narasu Appa and held that the freedom to practice religion was not an absolute right, as Article 25 itself states, but that it is subject to other provisions of the Fundamental Rights Chapter of the Constitution.” It was further held that Article 25(2) empowered the legislature to enact a law providing for social welfare and reform and that religious practice, therefore, may be controlled by legislation if the state thinks that it is necessary to do so in the interests of social welfare and reform.’”° The provisions of Article 25 establish the primacy of public interest over religious claims and confer on the state broad regulatory powers. The decisions discussed above illustrate the manner in which the Supreme Court has attempted to balance the right to religious freedom with the right of the state to intervene in religious practice to effect social reform. They are entirely consistent with the social reformer role ascribed to the state in the Constitution.””° Parashar states that ‘over a period of time the Supreme Court has come to accept that neither the individual nor the religious denominations could be given [a] carte blanche to decide what activities formed an integral part of their religion.’””” With the exception of Sardar Syedna, courts have consistently restricted the exercise of authority by religious leaders and curtailed the rights of religious institutions on the rationale that the activities curtailed have been secular practices. In Sardar Syedna the Supreme Court held that the essentials of religion are protected from state action and that measures of social reform may not be permitted to reform a religion out of existence. Yet, the ultimate authority of the state to decide what, in fact, constitutes an essen-

tial aspect of religion was left to the court. The view of the Supreme Court in Sardar Syedna is contrary to the intent of the drafters of the Constitution, which arguably was to permit the state to reform personal law even if this meant reforming the essential aspects ofa reli-

gion.”8 Dhavan argues that the Supreme Court, in balancing the

conflict between the need for secular control and social reform and the right to religious freedom, has permitted the legislature and executive great latitude, while the Supreme Court itself follows a somewhat ad hoc approach to deciding these issues.””? Over the years, the courts have enlarged notions of the secular management of religion to the point where virtually all parts of religion are deemed to be under state control, from the management of religious endowments, to the reinter-

pretation of the essentiality of religious practices.”*°

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Gender and Community

With regard to personal law, the drafters of the Constitution expressed two concerns: the social reform of the oppressive aspects of personal law with regard to women and children and the issue of cod-

ification.”*! That the Constitution specifically mentions the abolition of

untouchability and the opening of Hindu temples to all castes underscores the intention of the drafters of the Constitution that the state be

obliged to undertake the reform of discriminatory personal law.” Moreover, the fact that Article 44 directing the state to enact a UCC

was included in the Constitution makes it clear that the intention was to reform and phase out personal law.*8’ With regard to the reform of Muslim personal law, the focus has been on the issue of financial sup-

port for wives. Questions of the codification of law, the discrimination against women under personal law, the power of the state to reform religion, together with the immunity claimed against this power under religious freedom, have, in the case of Muslim

personal law, come

together on the issue of maintenance for Muslim women.™ The primary question raised in the cases before the Supreme Court has been whether Muslim wives are entitled to maintenance from their spouses under section 125 of the Criminal Procedure Code,?® the secular law of

maintenance, and for how long Muslim personal law entitles wives to spousal support, if at all. Shah Bano was the culmination of this controversy, although the issue before the Supreme Court was not specifically that of the relationship between personal law reform and Article 25. The Shah Bano decision came as the logical conclusion to a trilogy of cases that preceded it: Bai Tahira, Zohara Khatoon, and Fuzlunbi.28© The Shah Bano decision has to be considered in the context of the climate of judicial reformism led by Justice Krishna Iyer. The Supreme Court took a reformist attitude, informed by the notion of social and distributive justice in favour of the underprivileged and disadvantaged.”*’ The role of social reformer was seen as a judicial responsibility. Thus, the Shah Bano judgment began with a powerful indictment of the status of women in India and the need for reform: ‘Some questions which arise under the ordinary civil and criminal law are of far reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment. “Na stree swatantramrhati” said Manu, The law giver: the woman does not deserve independence. And it is alleged that the “fatal point in Islam is

the degradation of woman.”’*** The court thus highlighted the sys-

Muslim Personal Law and the Constitutional Framework

73

temic, traditional discrimination against women in Indian ‘society, drawing attention to the subordination of Indian women at the root of Indian society as a whole and to the need for a progressive interpretation of women’s rights. The court noted the lack of a state initiative to enact a UCC on the dubious premise that the Muslim community must take the lead in

reforming personal law.””? The court stated that ‘no community is likely to bell the cat by making gratuitous concessions on this issue. It is the state which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.’*”’ The court emphasized the need for a

UCC to address gender discrimination.”

The Shah Bano judgment is in keeping with the intention of the drafters of the Constitution who were specifically concerned with

reforming exploitative aspects of personal law.””* While the Supreme

Court has not resolved constitutional challenges to personal law, the Shah Bano case has serious constitutional implications. Although the issue before the Shah Bano court was the applicability of secular law to Muslim women,

rather than the constitutional validity of personal

law, it categorically called upon the state to enact a UCC to address gender inequality in personal law. The judgment was a powerful indictment of the role of the state. It emphasized the duty of the state to go beyond superficial social reform to address gender discrimination in personal law.*”? The Supreme Court admonished the state for ignoring the directive of Article 44 in the interests of political expediency. Stressing the need for a UCC, the Shah Bano judgment emphasized that the exploitative tendencies of personal law must be eliminated. Although freedom of religion is a fundamental right granted by the Constitution, this right is not absolute. The state has the overriding power to regulate religion to effect social reform. The Constitution contains a commitment to root out discrimination and injustice. It does not permit ‘any religion to sustain any pattern of social and economic ine-

quality.’*"4 The duty of the state to assume a positive role in addressing

discrimination under personal law is clearly established. The emphasis on eliminating injustice under personal law does not necessarily preclude a sensitivity to the imperatives of group identity and to the sig-

nificance of religion in India.””” Yet, the Supreme Court’s categorical acknowledgment of discrimination against women

inherent in per-

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Gender and Community

sonal law was summarily dismissed by the state when it gave in to fundamentalist demands and abrogated the Shah Bano decision to enact the Muslim Women’s Act. Thus, out of political expediency, the state once again subordinated the rights of women to the presumed interests of the Muslim community.

chapter three

Naming the Issues

The rise of religious fundamentalism and the politicization of religious identity are prominent features of Indian society today. A significant aspect of these trends has been the attack on women’s rights. Personal law has become the site for the contestation of power as the state and conservative religious leaders struggle to retain authority. Experience has shown that neither the state nor the representatives of the Muslim community have been willing to reform the law to grant Muslim women greater rights. Despite the adoption of a democratic, secular Constitution that guarantees equality and freedom from discrimination, Muslim women continue to be denied equality within the family and the community by the continuance of personal law. The significance of the controversy generated by Shah Bano, and its culmination in the passage of the Muslim Women’s Act, lies in the manipulation of religious identity for political gain and the subordination of women’s rights to the presumed interests of the Muslim collectivity. The manner in which fundamentalists use arguments of ‘religion,’ and

‘cultural identity’ to circumscribe

Muslim

women’s

rights underscores the need to interrogate notions of ‘religion,’ ‘culture,’ and ‘identity.’ Women’s rights and group rights are presented as oppositional. However, the two are not by definition mutually exclusive, and this false dichotomy has served to marginalize the interests of Muslim women. We need an integrated analysis of the specificity of Muslim women’s situation and of the Muslim collectivity to respond to both individual and collective rights without universally privileging either one.

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Gender and Community

‘Religion’ and ‘Culture’ Unmasked

The current sharpening of the politico-religious identity of Muslims in India has its roots not only in the history of Hindu-Muslim interaction, but also in the use of religion to increase group solidarity to gain political power. Group identity, or a particular aspect of group identity, is not just given, but often is created to forward particular claims. Identities are historically and discursively created, and the state, too, may fashion identities.’ Notions of religion and culture, which are central to group identity, must be situated within the wider political and economic context. They have been the site of the contest for political power and arguments based on the primacy of religious authority have been used by fundamentalist leaders and by the state to safeguard their own interests. Islamist leaders have used religion as a rallying point of group identity for Muslims, to express the solidarity of the community and to legitimize their quest for political power. Thus, they have an interest in maintaining a pronounced religious identity. Fundamentalist discourse is predicated on the notion that Muslim identity is in danger, that the community must therefore return to a fixed and unchanging tradition, and that identity lies in the ‘personal sphere.” Personal law is emphasized as a signifier of this distinct Muslim identity. Family and religion are sought to be guarded against any outside influence as fundamentalist leaders stake their claim to an Islamic pri-

vate sphere.? The growth of fundamentalism has resulted in the privileging of religious identity over all other identities. This identity is imposed on individuals by birth — not by choice — and there is no accommodation of other beliefs or allegiances. Exclusionist identities are sought to be created on the basis of religious difference, while religious symbols are used and manipulated. Identity is seen as fixed and primordial and history is viewed as static and unchanging. The reconstruction of religious identity focuses on a return to an imagined traditional society, a definition of ‘self’ in opposition to the ‘other,’ and a rejection of difference within the collectivity. Valentine Moghadam notes that ‘a central manifestation of fundamentalism — be it Islamic, Christian, Jewish, or

Hindu - is an attempt to circumscribe women’s freedom and identity. Alternative forms of identity, such as feminism, become suspect and

unacceptable.”

The rearticulation of gender identity, and through it, of community identity, is central to the fundamentalist project. Women are seen as

Naming the Issues

77

cultural markers of the group, signifying the boundaries between ‘self’ and ‘other.’° They are, at once, the instrument and the symbol of group integrity. Their roles are sought to be controlled as they are seen as the ‘transmitters of group values and traditions and as agents of the socialization of the young.’© The supremacy of the community over the individual is reinforced by the gender ideology of fundamentalism: a woman’s place is in the home and women’s roles are restricted to gender stereotypes of mother, wife, and daughter. Notions of the ideal woman and the ideal society go hand in hand, as women are made to conform to ‘an idealized construct of woman and community.” The traditions that are resurrected are often both invented and selective.® It is no accident that culture and tradition make far greater claims on women and that personal law confers far greater rights on men. By opposing the enactment of a UCC, and by stifling attempts at progressive reform of family law, fundamentalists have sought to keep women hostage to narrow, patriarchal interpretations of religion, tradition, and

culture, denying women their rights as citizens. There is a critical need to interrogate the argument of ‘religion’ by asking,

‘Who

controls

the values,

symbols,

and

culturally-created

myths of a particular society? In whose interests are these myths perpetuated and in securing these interests, which group is denied its full potential in terms of human expression and expectation?” The masking of male agency in the perpetuation of oppressive practices serves to obscure who really benefits from such a practice and who is harmed.!° By concealing the reality that such practices were created by human agency, invariably male, religious leaders hide the fact that ‘culture’ was created to suit certain interests and to preserve the power of certain sections of the community.” By characterizing discriminatory practices as a custom or tradition, fundamentalist leaders obscure their origin and context, and most importantly, whose interests they serve.” In the justification of discriminatory practices, the agency of patriarchies in perpetuating women’s oppression is erased by the very terms of the discourse of religious identity. As Jill McCalla Vickers puts it, ‘human action is sterilized and pasteurized into a parade of forces, factors, roles, structures, institutions, stereotypes, rites, constraints, cus-

toms, attitudes and influences, to name but a few.’!? Women have not

been free to use their power to name themselves, the world, or God.”

While acknowledging that naming in and of itself is not enough, and recognizing that relations of force and of power are central to the

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empowering potential of naming, nevertheless, the power of naming is crucial to women’s rights and to a transformation of society. Muslim women have been denied this power. This fact is important when locating Muslim women within fundamentalist discourse, as indeed, within the state’s discourse of the pro-

tection of minority rights. Muslim women have been excluded from the interpretation of religious texts, from articulating their interests, and from participating in the dialogue between state and community to reach an understanding as to what aspects of their rights may be negotiated and what may not. In the context of Muslim women, discrimination under personal law is justified by the leaders of the community and accepted by the state as being an essential part of religious faith. This is demonstrated by the Shah Bano agitation and the Muslim Women’s Act wherein the state accepted the narrow definition of culture and identity articulated by the fundamentalists, ignoring women’s demands. Upon examination of the argument of ‘culture’ and ‘religion’ put forth, it becomes apparent that ‘men as a group benefit from these same arrangements by which women are deprived.’ While the Muslim Women’s Act deprived Muslim women of the right to seek spousal support upon divorce, Muslim men’s right to unilateral divorce without judicial regulation was upheld and privileged. Shah Bano was reviled for betraying the community while her husband Mohammed Ahmed Khan was hailed by religious leaders as a good

Muslim.'® Significantly, of the changes in personal law initiated by

the Ulema, none ameliorated the problems experienced by Muslim women. On the contrary, they served to reinforce male privilege. The Muslim Women’s Act was opposed by a broad coalition of feminist groups, reformist Muslim organizations, civil liberties groups, and Muslim women.!” For large numbers of Muslim women who supported the judgment, it was seen as an important vindication of the rights of Muslim women whose status had been exploited by patriarchal interpretations of Muslim law.'® Several women’s organizations submitted a memorandum to the government stating: ‘It is precisely because it is an issue not of religion but of women’s rights that, despite the tremendous pressure being exerted upon them, Muslim women throughout the country have raised their voice in support of the judgment.’!? The Committee for the Protection of the Rights of Muslim Women, with a solely Muslim membership, was formed by Muslim women in New Delhi to oppose the Muslim Women’s Act and to counter fundamentalist as well as state claims that there was no oppo-

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79

sition to the Act from the Muslim community.””? New Muslim feminist groups were formed to oppose the Act: the Goa Muslim Women’s Association and the Bharatiya Talaq Pidit Mahila Parishad in Maharashtra, among others.2! Muslim women organized demonstrations

and marches against the Act throughout the country.** Women dele-

gates of a Muslim reformist group, the Muslim Satyashodak Mandal, from the State of Maharashtra came to the Parliament in New Delhi to protest against the Act. A well-known Muslim feminist Shahjahan made a speech in New Delhi in front of the Parliament stating that ‘if by making separate laws for Muslim women, you are trying to say that we are not citizens of this country, then why don’t you tell us clearly and unequivocally that we should establish another country — not Hin-

dustan or Pakistan but Auratstan (women’s land).’” There were significant sections of the Muslim population opposed to the Act, and the fundamentalist campaign for the denial of rights to Muslim women certainly did not reflect the opinion of the Muslim collectivity. Yet, the government accepted the fundamentalist leaders as the true representatives of the Muslim community, ignoring moderate

and progressive opinion within the community.”* By accommodat-

ing fundamentalist demands, the state allowed the Ulema to appropriate for themselves the role of the sole arbiters of Muslim interests. The state thereby accepted the notion that the Muslim community is undifferentiated and homogeneous and that personal law is the pri-

mary signifier of community identity.” In doing so, the state legiti-

mized the narrow interpretation of community identity and women’s rights as posited by the Ulema. This raises serious questions about representation. The Ulema, who led the campaign against the Shah Bano decision felt threatened by the Supreme Court interpreting the Shariat. This was perceived as a direct challenge to their:authority as the sole interpret-

ers of the holy texts.?° The Supreme Court’s emphasis on the enact-

ment of a UCC was seen by the Ulema as an abrogation of Muslim personal law and Muslim group values.”” The Shah Bano case was seen by Muslim religious leaders as a pretext to attack the community, and they raised the slogan, ‘Islam in Danger.’ The religious leaders argued that the decision was a threat to the religious autonomy of Muslims and an attack on their identity. The granting of maintenance to a Muslim woman under secular law was seen as violating Muslim personal law, which in turn, implied a threat to Muslim identity.”? The Ulema’s campaign against the Shah Bano judgment resonated with vast num-

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bers of the Muslim community and several conservative Muslim politicians who vociferously condemned the decision.” Throughout the world, fundamentalism has been able to rationalize

gender discrimination and to mobilize women in support of their own

oppression.*” Women are exhorted by fundamentalist leaders to main-

tain the unity of the group in response to an external threat. The Shah Bano agitation accordingly also drew support from some Muslim women who condemned the Supreme Court decision as being an inter-

ference in the internal affairs of the Muslim community.*' This support

for the fundamentalist campaign is an example of the manner in which gender and community interests are negotiated and contested. Thus, fundamentalists are able to manipulate women to subordinate their interests in the presumed larger interest of the group. By mobilizing women around the issue of Islam in danger, the fundamentalists were

able to claim that they represented the ‘true’ desires of ‘their’ women and to accuse feminists of being both unrepresentative and dictatorial.** While the presence of some women within the fundamentalist movement does not signify the willingness of women to be subjected to oppression and subordination,’ the pressure for conformity, nevertheless, has to be acknowledged as being extremely persuasive for women who felt unable to challenge the Muslim Women’s Act. Women’s claims to equal rights are seen as a betrayal of the community, the culture, and the religion.* The Shah Bano agitation demonstrates that any challenge to discrimination under personal law is seen as a threat to the essential identity of Muslims, notwithstanding that such a challenge might, in fact, come from within the group itself. Both outsiders and those who challenge structures of authority from within, are constructed as the demonized ‘other.’ Although the Ulema have resisted attempts at reforming Muslim personal law, arguing that it is

divinely ordained and cannot be modified by human agency,” they

have over the years used legislative procedures to modify and amend

personal law.*” However, far from modifying personal law in a pro- ° gressive direction to address the disadvantage of Muslim women, they have curtailed women’s rights and perpetuated their subordination. Significantly, the religious leaders did not use this issue as an opportunity to address the feminization of poverty or the economic and social _ vulnerability of Muslim women. The demarcation of boundaries between ‘self’ and ‘other,’ women and men, ‘true’ Muslim women and

feminists, is an important aspect of fundamentalist ideology exemplified by the campaign for the Muslim Women’s Act. It serves to legiti-

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81

mize and mystify social reality.°* This demarcation further serves to maintain social and political dominance over women, and in doing so, religious leaders have sought to preserve the patriarchal status quo, while consolidating their hegemony over the interpretation of the holy texts.

The fundamentalists’ campaign for the Muslim Women’s Act defined community identity centred around religio-cultural definitions

of women.*’ The debate crystallized into one between the opposing

forces of ‘tradition’ and ‘modernity.’ The fundamentalists constructed the argument of ‘tradition’ versus ‘modernity’ in order to discredit feminists, especially those within the Muslim community. Feminism was constructed as an oppositional discourse, both by the fundamentalists explicitly and implicitly by the state, in its accommodation of fundamentalism as in Shah Bano. In response to the challenge from Muslim women, fundamentalist leaders and the state argued that none of these women represented the ‘real’ desires of ‘real’ Muslim women.”° Muslim women who demanded change were thus erased from the discourse of personal law reform and replaced by imagined women as representatives of the true desires and interests of the Muslim community. The very real experience of discrimination and subordination of women was excluded. Shah Bano became no more than a metaphor in fundamentalist discourse, as the issue of Muslim women’s rights was

erased, locating Muslim women exclusively within the family and the community. The disadvantage of Muslim women, as reflected in Shah Bano’s

particular

situation,

was

redefined

by the fundamentalists

within the discourse of group identity.*' The non-recognition of a gendered identity and the imposition of the duty on Muslim women to uphold community integrity is demonstrated by the pressure exerted upon Shah Bano to speak out against the Supreme Court decision. Fundamentalist leaders prevailed upon Shah Bano to make a public declaration that she opposed the Supreme Court decision awarding her maintenance.” Shah Bano was compelled to assert her loyalty to the Muslim community and the Muslim faith by rejecting not only the Supreme Court decision in her favour, but also the campaign by feminists to use her case to highlight the need for a Uniform Civil Code. In an open letter, Shah Bano rejected the Supreme Court decision, stating that, ‘since this judgment is contrary to the Quran and the hadith and an open interference in Muslim personal law, I, Shah Bano,

being a Muslim, reject it and dissociate myself from every judgment

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which is contrary to the Islamic Shariat. I am aware of the agony and distress to which this judgment has subjected the Muslims of India

today.’ Thereafter, Shah Bano was lauded by religious leaders for

having become a ‘true’ Muslim woman.” The Shah Bano case demonstrates the manner in which women are central to fundamentalist discourse, while their rights are not. It suggests that ‘the rhetoric of communalism makes use of gender from its own ideological perspective and frames women narrowly.” The fact that identities represent entitlement to a society’s resources is central to the increased focus on emphasizing group cohesiveness. As the Ulema seek to assert their legitimacy as the sole representatives of the Muslim community, there is less tolerance for dissent within the group. In seeking to homogenize the collectivity, fundamentalist leaders deny the recognition of difference within the group. Women, who are the least powerful within the Muslim community, are most affected

by the insistence on conformity.”* In stifling attempts by women to challenge discriminatory aspects of personal law, which are seen ulltimately as threats to their own authority, the Ulema then fail to represent or speak to the reality of Muslim women. The recognition of the manner in which culture and identity are manipulated to subordinate women does not exclude the possibility of women using these same arguments in subversive paradigms. The very margins to which women are relegated can be the sites of resis-

tance against hegemonic discourses.*” It would be wrong to view Muslim women solely as passive victims of patriarchy.*® To do so would be

to deny the many ways in which Muslim women seek to rearticulate and renegotiate their identity and to deny the very real ways in which they have exercised agency and sought to resist oppression.*”? Women have resisted their subordination and attempted to redefine their rights, although these attempts have been quashed by vested interests of the community as well as of the state. Shah Bano attempted to claim her rights in the face of opposition from within the community. She challenged the community from within, problematized the discourse of religious identity, and disrupted the complacency of the public/ private split. There have been increasing challenges to male authority and privilege through the secular law as women have been demanding their rights to property, divorce, and spousal support, as indeed Shah Bano asserted her rights.°’ These challenges result in the reassertion of control and the strengthening of patriarchal power structures.°! The Shah

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83

Bano case and the Muslim Women’s Act demonstrate this tendency, as

fundamentalist leaders made attempts to bring Muslim women back under the control of the family and the community. As Fatima Mernissi puts it: ‘If fundamentalists are calling for a return to the veil, it must be

because women have been taking off the veil.’ Muslim fundamentalist opposition to the Shah Bano decision was premised on resistance to state hegemony in the autonomous sphere of Muslim identity and personal law. Although the fundamentalists welcomed the Muslim Women’s Act as a victory over the state, they have

in fact secured state backing to enforce their control over Muslim women. By insisting that the law be codified and enforced by the state judiciary, and by inserting the provision in the Muslim Women’s Act? that ultimately the financial support of divorced Muslim women is the responsibility of the Wakf Boards, which are administered and controlled by the state, the fundamentalists have created a far greater role for the state in the affairs of the Muslim community and have

increased state control over Muslim women.” As evidenced by the reaction to Shah Bano, ‘culture,’ ‘religion,’ and

‘identity’ are manipulated by those in power to defend the gender status quo. As Valentine Moghadam argues, ‘Islamist movements appear to be archaic but in fact combine modern and premodern discourses, means of communication, and even political institutions. These move-

ments must therefore be seen as both reactive and proactive.’””° In

many ways the dichotomy set up between tradition and modernity is false. The issue is far more complex and nuanced than this simple dichotomy. Fatima Mernissi points out that ‘the call for Islam in the 1990s expresses diverse needs that are not always archaic and are certainly not always ofa spiritual nature.” She cautions us against viewing fundamentalism simplistically as ‘an expression of regressive medieval archaisms’ and calls for recognizing it, on the contrary, as a

political statement.*8

From the perspective of Muslim women, it is crucial to problematize notions of culture, social practices, and political discourses that exclude women’s voices; reject the existence of difference within the Muslim collectivity; and deny the reality of intersecting oppressions.”” For too long, Muslim women have been forced to choose group identity over gender identity to forward group claims. We need to move beyond the biological determinism and gender essentialism of fundamentalism that reifies gender stereotypes and frames women far too narrowly. However, in rejecting the fundamentalist privileging of

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religious identity over all others, we must ourselves be wary of privi-

leging in its place a unitary gendered identity.’ We need to have an

understanding of the multiple consciousness within women and of the

multiple identities to which they exercise allegiance.” It is critical for

the gender equality prospects of Muslim women to have a UCC that is informed by a notion of intersecting oppressions and which can respond to the reality of women’s lives as they are shaped by multiple identities and by the intersectionality of class, ethnicity, sexual preference, religion, and other situated experiences. Muslim feminists and reformists have reappraised and discarded many traditional interpretations of Islamic sources and argue that Islam supports reforms in the premodern Shariat rules — reforms designed to ensure the equality of the sexes. These feminists, the ‘new feminist traditionalists," together with reformist scholars constitute an important ideological current in the struggle for women’s rights in Muslim

communities.

Abdullahi

An-Na’im,

a prominent

reformist,

suggests that, although the notions of women’s human rights and gender equality do not exist in the Shariat, it is possible to reinterpret the Shariat to be consistent with the protection of women’s rights and with

the notion of universal human rights. He argues that for human

rights to have any legitimacy in the Islamic world, they must be located within the framework of Islam.®° Feminists working within the Islamic framework have attempted to offer verses from the Koran and to resurrect traditions that show that women’s equality is affirmed by

the Shariat.©” Muslim feminists specifically refute the fundamentalist

interpretations of key verses relating to women in the holy texts. There is an attempt to resuscitate early Islamic history to formulate an indigenous feminist project or, at the very least, encourage a more progressive reading of the texts that are regularly invoked by the tradi-

tionalists to justify the gender status quo. Muslim feminists believe that feminist reinterpretations of the texts are necessary in light of the egalitarian aspect of Islam, and they challenge the interpretation of male guardians of the texts. In reappraising the theological justifications offered for restricting women’s rights, Muslim feminists argue that these restrictions are the result of male bias and cultural norms portrayed as religious rules.” Muslim feminists adopt a spectrum of positions. There are those who suggest that Muslim women are not any more oppressed than women in other religious traditions, and there are those who argue that, although in practice women are oppressed, this inequality is not part of true Islam and

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85

not intended by the Koran, but rather a product of Arab patriarchy and foreign influence.”” They argue that the Shariat does, in fact, call for equal rights for women and draw upon the early juristic traditions of Islam to support their argument. They blame the current status of women on what they perceive as distortions of the original, authentic Islam by male interpreters of Islamic sources who have vested interests in the preservation of patriarchal privilege.”1 Feminists have been inclined to dispute the authority of the later juristic tradition and suggest that its gender bias is the result of influences from local cultures

that are essentially contrary to Koranic ideals.” Riffat Hassan, Ziba Mir-Hosseini, and Azizah al-Hibri are prominent examples of contem-

porary Muslims who have re-examined the sources and concluded that Islam calls for equal rights for men and women. The favoured sources of such works continue to be the Koran, the hadith, and the

lives of prominent women in early Islam. Historically, Koranic rules were not observed uniformly or rigidly, much depending on what

suited the ruling male elite.” It is this contextual interpretation and

application of Koranic rules that provides some justification for Muslim feminists and reformists who wish to reinterpret the holy texts to derive more progressive interpretations of women’s rights. Muslim feminists have been engaged in attempts to reread religious

texts to find Islamic solutions to women’s inequality. ”* They reject

Western feminism, arguing that Islam can best respond to the needs of Muslim women.” The reinterpretation of religious texts by women is seen as an important way to oppose the fundamentalist position.”© However, the question is to what extent can such a rereading grounded in the Shariat accommodate women’s rights? Ziba Mir-Hosseini argues that a feminist rereading of the Shariat is possible —- even becomes inevitable — when Islam is no longer part of the oppositional discourse in national politics, as it is in Iran.” According to her, in order to oppose state-based

Islam, which

seeks to undermine

women’s

rights, it is

essential to articulate a feminist reinterpretation of women’s rights within the Shariat to better refute state policies said to be Islamic. MirHosseini believes that Muslim feminists’ advocacy of women’s rights, with Islam as the source of legitimacy, opens up the possibility of challenging state Islamic discourse on its own terms. Thus, in Iran, Muslim

feminism, although grounded in the Shariat, is radically different from state Islamic discourse and has challenged the traditional patriarchal interpretation of gender rights in Islam. Iranian feminists have used the discourse of religion to make signifi-

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Gender and Community

cant advances, successfully using revivalism to combat the Islamic republic on its own terms. ’8 Although the reimposition of Islamic laws has caused Iranian women to lose much of the progress made, assisted by secular feminists, they have been able to use religious arguments to their advantage, especially in areas of education and employment. As Mir-Hosseini points out, it is Muslim feminism that is able to effectively challenge the hegemony of orthodox interpretations of Islam’s holy texts.”? Muslim feminists have earned acertain legitimacy by arguing from within the Islamic paradigm, thus undermining the accusation that feminism is Western and un-Islamic. Arguably, this is an important factor in legitimizing the struggle for women’s rights in a Muslim society. The advantage of such an approach is that, although seen by fundamentalists as betrayers of the community, they feel confident that they remain within the religious and cultural traditions and norms of their communities and therefore enjoy a cultural legitimacy. Azizah al-Hibri blames patriarchal culture rather than Islam itself

for contributing to the subordinate status of Muslim women.*? She

argues that Islam is not oppressive to women and seeks the answer to

the ‘woman question’ within the holy texts themselves.*' Al-Hibri sup-

ports her argument by citing favourable verses of the Koran® and by offering a reinterpretation of select verses concerning women, arguing that although different from the interpretation by traditional jurists,

they are based on traditional religious and linguistic sources. She

emphasizes that it is only a culturally specific solution, grounded in Islam, that can effectively address women’s rights in Muslim societies.84 According to her, this approach is more favourable than the imposition of women’s rights by a secular approach or as imposed by an authoritarian state. She argues that, because Muslim women

are

attached to their religion, it is only the creation of a Muslim feminist jurisprudence, validating Muslim women’s rights within Islam, that can advance their rights. She calls for a Muslim feminist jurisprudence, free from the influence of patriarchal cultural biases, which will return

society to the true Koranic principle of equality. Similarly, Leila P. Sayeh and Adriaen Morse assert that Islam, as it is interpreted and practised today, especially with reference to the status of women, is not true to Islam as intended by the Prophet.®° Maha Azzam acknowledges that in trying to read liberal ideas into the received precepts and rules, women will necessarily come up against basic principles that discriminate against women. This is especially true of women’s rights within the family. Yet, in the context of

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87

state Islamicization, she notes that Islam as a cultural value system has been and continues to be important to Muslim women. Therefore, via-

ble change has to be within the Islamic framework because it remains within socially accepted norms and enjoys a legitimacy that makes it hard to challenge.®° Such an approach has been successful in Muslim states where Islam is the official state discourse. There, feminists are

able to challenge male interpretations of the holy texts by offering alternative progressive interpretations within the framework of Islam itself, thus, retaining a certain cultural legitimacy and popular support. Riffat Hassan, a prominent feminist theologian, argues that Islam is the single most important factor in planning social change, and no change can be instituted from outside the framework of normative Islam.*” She argues that regressive laws, justified in the name of Islam, can be overturned by combining political action with religious argument. Although Islamicization has succeeded in eroding women’s rights, Hassan argues that the Koran itself does not discriminate against women and that human rights and Islam are not incompatible.*® Rather, it is the male interpretations that serve to subordinate women. Therefore, she calls for developing feminist theology in the context of Islam — a scholarly feminist examination of Islamic texts to reinterpret women’s status and rights in accordance with the true

intent of the Koran.® Asghar Ali Engineer, a well-known Indian reformist, argues that the Shariat is the product of an evolutionary process of interpretation and is not immutable. On the contrary, it is open to change and reinterpre-

tation in keeping with the contemporary social and political context.””

