Women in India: Gender and Personal Laws

From a lecture I delivered two years ago...

The Indian state has at times adopted progressive legislation for Indian women. Recently, a new Domestic Violence Act was passed by the Indian Parliament which is a welcome addition to the existing repertoire of laws. Although it has taken ten long years for Parliament to pass this Act, it breaks precedence by covering women even in live-in relationships to seek redress under the law. This suggests a remarkable change in opinion at the highest levels of the state in a country where non-marital relationships between men and women are frowned upon. The Act also specifies that women in live-in relationships and under married conditions cannot be evicted from the premises they occupy. They have been identified as co-owners even though such women may not possess title or deeds to the property in their name.

We need to qualify this optimism by looking at the previous record of the Indian state with respect to legislation on women’s issues. This record is a mixed bag. In the past the Indian state has implemented legislation which on the surface seems progressive, yet militates against women in ways we will discuss in this session. There are two points that we will make in this session. First, citizenship in India is granted to groups and not individuals. This has unique repercussions for the Indian women’s movement. Second, law itself furthers the fragmentation of the movement in two ways – at local levels law interacts with the socially dominant group and its version of patriarchy and, law furthers the fragmentation of the ‘female’ since law itself is not independent of moral visions that guide ideas of justice. Finally, we will argue that the women’s movement in India is fragmented because the subject of the movement – the ‘woman’ – is fragmented.

This fragmented woman has become the subject of law making in India leading to laws which privilege equality over difference. This has unique consequences for Indian women. The principle of equality privileges ‘sameness’ under law, i.e., women should be treated the same as men by law. However, this ignores the fact that gender is a socially constructed category and women’s lives are diverse and affected by the various communal spaces they occupy. Therefore, treating women equally under law can end up reinforcing or even worsening their differences (Kapur and Crossman, 2001).

Since most laws do not address the varying experiences of women from different communities, they end up perpetuating the fragmentation of the female identity.
First, we will attempt to situate gender-specific laws in India in a historical context. Second, we will then focus on specific issues/judgments - abortion, the Shah Bano controversy and the Bhanwari Devi rape judgment to argue that one of the main problems the women’s movement faces in India is the fact that citizenship rights have been granted to groups not individuals. What follows from this understanding is the idea that a woman is first Hindu or Muslim, i.e., her membership in a community is prior and more important than her existence as an individual. Indian laws have internalized this conception and have been guided by an Anglo-Brahminical idea of justice.

The existing framework of laws related to women has a particular historical trajectory which pre-dates colonialism. Flavia Agnes describes this trajectory and claims that what we see in India today is a culmination of Brahminical Hindu law, Shari’ah based Muslim law and finally the Anglo-Saxon legal tradition (Agnes, 1999).

For Agnes, existing laws have been framed by a unique legal experience. The British attempted to simplify existing laws in society but also tried to achieve this by not disturbing existing legal traditions. They called on pandits and qazis to interpret traditional laws. The clerics on their part offered a selective interpretation of traditional law under which women’s rights were slowly, but surely, taken away. For instance, Hindu women had the right to their ‘stridhana’ (all possessions given to them at the time of their marriage). Through this process of filtering law, by 1949 Hindu women had lost this right. As another example, Islam (being a trade specific religion) treated marriage as a contract with rights for both men and women. This contractual nature of marriage turned into a morally binding one by 1949 with disproportionately more rights for men. Finally, Hindu women’s limited right to share in the family’s property was taken away (Agnes, 1999).

It must be emphasized here that the British were operating under the moral vision of the Anglo-Saxon tradition which saw women as commodities and less-than-equal beings. British women did not have the right to property on marriage. The post-Independence Indian state adopted a synthesized legal framework which stripped women of many economic and social rights.

The overarching vision of law that dominates India is one that has been filtered through the colonial experience. As Partha Chatterjee notes the prime task of the nationalist movement and its leaders was to first and foremost present the indigenous community as un-fragmented. One way by which this was achieved was by making a difference between the ‘inner realm’ and ‘outer realm’ of society. The inner realm was the realm of tradition and family which the woman guaranteed in her role as the reservoir of all virtue. The outer realm was the public realm of politics and the Raj. While the Raj could dominate the outer realm, the inner realm had to be kept uncontaminated. This purity of the inner realm was to be maintained at all costs through many tactics. Perhaps one of these tactics was the standardization of laws for the community. In this process women were relegated to an inferior position. Their demands were seen as subversions of the unity of the community. This notion of community and women’s subversion has played out in modern day politics in India.

We will now turn to specific controversial issues and legislation.

Many observers have commented on the fact that India has progressive legislation with respect to women. One of the arguments invoked to support this observation is the fact that India has made abortions legal. However, abortions in India are not legal because of any protracted movement that pressurized the state into making them legal. Instead, the simple reason given is that abortions are legal in India since they are linked to the success of family planning as a state policy.

