GENDER AND COMMUNITY: MUSLIM WOMEN’S RIGHTS IN INDIA by Vrinda Narain. Toronto: University of Toronto
Press, 2001 405 pp. Cloth $50.00. ISBN: 0-8020-4869-2
Reviewed by Henry F. Carey. Department of Political Science, Georgia State University.
Vrinda Narain’s evaluation of gender discrimination in the constitutional law of India is ambitious, penetrating and provocative. It draws, in separate chapters, on Indian, constitutional case analysis, feminist theory and relational postmodernism with respect to cultural differences. The study is mostly focused on Indian personal
law as it applies primarily to Muslims, with interesting comparisons with Hindus and other minorities, which may or may not justify the author’s more general conclusions about gender relations. Narain does not utilize international human rights studies in law, politics, or theory. Perhaps this is a justifiable choice, but it inevitably overlooks a wealth of theory and comparative experience in the crucial issue of balancing secular rights and religious and communal autonomy.
However, I will refer to another approach, consociational democracy, which might make personal law discrimination seem, if not justified, then at least explained as an attempt at ethno-religious comity and democratic stability. The attempt may or may not be misguided, but the author shows that it permits some rather invidious discrimination against very undeserving Muslim women in India, as well as empowers religious leaders in matters of what is argued are essentially secular concerns.
The author makes a clear argument: patriarchal control in family law violates the right to female equality as a philosophical imperative as well as the Indian constitution’s commitment to secularism. Because there is no single Muslim thought, contrary claims that privilege any Muslim interpretation favoring sexist theology or social thought are simply unfounded. Since the author frequently refers to postmodern approaches, one can infer that no truth claim can be asserted with
confidence, idolatry among the believers. The author does ignore certain political cultural aspects of Islam and other religions, admittedly only tendencies, but still hard to deny. Chief among these are the sexist practices of most, though, of course, not all Islamic sects and philosophies, notable among them Sufism. For example, of the 166 States Parties that have ratified Convention on the Elimination of Discrimination Against Women (CEDAW), most states with predominate
Muslim culture defeated the main purpose of the Treaty by imposing reservations on enforcement of its provisions This suggests that Narain’s case study is instructive about how states systematically ignore statutory requirements that enforce gender rights. It also suggests that the problem may be more vexing than the author implies. This may simply be a matter of the prevailing sexism which states or powerful religious constituencies sometimes enforce by violence and fear. It may also reflect a reality conceded but also criticized by the author that women are often the chief defenders of religious discrimination of women.
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The Indian personal law system, which effectively defines women’s rights, is largely the result of colonialism. Also, it has roots in the culture of the society, as Lauren Benton (2001) has also argued. The British certainly reinforced communal differences as part of their divide and rule policy, as well as increased the power of religious figures in interpreting family disputes. Much of the development of statutory personal law came in the final decade of colonialism in the 1930s, when ethno-religious communal conflict was increasing. This led to reform of some of the more oppressive customs that legalized sexual violence, while, on the downside, deferring to the religious ULEMA, whose interpretation of high culture Islamic law was privileged. Certain parts of the Shar’ia law were adopted, focusing on Qu’ranic sources, but reform ignored socio-religious customs and took a socially constructed legal system and reconfigured it. During this process, Narain offers clear details of how the MALIKI school of Islamic jurisprudence took preference over HANAFI traditions.
The author suggests that “unified Muslim law (was) hitherto unknown in India” (p.17). Although the “Britishers” established Muslim law, I doubt that it was “unified.” In fact, the author provides examples where they incorporated parts of Muslim law into the civil and secular purview of the law, thereby decreasing the scope of private ecclesiastical adjudication in some parts of British India and not in others. That heterogeneous pattern continues in India to this day, an approach the author argues violates equal protection of the law rather than embracing a more federal approach. Whether or not a reader agrees with the author’s position, it is clear that the policy disagreement on how uniform to make civil and religious discretion is one that the U. S. Supreme Court wrestles with as well. Whatever view one might take of that Court’s approach, one can concede that for both courts in both nations it is eclectic, inconsistent, politicized and political.