According to him, it is patriarchal culture rather than religion that is

responsible for the subordinate status of women.”! Specifically with

regard to the status of women under Muslim personal law, Engineer emphasizes the evolutionary aspect of the Shariat.” Instead of relying on selective reinterpretation of the Koran, he calls for the application of situational rather than transcendental law within the context of an Islamic approach. Engineer advocates the progressive reformulation of Shariat principles and laws relating to women in keeping with Koranic principles and experiential context. According to him, such a reformulation does not constitute a challenge to past jurists, but rather, a continuation of their tradition of reinterpretation to suit current contexts. He advocates a reconstruction of received Shariat traditions regarding the status of women based on the methodology of progressive reformulation yet within the context of normative Islam.

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Gender and Community

The Sudanese reformist Shaykh Taha placed emphasis on the early Meccan verses rather than the later Medinan verses generally accepted as being less tolerant of women’s rights.” Abdullahi An-Na’im, in continuation of his mentor’s work, advocates the evolutionary principle of Koranic interpretation to read in women’s rights. He calls for the creation of a new Shariat based on the tolerant egalitarian Meccan revelations. Although

he, too, emphasizes

the need

to work

within

the

framework of Islam to have cultural legitimacy, he does not see the holy texts as immutable. In his view, even the religious texts are open to reinterpretation, and he argues that there is no need to be bound by the Shariat as it is known today.” An-Na’‘im, however, goes beyond the position adopted by most Muslim feminists. He argues that the approach of some Muslim feminists, emphasizing the positive aspects of the Shariat and overlooking the negative, as well as the approach of others who restrict their analysis just to the Koran, selecting only those verses favouring women while not engaging with verses that have been interpreted by traditional jurists, are conceptually flawed. According to him, ‘Sharia is a complex integrated whole and must be perceived as such.’ An-Na’im makes the radical argument that this manner of overlooking the existing negative impact of the Shariat on women’s rights is unsatisfactory as it is an integrated body of work which cannot be split up without destroying its coherence.”° He also makes the point that such a process

is inevitably contrived and strained.”” While acknowledging that reli-

gious leaders control and limit the possibilities of reform within the

framework of the Shariat,”® drawing attention to the fact that the Shar-

iat reflects specific historical interpretations, An-Na’im calls for reestablishing the tradition of the reinterpretation of the Shariat in keeping with the modern context.” An-Na’im emphasizes that although the dichotomy between secular and religious discourse with regard to women’s rights is somewhat false and exaggerated, its implications for women’s rights are serious. He underscores the importance of reconciling and integrating the two in order better to promote women’s human rights in Islamic societies.’” An-Na’im notes the necessity of engaging in an Islamic discourse and calls on women’s rights advocates to challenge traditional, so-called Islamic doctrine and dogma, as

well as to develop and articulate their own Islamic justifications for

women’s rights.’°! An-Na’im argues that there is an organic interde-

pendence between human rights and religion.’ Despite the obvious tensions and conflicts between human rights and prevalent interpreta-

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89

tions of religion, he calls on human rights’ advocates to engage in a constructive dialogue with religious leaders to promote those aspects of religious belief and practice that are supportive of human rights.!° Accordingly, An-Na’im posits that the issue of gender inequality in Muslim family law ‘can be overcome through a process of reinterpret-

ing the fundamental sources of Islamic tradition.’’™ He calls for mod-

ern Muslim jurists to substitute earlier texts with other reinterpreted

texts in a systematic manner.'© This reinterpretation and substitution

of a modern Shariat would be ‘based on the timing and circumstances of revelation as well as the relationship of the texts to the themes and

objectives of Islam as a whole.’!% An-Na’im suggests that, although

not an easy task, change can be brought about by legitimating the value of gender equality through discourse between the community

and the state and within the community itself.”

The logical extension of An-Na’im’s argument, applied to Muslim women in India, would be a call for the reform of Muslim personal law by including women’s rights guarantees. An-Na’im’s argument, however, seems to me to be somewhat idealistic given the experience of

Muslim women in India today. It seems unlikely that a reinterpretation that retains the Shariat as the paramount authority to regulate Muslim women’s rights would, in today’s political climate of extreme religious fundamentalism in India, result in an amelioration of the situation of

women. There is no room in religious discourse, as it exists today, for the reformulation of women’s rights solely within the parameters of the Shariat. The intense politicization of religious identity has resulted in a strengthening of group boundaries and a move away from dialogue to assertion and counter-assertion. In light of Muslim women’s experience in India, where the rise of religious fundamentalism has resulted in a vituperative attack on women’s rights, the possibility of dialogue among religious leaders seems unlikely. The state has demonstrated an ambivalence towards upholding women’s rights when they conflict with religious rights. Fundamentalist leadership, through the creation and socialization of culture and identity, serves to legitimize|

women’s subordination and privileges patriarchy." Both state and

religious leadership mutually reinforce this notion of community iden-

tity.! There does not appear to be the possibility of an emancipatory

dialogue in the discourse of fundamentalism. There isa critical need, therefore, to separate religion from family law and to have a Uniform Civil Code premised on gender equality. To seek a transformation of society through an Islamic framework

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Gender and Community

reinforces notions of ‘self’ and ‘other.’ Furthermore, it perpetuates divisive identity politics whereby collective action is blocked and coalitions between women and other disadvantaged groups are prevented. To situate oneself solely within the Islamic framework leads to the reinforcement of the terms of debate as established by the fundamentalists and to a focus on religious identity to the exclusion of others. Such a totalitizing unitary focus precludes the possibility of multiple allegiances and reifies hierarchical rather than relational articulation of political positions. Muslim

feminists, like fundamentalists,

locate

themselves in a ‘true’ Islamic tradition and hark back to a golden past

glorifying the historical status of women in Islam." Arguably, such an

approach to the issue of women’s rights succeeds more in critiquing certain problems rather than in attacking the very foundation of patriarchal domination, structural inequalities, and the resultant inequita-

ble gender relations. Both feminists and fundamentalists are concerned with reviving ‘true’ Islam, thereby reinforcing the notion that Muslim women’s rights can only legitimately be debated within Islam. To this extent they remain within the parameters of debate as set by the fundamentalists themselves. To do battle with the fundamentalists on the ideological terrain of theological interpretation is to do battle on their terms. ''! For every progressive interpretation can be, and is, refuted by counter-interpretation. The disadvantage of such an approach is that it ‘results in perpetuating ahistorical analyses of the status of women in

Islamic societies.’"? As long as the referent for the debate on Muslim

women’s rights is religion and culture as interpreted by traditionalist men, women will continue to be at a disadvantage.’ While it is true that by remaining within the Islamic framework, feminists retain a degree of cultural legitimacy, it is also true that to do so reinforces the political project of fundamentalism and its notion that religion is the

sole basis of women’s status.'™* To defer to religious leaders in matters of women’s legal status confines the discussion to a theological debate rather than opening it up to

questions of systemic discrimination and women’s marginalization.’

It reinforces the dichotomy between tradition and modernity, leaving the discussion of women’s status linked with issues of religion and tradition. As a political argument, this false dichotomy holds women back from true equality. The issue of women’s status can only be resolved within a truly representative, democratic framework.® To call for the separation of religion from law is not to call for a separation from a specific cultural context, nor does it signify a lack of awareness

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91

of the historic situatedness and the discourses of imperialism and colonialism. Arguably, it is only such an approach, free from the political project of fundamentalism, and cognizant of the validity of a plurality of identities that can successfully advance women’s rights. The abiding problem for women’s rights advocates in Muslim societies is the construction by fundamentalists of feminism as Western and un-Islamic. Some Muslim feminists, too, in their rejection of West-

ern feminism and the quest for an indigenous feminist project set up too sharp a dichotomy between Muslim feminists and secular feminists. An-Na’im highlights the need for diversity and plurality of religious as well as secular advocacy strategies without suggesting that there is no distinction between the two. In particular, An-Na’im asserts that it remains important to retain this distinction to ensure that religious dogma is not made the basis of either political authority or of

women’s legal status.’!” Identifying secularism with Western culture

raises issues of cultural relativism and universalism, and sets up a problematic dichotomy between West and East. This reinforces the tra-

dition/modemity binary, when, in fact, the two are not opposites."®

As a theoretical concept, cultural relativism is advanced as an argument for protecting and promoting diversity and for upholding cultural specificity in the face of universal discourses. However, Islamists

attack the notion of universal human rights as Western and imperial-

ist.° They invoke the argument of cultural relativism as a defence

against women’s rights, as gender relations and women’s status within

the family are singled out as markers of group integrity.'*” They use

the argument of cultural specificity to justify the lack of reform in personal laws and to deny women equality. This is reflected in the number of reservations made by Islamic states to the Women’s Convention. Islamists subvert the argument of relativism to their own ends to justify the systemic discrimination against women and to oppose progressive change. The issue of women’s rights is converted from one of systemic discrimination within the contemporary political and social context to one of religion and culture based on rigid and ahistoric, rules.'?! The logic of multiculturalism renders their claims to being the guardians of true Islam unrefutable. At the same time, in defending their position, any challenge from outside the community is labelled as communal, while internal challengers are deviants.” While seeking to preserve their hegemony on the interpretation of religious precepts using the argument of relativism, fundamentalists deny the notion of internal pluralism within the community.

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In the context of Muslim women, the campaign for the protection and promotion of women’s human rights has to engage with challenges to the universality of human rights and secular principles of equality and freedom from discrimination. While we must guard

against unreflective universalism,'”’ we must also be wary of the use of the legitimacy of cultural relativism to justify policies that violate the

goals of cultural relativism.’** At the same time, An-Na’im cautions

against giving in to arguments of negative relativism that repudiate the

principle of universality itself.'? An-Na’im argues that women’s

human rights would best be upheld if they are legitimated with reference to indigenous norms, customs, or traditions.!*° However, the emphasis on the importance of cultural specificity should not preclude the recognition of universal standards of human rights. Such extreme relativism would undermine the very premise of cultural relativism, which is the protection of the dignity and freedom of all individuals

regardless of gender or religious belief.'"” Women’s rights advocates

have to meet the challenge of forwarding women’s rights and upholding diversity without undermining the principle on which cultural rel-

ativism itself rests — the tolerance of difference.'’”* Fundamentalism denies the reinterpretation of Islam.'” Attempts at applying interpre-

tations favourable to women have met with strong opposition. Muslim reformists seeking to reinterpret the Koran have faced persecution. Asghar Ali Engineer in India has been the target of bomb attacks,

while the Sudanese reformist Shaykh Taha was assassinated in 1984.'°°

This point is well illustrated by the fundamentalists’ rejection of the Shah Bano judgment in which the Supreme Court referred to certain verses of the Koran which support the idea of alimony for divorced

women.!*! Engineer points out that the Supreme Court, in fact, relied on authoritative translations of the Koran widely accepted by Mus-

lims.!*? This detail was omitted by the Ulema in their denunciation of the judgment. Fundamentalist leaders rejected an interpretation of the Koran permitting financial support for divorced women forwarded by Arif Mohammed Khan, the minister for home affairs in the govern-

ment of India.'*4 According to them, although a Muslim, asa layperson he had no right to offer an interpretation of the Koran. Khan

was originally deputed by the government to support the Supreme Court’s decision. It was only later, when the government suffered elec-

toral defeats in areas controlled by Muslim religious leaders, that it changed its stand.'*° This reversal of the government's policy led to Khan’s subsequent resignation.

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The Muslim Women’s Act demonstrates that modification of personal law introduced by religious leaders has further disadvantaged Muslim women, while simultaneously moving them further away from a UCC. Fundamentalist leaders and the state have collaborated in framing a law based on gender stereotypes rather than on the reality of the socioeconomic vulnerability of Muslim women. This Act demonstrates the increasing intrusion of religious law into the sphere of secular law and the politico-religious obstacles to realizing Muslim women’s equality. In India, Muslim women’s claims to equal citizenship and to constitutionally guaranteed rights remain fragile and politically contingent. These claims can be, and in fact, have been, withdrawn in the name of

Muslim cultural integrity.°” Arguably, policies of multiculturalism and cultural relativism give rise to certain contradictions, in particular in issues of representation and free choice. In India, the rights of all Muslim women are affected by the state’s privileging of Muslim group rights, whether women are in agreement with such an Islamist viewpoint of women’s rights or not. For Muslim women in India, such policies implicate not simply a matter of lifestyle choice, but rather, the critical issue of freedom of choice within a pluralist, democratic

society!

The diversity of contexts in which Muslim women live complicates the nature of their response to fundamentalism and influences their choices and the strategy they adopt. In countries where Islamicization is state sponsored, and a secular democratic alternative does not appear likely, ameliorative and reformist action within an Islamic framework may well be the only avenue for women seeking change. However, in a democracy, where Islamists are one of many alternatives, the approach to be adopted and the choices available are inherently different. Certainly, any strategy adopted is informed by the specific political and cultural context. Women in Muslim societies are continuing to lose ground in terms of legal rights. In India, the Shah Bano issue exemplifies this trend. In the Indian context, the law itself sanctions discrimination against Muslim women in the form of discriminatory personal law that perpetuates and facilitates the exclusion and marginalization of Muslim women. This discrimination is predicated on the prevailing social and religious traditions as interpreted by conservative Muslim community leaders. The postcolonial state, nevertheless, sees itself as an agent of social transformation. In these circumstances,

and as experience has shown, it seems

that the secular

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democratic alternative is more empowering for women than any relito the gious discourse, Hindu or Islamist. In India, women must turn

state, and seek a secular democratic alternative to advancing their rights rather than turning to a conservative religious leadership. Islam is not the discourse of the state, and within the state there is a secular

democratic alternative to Islamist discourse. Women claiming equal rights are not forced to legitimize their claims on a religious basis because they have the Constitution as the source of legitimacy and secular notions of universal human rights and democratic citizenship. Women’s rights’ advocates, whether Muslim or secular, are commit-

ted to furthering women’s rights.* It is not just a single strategy that is successful in advocating women’s rights, but rather a combination of strategies, an effective alliance and coalition building that can promote women’s rights. Secular feminists and Muslim feminists do interact. They have to respond to each others demands and they are often making the same demands of the state. Rather than adopting an either/or strategy towards the advancement of Muslim women’s rights, it would be more useful to develop a nuanced approach rejecting both extreme universalism as well as extreme relativism. Such an approach would allow for the development of a politically and culturally specific strategy that incorporates certain non-negotiable aspects of women’s human rights together with the norms of a specific Muslim community. Arguably, the solution to the status of women in Muslim societies is far better sought in the terrain of universal human rights and democratic citizenship without making religion the basis of women’s rights. Yet, it is a political and social reality that women’s rights’ advocates must contend with the views of fundamentalists and conservative Ulema. Therefore, they must engage with the discourse of fundamentalism, and this response is inevitably shaped by the specific Muslim society in question. In India, where the erosion of Muslim women’s rights is largely due to fundamentalist pressure, it is imperative to dis- . entangle the question of legal rights of women from the political project of fundamentalism and cultural nationalism wherein women continue to be the markers of group integrity and symbols of opposition to ‘Westernization’ and anti-colonialism. These moves are imperative, so that any claim for equality by Muslim women is not seen as a betrayal of the community or a threat to the integrity of the group. Furthermore, it is essential to question the automatic connection between religion and personal law so that we can begin to address the issue of

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women’s legal rights in the context of their lack of political participation, the absence of democratic

representation, and their increasing

economic vulnerability. It is, nevertheless, crucial to have revisionary readings of traditional

texts as An-Na’im and others propose.'“° Reinterpretations that allow laws based on religion to be modified to reflect Muslim women’s social and economic disadvantage cannot but be welcomed and encouraged. This is not to say, however, that a Uniform Civil Code should no longer be the goal, or that the logic of internal reform in Muslim personal law is sufficient to realize Muslim women’s equality. However, to retain religion as the sole referent for women’s rights perpetuates the ahistorical analysis of the status of women in Muslim societies. Without undermining the importance of religion, it is imperative to move the debate beyond the Islamic framework. It is only when we begin to understand the political project of fundamentalism, together with the contemporary social and political context, that the discussion can be truly inclusive and able to take into account the reality of women’s lives. We must continue to move to close the gap between personal law and secular law to realize the goal of equality.’*’ The secular strategy wherein there is a separation of state and religion and the recognition of women’s rights is the ‘only alternative to identity politics as defined and shaped by fundamentalists, the only hope for the recognition of concomitant, non-antagonistic, multiple identities in each individual.’ Blanket categories of identity and culture serve to mask complex realities, to inscribe and - at the same time - mystify relationships. These categories occlude class, gender, and other significant differences.'*? Therefore, when using the words culture or religion we have to be very careful. When deciding the nature of deference or accommodation, we must look behind the words ‘religion’ and ‘culture’ to understand what really is at issue. While Muslim men claim that the retention of personal law is part of their religion and culture, Muslim women, when they challenge discriminatory aspects of this law, cannot be said to be anti-Muslim. The voices of dissent within groups have to be heard by the state in any question of accommodation. Yet the state has accepted the conservative, male religious leaders as the true

representatives of the Muslim community. Women’s voices have been completely excluded from the very discourse that seeks to define their identity and circumscribe their rights in the name of ‘culture’ and ‘religion.’

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In using ‘culture’ and ‘religion’ to advance simplistic notions of what constitutes group identity, fundamentalism fails to address the systemic disadvantage of women. To acknowledge the interplay of relations of power in the construction and negotiation of culture and identity would lead not to a rejection of culture or cultural identity, but rather, to the recognition that identities are fluid, socially constructed,

and discursively created. Understanding the complexities of culture and identity, and the relative power of those that interpret them, leads

to the recognition that culture and identity are selectively deployed to serve particular interests. It demolishes the credibility of the ‘tradition’ versus ‘modernity’ binary which uses ‘tradition’ to maintain women’s powerlessness. Accordingly, we need to situate culture and religion within the wider social, political, and economic context. We need to

question the political uses to which this argument is put and to recognize whose interests are served and whose are harmed. The problem is admittedly complex, and there can be no easy solutions. The significance of personal law to the Muslim community is inextricably linked with fears for identity, and a fear of assimilation by the dominant group. These are valid concerns, particularly in today’s context of Hindu fundamentalism that threatens pluralism and the recognition of difference. The challenge before us is to articulate ‘nonexclusive cultural and gendered positions.’!“° Accordingly, we have to work towards the deconstruction of hegemonic categories — Hindu/ Muslim, self/other, man/woman,

and real Muslim women/feminists

— which contribute to the reification of binary oppositions and do not

challenge the structures of power or the root of oppression.'“” As

Judith Butler argues, ‘the deconstruction of identity is not the deconstruction of politics; rather, it establishes as political the very terms

through which identity is articulated.’ It is only by placing women at the centre of any analysis of arguments of culture that serve to curtail women’s rights, that we can begin to understand the complex ways in

which they implicate gender equality.’ It forces us to question the politics of claims made by fundamentalist leaders on behalf of women who as a group are most directly affected by any changes sought. The Individual/Group Dichotomy — Women’s Rights versus Group Rights

The politicization of religious identity has led to the subordination of gender, class, and other identities which are deemed as competing

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with, and detracting from, the agenda of forwarding group claims,

thereby suppressing ‘the politics of subalternity.’° Hasan writes, ‘most

noticeably, the politics of religious self-assertion, claiming to speak in the name of majority and minority rights, seeks to negate and suppress the divergent interests and rights of individuals and social collectivi-

ties.’'°! The state and religious fundamentalist leaders mutually rein-

force communal identity in a manner inimical to women’s rights. In the

discourse and politics of communalism,>* women’s rights are subordi-

nated to the ‘greater cause’ of group rights. From the perspective of Muslim women, the ‘women’s

question’ has been taken over and spo-

ken for by communal politics.*’ Women’s rights and group rights are presented by fundamentalist leaders as being mutually exclusive, conflicting, and oppositional. By accommodating the fundamentalists in the Shah Bano agitation, the state tacitly accepted this contention. Ratna Kapur and Brenda Cossman argue that ‘this understanding, however, has failed to appreciate how this conflict between religion and equality represents a broader discursive struggle over both community and gender identity by the forces of communalism. It is only through the deconstruction of oppositions — between religion and equality, between community and gender - that we can begin to understand the impact of

these discursive struggles on women.’ Inevitably, women’s rights and group rights conflict in situations where women assert their constitutional right to equality and freedom from discrimination to challenge personal law, and the group asserts its right to the retention of personal law as an essential component of its identity. There is thus, a perceived tension between Muslim women’s rights and the collective rights of the Muslim community. Fundamentalist leaders reject claims for gender equality within the family, arguing that any change in Muslim family law isa threat to the integrity of the community. They chose to see the use by Muslim women of the secular law of maintenance as a threat to their group identity and their personal law, rather than as an opportunity to reform the personal law so as better to address the systemic disadvantage of Muslim women. They thus construct a dichotomy between women’s interests and group interests, and any demand for change by women implies a betrayal of community interests. The state, anxious to portray itself as secular and democratic, is reluctant to reform Muslim personal law which has come to be regarded as a signifier of the distinct identity of the Muslim community. It is assumed that for Muslim women, religious rights take prece-

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dence over gender rights, and the interests of Muslim women are thus subsumed under the interests of the community. The state has chosen to ignore the significance of the fact that, in turning to secular law for the protection and enforcement of their rights, Muslim women are signalling their demand for change. Instead the state has silenced the voice of Muslim women and has privileged the voice of powerful patriarchies. What was essentially a retrograde step was defended by the state as furthering the goal of secularism by ensuring the fundamental rights of minorities. There was

no mention

however,

of the fundamental

rights of Muslim women.’ There was no discussion by the state of the

fact that the Supreme Court decision pertained to the rights of women

under the secular law, nor was there any reference to the relationship

between the secular law and the personal law. The issues raised did not relate to the legal or social disadvantage of Muslim women, but rather to the danger to the minority rights of the Muslim community and the importance of retaining the personal law for adjudicating intracommunity disputes.'°° The crucial issue of the economic vulnerability of Muslim women, and the need for spousal support in the context of unilateral divorce rights available to Muslim men, or in the context of giving Muslim women a choice to leave abusive marriages, was erased by the fundamentalist discourse. The fact that the provisions of section 125 were intended as a welfare measure to prevent female destitution was obscured. The Shah Bano case demonstrates the continued link between religion and politics in contemporary India, the importance of political expediency in motivating state policy, and the manipulation of group identity for political reasons. In balancing the interests of the Muslim community and the rights of Muslim women, the state upheld the rights of the former. Recognizing that the Ulema controlled Muslim opinion vis-a-vis the state, and that Muslim women as a group did not command the same clout, it served the political interests of the state to privilege the demands of the Ulema over those of Muslim women. The concessions to their demands were inevitably linked to the minority status of the Muslim community rather than to the systemic disadvan-

tage of women.’”

Gender equality and religious freedom should not be seen as mutually exclusive. To view the situation as one of a strict dichotomy between individual and group rights would be too simplistic. We need to be wary of drawing too sharp a distinction between the two. We

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need to question the nature of the Muslim group posited by the state as well as the identity projected by the group itself. The Muslim community is neither monolithic nor homogeneous, and it is the fundamentalists who seek to project an identity which occludes differences of class and gender. At the same time we should not make too great a distinction between the goals and aspirations of Muslim women and the goals of the Muslim community in India. This understanding raises the issue of what, in fact, is needed to maintain the integrity of the community. We cannot posit a unitary gender identity upon Muslim women which completely separates them from the aspirations of the Muslim community at large. The common anti-communal agenda of the Muslim community - the struggle against Hindu communalism — unites Muslim men and Muslim women. Yet, although Muslim women have generally been reluctant to raise issues of sexism within the Muslim community, this reluctance does not necessarily mean that they are not willing to acknowledge the reality of the sexism of Muslim men.’® For Muslim women, the reluctance to name oppressive practices is informed by the fear that this naming will merely forward the communal agenda of the majority community to undermine Muslim group values and group identity, without any significant change in their situation. This fear was encouraged by religious leaders, and was the motivation behind Shah Bano’s public rejection of the Supreme Court decision in her favour.!” Bell hooks argues that ‘naming oppressive realities, in and of itself, has not brought about the kinds of changes for

oppressed groups that it can for more privileged groups who command a different quality of attention.’ Nevertheless, the acknowledgment that Muslim women and Muslim men are in conflict with regard to women’s equality, does not imply a lack of commitment on the part of Muslim women to participate as members of the community. Nor should it signify to the dominant group, or to the state, that there is no commonality between the aspirations of Muslim women and the Muslim group at large. Rather than the existence of shared values for a community to survive, what is needed is a shared commitment to the community. Applied to the Muslim context, this understanding could signify to Muslim leaders the possibility of upholding women’s rights without compromising group solidarity. Kymlicka considers the question of what differences are to be taken into account when accommodating cultural difference: ‘People are owed respect as citizens and as members of cultural communities. In many situations the two are perfectly compatible, and in fact may coin-

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cide. But in culturally plural societies, differential citizenship rights may be needed to protect a cultural community from unwanted disintegration. If so, then the demands of citizenship and cultural membership pull in different directions. Both matter, and neither seems

reducible to the other.’1°"

He makes the argument that individual rights can be respected by the state without necessarily ignoring group rights and that group

rights are protected via the individual.'®* Although Kymlicka does not

state that every cultural practice furthers individual rights, he argues that individuals cannot be removed from their cultural context. He suggests that we value collective rights not for their intrinsic worth but for the individuals who make up the collectivity. It follows, therefore,

that we can care about the context without devaluing the individual. This provides some hope for the resolution of the predicament of Muslim women. Kymlicka thus seeks to recover cultural perspectives within

liberalism

and

to blend

liberalism

and

communitarianism,

articulating a notion of collective rights built upon individual interests. However, Kymlicka does not provide a mediating principle whereby a group may be identified or defined. The problem of deciding who fits into what group, and the further problem of determining individual choice, are inherent in such a view. What defines the group cannot simply be reduced to ‘the will of the group.’ In other words, does the categorization of individuals within groups actually reflect the choice of individuals to be part of the group? Furthermore, such an analysis is unable to account for the multiple allegiances of individuals. The situation of Muslim women reflects all these difficulties identified above. While the possibility of individual rights being respected within communities is indeed one that must be considered in the state’s accommodation of group difference, at the same time, the reality of oppression within the group must also be considered. This appreciation necessitates the consideration of the question whether, in the face of oppressive groups, group autonomy is justifiable. It further highlights the need to consider whether the state would be justified in interfering to correct such oppression, thus leading to an analysis of the role of the state. This is not to say, however, that the recognition of groups and of cultural communities is undesirable. On the contrary, it forces an analysis of the

nature of group recognition; of the relationship between individuals, the group, and the state; and of the obligation of the state to pe people as individuals and as members of cultural communities.’ In the context of Muslim women, the state claims to be affirming the

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rights of the Muslim community, as well as of the individuals belong-

ing to the group, by not reforming the personal law.!™ Yet, in retaining personal law, the state is buttressing patriarchal structures of authority that are antagonistic to women’s rights. By deferring to fundamentalist assertions of what constitutes collective identity, the state is complicit in denying Muslim women alternate and multiple identities. In this context, the group is tyrannizing the individual woman who claims equal rights. There is at present no choice for Muslim women to opt out of the group in terms of the application of family law. When accommodating religious difference of Muslims as part of its commitment to pluralism and diversity, the state accepted that version of reli-

gion and identity posited by conservative Muslim leaders. Women were completely excluded from this process. Given the systemic discrimination against women in India, and the further marginalized position of Muslim women as a minority within a minority, there can be no doubt that as a group, Muslim women are severely disadvantaged. The state, by allowing the ‘religious’ interests of the group to take precedence over the rights of this most disadvantaged section within the group, has effectively denied Muslim women equality, not just as between Muslim men and Muslim women, but also as between Muslim women and women of other religious groups in India. The state has reneged on its constitutional promise to all citizens of the nation by denying to Muslim women the fundamental rights guaranteed to all other Indian citizens. To better understand and situate Muslim women’s right to equitable family laws in the context of Muslim leaders’ assertion of group rights, we need to look beyond the binary of individual versus group rights. Kymlicka offers a way to transcend this dichotomy by analysing the

nature of claims made by a group in the assertion of difference.’®

He classifies the claims made by groups into two categories: ‘internal restrictions’ and ‘external protections.’ Internal restrictions are claims intended to protect the group against internal dissent, that is, from challenges by individual members of the group to custom or tradition. Internal restrictions seek the help of the state in imposing restrictions on individuals within the group — to protect group solidar-

ity.” External protections are intended to protect the group from the

impact of decisions of the larger society, for example, from its political decisions which may impact the distinct identity of the group. External protections thus involve questions of the relations between groups and between a particular group and the state.