In 1994 the Supreme Court implemented the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act. Under this Act, state governments were issued directives to take steps to ensure that gender determination through ultrasound and amniocentesis did not occur. Amniocentesis was being used to determine the sex of and selectively abort female fetuses. The catch in the ruling was that this law applied only to government run clinics and hospitals. In 2002, the Supreme Court hauled up the governments of Punjab, Haryana, UP, Bihar, Gujarat, West Bengal, Maharashtra, Kerala, Rajasthan and Madhya Pradesh and inquired about the steps taken to curb female feticide. The petitioner was CEHAT which claimed that these governments had actually been giving licenses to ultrasound clinics and so had undermined the Supreme Court’s judgment.

This sequence of events reveals a few points. First, legal abortions in India were being used against future women through the ‘femicide of foetuses’ (Menon 2005). Second, the state demonstrated that it could only curb the activities of state-run clinics. Third, implementation at the local level was never carried out in accordance with the decree of the Supreme Court. Fourth, provisions in the law did not recognize that women in India do not control their own sexuality. Decisions about abortion are not taken by individual women but are taken by the husband and his family. The abortion law laid out conditions under which abortion was legal, but also stated that if it could be proved that the abortion was unnecessary and had been done by the woman without any pressure, she would be held liable and would be punished. The burden of proof was placed on the woman who would undergo an abortion. (Menon 2005). Fifth, the Prenatal Diagnostic Techniques law demonstrates the interaction of local patriarchies with the state.

Our second case moves away from the realm of female sexuality into the sphere of civil rights and citizenship. The Shah Bano controversy is a well known one in India. She was a 68 year old Muslim woman whose husband divorced her by uttering the word ‘talaq’ thrice. According to shari’ah law, the husband is supposed to maintain his wife for the duration of the ‘iddat’ – three months from the date of the divorce. Shah Bano approached the courts to claim alimony from her husband beyond that period. Therefore, she asked to be treated the same as other Indian women who could claim alimony/maintenance from their husbands. The Supreme Court in a piece of progressive legislation upheld Shah Bano’s status as an Indian citizen. She was entitled to her maintenance. Justice Chandrachud’s ruling also called into question the logic of existing community-based personal laws in as much as they militated against specific individuals within the community. He expressed a desire for implementing the Uniform Civil Code. Matters were complicated when in 1986 the Rajiv Gandhi government in overturned the Court’s ruling by adopting legislation in Parliament which reinstated the primacy of the Shari’ah based Muslim Personal Law in governing the rights of Muslim women. This step was taken after the Congress (a political party) suffered in by-elections in a couple of states and interpreted that as a loss of Muslim support (Hasan 2000).

The Shah Bano controversy highlighted the following. First, the Court in this case tried to follow the norm of equality but was scuttled in its endeavor by the government, who capitulated under pressure from the Muslim Personal Law Board and individual clerics. Second, the issue also demonstrated the will of the government to preserve harmony between communities at the cost of the ‘minority within the minority’ (Hasan 2000). Third, the debate surrounding Muslim women was construed as a debate about communities not women, much less Muslim women. Fourth, Muslim women were not granted access to legislation under Section 125 of the CrPC which could be accessed by other women. This emphasized their difference. Finally, the government and community leaders obfuscated the issue by treating women as members of a community first and citizens of the country later.

Bhanwari Devi Rape Case

Bhanwari Devi was a saathin with the Women’s Development Program in the state Rajasthan who was working against child marriage. Upper caste men from a community which supported the practice raped her in an attempt to discipline her. When the matter went to court, following the intervention of women’s groups, the verdict stunned everyone. The local court ruled that since Bhanwari Devi was a low caste (SC) woman it was unthinkable to allege that anyone from the upper-caste community could rape her (Menon 2001).

The above discussion reveals that women are treated in India as members of a community before they are treated as citizens of the state. While abortion laws militate against individual women on the basis of their membership in the female community, the Shah Bano controversy demonstrates how rights are conferred upon communities to the detriment of individual women within the community. The Bhanwari Devi case examines the manner in which Bhanwari Devi was disprivileged for being a low caste woman who could not benefit from the state’s legal apparatus. The state apparatus viewed Bhanwari Devi’s underprivileged social status as grounds to refute the charges she leveled.

What we have hoped to demonstrate is that the implementation of law is indeed divorced from the spirit of the law at the local levels. But more importantly we have argued that law and justice are separate concepts. Justice is more of a moral vision of the common and individual good; while law is derived from justice and therefore from moral visions that prevail in society at any given point in time (Menon 2005). In India, maintaining harmony between communities has remained high on the state’s agenda to the detriment of women. The state interacts with community-based structures of patriarchy at all levels to produce competing versions of the Indian woman. So the Indian woman is not a single identity.

This difficulty in pinning down the ‘woman’ has resulted in a general incoherence in the Indian women’s movement. There can be no singular movement if the subject of that movement is amorphous. In fact, as of today, there are many separate women’s movements across the country which articulate particular anxieties framed by different ‘fields of protest’ (Ray 1999). Indeed, the gender identity is fragmented. But this is precisely because gender is a socially constructed category which defines particular roles for both men and women. What fragments the ‘woman’ further are laws which seek to universalize women’s experiences in the name of equality (Kapur and Crossman, 2001). Therefore, law itself must be scrutinized to reveal what it enshrines as its guiding principles.