In particular the SHARIAT Act, 1937 and the Dissolution of Muslim Marriages Act, 1939 privileged the views of feudal elites over the larger population of peasants. Local peasants’ customs were abandoned, while appeals to classical texts as interpreted by elites were enacted. The British legitimated their control by theoretically giving back the natives their real law, as the former understood it, or as the feudal elites explained it to them. Narain would find support for such a view of colonialism in the recent study of British colonial elitism, ORNAMENTALISM, BY David Cannadine (2001). Cannadine argues that Edward Said’s ORIENTALISM (1978) is too limited because it primarily emphasizes British racism when issues of class and social standing were also as important. The British found the caste system to be perfect to their situation. They favored the upper castes as their peer groups. The British projected the desirability of their own institutions on the colonies. They also projected their belief that an ordered society based on class relations was appropriate. Thus, the local elites were
regarded as the social equals of the colonial administrators ans legally reinforced in their oppressive rule over their subjects during and after colonialism. The British did not look down on the top of the social classes of local races they relied on them to govern. Thus, Indian gender law was imposed by dint of British deference to
local feudal lords who controlled the masses’ religious laws and, in turn, kept the peasants in check. Narain is particularly impressive in showing how the British lauded their claims as progressive for women,
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when in fact they were imposing a personal law tradition that was not really authentic to the region.
The author is also shrewd at presenting obvious contradictions in legalism practiced at all levels of Indian adjudication and interpretation. For example, its Supreme Court has held that secular law should always trump religious law in any cases of conflict. However, where such prima facie conflicts exist, the Court has
frequently concluded that no conflict exists. Thus, in the 1985 SHAH BANO case, the Court ignored secular laws because the parties to the conflict both relied on different interpretations of personal law. The case controversially upheld the right of women to spousal support, though not on the basis of secular law. As a consequence, Muslim women have lost access to secular law, even though the case did provide more financial support--a paltry 25 rupees per month--to the aggrieved woman. The Supreme Court has even provided obiter dicta that personal law ought to be reformed, but has not decided that the Constitution
Indian practices continued the British precedent of deference to particularistic religious concerns. The Muslim Women’s (Protection of Rights on Divorce) Act, 1986 enacted that a divorced woman is not entitled to child support from her ex-husband, beyond an initial three month period and must appeal to Muslim relief organizations, such as the WAKF Boards. The case ignored the purview of section 125 of the Criminal Procedure Code, which requires spousal support under secular law. Section 125 was amended in 1973 by section 127 (3) (b), which provided that if maintenance for child support was paid to wives as practiced under customary law, then a Muslim wife could not claim any additional support. Thus, Narain informs the reader that India goes beyond the legal norms of Muslim states by relying on the state and NGOs to support divorced women and their children.
The Fundamental Rights chapter of the Constitution, the Indian Supreme Court held in 1992 in the NARASU APPA case, does not apply to personal issues, and that any apparent conflict does not void the personal laws. Yet, the Court has upheld the abolition of untouchability for Hindus under Article 17 in the Constitution (at least in theory, if not in practice), creating an obvious discrepancy. Various state laws have also produced injustices. For example, the Madras High Court, in the
south, upheld an anti-bigamy statute that held different standards for Hindus and Muslims. It held that the distinction between religious communities was rational and effective. On the other hand, in Bombay’s High Court, in the northwest, the court decided in the 1992 case, IN RE AMINA that the principle that personal law must respect fundamental rights, despite the ruling in the NARASU APPA case, was ruled not to apply, for reasons that escaped this reader.