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The distinction between internal restrictions and external protection is useful in deconstructing the opposition of individual and group rights to better understand which aspects of group claims ought to be accommodated and which ought not to be. Such a choice has to be made. This distinction is further helpful in understanding the exact nature of the claim forwarded by Muslim fundamentalists in their emphasis on circumscribing women’s rights so as to preserve group integrity. However, as Kymlicka himself acknowledges, the boundaries between what may be defined as a claim to resist internal dissent and one to protect the group from external threat are not always clearly demarcated.!” The policy of the Indian state of accommodating group claims and, in turn, denying Muslim women equality, exemplifies this problem in all its complexity. An appreciation of the distinction between internal restrictions and external protection is a crucial step forward in going beyond the individual/group binary. It is a useful method for the state to distinguish between claims that seek to regulate the behaviour of the members of a group and limit their right to challenge oppressive practices and traditions and those that seek to protect the group from assimilationist threats of the larger society. Rather than uncritically privileging either collective or individual rights, this perspective enables an understanding of the nature of the claim being forwarded and the appropriate response to it. Applying Kymlicka’s insights to the situation of Muslim women in India, it is clear that the claim of the protection of Muslim identity has been used to impose restrictions on the rights of Muslim women and that the issue of gender equality has been rearticulated as one of the protection of group identity. Following Kymlicka’s distinction, it is apparent that by denying Muslim women the right to seek spousal support under the secular law, Muslim leaders are imposing internal restrictions to reassert their control over the women of the community and to prevent them from moving beyond community structures of authority. Here the boundary between internal restrictions and external protections was deliberately obfuscated by the fundamentalists to forward their own political agenda of reasserting their authority in the face of internal challenge. The state, for its part, accepted this recasting of the issue as one of a threat to the identity of the Muslim community and sanctioned the imposition of internal restrictions on Muslim women. Kymlicka’s observation that ‘laws justified in terms of external protection can open the door to internal restrictions’!”’ is exemplified by

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the passing of the Muslim Women’s Act and the denial to Muslim women of the right to maintenance under the secular law. Whereas Kymlicka dismisses the possibility in Western liberal democracies of groups seeking to establish, or to maintain ‘a system of group-differentiated rights’ as being rare and unsuccessful, the experience of Muslim

women in India has been quite the contrary.!”’ The retention of the sys-

tem of personal law and the passing of the Muslim Women’s Act demonstrate the success with which Muslim fundamentalist leaders have been able to maintain a system of group differentiated rights that are exempt from the constitutional requirements of the larger society. Kymlicka emphasizes the element of choice in differentiating between internal and external restrictions. Choice is seen as the key factor in permitting external restrictions in order that members of a group can decide whether or not to follow the cultural practice of their group; while internal restrictions that limit the choices of the members

are not to be accepted as legitimate claims.'”* However, group defini-

tion cannot be simply reduced to the ‘will of the group.’ There has to be an awareness of internal dissension within the group, and the state must be wary of positing too simple a notion of unity upon the group. In the accommodation of religious difference, the state has to be cognizant of the claims of women, even at the risk of paternalism. We cannot

assume a simple one-to-one correspondence between individual and group; this has disadvantaged Muslim women. Such a view assumes a unitary identity, and it is based on religious essentialism. There is a need to establish a multifaceted identity, sensitive to the multiple consciousness within individuals, without reducing difference to religious affiliation. The binary opposition set up between gender rights and collective rights serves to tie Muslim women to an essentialist notion of identity in a constraining manner, discouraging the assertion of equality. We have to understand and historicize the context within which Muslim women have been discriminated against by the law, and the reasons why they have difficulty in challenging gender barriers when this challenge is seen as a threat to the anti-communal agenda.’”? We also have to question why it is that Muslim men are willing to speak up for community interests, but rarely for the interests of the women of the community. Arguably, for Muslim women, ‘the particular culture they would like to assert vis-a-vis the dominant culture also includes elements which they feel subordinate them as women and which they

would like to resist and transform within their own community.””* At

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the same time, although patriarchy and religious fundamentalism are powerful sources of domination, the communalized context in which Muslim women find themselves inevitably complicates the issue of their opposition to Muslim men. The fact that the social experience of communalism creates ‘a primary identity as well as a shared sense

of being under collective assault’!” is critical to an understanding

of why gender issues have not figured prominently on the agenda of Muslim religious leaders. Although the distinct sense of ‘otherness’ experienced by the Muslim community is a factor against the ‘development of an oppositional feminist consciousness,’!”° it is also true that the assertion of community identity prioritizes those issues that marginalize Muslim women. This is exemplified by the insistence of the Ulema on the retention of discriminatory personal law. Moreover, the state’s unwillingness to view personal law reform as being crucial for the advancement of women’s rights is informed by the notion that community identity is the primary oppositional force in the lives of Muslim women. As a result, Muslim women’s specific interests are subordinated to the pre-

sumed needs of the Muslim collectivity in any discussions of public policy and personal law reform.'”” Whereas Muslim women have been excluded from the articulation and interpretation of religious law, they are active participants in the culture of the community. As members of the group, they have as great an interest in the rights of the group and this does not exclude an inter-

est in ending gender oppression.'”* The fact that the challenge to the patriarchal norms of Muslim personal law came from Muslim women, among

them Shah Bano, underscores

the reality of the existence of

alternative voices within the Muslim community. It provides a signal to the state that ought not to be ignored, that Muslim women are making a political statement regarding their rights under the personal law. They are exerting pressure on the community and their ex-husbands for a change in their status. It is here that Kymlicka’s distinction between internal restrictions and external protections is useful, both in understanding the nature of the claim forwarded by Muslim fundamentalists as well as the nature of the state’s response to such a claim. The fact that this call for change from within the community has been ignored both by the leaders of the community as well as by the state is significant for the prospects of equality for Muslim women. The recognition of dissension within the group need not, however, lead to the conclusion that political community must be constituted in such a way

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as to not recognize groups. It would be too extreme, as well as unrealistic, to thus reject communities. The challenge then is to acknowledge and accommodate religio-cultural difference, but not to the exclusion of the individual as the unit of recognition. The institutionalizing of difference, as in the personal law system, is problematic in that the state has effectively buttressed structures of authority which violate individual rights and gender equality. Patriarchal patterns of authority have been reinforced and perpetuated by the uncritical acceptance of the notion that Muslim personal law is an inherent part of the culture and religion of Muslims; and by the lack of analysis of what this acceptance has meant for Muslim women. I believe this leads to the issue of whether it is possible to separate essential and non-essential components of religion so as to ensure equality. The decision as to which parts of religion must be accommodated, and which ought not, has to be made. At the very least, any accommodation should not be based on the subordination of women. If the accommodation of religio-cultural difference can only be achieved at the expense of women’s rights, then we have to interrogate whose notion of religion/culture this is. The issues raised and debates ensuing are significantly interlinked. Thus, group definition, the policy of the state towards

religious difference,

women’s

rights, and

the

notion of culture are all intertwined. We cannot unpack one without demystifying the other. We need to have a more complete analysis of the struggle of the Muslim community in India. We need to understand this struggle as not just the protection of community integrity, but also as it contributes to gender inequality, an analysis that includes sexism and patriarchy. In any accommodation of cultural difference, the state must abandon the single-axis framework that privileges collective rights over the rights of Muslim women. This has resulted in the compartmentalizing of discrimination. Instead, the state must address the needs of those

who are the most disadvantaged within the group. Placing Muslim women at the centre is crucial to engendering collective action. It challenges the complacency of state efforts to value minority rights and the belief that the uncritical privileging of collective rights is the most effective way to implement pluralism and ensure minority rights. It challenges us to rethink and reformulate the frameworks within which discrimination and inequality are sought to be addressed.

chapter four

Negotiating the Boundaries of Gender and Community: The Role of the State

The passage of the Muslim Women’s Act demonstrates the alliance between the state and fundamentalist leaders in the articulation of gender and community identity. Yet, the relationship between the state and fundamentalists

is much

more

tenuous, complex, and nuanced

than a simple mutual reinforcement of power and authority. Indeed, the ambivalence of this alliance is revealed by the campaign for the Act. The Ulema seek to safeguard their authority over the definition of group interests, holding up personal law as the signifier of Muslim identity and preventing state intrusion in this domain. The Ulema’s defensive reaction to state interference in personal law is, however, just one dimension of this relationship. Significantly, the Ulema did not hesitate to use the machinery of the state to enforce their notion of an Islamic ‘private sphere.’ The state is torn between policies of nationalism, religious neutrality, and secularism which demand an adherence to the ideology of the nation-state, and the reality of conflicting allegiances to caste and community.’ The state upholds Muslim personal law as an aspect of the accommodation of religio-cultural difference, | however, this accommodation has implications for Muslim women’s rights. The concept of neutrality is an aspect of state policy towards religious difference that needs to be examined closely. The state has to make the decision as to what aspects of religious difference are to be ‘recognized and accommodated. Such accommodation ought not to be based on the denial of Muslim women’s equality rights. The implications of the public/private dichotomy for Muslim women’s rights are serious. The state’s reluctance to reform Muslim personal law, along

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107

with the fundamentalist claim to personal law as a private sphere of autonomy, is a consequence of the sexist bias of privacy doctrine that perpetuates Muslim women’s subordination. In negotiating the boundaries of gender and community, the state enters into an alliance with the Ulema when this furthers the state’s agenda of maintaining the unity of a pluralistic nation. However, when the interests of the state coincide with those of women, it does not hes-

itate to undermine the authority of fundamentalist leaders.” In choosing not to enact a Uniform Civil Code or to reform Muslim personal law, the state was concerned with gaining the confidence of the Muslim community in the context of India’s partition along religious lines. The state has followed a policy of accommodating Muslim religious leaders in an effort to gain their support for the nation-state. In return, Muslim personal law was left unmodified and therefore, implicitly, the autonomous terrain of the Ulema. Reinforcing the public/private split, the state refrained from pursuing equality for Muslim women within the family. The state continued to privilege group rights over the equality rights of Muslim women, rather than insisting on reform, as it did in the case of Hindu law.’ The role of the state, with regard to Muslim women’s rights, therefore followed a radically different path than it did in regard to Hindu women’s rights. This suggests that the state is motivated by political concerns regarding minority groups’ allegiance to the nation-state, rather than by a concern for the rights of Muslim women. The continued acceptance of fundamentalist leaders as the representatives of the community has perpetuated the politicization of religion, ensuring the continued privileging of religion as a powerful

basis of group identity.*

While acknowledging the limits of rights and of legal reform, arguably, in order to address Muslim women’s legal inequality it is critical to continue our engagement with the law and with the language of rights. The state has refused to initiate a UCC on the ground that the call for reform must come

from within the community, and that, in

keeping with its policies of secularism and the protection of minority rights, it will not impose a UCC on an unwilling community.” In this context, there is a need to reconceptualize the frameworks within which we address equality for Muslim women. The purpose of this chapter is to discuss the basis for a Uniform

Civil Code, that is, to

explore the issues implicated rather than to set out a grand theoretical framework. Arguably, the state, in negotiating the boundaries between gender and community, is motivated by the exigencies of governance,

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rather than by a commitment to constitutional principles. In the final analysis, the state must enact a Uniform Civil Code if the constitutional

guarantee of equality is to have any meaning for Muslim women. State Policy towards Religious Difference

Freedom of religion and secularism are crucial aspects of state policy towards the accommodation of religious difference. I begin from the premise that religious difference must be accommodated given the pluralistic nature of Indian society. In the colonial period, civil and criminal law were ‘secularized.’ However, personal laws of various communities, insofar as they did not clash with the police duties of the colonial state, were excluded from this process of ‘secularization.”© The colonial

policy of dividing Indian society along religio-political lines encouraged the assertion of group identity to forward political demands.’ The culmination of this policy of political representation along communal lines was the creation of the state of Pakistan. For the independent Indian state, the colonial manipulation of group identity, as well as the perceived failure of the colonial state to create a national identity, raised important questions about the nature of communal allegiance, the duty of the state to recognize group life and to protect minority rights and, most important, state policy towards religious freedom.® The independent Indian state recognized that secularism and a commitment to pluralism had to be the basis of its governing ideology. Nevertheless, the state retained for itself the right to regulate and modify religion as well as personal law.’ The nationalist movement constructed communalism as the ‘other’ of secularism and nationalism. Loyalties to community and religion were viewed as being antithetical to loyalty to the nation. Gyanendra Pandey argues: ‘Just as the new nationalism

— secular, democratic

and, in time, “socialistic” — was

defined largely in opposition to a growing politics of communalism, so communalism - or the politics of the “religious community” or “com- — munities,” which gave rise to such suspicion and strife — was defined in opposition to what was now conceived of as nationalism.’!° However, the binary opposition constructed between secularism and communalism fails to appreciate the manner in which the two are actually linked.” Far from being the antithesis of communalism, Indian nationalism contained within itself the seeds of communalism, and by preserving structures such as separate personal laws, it institutionalized difference on communal grounds.

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The Shah Bano controversy demonstrates the continuing significance of questions of the rights of religious minorities, the defence of custom, and the definition of secularism and itsrelation to religious freedom. The state justified the Muslim Women’s Act as being consistent with

its policy of the protection of the rights of religious minorities.'? Ac-

cording to the state, in matters of personal law reform the wishes of community leaders had to be respected. Thus, although the issue was actually one of women’s rights, the state, together with the Ulema, por-

trayed the issue as one of protection of minority rights. The state accepted the Ulema as the true representatives of the Muslim community, and the Muslim community was seen by the state as monolithic

and undifferentiated.’ The state sought to present the Act as uphold-

ing the integrity of the Muslim community while simultaneously protecting Muslim women’s rights.’* In fact, by accepting the fundamentalist perception that the identity of the community was in danger, the state marginalized women’s interests and their call for change in family law.’? By recasting the issue as one of community and religious rights, the state accommodated fundamentalism at the expense of Muslim women’s rights. The experience of women in India suggests that the state is both an emancipatory force as well as a patriarchal ally. At the time of independence, as a consequence of women’s participation in the nationalist movement, the state promoted the notion of women’s rights and gender equality. At the same time, at the level of community, the state has continued to sanction and buttress patriarchal methods of control in the form of personal law. Although the nationalist movement mobilized women in the service of the nationalist cause, as Kumari Jayawardena notes, ‘the movement gave the illusion of change while women were kept within the structural confines of family and society.’’© The thetoric of women’s rights is confined to the ‘public sphere’ and to rights which forward the state’s agenda of modernization and industrialization by drawing women into the economy. However, at the level of community and family, the state has demonstrated its reluc-

tance to substantially alter the power structure and the gender status quo.” Thus, it upholds discriminatory personal law, while seeking to define the ‘women’s question’ in terms suited to the consolidation of its own power bases. The state has sought to recast the realm of Muslim family law as free from state intrusion, while it continues to regulate family structures both covertly and overtly, in complicity with Muslim fundamentalist leaders. It is therefore critical to question the

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The state is not simply a ‘sivenness’ of the state as a discursive entity.'® be recognized as being monolithic entity. On the contrary, it should ps. A simplistic undermade up of varying interests and interest grou leads to ‘a political stratstanding of relations of power within the state ld be seen as relational, egy of simple oppositionalism.’”” Power shou ps struggle to assert and the state as an arena in which various grou their power. Neutrality is whether, in fact, the state The crucial question for consideration here

” There is a contradiccan be impartial in its policy towards religion.” l difference, in the tion inherent in state recognition of religio-cultura and the of such difference, rights that flow from the accommodation

ibuting benefits to a state’s policy of ‘neutrality.’ In effect, by distr ht to be accommogroup whose difference is acknowledged and soug y of strict neutrality. dated, the state is moving away from a polic and state neutrality. There is thus a tension between state recognition control. FurtherA policy of ‘neutrality’ is, in itself, a method of state it ral. On the contrary, more, the notion of secularism is not value-neut

well reflect the valis informed by a specific set of values which may tion raised by ues of the dominant Hindu majority. Indeed, one objec is the fear that it the Muslim community to the enactment of a UCC d as neutral and would be influenced by a Hindu perspective presente ar state can be secular! And this concern must be addressed. No secul the state that is merely neutral or impartial among religions, for it te. As Marc defines the boundaries within which neutrality must opera freedom from Galanter points out, the right to freedom of religion and well as for the state interference, is both a charter for religion as state.”

A. Posner, the state According to Michael W. McConnell and Richard

state acknowl-' should not prescribe what the good is, nor should the d be left to edge any one perception of the good. They argue that it shoul cannot be susthe individual to decide.”?> However, such a state policy wledge or tained because it does not recognize and cannot ackno ate from endorse the special protection afforded to religion as separ y to individother goods. Moreover, morality cannot be reduced simpl

that sees them as ual rights. Such an atomistic view of individuals, one

e to the separate from their social and cultural context, cannot do justic even in a conception of the protection of religious faith. Furthermore,

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policy of neutrality there is the implicit good. Any conception of individual rights is based on a richer conception of the good than is acknowledged by liberals. Arguably, the neutrality posited by McConnell and Posner is not sustainable. The goal of complete neutrality regarding ideas of the good is untenable. Therefore, the imposition of a particular view of the good has to be recognized. We have to acknowledge this nonneutrality and instead try to provide a justification for why it should be so, and decide what measure

of pluralism must be valued. Even a

policy of neutrality inevitably recognizes some rights and protects some spheres of autonomy. Rights such as freedom of religion involve fundamental choices about what is really good and what is worth protecting. The very fact that freedom of religion is a constitutionally protected right indicates that there is something about religion that is deemed deserving of such protection. At the same time, this protection is not absolute. The state has retained for itself the right to regulate religion and the right to freedom of religion is thereby subject to constitu-

tional principles.

This does not mean that neutrality should not be the aim of the state’s policy towards religio-cultural diversity. There has to be, however, not just complete neutrality, but a more subtle and nuanced understanding of what role the state should play; what level of intervention is permissible for the protection of religious difference; what aspect of this difference is to be protected; and how this is to be determined. These questions are crucial for the equality claims of Muslim women. In terms of state policy, this understanding signifies that there must be a recognition that the situation is not as dichotomous as either neutrality or partiality, but far more complex. The state has to play a positive role in protecting religious freedom, rather than a ‘neutral’ role in which it ensures negative rights and imposes constraints. On the other hand, the state is also committed to respecting individual rights. Therefore, there has to be a mediating principle based on dialogue and consensus to ensure a balance between these two goods. The understanding that the state must respect individual rights while accommodating group difference, signifies that, although the state must actively protect the group rights of the Muslim community, it also has a duty to ensure the rights of Muslim women. The consequence of such a proactive state role is the protection of pluralism, but not at the expense of constitutional guarantees of individual rights, both goods being valued.

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Accommodating Difference Any discussion of the right to religious freedom inevitably raises questions about the definition of religion and the scope of the state’s guarantee of religious freedom. Freedom of religion is not simply about allowing people to worship in mosques and temples, but is about recognizing that there are differing conceptions about life and differing world-views. In guaranteeing freedom of religion, the Constitution is guaranteeing accommodation of different levels of belief. However, the Constitution also stipulates that this accommodation cannot be at the expense of fundamental rights.” According to Galanter, ‘whatever the tenor of its encounter with religion, the law cannot entirely avoid questions of religious identity. Even in a secular State, civil authorities, including the courts, find themselves faced with the neces-

sity of ascertaining what is religious.’”° In recognizing groups for the

purposes of the distribution of state resources, inevitably, the state has to make decisions as to the definition of the group; the criteria by which a group is deemed entitled to state recognition; what aspects of group identity are to be protected; and the criteria whereby the law of the group to be applied to individual members is to be determined. It is the ideology of the state and the political imperatives of the state which dictate the answers to these questions. Therefore, the argument that the state puts forward, justifying discriminatory personal law as a means of upholding Muslim group identity, is less than convincing. The process of identity formation is complex. We need to understand what really is at issue when the state claims to be upholding the identity value of Muslim personal law. The process by which the state constructed and manipulated personal law to form group identity, as well as the manner in which the Ulema used personal law to consolidate community boundaries and to assert a Muslim identity, were in large part, political processes rather than a recognition of pre-existing group orderings. The Muslim Women’s Act, in turn, was portrayed by the ' state as upholding the identity of the Muslim community. However, the notions of identity and group definition accepted by the state were those posited by the Ulema whom the state accepted as the sole representatives of the Muslim community. In so doing, the state excluded the views of Muslim women and progressive Muslims.”” In the context of Muslim personal law, as illustrated by Shah Bano, the individual woman is subject to the tyranny of the group. It is important to understand whose notion of identity the state is protect-

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ing here. The crucial question to consider is whether it is permissible for the state to protect group identity at the expense of violating women’s fundamental rights. In balancing these interests, the state has a duty to protect the rights of those who are most disadvantaged. Clearly Muslim women are in greater need of state protection than Muslim men. In this context, the recognition of group identity, or a particular version of it, has to acknowledge the extent to which identities are discursively created and politically constructed.”’ Muslim personal law, as it is applied today, arguably does not support group identity or individual choice, but rather the majority opinion within the group. It is questionable whether the identity sought to be upheld by Muslim personal law is an identity that exists independent of the state.” Therefore, the state cannot validly justify upholding personal law as a signifier of group identity and as a demonstration of the value placed by it on the affirmation of group integrity. It is a complex matter to decide what constitutes an essential part of religion, and it is equally complex whether this decision is to be left to the courts. Martha Minow notes that secular adjudication of religious claims is risky.*° She is correct to point out that the incommensurability of the premises of the secular state and the religious group makes it hard to decide what part of religion is essential and what is peripheral.*! When adjudicating religious claims the court must acknowledge and recognize the limits of its understanding of the particular claim before it as being partial. However, Minow bases her argument on instances where the state has imposed restrictions on individuals because of their religious beliefs.** In the case of Muslim women’s rights claims and the denial of these claims by male leaders of the Muslim community, we have a different sort of problem. Muslim women have challenged the restrictions imposed on them by personal law as interpreted and upheld by male leaders of the community and sanctioned by the state. Thus, the challenge comes from within the community and cannot be dismissed. It is incumbent upon the state to decide the nature of the claim, and thereupon, the nature of accommodation. Such a decision has to be made. Not to make a decision would abandon Muslim women to the tyranny of the male leaders of the group. This would result in the imposition of the male leaders’ view of what is essential to religion, as happened in the Shah Bano issue. To permit such a violation of women’s rights, based on the demands of the con-

servative male leadership, is for the state to abdicate its responsibility towards those within the group who are most oppressed.

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The accommodation of Muslim fundamentalist leaders excluded the perspective of Muslim women who were most directly affected by this change. In the accommodation of difference, therefore, it is important not just to understand and accommodate the perspective of the Muslim community as a minority, but more crucially, to understand and accommodate the perspective of Muslim women, who constitute the disadvantaged minority within the group. In dealing with the religious claims of the Muslim minority, the state must be sensitive to the intrusion experienced by members of the group. This sensitivity must, however, extend to an understanding of the nature of group claims and their effect on Muslim women.

Hitherto, Muslim women

have been

denied the right to decide for themselves what aspects of religion are to be regulated and accommodated by the state. They have not been a part of the dialogue between the leaders of the Muslim community and the state. In reaching any decision as to the ‘essential core’ of religious faith and practice, the state must be cognizant of contrasting viewpoints and resist the homogenization of the Muslim collectivity. In my view, some sort of choice has to be made regarding what aspects of religion the state should accommodate. Although it might bespeak paternalism, pragmatism requires that this decision be reached through a dialogical engagement with and between all members of the group and the state. The Public/Private Dichotomy

John Rawls argues that a pluralistic democracy needs to be supported

by ‘at least a substantial majority of its politically active citizens.’ Since there can be no religious, philosophical, or moral doctrine shared by all citizens, Rawls limits the conception of justice to be affirmed by citizens for the continuance of the society to the political domain. In other words, recognizing that there can be no comprehensive doctrine shared by all members of a pluralistic democracy, it is essential that ° there be an overlapping consensus as to the conception of justice in the political domain. Religious, moral, and philosophical doctrines which often differ are confined to the private domain in which the greatest amount of diversity is acknowledged and celebrated. This liberal notion of a public/private split informs state policy towards Muslim personal law. Religious differences are confined to the private sphere in which the state does not interfere, not even to enforce constitutional

guarantees of equality, liberty, and justice. Applied to the context of Muslim women, this Rawlsian notion is problematic.

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The policy of not interfering with personal law has resulted in legitimizing discrimination against Muslim women, cutting them off from collective action and state verification, and abandoning them to conservative, male definitions of self, family, and community. The legal concept of privacy has protected an abstract autonomy without questioning whose rights are being protected and whose rights are being violated. As MacKinnon argues, ‘It is a very material division that keeps the private beyond public redress and depoliticizes women’s subjection within it.’™ It is crucial for Muslim women’s equality claims that the state, rather than abdicating responsibility by relegating Muslim family law reform to the private sphere, act positively to make constitutional guarantees of equality meaningful for Muslim women. Furthermore, Rawls’s conception of overlapping consensus is unsatisfactory from the perspective of subordinated groups because it is unable to adequately address structural injustice. This conception is limited in its ability to recognize group difference as well as difference within the group, which is where Muslim women are located. This notion of consensus does not pay sufficient attention to power and inequalities; it assumes the equality and rationality of those in this conversation. Thus, it does nothing to further the claims of Muslim women. The issue that arises is whether it is possible to acknowledge group difference and accommodate it without doing violence to the rights of minorities within the collectivity, that is, Muslim women. Religion cannot and should not be completely left out of the picture, but rather, the question is how an understanding of religion should inform this perspective. As a consequence of religious fundamentalism, there is no longer room for women to assert their right to equality or their conception of religion. This is the fundamental problem with the state allowing religion to be used as a shield against women’s equality. As women have experienced, politico-religious identity has been discursively constructed in a manner disadvantageous to them. A ‘public sphere’ that can take into account the specific demands of Muslim women while acknowledging the rights of the Muslim community is one that can truly be said to be pluralistic, capable of acknowledging difference, and sensitive to the demands of disadvantaged groups. What we need is a notion of dialogue that is more sensitive to the context and to the claims of all individuals that make up the collectivity; and an under-

standing of the dialogic process as more dynamic and actively constructed than is posited by Rawls. Thus, between the idea of a compromise antithetical to a Rawlsian notion of consensus and a set of universally defined principles lies

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what I believe to be the best response to respecting individual rights while valuing cultural diversity. This conception of ‘public sphere’ goes beyond the dichotomy between compromise and principles. It has been characterized as a normative compromise because it takes into account the claims being made by each side. It is an attempt to take cognizance of the other point of view to make a new argument and to come up with a new conception that speaks to the reality of all

those implicated.*° To better address Muslim women’s inequality

within the family, we must reach a consensus by constructing dialogue that is informed by the specificity of Muslim women, and also includes the perspective of the male-dominated collectivity of Muslims. We need to craft legal responses and to structure social institutions that recognize the specificities of women as a disadvantaged group, so that they are able to recognize the different voices within the category ‘woman’ — all of which are equally valid. This reconception of the political sphere is one of dialogue that aspires to speak to the cultures of not just all groups within society, but of all individuals within collectivities. This perspective must inform the formulation of state policy. The public/private split where the state refrains from interfering in personal law, works ‘to translate traditional social values into the rhetoric of individual rights as a means of subordinating those rights to

specific social imperatives.’ In the context of Muslim personal law,

the state has used the ideology of the private sphere to subordinate the rights of Muslim women to the group rights of the Muslim community, and significantly, to the individual rights of Muslim men. The result of making personal law part of the private domain, free from state regulation, is that for Muslim women private subordination has been very much part of the public agenda. MacKinnon argues that to see the public as the private is to see the personal as the political.°” For Muslim women, seeing the personal as the political, and in turn, the private as the public, means that they can | situate themselves within the larger context.*® It forces the state to acknowledge that the response to Muslim women’s disadvantage has to be based on the systemic discrimination against women, rather than on individualized responses on a case-by-case basis. While some scholars have pointed out that the Muslim Women’s Act has benefited some women — as judges have been awarding far greater sums in short-term spousal support than they could possibly get under section 125 — this only has meaning for individual women who were fortunate enough to encounter sympathetic judges. It does nothing to transform the

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inherently discriminatory nature of the Act, or the fact that patriarchal privilege has been strengthened through the non-recognition of the husband’s duty of spousal support beyond the three-month iddat

period.”

The understanding that the personal is the political and the private is the public enables Muslim women to better address the roots of systemic gender discrimination while acknowledging that the manner in which this discrimination is experienced is variously determined by locations of class and ethnicity and other situated experiences. The value of recognizing difference between and among women allows for negotiation with others and the acknowledgment of the boundaries of these claims. It also engenders the recognition that claims forwarded by Muslim women are not necessarily in terms antithetical to the notion of community or of community interests. It creates the possibility of collective action in the transformation of oppressive norms and practices through dialogical engagement, empathy, and connection with other members of the collectivity. It establishes an understanding that new norms are themselves always subject to critique and revision. The role of the state in maintaining the public/private distinction is complex and contradictory and not one of simple non-interference in the private sphere. Although the state purports to maintain a policy of non-interference in the private sphere, it has from time to time regulated family law and the structure of power relations within the fam-

ily.*! State policy towards Muslim personal law has served to maintain

the power structure of the patriarchal family. For its part, fundamentalism contributes to the artificial separation between public and private, supporting the notion of separate spheres where laws relating to political and civil rights change with time, while laws relating to the socalled private sphere remain stagnant and oppressive to women.” The Ulema, by claiming the personal law sphere as private and recasting it as free from state interference in the Muslim imagination, have sought to establish the private sphere as one over which they have total authority, while simultaneously attempting to obscure the fact that, in retaining authority over this aspect of the Muslim community, they have actively sought the support of the state. In fact, the various legislative initiatives of the Ulema have resulted in the increased control by the state over the affairs of the Muslim community.” Thus, the state has been complicit in the consolidation of the authority of the Ulema within the Muslim community as both state and Ulema use the public/ private distinction to reinforce their authority.

