By Sabiha Hussain
12 July 2014
Muslim women have two challenges: at community level and State level. But the most complex dilemma before them is to find ways to assimilate their demands for equal rights into broader feminist discourse
The ‘quest’ for community is not new. However ‘community identity’ as a concept is gaining ground with the rising demand for third generation rights — cultural rights. The recent movements against secularism in India, the Islamist revival of the 1980s, or the re-discovery of ethnic and religious identities in former Yugoslavia show that cultural, religious, or community identities have come to matter in a new way. The relation between community identity and the State is affecting the rights of women in liberal democracies.
The central concern of this article is to understand the processes through which community identities have been created in modern India, the manner in which gender and community intersect with each other, and the way in which these two elements interact with Government policies in the wake of debates about personal laws and legal reforms generated by the Supreme Court judgment in the Shah Bano case. Some of these issues, as they have unfolded in India, have a direct impact on the rights of Indian Muslim women and their struggle for a gender just law.
In the last three decades, the concept of identity has become a pivot around which political, social, and cultural debates take place. Identity politics has stirred the modern discourse on rights, politics, and justice. This has happened irrespective of the fact whether we see the genesis of identity in the human personality or in the construction of social life. Identity has many constituents and is often composite, made up of multiple selves, often contradicting, and transforming the other.
However, in the case of women, the question of community identity becomes more complex particularly in a situation where Muslim women are living as members of a minority in non-Islamic secular society. The overbearing concern for their minority community status intersects with their gender identity. The claim for autonomy to maintain religious identity restricts any process towards securing secular gender equality. Thus the preservation of community identities often becomes detrimental to the realisation of women’s citizenship rights.
The case of Shah Bano in India is a historical example of depriving women of their citizenship rights in the name of maintaining community identity and the constitutional provision of freedom of religion. This case clearly brought out the discourse on how the citizenship, community, and gender in which Shah Bano’s identity as an Indian and her rights to equality were subsumed by her community identity. The case is crucial landmark in several ways as it brings out the relationship between Hindu and Muslim communities, minority communities and the State, civil and religious laws and women. The Supreme Court had held that there was no conflict between the Muslim law and the Criminal Procedure Code and arrived at this conclusion by interpreting the Quran in an elaborate manner. Muslim clerics made a hue and cry and felt that the court had performed a theological function which was exclusive to them.
The controversy around the judgment reflected a tension between the claims for rights of cultural communities and that of women’s citizenship rights. Muslim conservatives who saw the judgment as an abrogation of their religious-cultural rights by the State set aside the concerns about social and economic problems faced by Muslim women.
Politicisation of Women’s Rights
The enactment of the Muslim Women Act (1986) indicates that State policy is largely impacted by norms, values, and lifestyles of the dominant religious collectivity than the real concern about the rights of women under the Constitution.
The politics of communalisation that emerged from the Muslim Women Act had two consequences as far as the rights of women are concerned. It excluded Muslim women from obtaining her secular rights in matrimonial matters in violation of Article 14 and 15 of the Constitution. The onus of preserving community identity fell on women at the cost of losing even established rights. This identity syndrome, with women at the centre, diverted attention from Muslim women’s grim realities. Although, the Indian State espouses both religious freedom and the right to equal protection, by enacting the Muslim Women Act the State ended up blocking Muslim women’s recourse to secular laws.
Women’s struggle for gender sensitive laws has faced new problems in a charged communal atmosphere. They have two-fold challenges: at community level and the State level.
At community level, the dilemma before Muslim women is as how to assimilate their demands for equal rights into broader feminist discourse, and how to safeguard their religious and cultural identity. Any move to reform the personal law is hijacked by the right-wing party. The Muslim clergy, in the name of community identity, then propagates this issue as interference in their personal affairs and starts putting pressure on women to stay with the community and not argue for their rights. This reinforces gender discrimination.
For instance, the recent order of the Supreme Court to the Centre and States to frame rules for compulsory registration of marriages within three months was disapproved by the Muslim Personal Law Board. Registration was intended to protect women’s rights over property especially in case of desertion. But the patriarchal Muslim Personal Law Board saw into it a potential threat to their existence.
At the State level, despite the fact that Muslim women are at the receiving end, discriminatory Personal laws are hardly touched. The State does not see women as a class or as a group who can pose threat to its existence, therefore no concrete legal step is taken by the government. Thus, the State helps maintain the skewed gender order.
Needless to say, in the struggle for preservation of democratic norms, minority rights have no meaning if rights of women are not taken up with utmost sincerity.
Sabiha Hussain is Associate Professor, Centre for Dalit and Minorities Studies, Jamia Millia Islamia, New Delhi