To some extent, it is difficult for me to evaluate both Narain’s philosophical approach to gender equality and religious minority rights as well as her depiction of inconsistencies in case law that demonstrate de jure discrimination. First, my background in comparative politics and human rights differs from the author’s legal
and philosophical bent. I have explicitly advocated gender mainstreaming in peacekeeping. So, my reservations do not come from a lack of sympathy for the direction of the author’s conclusions. To be clear, I do not readily want to condone sexual violence. Nor are the trends toward increasing fundamentalism likely to
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strengthen the Indian state. Certainly the principles of separation of religion from state should be maintained, a principle which the ruling BJP party--which espouses a Hindu fundamentalist ideology--has been unable to alter because of the vagaries of coalition politics. By the same token, I suspect that the Indians know that some group autonomy--at the expense of gender equality--is preferred by a larger majority of South Asians themselves. This would not be my choice in an ideal world, although I do not mean permitting any crimes of violence or issues of family support to be tolerated. However, in matters of family law, the Indian state has not penetrated much of India’s traditional society, both for lack of means and will. The reason is to prevent a cultural and religious backlash against local autonomy over
social issues in those communities, such as BIRARDI system of tribal connections, in a country which more than half the population earns a living from agriculture, often under subsistence conditions. Indeed, the lead party of the governing coalition, the BJP, has attempted to reduce local control of public and private life. In other words, autonomy needs to be limited by clear criteria, which the author shows is sadly missing in Indian public law. Perhaps, specifying that dividing line is beyond what Indian democratic politics can tolerate, but the scholarly effort is needed.
In general, although I agree that Narain’s examples represent substantive injustices, there may well be fundamental state interests or no easy alternatives. It is difficult to know because the author does not entertain either possibility. Thus, we read about immoral practices of gender discrimination and are, in effect, led to believe
that there could not be any legal or political justification for them. Beyond the possible need for pragmatic deference to leaders in order to promote inter-communal harmony, some moderate acceptance of cultural relativism for discrimination perpetrated by religion may be necessary to the survival of India’s pluralist political system. If the society was forced to change to secular standards before it was ready, there might be enormous risk of massive violence. In this regard, one could
cite the lynchings in the U. S. South as an evil that resulted from the cowardice of the U. S. state to confront racial discrimination. However, in that example, the issues of slavery and Jim Crow were resolved with a Civil War and gradually a commitment to promote social change non-violently. Sadly, notwithstanding Gandhi’s social movement, the violence that accompanied his assassination, as well as the million killed in history’s greatest ethnic cleansing of 1947, compounded by
communal murders that have been constant over the past fifty-five years, all make clear that the survival of India itself involves a choice among lesser evils. Would the author reconsider if it were known that hundreds of thousands would die in communal riots if religious personal law, which would apply to Hindus, would be
abolished? Maybe I am wrong, but I think the scenario needs to be addressed and defended.
Second, the legal inconsistencies found by the author in Indian constitutional case law are very difficult to assess for a non-specialist. One cannot tell if the inconsistencies reflect sloppy or discriminatory legal decisions, or whether India has implicitly or effectively decided to produce competing and inconsistent decisions
across different jurisdictions because the Indian Supreme Court would rather procrastinate and experiment, or because different policies should bind culturally distinct regions. The latter would make sense, for example, in the more Hindu south than in the plural regions of the north,
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where recent violent communal pogroms killing thousands have occurred in Gujarat.