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The Utility of Rights The role of the state in regulating women’s lives is contradictory and fraught with tension between women’s rights, group rights, and the imperatives of governing a multireligious nation. There have been substantial changes in the status of Muslim women. They have gained, among other rights all other Indian women have gained, the right to vote, the right to hold political office, and the right to equal pay. It is, however, significant that the state has chosen not to reform Muslim personal law, or to alter, in any substantial manner, the structures of

power in the sphere where Muslim women experience the sharpest discrimination — the patriarchal family. The state’s reforms have been confined to limited and selected spheres and have had little impact on the substantive disadvantage of women. They have not transformed the material reality of the majority of Muslim women who are confined to roles that are severely circumscribed by custom, tradition, and discriminatory personal law. It is critical to end discriminatory personal law and to enact a UCC because religious personal law not only affects women’s status within the community, but also directly impacts women’s

exercise of civil, political, economic,

and cultural rights.”

There is a sharp discordance between the formal guarantees of equality under the Constitution and the lived reality of substantive inequality of Muslim women. The role of the state is therefore complicated. At one level, it reinforces patriarchal stereotypes and legitimizes women’s subordination, yet at another level, it contains the promise of the trans-

formation of society towards gender equality. The state has to be viewed as a site of contestation of power and of negotiations by various groups. In claiming their right as citizens Muslim women have as great, or as little, a chance of subverting the dominant discourse and demanding a place of their own as any other disadvantaged group. I believe that a UCC would be one way of making a claim for gender equality. The value of a rights discourse and the © moral claim underlying a rights claim cannot be underestimated. According to Amy Bartholomew and Alan Hunt, rights claims envision a notion of a just society and that is a great part of their attraction.’ Rights have been criticized as being confrontational, and it is argued that rights discourse is oppositional. However, it may well be that in certain situations, the confrontational aspect of rights is not necessarily a bad thing. For Muslim women, negotiations with the representatives of the Muslim community would be preferable to an

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assertion of rights, however, it is clear that negotiations alone will not

take them towards equality. By making a rights claim on the state, I believe that the recognition of Muslim women’s equality can be imposed on the recalcitrant conservative leadership. Bartholomew and Hunt argue that we need to question the assumption that rights discourse and rights claims are neutral instruments that may be used alike by oppressors and oppressed.” In articulating a perspective on rights discourse they suggest that, while rights ought not to be rejected, we need to be aware that there can be no guarantee as to the success of a political strategy which relies on rights.** Arguing that both the Critical Legal Studies (CLS) and the minority critique result in the reification of rights, they suggest that the terrain of rights discourse

should be recognized as being one of struggle and of contestation.” We

must be aware of the manner in which rights claims may be invoked to draw boundaries and to isolate.*° Patricia Williams rightly argues that the symbolic value of a rights claim is of crucial significance to the dis-

advantaged and the marginalized.*’ While recognizing that rights may

not be ends in themselves, the rhetoric of rights for those who are oppressed is of great significance. Carol Smart argues that rights dis-

course could work as a weapon against feminism rather than forit.

She points out that ‘the resort to rights can be effectively countered by the resort to competing rights.’”° This is powerfully demonstrated by the experience in India today of the success of fundamentalist leaders in using the language of rights to deny Muslim women’s demands. The fundamentalist campaign for the Muslim Women’s Act subverted the terms of the debate from the central issue of women’s rights to that of minority rights and group identity. It served to displace women from the discourse, situating them exclusively within the community. In accepting this contention of the fundamentalists, the state acknowledged an ungendered identity for Muslim women.” However, rather than abandoning the discourse

of rights altogether, I believe we need to have a more complicated understanding of the notion of rights and that we need to combat fundamentalist manipulations of rights discourse. Although Smart does not reject rights altogether, she warns that ey might result in an unwanted intrusion of the state into women’s lives.” However, with respect to Muslim women, the claim for equal rights within the family advances a rights claim in an area over which the state already has control. In forwarding their claim to equality, Muslim women are seeking the removal of disabilities sanctioned and legiti-

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mized by the state. Muslim women have no choice but to confront the legal system upheld by the state. Rajeev Dhavan points out that ‘it follows them everywhere, defining their rights, controlling their oppression, whittling down their entitlements and, where necessary, hunting

them down.’ The formulation of the Muslim women’s rights claims can address and reflect the specificity of their location, their subordination under personal law, their economic vulnerability, and their social

disadvantage. It can thus reflect the lived experience of Muslim women at a political level.*” Elizabeth M. Schneider argues that the rights claim is a ‘moment’ in an ongoing process of politics in which ‘the political vision emerges from within the claim of rights.’°® Therefore, while acknowledging the limitations of rights discourse and the limits of legal reform in achieving social transformation, in the context of the continuing legal inequality of Muslim women within the family, it is critical to continue our engagement with the law and with legal reform using the language of rights. Feminists are concerned that the language of rights may serve to reinforce the existing power status quo. Catherine MacKinnon writes: ‘Abstract rights will authorize the male experience of the world.’”” Feminists are also concerned that a rejection of rights altogether can be dangerous in negotiating a system in which rights are of critical impor-

tance.” Despite feminist critiques of rights as being hierarchical and formal, and as reflecting a male viewpoint, these critics do not argue that rights should be given up.°! Some CLS scholars tend to view

rights claims as formal, indeterminate, empty, and as distinct from,

and opposed to, politics. Schneider, on the other hand, argues that both feminist and CLS critiques of rights are incomplete, as they fail to

account for the dialectical relationship between rights and politics.”

According to her, the failure to take into account the complexity of rights leads to and reifies the dichotomy between individual and group, law and politics, and ultimately, rights and politics. An appreciation of the complexity of rights discourse leads to an understanding of both the constraining nature of rights as well as its ability to foster the development of collective identity, the affirmation of human values, and the expression of a political vision. The experience of Muslim women suggests the need for an understanding of the relationship between rights and politics as dialectical. This understanding allows for the recognition that rights claims may be both universal and affirming, while also acknowledging the need to maintain ‘a critical impulse toward rights.“

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Carol Gilligan stresses the importance of rights claims for women, noting that they can give women a sense of self and allow them to articulate their needs in contrast to society’s emphasis on women’s responsibilities and duties of care. For too long, Muslim women have been educated in their duties rather than their rights. Gilligan suggests that ‘The essential notion of rights is that the interests of the self can be considered legitimate. In this sense, the concept of rights changes women’s conceptions of self, allowing them to see themselves as

stronger and to consider directly their own needs.’® Gilligan seeks to

synthesize an ethic of justice with the ethic of caring and to synthesize rights with responsibilities, so that the discourse is transformed from either/or to a combination of both. Such a vision suggests the possibility of a dialogue between Muslim women and the male leaders of the community that could open up new ways of transcending the individual/group dichotomy and of crafting new frameworks within which a conversation about Muslim women’s place within the community is possible. Nevertheless, while acknowledging the usefulness of rights discourse in forwarding Muslim women’s claims, and recognizing that rights are critical for articulating a feminist vision of a just society, we must be aware of the limits of rights claims. While Muslim women’s de facto equality within the family clearly requires the elimination of de jure inequality, Muslim women’s rights claims have to be situated in the context of intersections of gender, religious affiliation, class, group identity, and the structures of state power. Gender identity is shaped by several factors. The material conditions of women’s lives and the effect of personal law on the status of women has to be understood in the context of these factors. In balancing Muslim women’s rights with the accommodation of the religio-cultural difference of the Muslim community, we need to look beyond rights claims to the accommo-

dation of difference through political representation and through the structuring of institutions. to determine what aspect of difference the state is It is necessary accommodating in perpetuating personal law. An understanding of the political context and the social and economic disadvantage of Muslim women is essential to any analysis of the need for a Uniform Civil Code. I believe that the significance of personal law to the Muslim community has to be understood as a political claim; as an assertion to

difference, rather than solely as an integral part of religious faith. Although articulated in terms of protecting community identity, the

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Muslim Women’s Act must be understood as an effort by the Ulema to reassert political power rather than as an expression of spirituality or

religious faith.” The fundamentalist reaction to the Shah Bano case

must be located within the social and political context of increased Hindu communalism and the challenge to patriarchal privilege by Muslim women demanding alimony under secular law. The fundamentalist reaction must be seen as an attempt to reassert authority over Muslim women and to control the economic and social dependence of women in the form of access to property and wealth. In the interest of justice, the state has to respond to the rights claims of Muslim women and to the community’s assertion of difference by restructuring and reconceptualizing the structures of political authority and the political representation of minorities. The political significance of personal law is the measure of pluralism it engenders, giving voice to minority communities. The Muslim community sees personal law as a way of retaining group integrity and cultural values. Religion is a powerful basis of group identity. It provides a focal point of identity and social solidarity, and large areas of group culture are intimately associated with religion. Religious symbols represent group interests and group self-esteem. Any argument for the enactment of a UCC must, therefore, consider the value of personal law as a means of

providing a voice to minorities, and it must consider the significance of legal pluralism. However, in the Indian context, the argument that personal law constitutes a sphere of autonomy for communities against state interference does not acknowledge the illiberal nature of this law or that personal law has been repressive and has institutionalized the

subordinate status of women.”

For Muslim women, experience has shown that articulating their needs has not evoked a sympathetic response from either the state or male leaders of their community. The Shah Bano controversy is only the most recent demonstration of this fact. It suggests that the CLS critique that needs rather than rights are more likely to achieve social change cannot be sustained in the case of Muslim women.” SS claims are a public assertion of women’s private subordination.” Articulating rights claims breaks the divide between private and public and puts women’s concerns ‘out there’ in public discourse. The significance of rights discourse for Muslim women is that it helps to shape public dis-

course and move the locus of private subordination into the public

sphere.” It moves women’s particular problems outside of the private

sphere forcing them to be publicly acknowledged and dealt with on a

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wider societal level, rather than on a private individual level that serves to isolate women and to see their problems as isolated and personal. Reconceptualizing the Uniform Civil Code

In recent years, the Supreme Court of India has interpreted women’s

rights in a relatively progressive manner.” However, the state, as embodied in the executive and the legislature, has been quick to counteract this impulse of the judiciary as is evidenced by the reaction to Shah Bano. The state has pursued an inconsistent policy with regard to reforming women’s rights under personal law. While Hindu law was substantially altered to give women greater rights in conformity with the principle of gender equality, Muslim law was not reformed or

modified until the enactment of the Muslim Women’s Act in 1986.”

However, the Muslim Women’s Act was a step away from the UCC and did nothing to further Muslim women’s equality within the family.” On the contrary, it served to further entrench their disadvantage. Muslim women’s rights were not addressed on the assumption that group rights took precedence over women’s equality. The retention of Muslim personal law is related to the state’s policy of neutrality towards all religions and the safeguarding of minority rights.”° The failure of the state to enact a UCC is informed by its desire to not alienate the religious minorities, but it shows a disregard for safeguarding the interests of women. As a consequence of the policy of subordinating the interests of Muslim women to the presumed interests of the group, the state has ignored systemic gendered discrimination in the uncritical protection of collective rights. The state’s refusal to reform Muslim personal law has resulted in the continuing inequality of Muslim women, rendering the constitutional guarantee of equal-

ity meaningless for them.”

The increasing influence of religious fundamentalism and its deleterious impact on Muslim women’s rights underscores the need to separate religion from family law and to enact a Uniform Civil Code. The limited success of the historical process of the reform of all personal law, and the failure to abolish patriarchal privilege, is unquestionable. Calls for reform in Muslim personal law have been resisted by religious leaders who seek to establish sole authority over what aspects of personal law may be changed and who has the power to do so. The aftermath of Shah Bano teaches us that the state’s alliance with funda-

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mentalist leaders has served to entrench discrimination against women. It teaches us the perils of excluding the voice of the oppressed in the accommodation of the presumed interests of the group. Finally, it signals to us that the call for change from within the group must be acknowledged if we are to move towards ending injustice and exploitation. In deciding the limits of state regulation of religious activity we need to be more sensitive to the definition of the group as posited by the group itself. Although the basis of recognition under the Constitution is the individual, groups are an equally important constituent of Indian secularism.”® However, it is critical that the definition of ‘group’ has to move beyond the self-appointed leaders and those acknowledged by the state to be the ‘leaders’ of the community to include all members of the group. The state has to be cognizant of the voices of those who are most oppressed within the group and to include the definition of ‘group’ as posited by Muslim women themselves. The objective of the Constitution is not the assimilation of minorities within state secularism, but rather a pluralistic secularism that acknowledges and

safeguards community rights.”? However, ‘group life cannot be orga-

nized to sustain or permit the exploitation of any particular citizen or

group.” The basic question before the state is whether it is committed

to upholding the principles of gender equality and freedom from discrimination. The state must assume a proactive role in which it actively intervenes to address systemic oppression and injustice and takes positive steps to counter discrimination. The state has to be sensitive to the imperatives of group life and the importance of religion as a basis of group identity. Yet, if the Constitution is to have any meaning at all, this sensitivity must be contextualized within the larger question of equality for Muslim women. The primary focus of discussion of the Uniform Civil Code has been the nature of Muslim personal law and whether it may be reformed or modified.®! The nature of Hindu personal law is not similarly ques-

tioned.®* The consequence of focusing exclusively on Muslim personal

law has been that the UCC is seen as concerned only with changing Muslim law, thus in turn, further narrowing the terms of debate to

exclude any discussion of constitutional principles mandating the enactment of a UCC. The fact that the entire personal law system is contrary to principles of equality and freedom from discrimination is thereby obscured. Rather than considering the UCC as a means of engendering national unity, I believe that we need to reformulate the

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frameworks within which we debate the UCC. A UCC ought not to be portrayed or perceived as a threat to the integrity of the Muslim community but as a means to realize women’s equality. Historically, the drafters of the Constitution emphasized the importance of a UCC as a means to achieve national integration and secularism,

and

as a tool to combat

the fissiparous

tendencies

of

communalism.® In stressing the need for a UCC to facilitate national unity, the drafters of the Constitution failed to establish or emphasize the link between a UCC and gender equality. The state continues to emphasize the UCC as a means of achieving and preserving national unity rather than as a means to ensure women’s equality. Muslim fundamentalist leaders argue that a UCC would be contrary to the state’s policy of secularism and the protection of minority rights. According to them, the preservation of personal law is crucial to safeguarding Muslim

identity.™ The state has made

no move

to initiate a UCC,

implying that the enactment of a UCC would disrupt national unity and would alienate the minority communities. The state has thus chosen to accept the argument of the Ulema that the enactment of a UCC would be an encroachment on the right to religious freedom and that reform of Muslim personal law is a threat to the identity of the Muslim community.®° The state has disregarded repeated demands by women’s organizations for the enactment of a UCC as a way to ensure legal equality for

women of all communities.*° The report of the Committee on the Sta-

tus of Women categorically states: ‘The absence of a UCC in the last quarter of the twentieth century, twenty seven years after independence, is an incongruity that cannot be justified with all the emphasis that is placed on secularism, science and modernism. The continuance

of various personal laws which accept discrimination between men and women violate the fundamental rights, and the Preamble to the Constitution which promises to secure to all citizens “equality of status,” and is against the spirit of national integration and secularism.” Although this committee was set up by the state expressly tomake recommendations regarding improving the status of women, its recommendation regarding the UCC has not been implemented. However, here too, the link between the UCC and national integration was

made. We need to conceptually disentangle the question of women’s equality from issues of national unity. The result of subordinating women’s rights to the ‘larger’ question of national unity has been the construction of a binary opposition between the two.*® In turn, the

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question of Muslim women’s rights has been subordinated to the larger question of community integrity. This has led to the reification of the dichotomy between women’s rights as individuals and group rights and to the understanding that gender equality and religious freedom are mutually exclusive. Muslim women’s experiences have not been represented either in the discourse of what constitutes religious identity or in the discourse of anti-communalism. By virtue of the specific location of Muslim women - as a consequence of the intersectionality of their oppression as women, as Muslims, and as Muslim women — they are marginalized in both these discourses that are shaped on, and in response to a single axis framework of discrimination. The 1990s saw the dramatic rise of the Hindutva movement, a polit-

ico-religious movement based on Hindu communal politics.’ The

ascent of the Hindu nationalists, their anti-Muslim campaign which led to the destruction of the Babri Masjid in 1992, and the resultant widespread communal violence poses questions about the role of the state in maintaining a secular neutral agenda and protecting minority rights.” In passing the Muslim Women’s Act, and in accommodating the demands of the Hindu right by reopening the Ram Temple, the Congress party failed to uphold secular, democratic principles and

institutions.”! This failure opened up the space for the popular appeal of the discourse of Hindutva politics. In 1998 the Bharatiya Janata

Party (BJP), the parliamentary party representing Hindutva, was able to regain power at the centre, in coalition with several other parties,

following the collapse ofa left-led coalition government.”

The electoral success of the BJP has led to fears that India’s secular

democratic Constitution is under threat. ** The Hindu right challenges

the notion of secular composite nationalism by making the Hindu identity prior to an Indian identity.” Challenging minority rights, Hindu nationalists call for the assimilation of all minorities into the Hindu fold.”° The threat of the Hindu right is its use of the discourses ° of democracy and secularism to project a national culture, and to attack all those who do not conform to this culture — particularly the minorities. At the same time, the Hindu nationalists seek to present themselves as principled critics of Islamic fundamentalism. Thus, their campaign is directed not against the principles of the secular state, but rather towards using the state’s legal powers to undermine the legitimacy of minority rights.” The Hindu nationalists have subverted arguments of secularism, democracy, and fundamental rights to fur-

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ther their agenda of challenging minority identity.”® Hindutva politics have created the myth of a continuous thousand-year struggle against the Muslim invaders. Using this myth to assert that it is Hindutva alone that represents true nationalism, historic plurality is sought to be erased and Muslims are constructed as the ‘other.’ The fact that the Muslim ‘other’ is a marginalized minority is ignored.’” The assertiveness of majoritarian politics has served to further inten-

sify the anxieties of minorities.’°' As secularism has become the site of

political contestation, Brenda Cossman and Ratna Kapur note that ‘indeed, secularism has become a central and powerful weapon in the

Hindu right’s quest for discursive and political power.’°* However,

the BJP government's hold on power is shaky, and it is forced to modify its extreme positions because it is dependent on an eighteen-party coalition. The cleavages within Indian society, and the internal contradictions of caste, sect, belief, and region within Hinduism, may prevent the imposition of Hindutva as the state ideology. These opposing forces have equal chance of combating Hindu right-wing politics of Hindutva.!™ Nevertheless, the plea for an alternate secular culture is all the more urgent in light of recent events that make the foundations

of secularism in India appear under siege.‘

The struggle over the definition of secularism and religious freedom takes place in the legal arena because the judiciary has the responsibility to decide the nature of secularism and to limit the incursion of religion in politics. While some judgments have categorically ruled that Hindutva politics violate the constitutional principle of secularism, others have not been as explicit. This has led to the charge that the judiciary, too, has fallen victim to the forces of Hindutva.

The critical

Supreme Court decisions in this regard are the Bommai decision and

the decisions in Manohar Joshi v. Nitin Bhaurao Patil,'° as well as eleven

. other cases, collectively called the Hindutva decisions!° Following the destruction of the Babri Masjid, the central government banned Hindu communal organizations including the Rashtriya

Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP), and the

Bajrang Dal which, together with the BJP, orchestrated the attack on the mosque. Five days later, the president of India dismissed four provincial governments on the charge that they were unable or unwilling to control the communal violence and were continuing to support these banned groups. This dismissal was challenged in S.R. Bommat v. Union of India,‘”’ and the decision that followed was a seminal one in which the Supreme Court reiterated the principles of secularism and

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the state’s commitment to minority rights. In Bommai the court strongly defended constitutional secularism. It categorically stated that secularism is a part of the basic structure of the Constitution and that the Con-

stitution does not countenance the political use of religion.’°’ The court

asserted that appeals for votes on religious grounds offend secular democracy and reiterated the principle of religious neutrality of the state, religious freedom, and secular citizenship.’ The court emphasized the duality of the concepts of secularism and democracy and reaffirmed the state’s commitment to the principles of respect, tolera-

tion, and accommodation of difference.!"° However, in the subsequent Hindutva decisions, the Supreme Court has drawn criticism for its equivocation on the nature of Hindutva and its implications for secularism and religious freedom.’ The Hindutva cases involved the prosecution of elected representatives of the Hindu right-wing Shiv Sena / BJP alliance in the western state of Maharashtra for the misuse of religion to gain votes. The court held that several of the accused were guilty of using religion to gain votes and of promoting religious hatred. It emphasized that secularism must be upheld and fundamentalism has to be firmly checked. However, the court also held that Hindutva was not the philosophy of the Hindu right, but was, in fact, simply a representation of a way of life of the people of India." By thus abstracting the notion of Hindutva from its current political context, the court inadvertently played into the hands of the

right.’ The BJP has claimed this decision as a victory, projecting it as an endorsement by the court of the Hindu right’s view of ‘secular-

ism.’"* The failure of the court to note the seriousness of the threat of Hindutva served to, nation. Although the an appeal to religion undermined secular

in effect, condone its political project of a Hindu court clarified that its decision in no way allowed to gain votes, it is argued that the Hindutva case values and implicitly endorsed the Hindu right-

wing political agenda. "” It is, however, important to acknowledge that

the Supreme Court remains firmly committed to principles of secularism and anti-communalism. It is critical of the Hindu right despite the fact that it failed to appreciate the political nature of Hindutva. The court strongly reiterated the principle enunciated in Bommai that religion and politics cannot be mixed and that any appeal for votes on the basis of religion is unconstitutional. The Hindu nationalists use the argument of women’s rights, specifically, the equal treatment of Hindu and Muslim women, to challenge minority rights and to critique Indian secularism as mere appeasement

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of minorities.!!° In the context of Shah Bano, the Muslim Women’s Act was opposed not only by feminists, progressive Muslims, liberals, and secularists, but also by the Hindu right who saw this as an excuse to attack the Muslim community. The passage of the Muslim Women’s Act gave the Hindu right the opportunity to challenge state secularism as little more than the appeasement of minorities and to critique the Muslim community as backward."”” The Muslim Women’s Act, Muslim personal law, and the Muslim community were attacked under the

guise of protecting Muslim women from unjust, outdated laws."° The

support of the Hindu right for the Shah Bano decision and its opposition to the Act raised the threat of Hindu

domination,

which was

exploited by Muslim religious leadership and ultimately led to Shah Bano’s withdrawal of her alimony claim. Many Muslim women opposed the Shah Bano judgment because it had the backing of Hindu right-wing groups known to be anti-Muslim. As a result they supported the religious leadership in the defence of the community

against external interference.''? The Shah Bano controversy resulted in

hampering the campaign for progressive change. Although prior to

this Muslim women could be mobilized against the fundamentalists, it

now became difficult to do so.’”°

The fear of Hindu communalism unquestionably complicates Muslim women’s claims for equality. This fear makes it all the more difficult for Muslim women to challenge the gender status quo; it forces an alliance between conservative religious leaders and Muslim women demanding change in the common struggle against communalism and, once again, women’s issues are subsumed under group interests. The threat of Hindu communalism is a very real factor in Muslim women’s opposition to inequities in personal law, and it often forces

them to privilege group identity over gender identity.*' The fear of Hindutva has made Muslim women more dependent on their community, at the same time, the community has increased patriarchal con-

trols over women.”

In particular, Hindu nationalist support for a UCC presents difficulties in sustaining progressive politics for Muslim women. The focus on

this the UCC, as a means to national unity, has allowed the BJP to use

demand to forward its own agenda of undermining minority rights. The BJP’s support for a UCC is aimed not only at gaining women’s support, but more importantly at critiquing the Muslim community as backward.!23 Therefore, while the issue of the UCC has to be unlinked from national unity and national integration, it must also be unlinked

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Gender and Community

from communalisation.'“ To their dismay, women’s organizations

found themselves on the same side as the Hindu right in demanding a UCC, causing many groups to re-examine and postpone this demand. The BJP’s support for a UCC is seen as a pretext for an attack on the legitimacy of minority rights. It is feared that any UCC enacted by the BJP would be one that undermines the group autonomy of the Muslim community, rather than advances women’s equality. In light of Hindu nationalist support for the UCC, many women’s groups have decided not to press this demand. They suggest, instead, that a set of laws based on gender justice and women’s rights should be drafted by feminist and left groups, although there are differences regarding content, time frame, and manner of implementation.’ The Working Group on Women’s Rights has suggested that an entirely new set of national, secular civil laws be drawn up with a ‘reverse optional-

ity’ which would allow women to opt for either secular or personal law. Others have called for judicial interventions to address discrepancies in laws to reduce the existing gender inequities.'*° The Forum Against Oppression of Women (FAOW) has proposed specific genderjust laws in areas such as marriage and inheritance. There is also a call for community-based reform. Groups such as Majlis that had earlier favoured legislation in specific areas such as the right to the matrimonial home, and laws relating to domestic violence, now oppose the UCC and instead emphasize the importance for change from within religious communities. The All India Democratic Women’s Association (AIDWA), which had initially supported the UCC, has now, following the Sarla Mudgal case, explicitly rejected it on the ground of its support by Hindu nationalists. AIDWA now advocates a gradual approach to social reforms and supports the reform of personal law from within the communities as well as fresh legislation with regard to matrimonial

property and children’s custody.'?” Although AIDWA now calls for legislation ‘with immediate effect’ in certain specific areas to ensure gender justice and to strengthen ‘secular forces,’ it does not advocate an umbrella legislation — suggesting that it could well be counterpro-

ductive.!8 On the other hand, prominent jurist and women’s rights advocate Dr Vasudha Dhagamwar argues that it is unwarranted to abandon the long-standing demand of the women’s movement for a UCC simply on the ground that the BJP, too, supports a UCC. According to Dhagamwar, the presumption that the UCC will impose Hindu law on minorities or that it will be gender-biased is based on an incorrect

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understanding of the law and facts underlying the premise for a UCC.’ Although some feminists have sought a way out of this dilemma by saying that they support a gender-just code and not a UCC, they have not clarified whether such a code will be one code or several codes, allowing one for each community. Although women’s groups insist that they favour gender-just laws for all communities, they hesi-

tate to call it a uniform civil code.!*” The idea of an optional UCC is not

entirely new, however the history of attempts to introduce such option-

ality is not encouraging.'*! J.D.M. Derrett suggested that there be a uniform civil code together with personal law so that individuals could choose to be governed by either.!** In fact, the Congress government,

after Shah Bano, considered introducing an optional civil code but did not pursue this project. However, it has been argued that an optional UCC would not significantly enhance women’s legal rights because the majority of Indian women would not be able to take advantage of such a code. In fact, during the debates on Hindu law reform the government was against making the reformed Hindu code optional as it was

felt that this would nullify its positive effects.* Arguably, optionality

would reflect the majority opinion of the group rather than give voice to women’s voices, thus supporting neither the group identity value

nor individual choice.! In today’s communal climate it is all the more

crucial to have a UCC where personal law divides women at a time when the critical need is for a united front against gender discrimination. It is imperative for Indian women to assert an identity as citizens of a secular state which does not exclude the multiple identities of group, religion and language. A UCC will weaken the hold of patriarchal custom and religion that controls women and will protect

women’s rights as citizens.’ The strongest argument in favour of

women’s claims for legal reform is that the Constitution explicitly supports the UCC, and it is unnecessary to discard this constitutional legitimacy in the struggle for women’s rights. Any argument in favour of a UCC must confront the issue of the ascent of the Hindu right and its implications for minority rights. Women’s groups have to face the challenge of Hindu right-wing politics. Although both support a Uniform Civil Code, the premise is radically different. Advocates for women’s rights cannot align themselves with Hindu communal forces in their demand for equitable family laws. A commitment to secularism and pluralism must be the basis of any alliances formed. The campaign for family law reform has to be conscious of the possibility of playing into the hands of the communal-

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ists.°° This is a clear danger, as happened in Shah Bano where the issue of discrimination against Muslim women was appropriated by the Hindu right. Nevertheless, this does not mean women’s rights advo-

cates should abandon the cause of a uniform family law. This would result in ceding the field to communal forces uncontested. Rather, the claim for equitable laws must be forwarded, and the challenge by the Hindu right to secularism, democracy, and minority rights has to be met. It underscores the critical need for women’s rights advocates to build alliances with progressive groups, as well as with other oppressed groups. The women’s movement has to contest the rhetoric of communalism in the arena of the state to ensure that the primary issue — women’s equality — is not lost sight of. ‘Indian feminists must reclaim the space claimed by the Hindu right wing to provide alternative definitions of secularism and gender equality and an alternative to

the message of violence and communalism.’”” The best hope for the

advancement of women’s rights, in the current political climate, lies in

the commitment to the principles of secularism and democracy. In the present political situation, where the rising influence of religious fundamentalism has subordinated women’s rights to identity politics, it is critical to make a conceptual shift in the way in which

family law is envisaged.’ It is crucial to shift the focus of discussion of

the UCC away from the issue of national unity to that of women’s rights. The narrow focus on the issue of national unity has limited the examination of the issue of gender justice. The emphasis of the debate continues to be on the manner in which Muslim personal law differs from other personal law, rather than on the discrimination and injustice within personal law and the violation of constitutional princi-

ples.’ In order to address Muslim women’s inequality, we need to move away from a conception of a UCC in terms of the comparative rights between communities to a discussion of the rights of women. There is a critical need to enact a UCC to address Muslim women’s systemic disadvantage. Religious leaders have demonstrated their unwillingness to reinterpret the scriptures to address women’s inequality. Personal law contributes to women’s inequality both within the Muslim community and between Muslim women and women of other religious groups. The state now has differing obligations to women based on their religious affiliation.“ Thus, while the state will _ enforce a claim for maintenance by Hindu, Christian, and other Indian women, Muslim women, by virtue of being Muslim, can make no such

claim on the state. Husbands’ immunity from providing spousal sup-

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133

port is also correspondingly contingent on religious affiliation. Thus, for the same act of enforcing spousal support, the state has duties towards some citizens and not towards others, based on the distinction

of membership of a religious community. Muslim personal law denies Muslim women the right to define their own interests, a right that the leaders of the Muslim community claim for themselves in retaining personal law. Furthermore, by denying a voice to Muslim women, the leaders of the community as well as the state, far from fostering the

recognition of plurality, have instead enforced a false homogeneity by not tolerating, much less acknowledging, dissent within the community. The Muslim Women’s Act, although it was indeed a codification of Muslim personal law, served to perpetuate women’s subordination rather than to address their inequality. Thus, it is not codification which can be an end in itself, or which can in and of itself move Mus-

lim women towards equality, but a particular vision of a Uniform Civil Code. This particular vision of a UCC must be based on the concept of substantive equality and premised on the incorporation of women’s perspectives in the formulation of laws and of legal responses to women’s specific experiences. To forward Muslim women’s claims, we need a substantive theory of equality that challenges the way women’s ‘difference’ is institutionalized and constructed hierarchically rather than

relationally to subordinate women.'*? MacKinnon challenges the tradi-

tional formulation of equality as sameness and difference, arguing that its law of sex discrimination and sex equality are inadequate to address

the fundamental root of gender discrimination.'** As she contends, the

sameness/ difference approach reifies difference into hierarchy which in turn produces other hierarchies. This is demonstrated by the subordination of women under Muslim personal law that reinforces gender stereotypes and moves substantive equality beyond the reach of Muslim women. From the perspective of Muslim women’s rights, the crucial need in a UCC and in equality litigation is the application and enforcement of a substantive notion of equality. Rather than a focus on anti-discrimination based on ideas of sameness and difference, there has to be an

appreciation that the true interests of equality might require differentiation in treatment and a rejection of reasonableness as a qualification

on equality rights. This conception of a UCC would be based on a

notion of substantive equality which is remedial in orientation and not concerned with motive, but with equality of results for all women

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as a group. In contrast, formal equality perpetuates the advantage of those already advantaged. Its analysis is disconnected from the real inequalities that lie beneath superficial comparisons. Formal equality, therefore, further entrenches the disadvantage of groups rather than remedying it. Whereas we should not think of formal/process rights of equality as something separate from substantive equality rights, it is essential that the goal of substantive equality be pursued in conjunction with formal rights. Kathleen Mahoney argues that the formal equality model cannot address the issue of the subordination of women caused by systemic, institutionalized discrimination. The tendency of the sameness model to ignore social, economic, and physical disadvantage results in the perpetuation, rather than the amelioration of inequality. Mahoney emphasizes that to better address the systemic subordination of

women we need to go beyond the Aristotelian model.'“* Formal equality, which focuses on the form of acts rather than on their effect, does

not go to the root of group disadvantage.” This is not to say, however,

that individual rights are not important for women’s equality, but rather, that for women to derive full advantage of their rights as individuals, it is imperative that their disadvantage as a group be

recognized. The motivating principle behind a UCC should not be to ensure that Muslim women

are treated as identical to Muslim men, but rather, to

ensure that gender is not the basis of discrimination. Equality for Muslim women must be informed by an understanding of the intersection of class, ethnicity, religious affiliation, the role of religious leaders in SUL eranatOs women, and the role of the state in maintaining this sub-

ordination.'*” Perforce, this assessment must include an understanding of the manner

in which

‘religion,’ ‘culture,’ and social and political

structures disadvantage Muslim women.'*® The motivating idea

behind such a UCC would be that social and legal structures should not be permitted to turn difference into disadvantage. The objective would be to formulate laws based on an inquiry into the way existing personal law is gender-biased, and on examining the scope and content of laws and norms to uncover their underlying assumptions, and

in what way women’s experiences have been distorted or excluded.!*?

The formulation of the UCC must be based on an inquiry into whether a law contributes towards the subordination of women or serves to ameliorate it. The principles articulated in the Constitution have permitted a shift

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in focus from equality as non-discrimination to equality as an empow-

ering principle for disadvantaged groups.’° The equality jurisprudence developed by the Supreme Court of India has done a great deal to advance the concept of equality rights.’ It is of critical significance for Muslim women’s equality claims because the court has eschewed a formal doctrinal approach using abstract formulae to focus instead on a purposive and contextualized approach to equality rights. Judges have the crucial role of breathing life into abstract concepts and legal rules, and it is vital that they continue to approach equality claims in a manner that addresses substantive inequality.* It has to be acknowledged, however, that equality rights in themselves are not enough to achieve equality and that if lasting reform is to occur substantive inequities have to be understood and challenged. This can be achieved by adopting a theory of equality that allows Muslim women to address the structural disadvantage experienced by them as Muslim women, not just as Muslim women compared with Muslim men, or as Muslim

women compared with Hindu women.’ Ultimately, however, as Col-

leen Sheppard notes, ‘the generation of ethical and moral answers to the difficult questions which confront the courts will depend not on any elaborate legal theory of equality, but rather on the ability of judges to develop compassion and empathy for those who experience the realities of inequality and discrimination in society.’ In seeking a UCC, I am aware of the dangers of speaking for all women, and of the possibility of obscuring this multiplicity by representing a particular view as universal. Angela Harris draws attention to the multiple consciousness within women, arguing that the self is not unitary, but rather, made up of several selves which coexist, and

may be concomitant or even antagonistic.’ She cautions against essentializing difference and speaking for all women in a way that obscures the diversity among women and the differences of locations

of class, race, ethnicity, and religion.’° Minow explains: ‘Cognitively,

we need simplifying categories, and the unifying category of “woman”

helps to organize experience, even at the cost of denying some of ite

Harris acknowledges the importance of categories so that there be moral responsibility and a feminist movement for social change, stating that ‘even a jurisprudence based on multiple consciousness must categorize; without categorization each individual is as isolated as Fuenes, and there can be no moral responsibility or social change.’°8 Harris suggests ‘that we make our categories explicitly tentative, rela-

in a tional, and unstable, and that to do so is all the more important

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discipline like law, where abstraction and “frozen” categories are the

norm.’!? It is crucial to any reconception of gender justice and equality that we recognize the self as multiplicitous and not unitary, that differ-

ences are relational rather than hierarchical, and that commonality is

an act of will and creation rather than of passive discovery.‘ Different identities are projected and put forth depending on the nature of the claim being made. From the perspective of Muslim women, gender identity must necessarily be ‘strategic and contingent,

focusing on relationships, not essences.’!°! This would open up the

possibility of a new basis of an alliance between Muslim men and Muslim women in the struggle against Hindu communalism. It would also open up the possibility of acknowledging difference between and among women, and the possibility for Muslim women to forward feminist claims without disowning their Muslim identity. We need, however, to move beyond an overarching emphasis on women as victims, because to see women only in the light of their subordination to men is

to deny women agency in shaping their own lives.’ Such a concep-

tion cannot accommodate a Shah Bano who challenges Muslim patriarchy, seeing her only as a victim. Zora Neale Hurston’s analogy of identity as a brown bag filled with a miscellany of contents is evocative

and highlights the reality of women’s multiple selves. Muslim

women must not be seen, either by the state, by the fundamentalist leaders, by the Muslim community, or indeed, by the feminist movement, as essentially Muslim or essentially women, but as women

whose identity is not an essence, but is actively constructed by their

life experience, by their will, and by their creativity.“

While recognizing that this notion of identity may lead to the liberal feminist conception of the self as being a completely rational actor and therefore culpable, it also contains the possibility of recognizing the agency of women, the creativity of women in surviving this domination and power structure. Linda Alcoff’s conception of positionality seeks to transcend the rigidity of traditional categories and legal responses. Her articulation of the concept of positionality is a useful way of approaching women’s subjectivity without falling into the trap of essentialism.’® Alcoff suggests that it is both possible and desirable to construe a gendered subjectivity in relation to concrete habits, practices, and discourse while at the same time recognizing the fluidity of these.’ The advantage of Alcoff’s analysis is that it enables an appreciation of gender inequality within the wider historical significance of Muslim women’s enforced dependency and subordination while rec-

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ognizing that the legal response to such discrimination can be neither universal nor frozen in time, but subject to further change and critique. Kimberle Crenshaw’s argument that any analysis that does not include the experience of marginalized groups of women within the category ‘woman’ is by definition lacking is especially relevant to the situation of Muslim women whose voices have been ignored by the

state.!©” Crenshaw argues that a bottom-up vision of equality, which

would combine multiple discriminations to challenge an entire social and economic situation, is wider in scope than a top-down vision. A top-down, formal equality model, with its limited view of the wrong, and consequent narrow legal response, focuses on individual rather

than systemic inequality." This understanding was expressed by the Shah Bano court which stated that justice for all in the form of a UCC, rather than an individualized response on a case-by-case basis, is essential to address women’s disadvantage under personal law.’ With its emphasis on substantive equality, this notion of a UCC is premised on the contextualized understanding of women’s subordination as a group and on the articulation of legal responses that reflect the reality of Muslim women’s lives. Such a conception of the UCC calls for ‘placing those who currently are marginalized in the center [as] the most effective way to resist efforts to coe parenenilize experiences

and undermine potential collective action.”

In exploring the principles that need to inform a UCC, I draw on Minow’s understanding of a legal framework that is ‘at once pluralist,

heterogeneous, and localist.’!”! This would entail the understanding that perspectives are partial and would therefore seek out alternate views and always be able to ‘see its limits from a perspective beyond itself.1”* A pluralistic understanding would signify a UCC sensitive to contrasting viewpoints and to the partiality of any particular understanding. Heterogeneity signifies an acknowledgment of the ‘multiplicity of discourses and frameworks for analysis that occupy legal

spaces currently.’ However, this is not to say that all perspectives are

equally worthy of accommodation. To do so would imply a moral relativism that I believe would be unacceptable because it would lead toa paralysis of action, an abdication of responsibility, and an abandonment of our commitment to fundamental principles of gender equality and freedom from discrimination. It would lead to the valorizing of claims that seek to undermine these very principles, just as fundamentalists seek to undermine women’s rights. As Minow argues: ‘We must remain equally vigilant against a kind of mutual acceptance and indif-

138

Gender and Community

ference that places oppression on an equal footing with any other

human activity.’ A UCC that is contextual is crucial in addressing the specificity of Muslim women’s location. Rather than elaborating a grand theoretical framework for a UCC, I believe a good starting point would be the concrete problems faced by women in their lives, as experienced and

defined by women themselves.!”° We need to have a UCC that imposes no fixed and final determinations of women’s interests or women’s nature, but a framework which allows us to confront the issues with greater sensitivity to social context and to the diversity of concerns implicated. This reconception of a UCC will require a radical change in the legal paradigms within which we view Muslim women’s equality. It will also demand a change in our social priorities.” The state and the religious leaders have denied women the power to define their own existence and experience. Muslim women have been silenced and denied the right to construct their own reality. It is essen-

tial that they be given the power to define and the space to speak.’”

The inclusion of Muslim women’s voices is essential in giving due recognition to the hitherto excluded. We need to understand howa system of exploitation oppresses not just Muslim women, but all other disadvantaged groups. As ‘dominant groups tend to entrench their hegemony by inculcating an image of inferiority in the subjugated,’’”8 so, too, in the context of Muslim women, who have been subordinated

by male interpretations of personal law, ‘the struggle for freedom and equality must pass through arevision of these images.’’” The struggle towards gender equality for Muslim women is thus both a struggle within themselves to throw off the devalued image of women imposed by patriarchal definitions of women’s roles and gender difference, as much as a struggle against the Ulema and patriarchy that seek to define women and their rights. I believe that the reconception of women’s rights through a UCC would bea step in this direction. For the Indian state to truly respect religio-cultural difference, the accommodation of difference has to be based on the politics of equal respect: not merely for the Muslim collectivity, but for all those who make up

this collectivity.'®°

Towards Equality

In negotiating the boundaries of community and gender, it is evident that the discourse of religious fundamentalism and the construction of

The Role of the State

139

identity and of culture have served to perpetuate women’s subordination. Fundamentalist leaders have manipulated personal law to establish their hegemony over the community and have defined the community interest as male and conservative. The state has accepted this

definition

and

has

accommodated

communalism.

However,

acknowledging this interplay of power relations leads not to a rejection of culture or of cultural identity, but rather to a rejection of those

practices that seek to oppress women. It leads to the understanding that ‘culture’ and ‘religion’ are selectively deployed to suit particular interests. To be truly effective, a UCC premised on gender equality must respond to Muslim women’s real interests. It is, therefore, critical that Muslim women be included in the process of the formulation of the law, its implementation, and enforcement. The impact of attempts by the state to enact a UCC that addresses Muslim women’s inequality within the family will necessarily be closely related to the economic and educational initiatives taken by the state in conjunction with legal

reform.'®! Thus, building a conscious constituency of Muslim women

through education and organization is a necessary complement to research and policy level activities. Furthermore, it is insufficient that equitable laws exist and that women are aware of them. For the UCC to be effective, there must be some means to assure access to the system at the structural level for those the law is meant to serve. The question of equality for Muslim women in the family must, therefore, be located within a broader struggle for secularism and for the democrati-

zation and decentralization of political and economic structures.’**

The challenge before us is to deal with the sense of marginalization experienced by the Muslim minority and to accommodate group difference without compromising basic constitutional principles of equal-

ity and freedom from discrimination.’ The state has a duty to seek

out and ensure the participation of those voices that have traditionally been excluded if equality for Muslim women is to have any meaning at all. This search for excluded points of view is the challenge not only for

the state but for all those committed to a just society.’** We have to find

a way of preserving cultural values while protecting the rights of women against the abuse of those cultural rights, so that ultimately women are not disadvantaged by their membership in the Muslim community.!®° We need to view women and groups not as diametrically opposed, but as equal participants in a framework within which principles of equality and justice inform our vision for society. This

140

Gender and Community

process has to include a critical re-examination of tradition, culture, and religion. We need to acknowledge the importance of individual rights while valuing cultural diversity: the two need not be mutually exclusive. From the perspective of Muslim women, it is only the recognition of their equality as individuals that can lead to the interrogation of cultural practices that have denied women agency and subordinated them. It is only a rejection of the public/private dichotomy that can enable women to demand state action in addressing the root of their inequality as a group. We need to have an integrated analysis of the community and of the women of the community, within the larger economic, social, and political context. There is a need for the state to

make the contextualization of Muslim women’s inequality central to its analysis of the appropriate response to their claims for equality as balanced with the claim for religio-cultural autonomy by the Muslim community as a whole. In my view, while acknowledging the importance of group affiliations as a political system, given the reality of the politicization of religious identity and the attack on women’s rights for Muslim women who are subject to multiple discrimination, individual rights may be a better starting point. A UCC that ensures the equality of all women, while respecting cultural difference would respond to this challenge. Rather than seeking to affirm group identity through discriminatory laws, a state that truly respects diversity and the rights of all its citizens must engage in a constructive dialogue between all members of society, especially those who are most disadvantaged. We need to foster dialogue that resonates with the claims and aspirations of collectivities as well as of individuals. We need to construct alternative modes of accommodating religio-cultural difference. This accommodation should be sought in the restructuring of public institutions, in the formulation of public policy, and in democratizing structures of accountability and of representation, rather than through the retention of discriminatory personal law that violates women’s rights. If the state claims to accommodate difference and to protect diversity, then it has to prove to Muslim women that it has formulated its policies, its laws,

and its institutions in dialogue with all members of the community.

Notes

Introduction

d Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. 2 The Muslim Women’s (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986), Gazette of India, Extraordinary, pt. II, sec. 1, 19 May 1986. 3 The Uniform Civil Code in the Indian context refers to a uniform family law. While it may be more appropriate to call it a Uniform Family Code, the term Uniform Civil Code is used in the Constitution of India. Article 44 of the Constitution directs the state to introduce a Uniform Civil Code for all citizens. Although there has been considerable debate on the nature and scope

of a UCC, no agreement on it has been reached as yet. Contextualizing Muslim Personal Law

].D.M. Derrett, Religion, Law and the State in India (Delhi: Oxford University Press, 1999) 513. The Shariat is the sacred law of Islam, and figh refers to the jurisprudence of Islamic law. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1966) 1. The Shariat includes the figh. The distinction between the two is not always clear and jurists often use the terms interchangeably. Asaf A.A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Delhi: Oxford University Press, 1999) 17-19, 24. Schacht, Introduction.

Fyzee, Outlines, 57. Schacht, Introduction, 4, 95. Fyzee, Outlines, 50. af WN

142

Notes to pages 8-11

6 Schacht, Introduction, 4. ih Archana Parashar, Women and Family Law Reform in India (New Delhi: Sage, 1992) 54-60. Schacht, Introduction, 60. Fyzee, Outlines, 20. 10 NJ. Coulson, ‘Islamic Law,’ in J.D.M. Derrett, ed., An Introduction to Legal

Systems (London: Sweet and Maxwell, 1968) 56. 11 12 13 14 15 16

Schacht, Introduction, 12; Fyzee, Outlines, 19.

Fyzee, Outlines, 20. Ibid. Schacht, Introduction, 37.

Ibid. Paras Diwan, Muslim Law in Modern India (Allahabad: Allahabad Law

Agency, 1977) 32. 17 David Pearl, A Textbook on Muslim Personal Law, 2nd ed. (London: Croom Helm, 1987) 13. 18 Parashar, Women, 55. 19 Pearl, Textbook, 4, 5. 20 Ibid., 8. 21 Parashar, Women, 55. 22 Fyzee, Outlines, 22. 23 Pearl, Textbook, 6. 24 Schacht, Introduction, 19-21. Examples are the method of legal reasoning (kiyas) and the idea of ijma (consensus) which are borrowed from Jewish

25 26 27 28 29 30 31 32 33 34 35 36 37 38 39

law. Ibid., 24-7. Ibid., 26. Ibid., 27.

Fyzee, Outlines, 33. Schacht, Introduction, 44. Diwan, Muslim Law, 22. Schacht, Introduction, 43-4.

Ibid., 47. Pearl, Textbook, 17. Schacht, Introduction, 16. Fyzee, Outlines, 80. Coulson, ‘Islamic Law,’ 65. Pearl, Textbook, 16; Coulson, ‘Islamic Law,’ 64.

Fyzee, Outlines, 35. Ibid., 77.

Notes to pages 11-14 40 41 42 43 44 45 46 47 48 49 50 DE 52 53

143

Ibid., 41-3. Pearl, Textbook, 3. Ibid., 9. Fyzee, Outlines, 25. Pearl, Textbook, 3.

Fyzee, Outlines, 25, 27. Pearl, Textbook, 5.

Ibid., 11. Schacht, Introduction, 47. Fyzee, Outlines, 28, Pearl, Textbook, 13.

Fyzee, Outlines, 28. Coulson, ‘Islamic Law,’ 66, 67. Pearl, Textbook, 13. Coulson, ‘Islamic Law,’ 67.

NJ. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964) 148.

55 Ulema is the plural form of the word alim. The Ulema are religious clerics, and they are the legal and theological interpreters of the Koran and the Haadith (Tradition). Donald E. Smith, ‘The Political Implications of Asian

Religions,’ in D.E. Smith, ed., South Asian Politics and Religion (Princeton: Princeton University Press, 1966) 18. 56 57 58 59 60 61 62

Schacht, Coulson, Schacht, Coulson,

Introduction, 84. ‘Islamic Law,’ 69. Introduction, 76. ‘Islamic Law,’ 69.

Ibid., 139. Ibid., 148. Derrett, Religion, 514.

Fyzee, Outlines, 30; Derrett, Religion, 514. Pearl, Textbook, 20-1. Schacht, Introduction, 94. RRB 66 Derrett, Religion, 229.

67 68 69 70

Fyzee, Outlines, 48. Derrett, Religion, 231.

Parashar, Women, 62. Michael R. Anderson, ‘Islamic Law and the Colonial Encounter in British

India,’ in Chibli Mallat and Jane Connors, eds., Islamic Family Law (London:

Graham and Trotman, 1990) 211.

71 Schacht, Introduction, 94. 72 The Hindu scriptures.

144 73 74 75 76 77 78 79 80 81 82 83 84 85 86

Notes to pages 14-17 Anderson, ‘Islamic Law,’ 207. Parashar, Women, 46. Schacht, Introduction, 95. Derrett, Religion, 232, 233. Parashar, Women, 64. Pearl, Textbook, 28. Parashar, Women, 66.

D.A. Washbrook, ‘Law, State and Agrarian Society in Colonial India’ (1981-2) 15 Modern Asian Studies 649 at 651. Ibid., 660. Ibid., 652. Ibid. Anderson, ‘Islamic Law,’ 209.

Ibid., 216. Marc Galanter, Law and Society in Modern India (Delhi: Oxford University Press, 1994) 17-18.

87 Anderson, ‘Islamic Law’, 209; Galanter, Law and Society. 88 J.D.M. Derrett, ‘Justice, Equity and Good Conscience,’ in J.N.D. Anderson, ed., Changing Law in Developing Countries (London: George Allen and 89 90 91 92 95 94 95 96 97

Unwin, 1963) 139; Pearl, Textbook, 29-33. Derrett, ‘Justice,’ 114.

Derrett, Religion, 289; Pearl, Textbook, 33.

Coulson, History, 166-7. Schacht, Introduction, 94.

Coulson, History, 164, 171. Galanter, Law and Society, 22. Parashar, Women, 73.

Anderson, ‘Islamic Law,’ 212. Coulson, ‘Islamic Law,’ 68-9; Janaki Nair, Women and Law in Colonial India (New Delhi: Kali for Women, 1996) 190. 98 Anderson, ‘Islamic Law,’ 212. 99 Ibid., 215.

100 101 102 103

Galanter, Law and Society, 24. Anderson, ‘Islamic Law,’ 219. Nair, Women and Law, 41-2.

Parashar, Women, 71-2. Examples of changes made in practices considered

sacred or religious are the Caste Disabilities Removal Act, 1850, the Hindu

Widows Remarriage Act, 1856, the Native Converts Remarriage Act, 1866, and the Child Marriage Restraint Act, 1929, among others.

104 Anderson, ‘Islamic Law,’ 220.

Notes to pages 17-21

145

105 The British established a system of separate electorates based on religious affiliation. 106 Parashar, Women, 74-9. The Government of India Act, 1935, permitted, for the first time, Indian representation in the legislature.

107 The Muslim League was a political party formed to represent Muslim interests in India. It was at this time led by Mohammed Ali Jinnah, who later founded the state of Pakistan in 1947. 108 Parashar, Women, 146. 109 Barbara D. Metcalfe, ‘Reading and Writing about Muslim Women in British India,’ in Zoya Hasan, ed., Forging Identities: Gender, Communities and the State (New Delhi: Kali for Women, 1996) 2. 110° Coulson, History, 160. 111 Anderson, ‘Islamic Law,’ 219. 112 Parashar, Women, 146. 113 The Muslim Personal Law (Shariat) Application Act, 1937 (Act No. 26 of 1937) 7 October, 1937. The India Code, 1958, vol. VI, part ix, 205. 114 The Dissolution of Muslim Marriages Act, 1939 (Act No. 8 of 1939) 17 March, 1939. Gazette of India, V, 1938. The India Code, 1958, vol. VI,

pt ix, 211. 115 116 117 118

Anderson, ‘Islamic Law,’ 222. Nair, Women and Law, 191-2. Parashar, Women, 75.

The following section is based on Parashar, Women, 146-50 unless other-

wise noted. 119 Shahida Lateef, ‘Defining Women through Legislation’ in Hasan, Forging Identities, 57. 120 Parashar, Women, 150. 121 Anderson, ‘Islamic Law,’ 222. 122 Nair, Women and Law, 190.

123 Ibid., 193-4. 124 Tahir Mahmood, Muslim Personal Law: The Role of the State in the Subcontinent (New Delhi: Vikas, 1977) 47. Ibid., 53. 125 126 Parashar, Women, 152. This reason was set out in the Statement of Objects and Reasons of the Act. 127 Coulson, ‘Islamic Law,’ 74. 128 Coulson, History, 187-8; and Coulson, ‘Islamic Law,’ 73. 129 Coulson, History, 187. 130 Ibid. 131 Nair, Women and Law, 195.

146

Notes to pages 21-4

132 Mahmood, Muslim, 49. 133 Coulson, History, 187-8.

134 Werner F. Menski, ‘The Reform of Islamic Family Law and a Uniform Civil Code in India,’ in Mallat and Connors, Islamic Family Law, 284. 135 Amrita Chhachhi, ‘Forced Identities: The State, Communalism, Funda-

mentalism and Women in India,’ in Deniz Kandiyoti, ed., Women, Islam and the State (London: Macmillan, 1991) 160. 136 Parashar, Women, 151-8.

137 Metcalfe, ‘Reading and Writing,’ 18-19. 138 Washbrook, ‘Law, State,’ 657. 139 Anderson, ‘Islamic Law,’ 220.

140 Ibid., 222. 141 For a discussion on the relationship between colonial readings of a ‘subject’ nation’s history and tradition and the structures of power, see Edward Said, Orientalism (New York: Penguin, 1978).

142 Nair, Women and Law, 36. 143 Lata Mani, ‘Contentious Traditions: The Debate on Sati in Colonial India,’ in Kumkum Sangari and Sudesh Vaid, eds., Recasting Women: Essays in Colonial History (New Delhi: Kali for Women, 1989) 91.

144 Ibid., 118. 145 Upendra Baxi, ‘The State’s Emissary: The Place of Law in Subaltern Studies,’ in Partha Chatterjee and Gyanendra Pandey, eds., Subaltern Studies VII (New Delhi: Oxford University Press, 1992) 253.

146 Parashar, Women, 76. 147 Zoya Hasan, ‘Minority Identity, State Policy and Political Process,’ in Hasan, Forging Identities, 60.

148 The Muslim Women’s (Protection of Rights on Divorce) Act, 1986 (Act No.

25 of 1986), Gazette of India, Extraordinary, pt. 2, sec. 1, 19th May, 1986. 149 Hindus make up 82 per cent of the population of India. Of the many religious minority groups, Muslims constitute the largest minority: 11.4 per cent; Christians: 2.4 per cent; Buddhists: 0.7 per cent; and Jains: 0.5 per cent. B.N. Uniyal, Partha Majumdar, and Kumaresh Chakravarty, eds., India: 1991, Observer Statistical Handbook (New Delhi: Observer Research Foundation, 1991). 150 Parashar, Women, 145.

151 Ibid., 159. 152 Article 44 of the Constitution of India: ‘Uniform civil code for the citizens. - The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ 153 Hasan, Forging Identities, 63.

Notes to pages 25-7

147

154 Parashar, Women, 288. The law is based on pre-Islamic customary law together with Koranic law. The shares of Koranic heirs are specified and the remainder of the estate is divided among the customary heirs. Wives and daughters are Koranic heirs. Islamic law remedied the situation under customary law which excluded females from inheritance. 155 Ibid. 156 Paras Diwan, Family Law (Allahabad: Allahabad Law Agency, 1991) 42630. 157 Ibid., 245. The following discussion of custody under Muslim law is based on Diwan, ibid., 245-55. 158 Pearl, Textbook, 98.

159 Ibid., 250. 160 The independent Indian state abolished polygamy for Hindus under the Hindu Marriage Act, in 1955, but did not similarly reform Muslim law.

Sections 494 and 495 of the Indian Penal Code relate to the offence of bigamy. 161 Pearl, Textbook, 78-9. 162 This does not apply to Shia men. 163 Diwan, Family Law, 43. 164 Pearl, Textbook, 100.

165 For a discussion regarding the various forms of divorce see Diwan, Muslim Law, and Pearl, Textbook.

166 Pearl, Textbook, 100.

167 Ahmed Kasim Molla v. Khatun Bibi, (1932) ILR 59 Cal 833 at 840. 168 Diwan, Muslin Law, at 73.

169 Shia law does not recognize the talaq al bida (triple talaq) and further requires that divorce be pronounced in the presence of two witnesses. 170 Coulson, History, 209.

171 As described by the Privy Council in Buzul-ul-Raheem v. Luteefoon-nissa, (1861) 8 MIA 379. 172 Pearl, Textbook, 121.

173 Diwan, Family Law, 154-6. 174 Menski, ‘Reform,’ 281; Mahmood, Muslim, 78. 175 Menski, ‘Reform,’ 281.

176 The DMMA is far less progressive than the changes initiated in other Muslim countries such as Egypt, Tunisia, and Turkey.

177 Pearl, Textbook, 93.

178 Mahmood, Muslim, 76. 179 The issue of maintenance for divorced Muslim women is discussed below. 180 Parashar, Women, 64.

148 181 182 183 184

Notes to pages 27-9 See discussion below. See discussion below. Section 3 of the Muslim Women’s Act. Shahida Lateef, Muslim Women in India: Political and Private Realities, 1890s— 1980s (New Delhi: Kali for Women, 1990) 194.

185 Section 4 of the Muslim Women’s Act. 186 The Wakf Boards are charitable institutions which administer funds and land donated by pious Muslims for the upkeep of Muslim religious institutions. The administration of Wakf Boards is overseen and regulated by the government, and the members of Wakf Boards are nominated by the government.

187 Section 4 of the Muslim Women’s Act. 188 The Indian Criminal Procedure Code, 1973 (Act No. 2 of 1974) 25 January, 1974 (hereinafter, CrPC). The relevant provisions of section 125 of the

CrPC are: ‘125. (1) If any person having sufficient means neglects or refuses to maintain — (a) his wife, unable to maintain herself ... a Magis-

trate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife ... at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit. Explanation — For the purposes of this Chapter, — (b) ‘Wife’ includes a woman who has been divorced by, or who has obtained a divorce from her

husband and has not remarried. 189 Parashar, Women, 164. 190 Diwan, Family Law, 307. 191 Vasudha Dhagamwar, Towards the Uniform Civil Code (Bombay: N.M. Tripathi, 1989) 18.