Also, many gender issues are raised by Indian law’s treatment of Muslim minorities are not examined. By operationalizing gender discrimination in terms of issues of divorce, alimony, and inheritance, such crucial issues of sexual violence, blood money, honor killings, dowry murders, to say nothing of employment discrimination and the non-implementation of rape laws, are largely overlooked or given little treatment. In Pakistan, the Hudood Ordinance and the Zinna legislation, produced by Zia Ul-Haq during the 1980s, has produced much more serious consequences. Even if the most obscene abuses, such as death and long prison sentences for fornication to victims of rape, would were unable to produce four witnesses to their victimization, and the male testimony outweighing that of females, are not enforced by discretion. I also wonder if some of the legal abuses depicted by Narain are not being corrected because of legal discretion. The author
concedes that the Indian state needs to recognize its multicultural and polyethnic character. It is philosophically satisfying to pick and choose among the sub-cultural aspects that will be protected. However, there is clearly a priority in international human rights law to protect women from sexual violence before focusing on personal legal matters. However, if she had prioritized aspects within personal law which are more objectionable and less deserving of protection because
they reflect core gender quality concerns, the author would have been more persuasive. However, all gender violations are treated as equally unfair, without conceding any rights to traditional practices in a modernizing world that finds many unwelcoming citizens. In such a climate, it is easy to imagine, and it is sad to admit that women's rights could WORSEN the Indian state was unwilling to quell rioting that resulted from the abolition of Muslim personal law, whether through a Supreme Court decision, the promulgation of state regulations, or legislating a Uniform Civil Code, as Narain argues, is mandated by Article 44 of the Constitution.
Finally, although the author correctly underscores that all Muslims are treated homogeneously by the Indian state’s orientation toward unrepresentative religious leaders of particular Muslim sects or outlooks, the author ignores the political realities of polarized pluralism and ethno-religious entrepreneurs willing to use violence to insist upon what they view as their most important rights. The solution attempted by the Indian state is what Arend Lijphart (1996) has called a “consociational democracy.” The attempt to reduce ethno-religious conflict has only been partially successful, but many observers feel that India would be worse off had it not deferred to elite leaders of communities or minority groups. He argues that “India has always had a power-sharing system of democracy, especially strongly
and unmistakably during its first two decades of independence from 1947 to 1967, but continuing, albeit in somewhat attenuated form, after about 1967. As Indian democracy has become less firmly consociational, intergroup tensions and violence have increased.” (Lijphart 1996, p.259, see Wilkinson 2000) He cites with apparent approval (on the process, not the substance) the appointments under the Act in response to the Muslim board. With respect to personal laws, Lijphart quotes Law Minister B. R. Ambedkar, “The Constitution permits us to treat different communities differently and if we treat them differently, nobody can charge the government with practicing discrimination.” (p. 261). For Lijphart, process is often more
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important than substance when ethnic relations are crucial to democratic stability. If elites are in charge, then they require deference, even if their leadership may not have been sanctioned electorally. Indeed, in a communal environment, where modern politics has not taken hold, public elections for clerical leadership would not
be any more legitimate than they are in U. S. religious institutions.
Indian federalism, another consociational technique, has also been crucial to the country’s democratic stability. The various concessions not only to Muslim and Hindu leaders, but to any number of other sub-cultures and castes is what explains how democracy has been possible in such a large and poor country—a democracy which empirical democratic theory would suggest is nearly impossible. In fact, with only about three years of democratic interruption, India’s concessions
to minorities look rather sensible.
Narain examines (“essentialize” would be the type of postmodern term that pervades the study) the interests of Muslim women qua women, assuming that the claims of Muslim theology and/or social thought is either sufficiently heterogeneous to be overshadowed or that Muslim women who accept the sexist elements of that body of thought do not deserve to be legally protected. These are defensible choices, ones with which I might well agree. However, they also produce the chief
shortcoming of the book, for this assumption is not really well defended. Rather, the author reiterates that protecting Muslim autonomy homogenizes Islam without drawing the line, which I would urge needs to be drawn, between reasonable minority claims and unreasonable ones.
The main constitutional objection to these practices is that the Constitution requires a Uniform Civil Code that would create national standards for human rights. Of course, constitutions say many things that courts read differently from a literal transcription, beginning with the duties in Article I, Section 8 and the First and Second
Amendments of the U. S. Constitution. I can only ask whether it is really unreasonable for the Indian Constitution to interpret this mandate as discretionary rather than obligatory. Also, U. S. constitutional law provides exceptions for racial discrimination that serve fundamental state interests and which most efficiently eliminate
the discrimination. India has roughly equivalent standards. Furthermore, Narain concedes that the no article in the Indian Constitution deals with the status of personal law.
Given that Narain is making a legal argument, it would appear necessary to criticize Indian constitutional interpretation more generally to make a legal case for reform through litigation. Moreover, a political analysis of the politics of legislative reform would also lead to important insights as to why the Indian national and federal legislatures have been reluctant to improve the plight of Muslim women. A more complete discussion of whether ethno-religious harmony is fundamental and effectively pursued by personal law autonomy seems missing from this book, whether as a matter of legislative or judicial inquiry.
In several philosophical sections of the book, Narain argues for a substantive, rather than a formal view of gender equality. By this, the rule of law should not be taken literally, but incorporate principles that embody the spirit of equality in practice. For Narain this would mean that the
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Uniform Civil Code (UCC) should be mandatory, even though the Court has not insisted on that interpretation, which also could be advocated in the basis of principles of ethnic comity. However, by repeatedly underscoring convincingly that Muslims are a heterogeneous community, for which there ought not to be a single standard, one could ask why they should all be subjected to common standards, Narain’s standards, when there is no agreement among the different communities as to what constitutes fundamental rights. By emphasizing gross injustices, such as the tales of divorces with children, we do not read exactly what would be incorporated in a UCC. Since this work is a primarily a legal effort, a specific proposal for the UCC would have been desirable. Exactly where the rights of fundamentalists begin and end ought to be specified. I am not sure myself where to draw that line, and I would certainly attempt to protect the kinds of women that the author so eloquently depicts in this treatise.
In conclusion, this study about balancing gender equality and secularism with concerns for minority autonomy and communal relations is very topical, with implications for the tensions in the subcontinent between Muslims and Hindus, as well as Pakistan and India, with all the post-September 11 implications for terrorism and nuclear war. However, I am not convinced that if the author’s recommendations were followed, that the world would be a safer or more democratic place. Indeed, if
secularism were imposed on the Muslim community, patriarchal, sexist and unrepresentative to an extent, as it is, there would probably be even more communal pogroms and counter-revolutionary terrorism than there already is. India has survived as a democracy in part because minority rights are respected. The author, unusually relying on both liberal and postmodern theories that reject group rights, which discriminate against females, effectively places gender rights in personal law. However, compared with South Asia’s regional practices, India’s violations of gender rights appear to this reader to be less objectionable and arguably contribute to India preferable human rights environment, allow religious discretion on personal matters, and provide some succor for Muslim women against the most obscene abuses. Of course, India permits different and somewhat objectionable standards throughout the country. In an ideal world, India would not do this. There are many policies of this important democratic country with which I disagree, including its denial of self-determination and its promotion of state terror in Kashmir, its unwillingness to enforce constitutional bans on the caste system and the requirement of equality of educational opportunity. Yet, I have the sense that respect for
some aspects of Islamic personal law has provided security to the country’s population.
Benton, Lauren. 2001. LAW AND COLONIAL LEGAL CULTURES: LEGAL REGIMES IN WORLD HISTORY, 1400-1900. Cambridge: Cambridge University Press.
Cannadine, David. 2001. ORNAMENTALISM: HOW THE BRITISH SAW THEIR EMPIRE. Oxford: Oxford University Press.
Lijphart, Arend. 1996. “The Puzzle of Indian Democracy: A Consociational Interpretation,” AMERICAN POLITICAL SCIENCE REVIEW 90:
Said, Edward. 1978. ORIENTALISM. New York: Vintage Books.Wilkinson, Steven Ian. 2000. “India, Consociational Theory and Ethnic Violence,” ASIAN SURVEY 40: 767-91.
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Wilkinson, Steven Ian. 2000. “India, Consociational Theory and Ethnic Violence,” ASIAN SURVEY 40: 767-91.
Copyright 2002 by the author, Henry F. Carey.