192 Parashar, Women, 165. 193 Ibid., 166. 194 S. 127(3)(b), CrPC: ‘Where any order has been made under s.125 in favour of a woman who has been divorced by or has obtained a divorce from her husband, the magistrate shall if he is satisfied that: the woman has been divorced by her husband and that she has received, whether before or

after the date of the said order, the whole sum which under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order.’ 195 Bai Tahira v. Ali Hussain Fidaalli, AIR 1979 SC 362. 196 Zohara Khatoon v. Mohammed Ibrahim, AIR 1981 SC 1243 197 Fuzlunbi v. Khader Vali, AIR 1980 SC 1730. 198 Mahr is translated in English as dower. Mahr is a sum of money or prop-

Notes to pages 29-31

149

erty given to the wife in consideration of the marriage. It is an integral part of the Muslim marriage contract. Mahr may be of two types — prompt or deferred. While the former is given to the wife at the time of marriage, the latter may be given at any time mutually agreed upon. Controversy regarding mahr arises, for since it is usually given to the wife on divorce, some scholars have understood it to be a payment in lieu of alimony. This controversy was examined in the Shah Bano case wherein the court held that mahr cannot be understood as a sum payable on divorce in lieu of maintenance because the sum is conferred upon the wife at the time of marriage as a mark of respect. Shah Bano, 952-3.

199 200 201 202 203 204

Bai Tahira, 365-6. Ibid., 365. Fuzlunbi, 1737.

Ibid. Zohara Khatoon, 1246. Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. The facts of the case are taken from Shah Bano, at 946-7. As the district court and high

court decisions are not reported judgments, the citations are unavailable. 205 See n198 for the definition of mahr. 206 Just under one dollar. 207 Approximately 6 dollars. 208 Under Muslim law, a man is required to pay alimony to his divorced wife for only three menstrual cycles, or a period of three months. This is known as iddat. However, if the woman is pregnant, then the iddat period runs till the birth of the baby. Fyzee, Outlines, 108; Diwan, Muslim Law, 130. 209 Shah Bano supra, 954.

210 211 212 213 214 215

Ibid. Ibid., 948. Ibid. Ibid., 949. Ibid., 950-2. Vasudha Dhagamwar, ‘Women, Children and the Constitution: Hostages to Religion, Outcaste by Law,’ in Robert D. Baird, ed., Religion and Law in Independent India (New Delhi: Manohar, 1993) 250.

216 Shah Bano, 951-2. 217 Ibid., 952. 218 The All India Muslim Personal Law Board (AIMPLB) is an Islamist organization, established in 1973, whose purpose is to study the Shariat and to protect and preserve Muslim personal law. 219 Shah Bano, 950.

150 220 221 222 223 224

Notes to pages 31-3 Ibid., 954. Ibid. Dhagamwar, Uniform Civil Code, 24. Bai Tahira, Zohara Khatoon, and Fuzlunbi.

Radha Kumar, The History of Doing (New Delhi: Kali for Women, 1993) 164. 225 This was the claim forwarded by the Muslim Personal Law Board, and Maulana Asad Madani, among others.

226 Mr Banatwala. al, Radha Kumar, ‘Identity Politics and the Contemporary Indian Feminist Movement,’ in Valentine Moghadam, ed., Identity Politics and Women: Cultural Reassertion and Feminism in International Perspective (Boulder: Westview Press, 1994) 278. 228 The ruling party’s (Congress-I) candidate lost to Syed Shahabuddin in Kishenganj, Bihar. Kumar, History, note 224 at 165; Kavita Khory, ‘The Shah Bano Case: Some Political Implications,’ in Baird, Religion and Law, 130. Dhagamwar, ‘Women, Children,’ 251. 229 230 Danial Latifi, counsel for Shah Bano, criticized the government's acceptance of the Muslim Personal Law Board, and the Ulema associated with

it, as the representatives of the opinion of the Muslim community: ‘the recognition of the so-called Muslim Personal Law Board as a College of Cardinals for Indian Muslims is not only against Islam but is also the most flagrant exercise of a power-drunk autocracy since Caligula installed Incitatus, his favourite horse, as Governor of Rome. The Muslim intelligentsia who have opposed this Act will continue the struggle against this illegitimate Papacy’ (quoted in Zakia Pathak and Rajeswari Sunder Rajan, ‘Shahbano’ [1989]) 14 Signs 558 at 564.

231 Dhagamwar, Uniform Civil Code, 24-6. 232 Pathak and Sunder Rajan, ‘Shahbano,’ 568. 233 The relevant provisions of Section 3 of the Muslim Women’s Act are: ‘3. Mahr or other properties of Muslim women to be given to her at the time of divorce. — (1) Notwithstanding anything contained in any other law for the time being in force a divorced woman shall be entitled to — (a) a rea-

sonable and fair provision and maintenance to be made and paid to her within the iddat period [three months] by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a

reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mahr or dower

agreed to be paid to her at the time of her marriage or at any time there-

Notes to page 33.

151

after according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.’ 234 Section 4 of the Muslim Women’s Act provides that ‘Order for payment of maintenance. — (1) Notwithstanding anything contained in the foregoing provisions of this Act, or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property upon her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order: Provided that where such divorced woman has children, the Magis-

trate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the grounds of not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them

have not enough means to pay the maintenance ordered by the Magistrate to be paid, the Magistrate may by order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such relatives who are unable to pay, at such periods as he may specify in his order.’ 235 236 237 238 239

Lateef, Muslim Women, 195.

Ibid. Ibid. Parashar, Women, 185. Menski, ‘Reform,’ 287-8.

152

Notes to pages 34-6

240 This option is provided under Section 5 of the Muslim Women’s Act which states: ‘If on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband

declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the court hearing

the application, the Magistrate shall dispose of such application accordingly. 241 Tahir Mahmood, ‘Islamic Family Law: Latest Developments in India,’ in Mallat and Connors, Islamic Family Law, 300-4. 242 Parashar, Women, 187.. 243 Mani, ‘Contentious Traditions,’ 119-20.

244 Ibid. 245 Maitryee Mukhopadhyay, ‘Between Community and the State: The Question of Women’s Rights and Personal Laws,’ in Hasan, Forging Identities, 113. 246 Amrita Chhachhi, ‘Identity Politics, Secularism and Women: A South

Asian Perspective,’ in Hasan, Forging Identities, 81.

247 Ibid., 83. 2 Muslim Personal Law and the Constitutional Framework

1 The Constitution of India, 1950 (hereinafter the Constitution). 2 The fundamental rights are provided in Part III of the Constitution from Article 12 through 35. Article 14: Equality before law. — The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.’ 3 The relevant provisions of Article 15 are: ‘A. 15. Prohibition of Discrimination on grounds of religion, race, caste, sex or place of birth. - (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially or educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes. 4 Article 44: Uniform Civil Code for the citizens. — The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

Notes to pages 36-8

153

5 Article 25: ‘Freedom of conscience and free profession, practice and propagation of religion. - (1) Subject to public order, morality and health and to other provisions of this Part [the fundamental rights chapter] all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. - (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law — (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Parashar, Women, 202.

Ibid., 203. Ibid., 204. OD CON © This was the judicial view established by State of Bombay v. Mali, AIR 1952 Bom 84. See discussion ibid. Ibid. 11 Article 13: — Laws inconsistent with or in derogation of the rights. — (1) All laws in force in the territory of India before ment of this Constitution, in so far as they are inconsistent

Narasu Appa

fundamental the commencewith the provi-

sions of this Part, shall, to the extent of such inconsistency, be void. (2) The

State shall not make any law which takes away or abridges the rights con-

ferred by this Part and any law made in contravention of this clause shall,

to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires, — (a) ‘law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of

India the force of law; (b) ‘laws in force’ includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368. 12 AIR 1952 Bom 84. 13 In re, Amina, AIR 1992 Bom 214. 14 John H. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’ in Robert r, D. Baird, ed., Religion and Law in Independent India (New Delhi: Manoha

1993) 149. of 15 The Bombay Prevention of Bigamous Marriages Act, 1946 (Act No. 25 my polyga prohibit to 1946). This statute was enacted as a reform measure for Hindu men in the state of Bombay. ion. — 16 Article 372: Continuance in force of existing laws and their adaptat

154

Notes to pages 38-9 (1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the

commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. (2) — For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations or modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provided that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law. (3) Explanation I. The expression ‘laws in force’ in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas. 17 See nil. 18 Narasu Appa, 88-9. 19 Ibid., 91. 20 21 22 23 24

Article 372(3), Constitution of India.

Article 372(2), ibid. Narasu Appa, 90.

Ibid., 88-9, 91. H.M. Seervai, Constitutional Law of India, 3rd ed., vol. I (Bombay: N.M. Tripathi, 1983) 401; A.M. Bhattacharjee, Muslim Law and the Constitution, 2nd ed. (Calcutta: Eastern Law House, 1994) 64-8; Parashar, Women, 209-10.

De) The Regulating Plan, 1772; The Muslim Personal Law (Shariat) Application Act, 1937 (Act No. 26 of 1937) 7 October, 1937. The India Code, 1958, vol. VI, pt. ix, 205; The Dissolution of Muslim Marriages Act, 1939 (Act No. 8 of 1939) 17 March, 1939. Gazette of India, pt. V, 1938. The India Code, 1958, vol. VI, pt. ix, 211; and The Muslim Women’s (Protection of Rights on Divorce)

Act, 1986 (Act No. 25 of 1986), Gazette of India, Extraordinary, pt. II, sec. 1, 19 May, 1986. See discussion in Chapter 1. 26 Seervai, Constitutional Law. 27 The Seventh Schedule of the Constitution lists the subjects over which the Centre and the State have legislative jurisdiction. List III notes the topics over which the Centre and the States have concurrent jurisdiction. Item 5 includes: Marriage and divorce; infants and minors; adoption; wills, intes-

tacy, and succession; joint family and partition; all matters in respect of

Notes to pages 40-2

155

which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. 28 Narasu Appa, 89. 29 Bhattacharjee, Muslim Law, 57-9; Parashar, Women, 209; Mansfield, ‘Personal Laws’ 149. 30 Narasu Appa, 89. 31 Bhattacharjee, Muslim Law, 198. 52 Article 17 of the Constitution specifically abolishes the Hindu practice of untouchability. Article 17: ‘Abolition of Untouchability. - “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.’ 33 Narasu Appa, 89. Seervai, Constitutional Law, 402. 35 Parashar, Women, 211. 36 Narasu Appa, 89. oF Mansfield, ‘Personal Laws,’ 150. 38 Parashar, Women, 213. 39 Abdullah Khan v. Chandni Bi, AIR 1956 Bhopal 71 at 72. 40 Ibid. 41 Sudha v. Sankappa Rai, AIR 1963 Mysore 245 at 247. This case is also discussed below. 42 Ibid. 43 Gurdial Kaur v. Mangal Singh, AIR 1968 Pun 396. This case is also discussed below. 44 Ibid., 398. Bhattacharjee, Muslim Law, 47. 45 Krishna Singh v. Mathura Ahir, AIR 1980 SC 707. The issue before the court was not specifically one of the relationship between personal law and fundamental rights. The question to be decided by the court was whether a sudra (a person belonging to the lowest Hindu caste) had the right to be initiated into sanyasa, which in ancient times was restricted to upper caste Hindus. 46 Ibid., 712. 47 The high court cite is Krishna Singh v. Mathura Ahir, 1972 All 273 at 281-2. 48 Bhattacharjee, Muslim Law, 42-3. 49 Amina. Besides Narasu Appa, this is the only case in which the relationship between personal law and fundamental rights has been examined in depth. 50 Ibid., 222. 51 Ibid., 216. 52 Ibid., 220.

156

Notes to pages 42-4

53 54 55 56 oy 58

Ibid., 216. Ibid., 217. Ibid. Ibid., 218. Ibid., 220. Director of Rationing v. Corporation of Calcutta, AIR 1960 SC 1360; Sant Ram v. Labh Singh, AIR 1965 SC 314 at 316; Builders Supply Corporation v. Union of India, AIR 1965 SC 1061 at 1068; State of Madhya Pradesh v. Lal Bhargavendra Singh, AIR 1966 SC 704 at 706; Superintendent & Remembrancer of Legal Affairs v. Corporation of Calcutta, AIR 1967 SC 997 at 1007; Ezra v. The State, AIR 1953 Cal 263; and Dasratha v. State of Andhra Pradesh, AIR 1961 SC 564 at 570-2.

59 60 61 62

Bhattacharjee, Muslim Law, 49-50.

Ibid., 49-50, 56. Articles 14 through 18, Constitution of India.

Vasudha Dhagamwar, Towards the Uniform Civil Code (Bombay: N.M. Tripathi, 1989) 56.

63 The relationship between discrimination under the personal law, the duty of the State to initiate reform, and the fundamental right to religious free-

dom are discussed below. The purpose of the discussion of equality here is to outline the models that inform judicial decisions regarding the constitutionality of personal law. 65 Ratna Kapur and Brenda Cossman, Subversive Sites (New Delhi: Sage, 1996)

175-6. 66 Seervai, Constitutional Law, 437-60. 67 Kapur and Cossman, Subversive Sites, 179. 68 The judicial hierarchy in India is as follows: the Supreme Court of India is the apex court and its decisions are binding on all courts; the high courts of the various states of India whose decisions are binding on the lower courts within each state; and the district courts. 69 Marc Galanter, Law and Society in Modern India (Delhi: Oxford University Press, 1994) 271.

70 Parashar, Women, 216. See ch. 1 n295. 71 E. Barker (trans.), The Politics of Aristotle (Oxford University Press, 1946)

Book III, xii, 1282b. 72 Ibid. Book V, i, 1301a. 73 R.K. Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538 at 557. This interpretation of Article 14 by the Indian Supreme Court has been influenced by the decisions of the United States Supreme Court. Seervai, Constitutional Law, 271; Bhattacharjee, Muslim Law, 188.

Notes to pages 44-7

157

74 Seervai, Constitutional Law, 276. 75 Kapur and Cossman, Subversive Sites, 180. For a discussion on notions of equality and how they implicate women, see: Catharine MacKinnon, ‘Difference and Dominance,’ in Feminism Unmodified: Discourses on Life and Law

(Cambridge, Mass.: Harvard University Press, 1987) 32; Gwen Brodsky and Sheilagh Day, Canadian Charter Equality Rights for Women (Ottawa: Advisory Council on the Status of Women, 1989); Christine L.M. Boyle, A. Wayne

MacKay, Edward J. McBride, and John A. Yogis, eds., Charterwatch: Reflections on Equality (Toronto: Carswell, 1986); S. Martin and K. Mahoney, eds.,

Equality and Judicial Neutrality (Toronto: Carswell, 1987); Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press, 1990). 76 See discussion, below.

Article 15(3): ‘Nothing in this article shall prevent the State from making any special provision for women and children.’ See n3. 78 ae) 80 81 82 83

Narasu Appa, 87. The facts of the case are discussed below.

Ibid. Ibid., 98. Srinivasa Aiyer v. Saraswathi Ammal, AIR 1952 Mad 193. Ibid., 195. Parashar, Women, 211-12.

Vasudha Dhagamwar, ‘Women, Children and the Constitution: Hostages to Religion, Outcaste by Law,’ in Baird, Religion and Law, 242-43. 85 J.D.M. Derrett, Religion, Law and the State in India (Delhi: Oxford University Press, 1999) 444-5.

86 Narasu Appa, 93-4. 87 88 89 90

Ibid., 94. See discussion below.

of 92 93 94 95 96 97 98 99

Parashar, Women, 212. Dhagamwar, ‘Women, Children,’ 243. Bhattacharjee, Muslim Law, 180.

Narasu Appa, 86.

Rajeev Dhavan, ‘Religious Freedom in India’ (1987) 35 American Journal of Comparative Law 209 at 219.

Abdullah Khan, 72. Sudha, 247. Abdullah Khan, 72. Sudha, 247. Ibid. Gurdial Kaur, 396.

158 100 101 102 103 104 105 106 107 108 109 110 111 112

Notes to pages 47-51 Ibid., 398. Ibid., 398-9. Bhattacharjee, Muslim Law, 180-1.

See chapter 1. Parashar, Women, 215.

Ibid. Saraswathi Ammal, 196. Gurdial Kaur, 398-9. Bhattacharjee, Muslim Law, 189-90.

Kapur and Cossman, Subversive Sites, 186. Ibid., 187. Narasu Appa, 89. Harvinder Kaur v. Harmander Singh Choudhary, AIR 1984 Delhi 66. In this case, the court considered a challenge to the provision in Hindu law for the restitution of conjugal rights. 113 Ibid., 75. 114 115 116 117 118

Gurdial Kaur, 398-9. The facts of this case are discussed below. Parashar, Women, 214.

The Indian Divorce Act, 1869 (Act 4 of 1869) 26 February, 1869. Swapna Ghosh v. Sadananda Ghosh, AIR 1989 Cal 1 at 3. Section 10: ‘When [the] wife may petition for dissolution. - Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnisation thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce mensa et toro or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

119 C.B. Muthamma v. Union of India, AIR 1979 SC 1868. See discussion of C.B. Muthamma below. 120 Swapna Ghosh, 4. 121 Ibid. 122 Kapur and Cossman, Subversive Sites, 189. 125 Amina, 218. 124 Parashar, Women, 216. 125 Most of these cases are petitions challenging the Muslim Women’s Act.

They are inter alia, National Federation of Indian Women v. Union of India;

Notes to pages 51-3

159

Shahnaz Shaikh and Others v. Union of India; Rashidaben and Others v. Union of India; Danial Latifi v. Union of India; Tara Ali Baig and Others v. Union of India; Susheela Gopalan and Others v. Union of India; Islamic Sharia Board v. Union of India and All India Muslim Personal Law Board; Lata Mittal v. Union

of India; Neela Deshmukh v. Union of India. As the book goes to press, the Supreme Court of India has announced that it will soon be issuing its decision in the Danial Latifi case. 126 Mary Roy v. State of Kerala, AIR 1986 SC 1011. 127 The Travancore Christian Succession Act (2 of 1902). 128 Mary Roy, 1013. The court invalidated the Travancore Act, not on the ground that it violated Article 14, but on the ground that with the accession of the erstwhile state of Travancore to the Union of India, all statutes of the state were now superseded by Indian statutes. Thus, the Travancore Act was invalidated and replaced by the Indian Succession Act, 1925,

which gives women and men equal inheritance rights in an intestate’s property.

129 Ibid. 130 Galanter, Law and Society, 260-1. 131 Gwen Brodsky and Sheilagh Day, Canadian Charter Equality Rights for

Women (Ottawa: Advisory Council on the Status of Women, 1989) 36. 132 Article 46: ‘Promotion of educational interests of Scheduled Castes, Scheduled Tribes and other weaker sections. — The State shall promote with special care the educational and economic interests of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and

shall protect them from social injustice and all forms of exploitation. This Article must be read together with 15(3) which provides for affirmative action in respect of women; it must further be read with A.15(4) which states: Nothing in this article ... shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.’ 133 Galanter, Law and Society, 260-1. 134 Parashar, Women, 297. 135 R.C. Cooper v. Union of India, AIR 1970 SC 564 at 596. 136 Bennett Coleman v. Union of India, AIR 1973 SC 106 at 120. 137 Bhattacharjee, Muslim Law, 128. 138 C.B. Muthamma, 1868. 139 State of Kerala v. N.M. Thomas, AIR 1976 SC 490. This issue before the court was the policy of affirmative action in employment for the benefit of Scheduled Caste government employees in the State of Kerala. The policy

160

Notes to pages 53-7 of affirmative action whereby Scheduled Caste employees were exempt from certain requirements for promotion to the next rank was challenged by N.M. Thomas who contended that he had been adversely affected by the State policy of affirmative action for disadvantaged groups.

140 141 142 143 144 145 146 147 148 149 150 15 152 153 154 155 156 157 158 159 160 161

Galanter, Law and Society, 265.

See discussion below. In Triloki Nath Tiku v. State of Jammu and Kashmir, AIR 1967 SC 1283 at 1285. Thomas, 500. Ibid., 516 For a discussion of the Thomas case see Galanter, Law and Society, 265-75. Thomas, 516.

Roop Chand Adlakha v. Delhi Development Authority, AIR 1989 SC 307 at 312. Indra Sawhney v. Union of India, AIR 1993 SC 477 at 481. Ibid. Bhattacharjee, Muslim Law, 128. Parashar, Women, 216-17.

Ibid., 177 Constituent Assembly Debates: Official Report, vol. VII (4 November, 1948, to 8 January, 1949) 650-8.

Parashar, 216. Galanter, Law and Society, 277.

Ibid., 271. Ibid., 264. Ibids/.277. Krishna lyer, ‘Foreword,’ in Bhattacharjee, Muslim Women, 17. Galanter, Law and Society, 155. The purpose is to situate the uniform civil code and establish its historical basis for the discussion which follows in Chapter 4 where I discuss the theoretical basis of a uniform civil code and its implications for gender equality for Muslim women.

162 Parashar, Women, 238-9; Dhagamwar, Uniform Civil Code, 35-46. 163 Jana Matson Everett, Women and Social Change in India (New York: St Martin’s Press, 1979) 150. 164 Ibid., 151. 165 Ibid. 166 Ibid., 147. 167 Ibid., 75. 168 Ibid., 149. 169 Roshni, AIWC journal, June 1946, 26-36. 170 B. Shiva Rao, The Framing of India’s Constitution: Select Documents, vol. 2

(Bombay: N.M. Tripathi, 1967) 128.

Notes to pages 57-60

161

171 Everett, Women and Social Change, 159. 17z The Constituent Assembly appointed an Advisory Committee for the task of formulating the provisions of the Articles of the Constitution. This committee was divided into subcommittees. The Fundamental Rights SubCommittee was given the task of drafting the fundamental rights provisions; the Minorities Committee was charged with the task of proposing provisions for minority rights; the third subcommittee dealt with Tribal and Excluded Areas. We are here concerned with the first two subcommittees.

173 Shiva Rao, Framing, 128. 174 Directive principles of state policy are not justiciable. They lay down the aims of state policy, and are recommendatory rather than mandatory. Although they enjoin certain actions upon the state, no citizen can enforce them in a court of law. 175 Shiva Rao, Framing, 122. 176 Ibid. UFZ Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: 178 179 180 181 182 183

184 185 186 187 188 189 190 191 192 193 194 195 196 197 198

Clarendon Press, 1966) 64. Shiva Rao, Framing, 177. Mansfield, ‘Personal Law,’ 140.

Article 37 of the Constitution. Austin, Indian Constitution, 50-1.

Article 38 of the Constitution. These members were Mohammed Ismail Saheb, Naziruddin Ahmed,

Mahboob Ali Baig Sahib Bahadur, B. Pocker Sahib, and Hussain Imam. Constituent Assembly Debates, 540-52. Dhagamwar, Uniform Civil Code, 3. Constituent Assembly Debates, 545. Ibid., 547. Ibid., 548. Dhagamwar, ‘Women, Children,’ 229.

See discussion in Chapter 1. Constituent Assembly Debates, 543. Ibid., 551. Article 44 of the Constitution. Constituent Assembly Debates, 540-6. Ibid., 781. Mansfield, ‘Personal Laws,’ 150. Austin, Indian Constitution, 80-1.

Ibid., 80. Everett, Women and Social Change, 162.

162 199 200 201 202 203 204 205 206 207 208 209

Notes to pages 60-5 Ibid., 161. Shiva Rao, Framing, 176. Everett, Women and Social Change, 162. Parashar, Women, 235. Shiva Rao, Framing, 236.

Ibid. Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 at 955.

Ms Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935. See n118. Jorden Diengdeh, 940-1.

Sarla Mudgal (Smt), President, Kalyani and Others v. Union of India and Others, AIR 1995 SC 635. 210 A.M. Bhattacharjee, Matrimonial Laws and the Constitution (Calcutta: Eastern Law House, 1996), 6.

211 ZA. 213 214 215 216 27.

Sarla Mudgal, 650. Kapur and Cossman, Subversive Sites, 259-60. Sarla Mudgal, 649.

Ibid., 652. Bhattacharjee, Matrimonial Laws 6; Sarla Mudgal, 651. Sarla Mudgal, 652.

Four statutes were enacted: Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1950; Hindu Majority and Guardianship Act, 1956; Hindu Succession Act, 1950. Bigamy was abolished by the Marriage Act, and women’s right to inheritance in joint family property was established. 218 Shah Bano, Jorden Diengdeh, Swapna Ghosh, In re, Amina. 219 Ibid. 220 Parashar, Women, 217. 22a Ibid. Day Mansfield, ‘Personal Laws,’ 153. 223 Shiva Rao, Framing, 122, 146-7. 224 Ibid. 22) Ibid., 160. 226 Parashar, Women, 225. 227, Dhavan, ‘Religious Freedom,’ 216. 228 Parashar, Women, 226. geo Derrett, Religion, Law, 451. 230 ‘Part’ here refers to the Fundamental Rights Chapter of the Constitution, also referred to as Part III of the Constitution.

Notes to pages 65-9

163

231 Article 25 of the Constitution. 232 Derrett, Religion, Law, 446.

233 Ibid., 451. 234 See n242. 235 Articles 44, 25, and 14 of the Constitution.

236 Galanter, Law and Society, 277-8. 237 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 at 1535. 238 Amrita Chhachhi, ‘Identity Politics, Secularism and Women: A South

Asian Perspective,’ in Zoya Hasan, ed., Forging Identities: Gender, Communities and the State (New Delhi: Kali for Women, 1996) 90. 239 Parashar, Women, 228. 240 Dhavan, ‘Religious Freedom,’ 213; Parashar, Women, 227. 241 Upendra Baxi, ‘Secularism: Real and Pseudo,’ in M.M. Sankhder, ed., Secu-

larism in India: Dilemmas and Challenges (New Delhi: Deep and Deep, 1992) 94. 242 Ushaben Navinchandra Trivedi and another v. Bhagyalaxmi Chitra Mandir and others, AIR 1978 Guj 13 at 19. 243 Galanter, Law and Society, 237.

244 Ibid. 245 Dhavan, ‘Religious Freedom,’ 216.

246 Ibid., 217. 247 Ibid., 218. 248 Parashar, Women, 218.

249 Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282. 250 Dhavan, ‘Religious Freedom,’ 220.

251 Shirur Mutt, 290. 252 Ibid. 253 Dhavan, ‘Religious Freedom,’ 220.

254 Parashar, Women, 220. 255 Ram Prasad v. State of Uttar Pradesh, AIR 1961 All 334. 256 Durgah Committee v. Hussain Ali, AIR 1962 SC 1402 at 1415. In this case, the

257 258 259

260

Supreme Court considered the right of the state to regulate the management of religious institutions. Ibid. Ibid. Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 at 268-9, 265. This case, however, did not involve the question of personal law reform, but the issue of temple entry for Hindus. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.

164

Notes to pages 69-72

261 The Bombay Excommunication Act, 1949. 262 Sardar Syedna, 870. 263 Article 25(2): ‘Nothing in this article shall affect the operation of any exist-

ing law or prevent the State from making any law - (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.’ 264 Dhavan, ‘Religious Freedom,’ 227. 265 Dhagamwar, ‘Women, Children,’ 244. 266 Tilkayat Shri Govindlalji v. State of Rajasthan, AIR 1963 SC 1638 at

1661. 267 268 269 270 271 272 27S, 274 275 276 277 278 279 280 281 282

Parashar, Women, 220.

AIR 1952 Bom 84. See discussion above. The Bombay Prevention of Bigamous Marriages Act, 1946. See n15. Narasu Appa, 87.

Ibid. See n81; see discussion above. Saraswathi Ammal, 196.

Ibid. Parashar, Women, 220. Ibid. Shiva Rao, Framing, 265. Dhavan, ‘Religious Freedom,’ 230.

Ibid., Dr Raghava Menon v. Health Inspector, Koduvayur, (1972) KLT 834. Dhavan, ‘Religious Freedom,’ 241.

Ibid., 248. These aspects of Hindu law were certainly considered by Hindus as being ‘essential’ to the religion. Yet, the government did not hesitate to introduce the abolition of untouchability and the opening of Hindu temples. The major concern was with the codification of Hindu law, a substantial part of which was codified to provide for more equitable rights for women in laws relating to marriage, succession and inheritance, adoption

guardianship, marriage and divorce. 283 Ibid., 241. 284 As noted in Chapter 1, the reform of the secular law of maintenance for women first raised this controversy in 1973. 285 See n188, Chapter 1. .286 See Chapter 1. 287 Dhavan, ‘Religious Freedom,’ 245. 288 Shah Bano, 946.

Notes to pages 72-7. 289 290 291 292

165

Ibid., 954. Ibid. Ibid. See the specific banning of certain Hindu practices under Article 17 of the Constitution, discussed above, considered to be in conflict with the liberal

egalitarian ethos of the Constitution. See n32. 293. Shah Bano, 954-5. 294 Dhavan, ‘Religious Freedom,’ 250. 295) Ibid. 3 Naming the Issues .

Valentine Moghadam, ‘Women and Identity Politics in Theoretical and Comparative Perspective,’ in Valentine Moghadam, ed., Identity Politics and Women: Cultural Reassertion and Feminism in International Perspective (Boulder: Westview Press, 1994) 5.

Marie-Aimée Hélie-Lucas, ‘The Preferential Symbol for Islamic Identity: Women in Muslim Personal Laws,’ in Moghadam, ed., Identity Politics, 393. Ibid., 396. Moghadam, ‘Women and Identity Politics,’ 17.

Nira Yuval-Davis, ‘Identity Politics and Women’s Ethnicity,’ in Moghadam, ed., Identity Politics, 413.

Ibid. Hanna Papanek, ‘The Ideal Woman and the Ideal Society: Control and Autonomy in the Construction of Identity,’ in Moghadam, ed., Identity Politics, 48. Amrita Chhachhi, ‘Forced Identities: The State, Communalism, Fundamentalism and Women in India,’ in Deniz Kandiyoti, ed., Women, Islam and the

State (London: Macmillan, 1991) 162.

Radhika Coomaraswamy, ‘Ethnicity and Patriarchy in the Third World,’ in Margaret Schuler, ed., Empowerment Strategies of Third World Women (Washington, DC: OEF International, 1986) 101.

10 Jill McCalla Vickers, ‘Memoirs of an Ontological Exile: The Methodological Rebellions of Feminist Research,’ in Angela Miles and Geraldine Finn, eds., Feminism: Erom Pressure to Politics, 2nd ed. (Montreal: Black Rose Books, 1989) 47. 11 Ibid., 49. 12 Ibid. 13 Ibid.

166

Notes to pages 77-80

14 Mary Daly, Gyn/ecology: The Metaethics of Radical Feminism (Boston: Beacon Press, 1978) 8. 15 Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989) 92.

16 Asghar Ali Engineer, ‘Forces behind the Agitation,’ in Asghar Ali Engineer, ed., The Shah Bano Controversy (Bombay: Orient Longman, 1987) 38. V7; Chhachhi, ‘Forced Identities,’ 168. Hindu and Muslim critics of the Muslim Women’s Act agreed that it undermined the rights of Muslim women. However, while Hindus believed that the Act compromised national unity by appeasing Muslim separatism and allowing Muslims to privilege membership in the religious community over national allegiance, Muslims were concerned that their rights as a religious minority were threatened. Some of the women’s organisations that opposed the Act were: the All India Women’s Association, the National Federation of Indian Women, the Young Women’s Christian Association, the Mahila Dakshita Samiti, the All India

Lawyers Association, Indian Federation of Women Lawyers, Karmika, and the All India Democratic Women’s Association. 18 Kavita Khory, ‘The Shah Bano Case: Some Political Implications,’ in Robert D. Baird, ed., Religion and Law in Independent India (New Delhi: Manohar, 1993) 127. 19 Archana Parashar, Women and Family Law Reform in India (New Delhi: Sage, 1992) 179. 20 Ibid., 283. 21 Chhachhi, ‘Forced Identities,’ 168. 22 Zakia Pathak and Rajeswari Sunder Rajan, ‘Shahbano’ (1989) 14 Signs 558 at 578. 23 Excerpt from speech given by Shahjahan, 8 March 1986, cited in Amrita Chhachhi, ‘Identity Politics, Secularism and Women: A South Asian Perspective,’ in Zoya Hasan, ed., Forging Identities: Gender, Communities and the State (New Delhi: Kali for Women, 1996) 74.

24 Janaki Nair, Women and Law in Colonial India (New Delhi: Kali for Women,

1996) 232. 25 Zoya Hasan, ‘Minority Identity, State Policy and Political Process,’ in Hasan, Forging Identities, 68. 26 Khory, ‘Shah Bano.’ 125. Li Rajeev Dhavan, ‘Religious Freedom in India,’ (1987) 35 American Journal of Comparative Law 209 at 247. 28 Chhachhi, ‘Forced Identities,’ 147. 2g Khory, ‘Shah Bano,’ 125.

Notes to pages 80-2

167

30 Rajeswari Sunder Rajan, Real and Imagined Women: Gender, Culture, and Postcolonialism (London: Routledge, 1993) 288-9. 31 Radha Kumar, ‘Identity Politics and the Contemporary Indian Feminist Movement,’ in Moghadam, Identity Politics, 289. 32 Ibid., 283. 33 McCalla Vickers, ‘Memoirs,’ 49. 34 Hélie-Lucas, ‘Preferential Symbol,’ 393. 35 With regard to the ideology of the Islamist movement, Fatima Mernissi states that ‘the Muslim order faces two threats: the infidel without and the woman within.’ Fatima Mernissi, Beyond the Veil, (Bloomington: Indiana University Press, 1987) 43.

36: Hasan, ‘Minority Identity,’ 61. 37 Examples of the use of legislative procedures to assert control over the com-

munity are the Shariat Application Act which imposed Shariat law on all

Indian Muslims; the Dissolution of Muslim Marriages Act, which sought to

control women’s right to divorce by apostasy and thereby to control exit from the group; and most recently, the Muslim Women’s Act, which denies to Muslim women spousal support both under Muslim law as well as under the secular law. 38 Douglas Kellner, Media Culture: Cultural Studies, Identity and Politics between the Modern and the Postmodern (London: Routledge, 1995) 62. 39 Kumar, ‘Identity Politics,’ 274. 40 Ibid., 283. 4l Pathak and Sunder Rajan, ‘Shahbano,’ 564. 42 Kumar, ‘Identity Politics,’ 283. 43 Shah Bano, ‘Open Letter to Muslims,’ in Engineer, Shah Bano Controversy, 211. This letter was originally published in the Muslim magazine Inquilab (13 November 1985). It was translated into English by A. Karim Shaik, in

Radiance (24-30 November 1985); and reprinted in Engineer, ibid. Shah Bano clearly did not write the letter herself, as she was illiterate. She attested the letter by putting her thumb print on it, and it was further attested by four witnesses.

Kumar, ‘Identity Politics,’ 283. Andrew 45 R. Radhakrishnan, ‘Nationalism, Gender, and Narrative,’ in Routledge, 1992) Parker, et al., eds., Nationalisms and Sexualities (New York:

84. 46 Papanek, ‘Ideal Woman,’ 42.

o: Between the 47 bell hooks, Yearning: Race, Gender, and Cultural Politics (Toront Lines, 1990) 149.

168

Notes to pages 82-3

48 Moghadam, ‘Women and Identity Politics,’ Identity Politics, 6. 49 For a discussion on women’s agency, see Kathryn Abrams, ‘Sex Wars Redux: Agency and Coercion in Feminist Legal Theory’ (1995) 95 Columbia Law Review 304. 50 Engineer, Shah Bano Controversy, 37. tl Chhachhi, ‘Identity Politics,’ 89. 52 Mernissi, Beyond the Veil, xi. DS Section 4 of the Muslim Women’s Act provides that ‘Order for payment of maintenance. — (1) Notwithstanding anything contained in the foregoing provisions of this Act, or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order

directing such of her relatives as would be entitled to inherit her property upon her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable but such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order: Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the grounds of not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in subsection (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate to be paid, the Magistrate may by order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State,

functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such relatives who are unable to pay, at such periods as he may specify in his order.’ 54 The Wakf Boards are charitable institutions which administer funds and

Notes to pages 83-5

169

land donated by pious Muslims for the upkeep of Islamic religious institutions. The administration of Wakf Boards is overseen and regulated by the government. The members of Wakf Boards are nominated by the government. 55 Chhachhi, ‘Identity Politics,’ 89. 56 Moghadam, ‘Women and Identity Politics,’ Identity Politics, 11. DY. Fatima Mernissi, Islam and Democracy: Fear of the Modern World (Reading, Mass.: Addison-Wesley, 1992) 54. 58 Mernissi, Beyond the Veil, viii. 59 Valentine M. Moghadam, ‘Revolution, Islam and Women: Sexual Politics in Iran and Afghanistan,’ in Parker, Nationalisms, 440.

60 McCalla Vickers, ‘Memoirs,’ 42. 61 Martha Minow, ‘Feminist Reason: Getting It and Losing It,’ in Katharine T. Bartlett and Rosanne Kennedy, eds., Feminist Legal Theory: Readings in Law and Gender (Boulder: Westview Press, 1991) 357. 62 Angela Harris, ‘Race and Essentialism in Feminist Legal Theory,’ (1990) Stanford Law Review 581 at 586. 63 Minow, ‘Feminist Reason,’ 357. For a discussion of a feminist perspective on the accommodation of ethnic/cultural difference, see Nitya Duclos, ‘Lessons of Difference: Feminist Theory on Cultural Diversity,’ (1990) Buffalo Law Review 325. Mai Yamani, ‘Introduction,’ in Mai Yamani, ed., Feminism and Islam: Legal

and Literary Perspectives (Reading: Ithaca Press, 1996) 11. 65 Abdullahi A. An-Na’im, ‘Human Rights in the Muslim World: SocioPolitical Conditions and Scriptural Imperatives: A Preliminary Inquiry,’ (1990) Harvard Human Rights Journal 13 at 13. 66 Ibid. 67 Ibid., 40. 68 Deniz Kandiyoti, ‘Islam and Patriarchy: A Comparative Perspective,’ in Nikki R. Keddie, ed., Women in Middle Eastern History: Shifting Boundaries in 23. Sex and Gender (New Haven and London: Yale University Press, 1992) ed. 3d Politics, 69 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and

(Oxford: Westview Press, 1999) 100. 70 Nikki Keddie, ‘Deciphering Middle Eastern Women’s History,’ in Keddie, Women, 1, 2. Mayer, Islam, 97.

7 72 Ibid., 98. 1S Keddie, Women, 5. of the Shari'a 74 Ziba Mir-Hosseini, ‘Stretching the Limits: A Feminist Reading in Post-Khomeini Iran,’ in Yamani, Feminism, 285. in Haleh 75 Haleh Afshar, ‘Women and Political Fundamentalism in Iran,’

170

Notes to pages 85-8 Afshar, ed., Women and Politics in the Third World (London: Routledge, 1993)

123-5, 76 Mahnaz Afkhami, ‘Introduction,’ in Mahnaz Afkhami, ed., Faith and Freedom: Women’s Human Rights in the Muslim World (Syracuse: Syracuse University Press, 1995) 2.

77 Mir-Hosseini, ‘Stretching the Limits,’ 285. 78 Haleh Afshar, ‘Woman and Political Fundamentalism,’ 126. 79 Ziba Mir-Hosseini, ‘Women and Politics in Post-Khomeini Iran: Divorce, Veiling and Emerging Feminist Voices,’ in Afshar, ‘Women and Political Fundamentalism,’ 158-9. 80 Azizah al-Hibri, ‘Islam, Law and Custom: Redefining Muslim Women’s Rights,’ (1997) 12 American University Journal of International Law and Policy 1 at 43. 81 Ibid., 25. 82 Ibid., 26. 83 Ibid., 30.

Ibid., 3. 85 Leila P. Sayeh and Adriaen Morse, Jr, ‘Islam and the Treatment of Women: an Incomplete Understanding of Gradualism,’ (1995) 30 Texas International Law Journal 311 at 321. 86 Maha Azzam, ‘Gender and the Politics of Religion in the Middle East,’ in Yamani, Feminism, 227-8.

87 Riffat Hassan, ‘Feminist Theology: The Challenges for Muslim Women,’ (Fall, 1996) 9 Critique: Journal for Critical Studies of the Middle East 53 at 65. 88 Ibid., 54-6, 62-3. 89 Ibid., 55. 90 Asghar Ali Engineer, ‘Islam - The Status of Women and Social Change,’ in Asghar Ali Engineer, ed., Problems of Muslim Women in India (Hyderabad: Orient Longman, 1995) 6. 91 Ibid., 9. o2 Ibid., 9-16. 93 Barbara Stowasser, ‘Gender Issues and Contemporary Quran Interpretation,’ in Yvonne Yazbeck Haddad and John L. Esposito, eds., Islam, Gender

94 95 96 97 98

and Social Change (New York: Oxford University Press, 1998) 40. Ibid., 41. An-Na’im, ‘Human Rights,’ 17.

Ibid. Ibid., 49. Ibid., 41.

Notes to pages 88-92

171

99 Ibid., 21. 100 An-Na’im, ‘The Dichotomy beween Religious and Secular Discourse in Islamic Societies,’ in Afkhami, Faith and Freedom, 51.

101 tbhid:52: 102 Abdullahi A. An-Na’im, Amy Madigan and Gary Minkley, ‘Cultural Transformations and Human Rights in Africa: A Preliminary Report,’ (1997) 11 Emory Int'l LR 124 at 290. 103 Ibid., 293. 104 An-Na’im, ‘Human Rights,’ 17. 105 Ibid., 49. 106 Ibid. 107 An-Na’im, ‘State Responsibility under International Human Rights Law to Change Religious and Customary Laws,’ in Rebecca Cook, ed., Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994) 181. 108 Zoya Hasan, ‘Contextualising Gender and Identity in Contemporary India,’ in Hasan, Forging Identities, ix. 109 Ibid., x. 110 Afshar, ‘Women and Political Feminism,’ 120. AAT Hélie-Lucas, ‘Preferential Symbol,’ 399. 112 Kandiyoti, ‘Islam and Patriarchy,’ 23. 113 Afkhami, Faith and Freedom, 2. 114 Keddie, Women, 19. 115 Jean Said Makdisi, ‘The Mythology of Modernity: Women and Democracy in Lebanon,’ in Yamani, Feminism, 242-8.

Ibid. An-Na’im, ‘Dichotomy,’ 54. An-Na’im, ‘Cultural Transformations,’ 314, quoting Nivedita Menon. Deniz Kandiyoti, ‘Reflections on the Politics of Gender in Muslim Societies: From Nairobi to Beijing,’ in Afkhami, Faith and Freedom, 20. 120 Ibid.

116 117 118 119

121 122 123 124

125 126 127 128

Afkhami, Faith and Freedom, 3.

Nira Yuval-Davis, ‘Identity Politics,’ 419. An-Na’im, ‘Cultural Transformations,’ 297. and the Abdullahi A. An-Na’im, ‘Religious Minorities under Islamic Law 2. ly Limits of Cultural Relativism,’ (1987) 9 Human Rights Quarter

An-Na’‘im, ‘Cultural Transformation,’ 289. An-Na’im, ‘Religious Minorities,’ 3.

Ibid., 4. Kandiyoti, ‘Reflections,’ 20.

172

Notes to pages 92-6

129 Hélie-Lucas, ‘Preferential Symbol,’ 392. 130 Ibid., 393. 131 The Supreme Court relied upon Aiyat (verse) no. 241 and Aiyat no. 242 of the Koran. Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 951-2.

Although the Shah Bano judgment has been criticized for invoking religious law to support a decision under secular law, given the fact that both sides to the case presented their arguments to the court based on differing versions of Muslim law, the court had to consider these arguments in the

context of Muslim law. ileye Engineer, Shah Bano Controversy, 36. 133 Ibid. 134 Arif Mohammed Khan cited the example of the Prophet Mohammed giving his wife 10,000 dirhams upon divorcing her. He further relied on verse 11.241 of the Koran to support the award of spousal support to divorced 135 136 137 138 139 140 141

Muslim women. Pathak and Sunder Rajan, ‘Shahbano,’ 562. Kumar, ‘Identity Politics,’ 280.

Ibid., 279. Kandiyoti, ‘Reflections,’ 22. Ibid., 25, 26. Keddie, Women, 19. An-Na’im, ‘Human Rights,’ 17; Pathak and Sunder Rajan, ‘Shahbano,’ 576.

Pathak and Sunder Rajan, ‘Shahbano.’ The gap between personal law and secular law has been closed in some aspects of reformed Hindu Personal Law: the Hindu Marriages Act, 1955; the Hindu Adoption and Maintenance Act, 1956. Furthermore, there are several secular uniform laws cov-

ering matters also covered by personal law: The Special Marriage Act, 1955; the Indian Succession Act, 1875; the Guardian and Wards Act, 1890;

and the Medical Termination of Pregnancy Act, 1971. 142 Hélie-Lucas, ‘Preferential Symbol,’ 402. 143 Moghadam, Identity Politics, 12. 144 Arati Rao, ‘The Politics of Gender and Culture in International Human

Rights Discourse,’ in Julie Peters and Andrea Wolper, eds., Women’s Rights Human Rights (New York: Routledge, 1995) 172-4.

145 Vasudha Dhagamwar, ‘Uniform Civil Code: Don’t We Have It Already?’ in Engineer, Shah Bano Controversy, 179. 146 Sneja Gunew and Anna Yeatman, ‘Introduction,’ in Sneja Gunew and

Anna Yeatman, eds., Feminism and the Politics of Difference (Halifax: Fernwood Publishing, 1993) xiv. 147 Sneja Gunew, ‘Feminism and the Politics of Irreducible Differences: Multi-

culturalism/Ethnicity /Race,’ in Gunew and Yeatman, Feminism, 1.

Notes to pages 96-102

173

148 Judith P. Butler, Gender Trouble: Feminism / and the Subversion of Identity (New York: Routledge, 1990) 148. 149 Rao, ‘Politics of Gender,’ 170. 150 Radhakrishnan, ‘Nationalism,’ 88. ‘Subaltern’ is defined as a person of inferior rank: a marginalized subject relating tangentially or in opposition to the societal universal norm. Pathak and Sunder Rajan, ‘Shah-

bano,’ 565. 151 Hasan, ‘Contextualising,’ viii. 152 D. E. Smith defines the term ‘communalism,’ as used in South Asia, as the

tendency of a socio-religious group to attempt to maximize its economic, social, and political strength at the expense of other groups. Donald E. Smith, - ‘The Political Implications of Asian Religions,’ in D.E. Smith, ed., South

Asian Politics and Religion (Princeton: Princeton University Press, 1966) 23. 153 Radhakrishnan, ‘Nationalism,’ 77-8. 154 Ratna Kapur and Brenda Cossman, ‘Communalising Gender, Engender-

ing Community: Women, Legal Discourse and the Saffron Agenda,’ in Tanika Sarkar and Urvashi Butalia, eds., Women and the Hindu Right (New Delhi: Kali for Women, 1995), 83. 155 Vasudha Dhagamwar, ‘Women, Children and the Constitution: Hostages

to Religion, Outcaste by Law,’ in Baird, Religion and Law, 250-1. 156 Shahida Lateef, ‘Defining Women through Legislation,’ in Hasan, Forging Identities, 39. 157 Parashar, Women, 144. 158 This analysis draws upon the theoretical perspective outlined by bell hooks, in Feminist Theory: From Margin to Center (Boston: South End Press,

1984) 67-81. 159 See above. 160 bell hooks, Feminist Theory, 74-5. 161 W. Kymlicka, Liberalism, Community, and Culture (Oxford: Oxford Univer-

sity Press, 1989) 151. 162 Ibid. 163 Ibid. 164 John H. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’ in Baird,

165 166 167 168 169 170

Religion and Law, 156-8. W. Kymlicka, Multicultural Citizenship (Oxford: Clarendon Press, 1995) 35. Ibid. Ibid., 36. Ibid., 35-6. Ibid., 42. Ibid., 43.

174

Notes to pages 103-8

171 Ibid., 42. V7Z Ibid. 173 Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory

and Antiracist Politics,’ (1989) University of Chicago Legal Forum 139 at 161. I draw upon Crenshaw’s theoretical perspective to explain the alliance between Muslim women and Muslim men in their common struggle against communal politics. Communalism in the South Asian context has been defined as politicized religious identity. The term ‘anti-communal’ agenda is used here to denote the Muslim community’s struggle against the anti-Muslim sentiments and the hostility of the majority community in India. See n152. 174 175 176 177 178

Yuval-Davis, ‘Identity Politics,’ 414. Crenshaw, ‘Demarginalizing,’ 162.

Ibid. Ibid., 163. Donna Sullivan, ‘Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution,’ (1992) 24 New York University Journal

of International Law and Politics 795 at 856.

Negotiating the Boundaries of State and Community ne

Rajeswari Sunder Rajan, Real and Imagined Women: Gender, Culture, and Postcolonialism (London: Routledge, 1993) 6.

The state has not hesitated to regulate aspects of religion considered ‘essential,’ such as the abolition of untouchability and bigamy for Hindus, the legalization of abortion as part of India’s population control program, and the regulation of religious endowments and institutions. Amrita Chhachhi, ‘Forced Identities: the State, Communalism, Fundamentalism and Women in India,’ in Deniz Kandiyoti, ed., Women, Islam and the

State (London: Macmillan, 1991) 157.

Archana Parashar, Women and Family Law Reform in India (New Delhi: sake: 1992) 198. Zoya Hasan, ‘Minority Identity, State Policy and Political Process,’ in Zoya Hasan, ed., Forging Identities: Gender, Communities and the State (New Delhi: Kali for Women, 1996) 65.

Rajeev Dhavan, ‘Religious Freedom in India’ (1987) 35 American Journal of Comparative Law 209 at 211. See discussion in Chapter 1. Dhavan, ‘Religious Freedom,’ 213.

Notes to pages 108-12

175

Parashar, Women, 227-9. See also discussion in Chapter 2.

10 Gyanendra Pandey, The Construction of Communalism in Colonial North India (Delhi: Oxford University Press, 1990) 241.

11 For a complete discussion on nationalism and communalism, see ibid. See also Asghar Ali Engineer, ‘Secularism and Emerging Challenge of Commu-

nalism: Practical Aspects,’ in Bidyut Chakrabarty, ed., Secularism and Indian Polity (New Delhi: Segment Book Distributors, 1990) 243. 12 Parashar, Women, 182-5. The law minister, Asoke Sen stated: ‘This government will never deviate from the path of protecting the legitimate interests of the [Muslim] minority.’ Lok Sabha Debates, 5 May 1986; cited in Zakia Pathak and Rajeswari Sunder Rajan, ‘Shahbano,’ (1989) 14 Signs 558 at 565. 13 Hasan, ‘Minority Identity,’ 69-70. 14 See Pathak and Sunder Rajan, ‘Shahbano,’ for a discussion of the discourse of ‘protection.’ 15 Sara Hossain, ‘Equality in the Home: Women’s Rights and Personal Laws in South Asia,’ in Rebecca Cook, ed., Human Rights of Women: National and

International Perspectives (Philadelphia: University of Pennsylvania Press, 1994) 473. 16 Kumari Jayawardena, ‘Women, Social Reform and Nationalism in India,’ in Jayawardena, ed., Feminism and Nationalism in the Third World (London: Zed

Books, 1986) 107. V7 See Kumari Jayawardena, ‘Conclusion,’ in Jayawardena, ibid., 254-9. 18 Upendra Baxi, ‘Secularism: Real and Pseudo,’ in M.M. Sankhder, ed., Secu-

larism in India: Dilemmas and Challenges (New Delhi: Deep and Deep, 1992) 90. 19 Amy Bartholomew and Alan Hunt, ‘What’s Wrong with Rights?’ (1990) 9 Law and Inequality 27. 20 In the discussion of this question I rely on the arguments made by Michael W. McConnell and Richard A. Posner, ‘An Economic Approach to Issues of Religious Freedom’ (1973) 56 University of Chicago LR 1, and Joseph Raz, ‘Rights-Based Moralities,’ chap. 8 in The Morality of Freedom (Oxford: Clarendon Press, 1986).

21 Vasudha Dhagamwar, ‘Uniform Civil Code: Don’t We Have It Already?’ in Asghar Ali Engineer, ed., The Shah Bano Controversy (Bombay: Orient Long-

man, 1987) 179.

Ze Marc Galanter, ‘Religious Freedom in the United States: A Turning Point,’ (1966) Wisconsin Law Review 216 at 289. 23 McConnell and Posner, ‘Economic Approach,’ 10-12. 24 See Chapter 2. 25 See discussion in Chapter 2.

176 26 27 28 29

Notes to pages 112-16 Galanter, ‘Religious Freedom,’ 238.

See discussion in Chapter 3. Ibid. John H. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’ in Robert D. Baird, ed., Religion and Law in Independent India (New Delhi: Manohar,

1993) 164. 30 Martha Minow, ‘Partial Justice: Law and Minorities,’ in Austin Sarat and Thomas R. Kearns, eds., The Fate of Law (Ann Arbor: University of Michigan Press, 1991) 68.

31 Ibid., 69. oo Minow refers to ‘legal disputes between religious individuals and secular institutions that seem to interfere with their religious practices.’ The cases mentioned are a challenge to dress code requirements of the military which

forbid the wearing of religious headgear (Goldman v. Weinberger, 106 S. Ct. 1310 (1986); a suit against the imposition of secular humanism in school texts which conflict with parents’ efforts to nurture their children’s religious beliefs. (Mozert v. Hawkins County Pub. Schools, 657 F. Supp. 1194 (1986), rev'd No. 86-144 (6th Cir. 1987)); and a claim by a woman who was

dismissed from her job because she refused to work ona day of rest as per her religion and was therefore refused unemployment benefits (Hobbie v. Unemployment Appeals Commission, 107 S. Ct. 1046 (1987). Minow, ibid., 68-9). 33 John Rawls, Political Liberalism (New York: Columbia University Press,

1993) 38. 34 Catharine MacKinnon, ‘Privacy v. Equality: Beyond Roe v. Wade,’ in Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987) 102.

ao Jeremy Webber, ‘Relations of Force and Relations of Justice: The Emergence of Normative Community Between Colonists and Aboriginal Peoples,’ (1995) 33 Osgoode Hall L] 623. 36 MacKinnon, ‘Privacy,’ 97. Oo, Catharine MacKinnon, ‘Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence,’ in D. Kelly Weisberg, ed., Feminist Legal Theory Foundations (Philadelphia: Temple University Press, 1993) 434. 38 Jane Flax, ‘Beyond Equality: Gender, Justice and Difference,’ in Gisela Bock and Susan James, eds., Beyond Equality and Difference (London: Routledge,

1992) 206-7. 39 There have been some decisions in which the words ‘reasonable and fair provision’ of s.3 of the Muslim Women’s Act have been liberally interpreted by magistrates to award Muslim divorcees far greater sums than they

Notes to pages 117-20

177

would have been entitled to under s.125 which (until a May 2001 SC decision) prescribed a maximum of Rs. 500 per month: Ali, 1988[2] KLT 94 and Aliyar, 1988[2] KLT 446. 40 Under s.3 of the Muslim Women’s Act (see Chane 1), the husband is re-

quired to maintain his divorced wife for only three months, the iddat period. 4] Chhachhi, ‘Forced Identities,’ 159-62. 42 ‘Report and Recommendations of the Nairobi WLD Meeting,’ in Margaret

Schuler ed., Empowerment Strategies of Third World Women (Washington, DC: OEF International, 1986) 418.

43 The Shariat Application Act, the Dissolution of Muslim Marriages Act, and

most recently, the Muslim Women’s Act. See discussion in Chapter 3. 44 Kumari Jayawardena, ‘Introduction,’ in Jayawardena, ed., Feminism and Nationalism, 9. 45 Donna Sullivan, ‘Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution,’ (1992) 24 New York University Journal of International Law and Politics 795 at 839. 46 Bartholomew and Hunt, ‘What’s Wrong,’ 49. 47 Ibid., 48. 48 Ibid., 50. 49 Ibid., 51. 50 Patricia Williams, ‘Alchemical Notes: Reconstructing Ideals From Deconstructed Rights,’ (1987) 22 Harvard Civil Rights — Civil Liberties Law Review 401 at 414. 51 Ibid., 405. a2 Carol Smart, Feminism and the Power of Law (London: Routledge, 1989) 3. 53 54 oo) 56

Ibid., 145. Hasan, ‘Minority Identity,’ 65. Smart, ‘Feminism,’ 144.

Rajeev Dhavan, ‘Introduction,’ in Marc Galanter, Law and Society in Modern India (Delhi: Oxford University Press, 1994) lxviii. hi Elizabeth M. Schneider, ‘The Dialectic of Rights and Politics: Perspectives from the Women’s Movement,’ in Kelly Weisberg, Feminist Legal Theory,

513-14.

.

58 Ibid., 514. 59 60 61 62 63

MacKinnon, ‘Feminism,’ 435. Minow, ‘Partial Justice,’ 60. Schneider, ‘Dialectic,’ 509.

Ibid., 507. Ibid., 510. Ibid 5523.

178

Notes to pages 121-5

65 Carol Gilligan, In a Different Voice (Cambridge, Mass.: Harvard University Press, 1982) 149. 66 Sullivan, ‘Gender Equality,’ 803-5. 67 Amrita Chhachhi, ‘Identity Politics, Secularism and Women: A South Asian Perspective,’ in Zoya Hasan, ed., Forging Identities, 88. 68 Donald E. Smith, ‘The Political Implications of Asian Religions,’ in D.E. Smith, ed., South Asian Politics and Religion (Princeton: Princeton University Press, 1966) 22.

69 Upendra Baxi, ‘Discipline, Repression and Legal Pluralism,’ in Peter C. Sack and Elizabeth Minchin, eds., Legal Pluralism (Canberra: Law Department,

Research School of Social Sciences, Australian National University, 1986) 54. 70 Mark Tushnet, ‘An Essay on Rights,’ (1984) 62 Texas Law Review 1363 at

1375: 7A Te Le 74

Schneider, ‘Dialectic,’ 519.

Ibid. See discussion of Supreme Court equality jurisprudence in Chapter 2. Vasudha Dhagamwar, Towards the Uniform Civil Code (Bombay: N.M. Tripathi, 1989) 57-67. After independence, Hindu law was codified by the enact-

ment of several bills. No other personal law was codified until 1986 when the Muslim Women’s Act was passed. There have, however, been a few attempts to enact laws applicable to family relations for all Indians irrespective of religion. These are the Special Marriage Act, 1954; the Dowry Prohibition Act, 1961, and the Medical Termination of Pregnancy Act, 1971. In 1972, the Adoption Bill was introduced in Parliament, however, it failed to

be passed into law primarily because of the objections of Muslim leaders. The bill was opposed on the ground that it was against the Koran, although it was an optional bill and was meant only to be an enabling legislation. It was opposed on the ground that it would enable Muslims to disobey the Koran. When the Adoption Bill was being debated, Muslim leaders once again argued that they must be allowed to codify their own laws and that the demand for change should come from the community itself. 75 Dhagamwar, Uniform Civil Code, 57. 76 Parashar, Women, 201. Le Ibid., 229. 78 Dhavan, ‘Religious Freedom,’ 252. 79 Ibid., 254. 80 Ibid. 81 Dhagamwar, Uniform Civil Code, 43. 82 Parashar, Women, 240. 83 Dhagamwar, Uniform Civil Code, 53.

Notes to pages 125-6

179

84 Hasan, Forging Identities, 64-5. This view is held by the Ulema of the Jamiyat-i-Ulema and Muslim politicians, most notably, Syed Shahbuddin, a

member of parliament, who spearheaded the fundamentalist opposition to the Shah Bano judgment. He won aseat in parliament immediately after the Shah Bano judgment, defeating the ruling party’s candidate, who also happened to be a Muslim. It was this election loss, referred to in Chapter 1, which was a determining factor in the government's decision to pass the Muslim Women’s Act. 85 Parashar, Women, 242-3. 86 These include national women’s organizations with both Muslim and nonMuslim members, as well as specifically Muslim women’s organisations. - They include the Joint Women’s Programme which has passed resolutions many meetings and conventions for the enactment of a UCC; similarly, the YMCA has, in 1982 and in 1986, passed resolutions in favour of a UCC; the

All India Women’s Conference has supported the idea of a UCC since before independence; and the Muslim Satyashodhak Mandal.

87 Towards Equality: Report of the Committee on the Status of Women in India (New Delhi: Government of India, Ministry of Education and Social Welfare,

Department of Social Welfare, 1974) 142. This committee was set up by the government specifically to examine the status of women in India and to make recommendations for change. However, the committee’s recommendations have not been implemented by the government. 88 See Working Group on Women’s Rights, ‘Uniform Civil Code — A Position Paper,’ in Economic and Political Weekly (18 May 1996) 1180. 89 Kaushik Basu and Sanjay Subrahmanyam, ‘Introduction,’ in Kaushik Basu and Sanjay Subrahmanyam, eds., Unravelling the Nation: Sectarian Conflict and India’s Secular Identity (New Delhi: Penguin Books, 1996) 7. 90 Zoya Hasan, ‘Contextualising Gender and Identity in Contemporary India,’ in Hasan ed., Forging Identities, xiii—xiv. OW Sumantra Bose, ‘“Hindu Nationalism” and the Crisis of the Indian State: A Theoretical Perspective,’ in Sugata Bose and Ayesha Jalal, eds., Nationalism,

Democracy and Development: State and Politics in India (Delhi: Oxford University Press, 1998) 131.

92 Brenda Cossman and Ratna Kapur, Secularism ‘s Last Sigh? Hindutva and the (Mis)Rule of Law (New Delhi: Oxford University Press, 1999) 12-14. 93 Bose, ‘Hindu Nationalism,’ 148. 94 Tapan Basu, Pradip Datta, Sumit Sarkar, Tanika Sarkar, and Sambuddha

Sen, Khaki Shorts Saffron Flags (New Delhi: Orient Longman, 1993) 71; Rajeev Bhargava, ‘What Is Secularism For?’ in Bhargava, ed., Secularism and its Critics (Delhi: Oxford University Press, 1998) 486.

180

Notes to pages 126-9

95 Amartya Sen, ‘On Interpreting India’s Past,’ in Bose and Jalal, Nationalism, 24. 96 Cossman and Kapur, Secularism, 45. Dip Partha Chatterjee, ‘Secularism and Tolerance,’ in Bhargava, Secularism, 347-8. 98 Ratna Kapur and Brenda Cossman, ‘Communalising Gender Engendering Community: Women Legal Discourse and the Saffron Agenda,’ in Tanika

Sarkar and Urvashi Butalia, eds., Women and the Hindu Right: A Collection of Essays (New Delhi: Kali for Women, 1995) 82.

99 Tapan Basu, Khaki Shorts, 2, 3, 58. 100 Ibid., at 113. 101 Myron Weiner, ‘India’s Minorities: Who Are They? What Do They Want?’ in Partha Chatterjee, ed., State and Politics in India (New Delhi: Oxford University Press, 1997) 481. 102 Cossman and Kapur, Secularism, 1. 103 Amrita Chhachhi, ‘Identity Politics,’ in Kamla Bhasin, Ritu Menon, and Nighat Said Khan, eds., Against All Odds: Essays on Women, Religion

and Development from India and Pakistan (New Delhi: Kali for Women, 1996) 6. 104 105 106 107 108 109 110 Gia 112 113 114 115 116 117 118 119 120

Cossman and Kapur, Secularism, 137.

Manohar Joshi v. Nitin Bhaurao Patil, AIR 1996 SC 796. Cossman and Kapur, Secularism, 1-4.

S. R. Bommat and Others v. Union of India and Others, (1994) 3 SCC 1. Ibid., 77-8, 186, 252. Ibid., 173. Ibid., 78, 162, 163. Cossman and Kapur, Secularism, 2. Ibid., 3. Ibid., 48. Ibid 775; Ibid., 4, 46, 50. Zoya Hasan, ‘Contextualising,’

viii.

Zoya Hasan, ‘Minority Identity,’ 66. Pathak and Sunder Rajan ‘Shahbano,’ 566-7. Zoya Hasan, ‘Contextualising,’ xvi. Razia Patel, ‘Problems of Muslim Women: An Activist’s Perspective,’ in

Asghar Ali Engineer, ed., Problems of Muslim Women in India (Bombay: Orient Longman, 1995) 177. 121 Chhachhi, ‘Identity Politics,’ 8. 122 See letter from Awaz e Niswan, a Muslim women’s activist group based in

Notes to pages 129-33

181

Bombay, India, reproduced in Marie-Aimée Hélie-Lucas and Harsh

Kapoor, eds., Dossier 17 (June, 1997) Women Living Under Muslim Laws (Grabels: International Solidarity Network of Women Living Under Muslim Laws) 42.

123 Amrita Basu, ‘Feminism Inverted: The Gendered Imagery and Real Women of Hindu Nationalism,’ in Sarkar and Butalia, Women, 170, 172. 124 Working Group on Women’s Rights, ‘Uniform Civil Code,’ 1181.

125 ‘Is Gender Justice only a Legal Issue?’ Economic and Political Weekly (1-8 March 1997) 454. Working Group on Women’s Rights, ‘Uniform Civil Code,’ 1182; Zoya 126 Hasan, ‘Muslim Women and the Debate on Legal Reforms,’ in Bharati Ray

~ and Aparna Basu, eds., From Independence towards Freedom (New Delhi: Oxford University Press, 1999) 131, 133. 127 Zoya Hasan, ‘Muslim Women,’ 133. 128 See n125. 129 Vasudha Dhagamwar, ‘Problem,’ in Dhagamwar, Reading on Uniform Civil Code and Gender and Child Just Laws (Compilation of previously published and unpublished papers; New Delhi: Marg) 5-6. 130 Vasudha Dhagamwar, ‘A Just Code for All,’ Reading, 13. 131 Vasudha Dhagamwar, ‘The Uniform Civil Code: Enfant Terrible of the Constitution: Hostages to Religion, Outcaste by Law,’ in Baird, Religion and Law, 245-49. 132 J.D.M. Derrett, Religion, Law and the State in India (Delhi: Oxford University Press, 1999) 51.

133 Parashar, Women, 61. 134 Mansfield, ‘Personal Laws,’ 170. 135 Vasudha Dhagamwar, ‘Obstacles to Empowerment of Women: Culture,

Custom and Religion,’ in Reading, 24. 136 Kapur and Cossman, ‘Communalising,’ 111. 137 Sikata Banerjee, ‘Hindu Nationalism and the Construction of Woman: The Shiv Sena Organises Women in Bombay,’ in Sarkar and Butalia, Women,

138 139 140 141

229. See n88. Parashar, Women, 240. Dhagamwar, Uniform Civil Code, 57.

Catharine MacKinnon, ‘Making Sex Equality Real,’ in Lynn Smith, Gisele Céte-Harper, Robin Elliot, and Magda Seydegart, eds., Righting the Balance: Canada’s New Equality Rights (Saskatoon: Canadian Human Rights Reporter Inc., 1986) 50.

142 Catharine MacKinnon, ‘Difference and Dominance: On Sex Discrimina-

182

Notes to pages 133-6 tion,’ in Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987) 40-4.

143 Gwen Brodsky and Sheilagh Day, Canadian Charter Equality Rights for Women (Ottawa: Advisory Council on the Status of Women, 1989) 190. 144 Kathleen Mahoney, ‘The Constitutional Law of Equality in Canada,’ (1992) 24 New York University Journal of International Law and Politics 759 at 770. See discussion in Chapter 2. 145 Brodsky and Day, Canadian Charter, 36. 146 Ibid. 147 Sullivan, ‘Gender Equality,’ 803. 148 Ibid. See also Nitya Duclos, ‘Lessons of Difference: Feminist Theory on Cultural Diversity,’ (1990) 38 Buffalo Law Review 325. 149 See Katherine T. Bartlett, ‘Feminist Legal Methods,’ in Weisberg, Feminist Legal Theory, 551. 150 See discussion in Chapter 2. Radhika Coomaraswamy, ‘To Bellow Like a Cow: Women, Ethnicity, and the Discourse of Rights,’ in Cook, Human

Rights, 48. 15a See Chapter 2: Kerala v. N.M. Thomas, Roop Chand Adlakha; Indra Sawhney v. Union of India; and Shah Bano. 2 Kathleen Mahoney, ‘Canadian Approaches to Equality Rights and Gender Equity in the Courts,’ in Cook, Human Rights, 457. Ibid., 456. 153 154 Colleen Sheppard, ‘Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms,’ in Christine L.M. Boyle, A. Wayne MacKay, Edward J. McBride, and John A. Yogis, eds., Charter-

watch: Reflections on Equality (Toronto: Carswell, 1986) 223. 155 Angela Harris, ‘Race and Essentialism in Feminist Legal Theory,’ (1990) 42

Stanford Law Review 581 at 586. 156 Ibid., 584. 157 Martha Minow, ‘Feminist Reason: Getting It and Losing It,’ in Katharine T. Bartlett, and Rosanne Kennedy, eds., Feminist Legal Theory: Readings in Law & Gender (Boulder: Westview Press, 1991) 360. 158 Harris, ‘Race,’ 586. 159 Ibid. 160 Ibid., 608. 161 Ibid., 612. 162 Kathryn Abrams, ‘Sex Wars Redux: Agency and Coercion in Feminist

Legal Theory,’ (1995) 95 Columbia Law Review 304. 163 Zora Neale Hurston, ‘How It Feels to Be Colored Me,’ in Alice Walker, ed., I Love Myself When I Am Laughing ... And Then Again When I Am Looking

Notes to pages 136-9

183

Mean and Impressive: A Zora Neale Hurston Reader (Old Westbury, NY: Feminist Press, 1979) 155. Harris, ‘Race,’ 613. 164

165 Linda Alcoff, ‘Cultural Feminism versus Poststructuralism: The Identity Crisis in Feminist Theory,’ (1988) 13 Signs 404 at 434-5. 166 Ibid., 431. 167 Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,’ (1989) University of Chicago Legal Forum 139 at 140. 168 Ibid. 169 See discussion in Chapter 2. 170 Crenshaw, ‘Demarginalizing,’ 167. 171 Minow, ‘Partial Justice,’ 68. 172 Ibid. 173 Ibid., 70. 174 Ibid., 72. 175 Ibid., 73. 176 Deborah L. Rhode, ‘The Politics of Paradigms: Gender Difference and Gender Disadvantage,’ in Bock and James, Beyond Equality, 155. 177 Patricia Monture, The Violence We Women Do: A First Nations View,’ in Constance Backhouse and David H. Flaherty, eds., Challenging Times: The Women’s Movement in Canada and the United States (Montreal: McGillQueen’s University Press, 1992) 198.

178 Charles Taylor, Multiculturalism and ‘The Politics of Recognition’ (Princeton: Princeton University Press, 1992) 66. 179 Ibid. 180 Ibid. 181 Sullivan, ‘Gender Equality,’ 855. 182 Chhachhi, ‘Forced Identities,’ 169. 183 Taylor, Multiculturalism, 63. 184 Minow, ‘Feminist Reason,’ 365. 185 Derrett, Religion, 546-7.

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Afshar, Haleh, ed. Women and Politics in the Third World. London: Routledge,

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An-Na’im, Amy Madigan, and Gary Minkley. ‘Cultural Transformations and ional Human Rights in Africa: A Preliminary Report’ (1997) 11 Emory Internat Law Review 124. c and Anveshi Law Committee. ‘Is Gender Justice Only a Legal Issue?’ Economi Political Weekly (1-8 March 1997) 454. Nation. Oxford: Austin, Granville. The Indian Constitution: Cornerstone of a Clarendon Press, 1966.

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Cases Cited

Abdullah Khan v. Chandni Bi, AIR 1956 Bhopal 71, 41, 47

Ahmed Kasim Molla v. Khatun Bibi, (1932) ILR 59 Cal 833, 147n167 (26) Bai Tahira v. Ali Hussain Fidaalli, AIR 1979 SC 362, 29, 72

Bennett Coleman v. Union of India, AIR 1973 SC 106, 52

Builders Supply Corporation v. Union of India, AIR 1965 SC 1061, 156n58 (42-3) Buzul-ul-Raheem v. Luteefoon-nissa, (1861) 8 MIA 379, 147n171 (27) C.B. Muthamma v. Union of India, AIR 1979 SC 1868, 50, 52-3

Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282, 68

Dasratha v. State of Andhra Pradesh, AIR 1961 SC 564, 156n58 (42-3)

Director of Rationing v. Corporation of Calcutta, AIR 1960 SC 1355, 156n58 (42-3)

Dr. Raghava Menon v. Health Inspector, Koduvayur, (1972) K.L.T. 834, 164n280 (71) Durgah Committee v. Hussain Ali, AIR 1962 SC 1402, 68-9

Ezra v. The State, AIR 1953 Cal 263, 156n58 (42-3) Fuzlunbi v. Khader Vali, AIR 1980 SC 1730, 29, 72 Gurdial Kaur v. Mangal Singh, AIR 1968 Pun 396, 41, 47, 49 Harvinder Kaur v. Harmander Singh Choudhary, AIR 1984 Delhi 66, 49

In re, Amina, AIR 1992 Bom 214, 42, 51 Indra Sawhney v. Union of India, AIR 1993 SC 477, 54 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, 66 Krishna Singh v. Mathura Ahir, AIR 1980 SC 707, 41-2 Manohar Joshi v. Nitin Bhaurao Patil, AIR 1996 SC 796, 127-8 Mary Roy v. State of Kerala, AIR 1986 SC 1011, 51

72, Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 4, 27-35, 61-3,

81, 137

196

Cases

Ms. Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935, 61-3 Ram Prasad v. State of Uttar Pradesh, AIR 1961 All 334, 68

R.C. Cooper v. Union of India, AIR 1970 SC 564, 52 R.K. Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, 156n73 (44)

Roop Chand Adlakha v. Delhi Development Authority, AIR 1989 SC 307, 53 Sant Ram v. Labh Singh, AIR 1965 SC 314, 156n58 (42-3) Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, 69, 71 Sarla Mudgal (Smt), President, Kalyani and Others v. Union of India and Others, AIR 1995 SC 635, 62-3, 130 S.R. Bommai and Others v. Union of India and Others, (1994) 3 SCC 1, 127-8 Srinivasa Aiyer v. Saraswathi Ammal, AIR 1952 Mad 193, 45-6, 70-1

Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, 69 State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, 37-43, 45-7, 49, 51-2,

54, 70 State of Kerala v. N.M. Thomas, AIR 1976 SC 490, 53, 55-6 State of Madhya Pradesh v. Lal Bhargavendra Singh, AIR 1966 SC 704, 156n58

(42-3) Sudha v. Sankappa Rai, AIR 1963 Mysore 245, 41, 47 Superintendent & Remembrancer of Legal Affairs v. Corporation of Calcutta, AIR 1967 SC 997, 156n58 (42-3) Swapna Ghosh v. Sadananda Ghosh, AIR 1989 Cal 1, 50-3

Tilkayat Shri Govindlalji v. State of Rajasthan, AIR 1963 SC 1638, 69 Triloki Nath Tiku v. State of Jammu and Kashmir, AIR 1967 SC 1283, 160n142 (53)

Ushaben Navinchandra Trivedi and Another v. Bhagyalaxmi Chitra Mandir and Others, AIR 1978 Guj 13, 163n242 (67) Zohara Khatoon v. Mohammed Ibrahim, AIR 1981 SC 1243, 29, 72

Index

All India Wornen’s Conference (AIWC), 57 Anglo-Muhammadan law, 8, 13-18,

22; anglicization of indigenous law, 15-16; secularization of law,

108

Babri Masjid, 126-7 Bharatiya Janata Party (BJP), 126, 128-30 Bombay Prevention of Hindu Bigamous Marriages Act, 1946, 38, 46,

70 Christian personal law, Indian Divorce Act, 1869, 50-3, 62 citizenship, 100; secular, 128; and

women, 4, 57,60, 93-4, 99-101, 131

classification. See equality codification of law: in the colonial period, 15; and the Constitution, 71; and Muslim personal law, 2339; 72, 83, Loo Committee on the Status of Women,

125

communalism, 108, 122, 132, 173n152, 174n173; and Muslim women, 82,

97,99, 104, 129-31, 136 Congress: and Babri Masjid, 126; and the National Planning Committee, 56; and Shah Bano, 32, 150n228 Constituent Assembly, 161n172; Advisory Committee, 58, 60; debate on religious freedom, 58-9, 61, 64; debate on Uniform Civil Code, 57—

61; Fundamental Rights Subcommittee, 57, 64; Minorities Subcommittee, 64

Constitution of India: compensatory discrimination, 52-4; fundamental

rights to equality and freedom from discrimination, 36, 41, 43-56, 134-5; personal law to conform to,

37-43; and personal law reform, 58-61, 71-4; and religious freedom, 36, 64-74, 112; and secularism, 36, 66, 124; seventh schedule, 39-40, 154n27; and social reform, 58, 64-6, 71; and the Uniform Civil Code, 36, 40-1, 54; whether personal law is

198

Index

included among ‘laws in force,’ 37-40, 42-3; whether personal law is statutory or non-statutory law, 39, 42 Criminal Procedure Code, 1973: maintenance under section 125, 27-35, 72; exclusion of Muslim women from section 125, 27, 33, 72-4, 98, 116 culture, and women, 3, 6, 23, 34, 75-8, 81-3, 89-96, 103, 139 cultural difference: 47, 99-100; and women, 103, 105, 138-40 cultural nationalism, 22, 94 cultural relativism, 91-4

custom: and Anglo-Muhammadan law, 16-19; indistinguishable from usage and statutory law within personal law, 39, 42; as a source of

135; judicial decisions, 41-56, 134; and Muslim personal law, 25-8, 41, 43-5; and reasonable classification, 44-55; and religious discrimination, 43-8; substantive, 44, 51-6, 133-4, 137; and the Uniform Civil Code, 56, 132-4 fundamental rights, 3, 7, 36; to equal-

ity, 43-9; to freedom from discrimination, 43-9; and gender equality,

49-56; group identity and women’s fundamental rights, 113; of minorities, 98; and personal law,

37-43; religious freedom and social reform legislation, 58-9,

64-74; religious freedom, subject to, 112; and the Uniform Civil Code, 56; of women, 98, 101, 113

Islamic law, 9, 12

directive principles, 58, 161n174; and

group: definition, 100, 103, 112, 124; difference, 99-104, 110-16, 121,

the Uniform Civil Code 32, 57, 60-1, 72

124, 139; differentiated rights, 103; dissent within, 80, 82, 91, 95, 113;

Dissolution of Muslim Marriages Act, 1939, 18-22, 26-7, 32-4, 39 divorce, 40; under Christian personal

recognition by state, 101, 105, 112, 115, 124; rights, 101-5; rights and conflict with women’s rights, 4-5,

law, 50-3, 62; under Muslim personal law, 18, 20-2, 26-31, 33-4, 54, 78, 83, 98; and Muslim

75, 78, 80, 94, 96-105, 111, 115-17,

women, 82

of, 3, 76-7, 94

125-6, 139-40; women as a, 55, 96, 116, 134, 138; women as symbols

East India Company, 13

hadith, 9, 11, 81, 85

English law: introduction of, 14; ‘jus-

Hindu personal law, 15, 38, 40-2,

tice, equity, and good conscience,’ 15-16; personal law and civil law distinction, 13, 17; principles of, 14-16 equality, 36, 54; formal, 44-53, 134, 137; and gender, 43-4, 49-56, 60-1,

45-9, 57, 62, 70; adhered to by Muslim groups, 16-18, 59; reform by state, 23, 38, 63-6, 68, 107, 123, 131; Sanskritization, 16

Hindu right: anti-Muslim agenda, 62; and minorities, 96, 126-9; and

Index the Muslim Women’s Act, 129; and secularism, 126-8; and the Uniform Civil Code, 129-32; and women’s rights, 128 Hindutva, 126-32

iddat, 21, 27, 30, 149n208 identity: multiple identities, 84, 90-1,

95, 101, 131, 135-6; Muslim group identity, 24, 62, 79-84, 89, 96-9, 106, 112-13; and Muslim personal ~ law, 6, 17-20, 24, 75-81, 83, 96-7, 106, 112-13, 121; and Muslim women, 75-6, 80-4, 89, 95, 97, 99,

103, 106, 112-13, 129, 136; political nature of, 17-18, 75-7, 82-3, 89, 96,

98, 108, 112; and religion, 17, 24, 75-9, 81, 84, 89-90, 124; and resis-

tance to colonization, 22-3, 34; and the Shariat Act, 19; and the state, 101-2, 112-13 ijma, 9, 12

ijtihad, 9, 12 Indian Women’s Charter of Rights, 57 individual rights, 34, 96-105, 116,

126, 140 Islamic law: classical theory, 8-12; development of, 8; in India, 8, 14; modern theory, 8-9; schools of, 10-11; sources, 8-11, 84-9 Islamicization: of law, 10-11, 16-18,

87; state sponsored, 87 Islamist movements, 83 Islamists, 76, 91, 93-4

Kazis, 9-10, 12-14 Koran, 9, 14, 19, 31-2, 81, 84-5, 87-8, 92 law reform: 7, 23, 95, 107, 120, 130; in

199

British India, 14-15, 23. See also

Muslim personal law reform mahr, 29, 30, 148n198 Maliki law: and the Dissolution of Muslim Marriages Act, 1939, 20-1;

school of, 10 maintenance for Muslim women: and the Dissolution of Muslim Marriages Act, 1939, 27-8; and the Muslim Women’s Act, 1986, 27-8, 30-4, 78, 83, 98, 103, 116, 132-3; under personal law, 72, 98; under section 125 of the Criminal Procedure Code, 1973, 27-35, 72-4, 82,

98 minorities: and the Hindu right, 96, 126-31; and the Uniform Civil

Code, 59-65

minority rights: and Constituent Assembly debates, 59-61, 64-5; constitutional protection of, 65-7, 124; and personal law reform, 24, 60, 64-6, 125; state’s commitment to protection of, 36, 60, 64-5, 105, 107, 109, 111, 113-14, 124; state’s

privileging of minority rights over women’s rights, 78, 98, 101, LOD;

107, 112-14, 123 Muslim feminists, 79, 84-91, 94-5

Muslim League, 18-19 Muslim personal law: discriminatory aspects, 24-8; and equality and freedom from discrimination on the basis of religion, 42-8; and

gender equality, 49-56; historical overview, 13-23; immutability, 12-13, 17, 24, 28, 32, 34, 59, 80, 88; and secular law, 4, 23, 27-35, 62, 82, 93, 95, 97-8; and the Uniform

200

Index

Civil Code, 32, 36, 56-63, 72-4, 79,

121; whether personal law is subject to fundamental rights, 4-5,

37-43 Muslim Personal Law Board, 31-2,

149n218, 150nn225, 230

Appa case, 38, 46, 49, 70; permitted for Muslim men, 25-6, 48; prohibited by the Indian Penal Code, 26; and religious conversion, 62-3; and the Saraswathi Ammal case, 45-6

Muslim personal law reform: logic of

public/private dichotomy: in British

internal reform, 95; and religious freedom, 36, 58-74; resistance to progressive change, 4-5, 23-4,

women’s rights, 3, 17, 35, 49, 82,

India, 14-15, 17; and Muslim

106-7, 109, 114-18, 122-3, 140

27-8, 58-61, 73, 80, 97, 118; and the state, 23-4, 31-2, 60, 63-5, 70, 72-4, 97-8, 101, 104-9, 115-18, 123-4;

Rashtriya Swayamsevak Sangh (RSS), 127

and the Ulema, 18, 77-8, 80-3, 93,

ray, 9, 11

97, 104, 123-4 Muslim Personal Law (Shariat) Application Act, 1937, 18-20, 22-3,

34, 39, 59 Muslim reformists, 84, 87-93, 95

Muslim Women’s (Protection of

Regulating Plan of 1772, 13-14, 39

religion: discrimination on the ground of, 36, 43, 45, 47, 50; essen-

tial and non-essential parts of, 67-71, 113-14 religious freedom: and conflict with

Rights on Divorce) Act, 1986:

social reform legislation, 58, 64-6,

amounts awarded under the, 116;

69; Constituent Assembly debates,

and departure from strict Shariat rules, 33-4; and minority rights,

58-61, 64-5; and the Constitution, 36, 58-9, 65-6, 112; and fundamental rights, 4, 59-60, 65-6; and the judiciary, 46, 61-3, 67-74; neutral-

77-8, 98, 109, 119; and Muslim women’s rights, 4, 23, 33, 74-5, 78,

80, 83, 93, 103, 133; opposition to, 78-9, 81, 129; and spousal support, 28, 33, 78, 82-3; and the state, 32-4,

63, 74-5, 83, 112, 123; and the Ulema, 23, 32-4, 80-3, 93, 103, 112, 119122 nationalism, 23, 106, 108-9, 127

personal law. See Christian personal law; Hindu personal law; Muslim personal law polygamy: 58, 68, 147n160; lack of state reform, 25-6; and the Narasu

ity and, 4, 110-11, 123; and personal law, 64-5, 70-4; state’s right to regulate, 5, 36-7, 59-62, 64-74, 108-9, 112, 124; and the Uniform

Civil Code, 40-1, 59, 62, 66 religious neutrality, as state policy, 7, 64, 67, 106, 110-11, 123 rights, usefulness of, 107, 118-23 secular: English division of law into ecclesiastical and, 14; principles, 92 secular feminists, 86, 91, 94

secularism: and groups, 124; in the

Index Indian 127-8; 127-8; 66, 69,

Constitution, 65-6, 124-5, and the judiciary, 46, 66-7, and the state, 4-5, 7, 36, 64, 71, 97-8, 107-10, 112, 124-5;

201

118; complicity between Ulema and, 4, 24, 33-4, 78, 81, 83, 89, 93, 95, 97, 104, 107, 117, 123-4; differing obligations to women based on

state authority over secular as-

religious affiliation, 132-3; insis-

pects of religion, 59, 62, 64-71, 113; struggle for, 139; threat to, 126-9;

tence that change in personal law

wall of separation, 66; and the women’s movement, 131-2

secular strategy for advocacy of Muslim women’s rights, 88, 91-4 Shafii school of law, 10, 11 Shah Bano: the case, 4, 27-35, 72-3, 81, 92, 137; and Hindu communalism, 122, 129, 132; and the Muslim Women’s Act, 4, 63, 74-5, 78, 123, 129; and Muslim women’s rights, 61, 72-5, 81-3, 92-3, 112-13, 122-3, 129, 137; and state policy, 34, 72-4, 78, 97-9, 109, 113, 122-23; and the Ulema, 32, 34, 78-83, 97-9, 113, 122; and the Uniform Civil Code, 61-3, 73-4, 131, 137; the woman, 34, 81-2, 99, 104, 129, 136

Shariat, 8, 12-13, 19, 31-3, 79, 82; and divorce for women, 20; in India, 8, 16-19, 22; and Muslim feminists, 84-7; and Muslim identity, 22, 24; and reformists, 84, 87-9; and status of women, 23, 84-9

Shia: 10-11, 16; law, 11, 25-6 Shiv Sena, 128 spousal support. See maintenance

state: acceptance of the Ulema as sole representatives of the Muslim community, 6, 28, 32, 78-9, 82, 95, 101, 107, 109, 112; colonial, 13-15, 17-18, 20, 22-3; commitment to constitutional principles, 4-5, 7,

108, 124, 139; complex nature of,

be community-initiated, 73, 107; and Muslim women’s rights, 97-8,

101-2, 109, 112-14, 118, 123-6, 132; policy influenced by minority status rather than by constitutional principles of equality, 24, 98, 123— 4; policy of secularism, neutrality,

and protection of minority rights, 4,7, 64, 67, 78, 97-8, 107-11, 125; as a site of struggle, 110, 118-19; as social reformer, 38, 58, 63, 65-6,

68, 71, 93 Sunna, 9, 11-12 Sunni: 10, 16; law, 11, 25-6

Supreme Court: on constitutionality of laws, 52; on equality, 44, 51-6,

135; on Hindutva, 127-8; and maintenance for Muslim women, 29, 32, 72, 92; rejection by Shah Bano of decision of, 81-2, 99, 129;

relationship between personal law and secular law, 4, 31; on religious freedom, 67-71, 128; on secular-

ism, 127-8; on status of personal law, 32, 41-2, 44; on the Uniform Civil Code, 31-2, 61-3, 73, 79

Ulema: 12-13, 19, 27, 33, 78, 94, 98; claim to autonomous, private

sphere of personal law, 6, 18, 22, 76, 83, 106-7, 117; legislative initia-

tives of, 18-24, 34, 78, 80, 117; as Muslim community leaders, 18-19, 79, 82, 112; as sole inter-

202

Index

preters of the scriptures, 32, 79, 81 Uniform Civil Code, 56-63; and the All India Women’s Conference (AIWC), 57; Constituent Assembly debates, 57-61; and the Constitution, 5, 36, 54, 56-7, 124-5; asa

130; and the National Planning Committee, 56-7; and national unity, 61, 63, 124-5, 132; as an optional code, 56, 59, 131; and personal law, 60-1, 63, 73, 79; and reli-

gious freedom, 58-9; and religious identity, 132; state’s obligation to

directive principle of state policy,

enact, 5, 24, 31-2, 56, 58, 72-3,

32, 57, 60-1, 72; focus on Muslim personal law, 124; and the Hindu right, 129-32; introduction of idea,

107-8, 125; and women’s equality,

56; and judicial decisions, 29, 31-2,

54, 58, 61-3, 89, 118, 121, 123-6, 129-39 untouchability, 40, 66, 155n32

40, 46-7, 61-3, 73; and minority

rights, 24, 59, 61, 107, 110, 122, 125,

Wakf Board, 28, 33, 168n54, 83

th

VRINDA NARAIN

is a doctoral candidate in the

Faculty of Law at McGill University.

Jacket illustration: Etching of two Indian women by Diba Siddigi. University of Toronto Press

Jacket printed in Canada

ISBN 0-8020-4869-2

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he independent Indian state has retained 4 personal Taw as ameans to regulate gender roles). the family; and the com- =. munity. Motivated by the exigencies of governing a pluralistic,

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the presumed needs of the Muslim’ collectivity. The state thus cS - reinforces women’s subordination by buttressing patriarchal | | structures of authority with discriminatory personal law. Argu-

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