Authors: Narendra Subramanian
The most important change made in Muslim law was the passage of the Shariat Act in 1937, initiated by various Muslim political and religious elites, which required the application of Islamic law rather than customs specific to region, caste, or lineage to Muslim family life. This increased the rights of most Muslim women in colonial India, to whom the courts had applied patrilineal customs, particularly to inheritance. Muslim women were thereafter entitled to half the share of similarly positioned male kin in family property. The resistance of Muslim landed elites to the shares that Islamic law gave women in family property led to a compromise that exempted agricultural land from the purview of Islamic law, as we saw. As a result, patrilineal customs that gave women no shares or very limited shares in family property continued to govern most Indian Muslims with regard to agricultural land.
The majority of the Muslim landed elites that had pressed for this compromise wound up in Pakistan after 1947. The resulting decline in the power of Muslim landed elites in India significantly reduced opposition to extending the Shariat Act’s purview to agricultural land, and the majority of
would have supported this change because they considered the inheritance shares prescribed in the Qur’an to be immutable features of Islamic law. Moreover, the Indian Constitution, adopted in 1950, moved succession to agricultural land from the sole jurisdiction of provincial governments to the concurrent jurisdiction of the national and the state governments, removing procedural obstacles to the passage of national legislation to this effect.
Despite this, the Shariat Act was applied to the inheritance of agricultural land soon after independence in West Pakistan (today’s Pakistan), but not in India, where only two state governments made this move.
Certain Muslim legal and political elites proposed other Muslim law reforms by the 1940s, such as requiring families with means to provide their daughters’ dower, giving women control over their dower and the right their husbands already had to repudiate their spouses, and restricting unilateral male repudiation.
Policy makers did not consider such changes or an increase
in divorce rights for Christians, which various Christian organizations demanded from the 1950s. Besides, Hindu law reform initiatives faced considerable resistance. Thus, support for personal-law reform was no stronger among Hindus than it was among Muslims and Christians, and influential Muslims and Christians had highlighted culturally specific grounds to change their personal laws.
Nevertheless, policy makers changed Hindu law and Hindu law alone soon after independence, because most political elites primarily engaged initiatives among Hindus, imagined the nation primarily with reference to various Hindu cultural sources, and conceived projects to reshape the nation and reduce deep inequalities mainly with reference to such sources and initiatives.
Gyanendra Pandey, Partha Chatterjee, and Aamir Mufti noted that the majority of Indian nationalists, both cultural pluralists and those who sought Hindu hegemony, shared such orientations in the late colonial period, but the literature has not explored the consequences for postcolonial recognition.
Many aspects of Indian multiculturalism had a Hindu-majoritarian orientation, not only regarding personal law but also preferential policies and state responses to autonomist and secessionist movements. Preferences in education, government employment, and political representation, along with special civil rights protections, were extended to the Hindu lower castes (scheduled castes) and tribal groups and later to lower-caste individuals practicing other religions of South Asian origin such as Sikhism (in 1956) and Buddhism (in 1990), but not to lower-caste Muslims and Christians even though the latter groups faced much the same constraints and indignities as the former. This discouraged lower-caste conversion from Hinduism to Christianity and Islam, contrary to the state’s claim to promote religious freedom.
The formation of Pakistan as a country for India’s Muslims led many policy makers to consider the religious minorities most likely to favor secession. They therefore more readily accommodated autonomist and secessionist movements that emerged among predominantly Hindu cultural groups (such as the Dravidian and the Assamese movements), while repressing such movements more often if they grew among predominantly non-Hindu groups (such as the Naga, Kashmiri, and Sikh movements).
Various scholars did not address the influence of religious identity over preferential policies and policies toward ethnic movements.
The manner in which these policies took reli
gious identity into account was contrary to the Indian state’s claim to equidistance from the various religious groups. Bhargava and Charles Taylor nevertheless misleadingly deemed the state’s maintenance of such a “principled distance” from religious groups a major distinctive feature of Indian secularism. The asymmetries in the Indian state’s engagement with religious groups weakened efforts to build interreligious understanding, to reduce durable inequalities, and to represent the country’s different religious cultures in the emergent nation.
Jacobsohn understood early postcolonial Hindu law reform as meant to realize the constitutional principle, based in liberal public reason, of ameliorating deep inequalities; Bhargava took it to be aimed to make personal law more just with respect to gender. However, the main sources of these changes—notions of social reform based on Hindu normative traditions and the model of the heterosexual and monogamous nuclear family that Western law provided at the time—were not based on a liberal imaginary and did not urge the systematic reduction of gender inequalities. The former encouraged the maintenance of lineage control over property and limits on mate choice and divorce rights; the latter influenced reductions in the rights of women in matrilineal groups or in polygynous relationships. Moreover, a preference to maintain broad support led policy makers to accommodate conservatives by placing serious limits on women’s access to ancestral property and strengthening men’s right to the conjugal company of their spouses.
VI. CENTRAL ARGUMENTS IN BRIEF
The book explains the course of personal law with reference to two sets of mutually interacting factors: features of state-society relations and the discourses of community that are salient among ruling elites or groups with significant influence over policy. The relevant features of state-society relations are social structure, the nature of state-society engagements under the predecessor regime, the coalitions that the regime or segments of the regime have and aim to build, and the projects of state elites to change state-society relations. The discourses of community that exercise greatest influence are those about the nation, its cultural groups, and its traditions.
The ways in which two category couplets—nation-community and modernity-authenticity—are deployed in discourses of community matter. The particular forms in which the nation-community and modernity-authenticity dyads are articulated influence the imagination of crucial group boundaries, the dynamics of the society, the nature of state institutions, and the boundaries and engagements between state and society in the present and in the projected future. Such forms of imagination of community in turn influence the construction of states and state-society relations, and how certain actors experience these phenomena.
The two crucial explanatory variables, state-society relations and discourses of community, develop through such interactions with one another, and their interactions shape various policies, particularly those pertaining to the recognition, transmission, and transformation of cultures.
capture these relationships.
We first consider the links each of these variables has to patterns of nation formation, recognition, and family law. Then we explore the interaction of these variables and the effects of these interactions on multiculturalism and family law.
FIGURE 2.1. Discourses of Community, State-Society Relations, and Personal Law
TABLE 2.1 Influences on Multiculturalism and Personal Law
TABLE 2.2 Features of Community Discourses and State-Society Relations That Influence One Another
VII. CENTRAL ARGUMENTS ELABORATED
A. Regimes and Coalitions
The kinds of social coalitions that regimes have and aim to build influence the course of family law. Societies in which traditional elites such as agrarian lineage leaders enjoyed considerable authority and professional, commercial, and industrial elites were weak tended to produce regimes dominated by or heavily dependent on traditional elites. These traditional elites tended to retain prior personal laws that upheld the authority of lineages and kin groups. These conditions obtained in postcolonial Lebanon, Syria, and Morocco and to some extent in Algeria, and they ensured the retention of most colonial personal laws. Catchall regimes that aimed to build links with a wide range of social groups and social visions introduced only limited social reforms, especially if mobilized groups were sharply divided over reform. This was the case in postcolonial Egypt, Jordan, Sri Lanka, India, Malaysia, and Indonesia. Vanguardist regimes, which valued the social projects they wished to pi lot more than building broad coalitions, promoted extensive social reform even if this led to considerable conflict and narrowed their support. They closely associated these projects with the groups among which they retained support while they transformed society. These groups could be either modernists, such
as socialists and communists drawn largely from the urban middle and working classes, or religious elites and other groups that preferred either the extensive public recognition of religion (as sections of the lower middle classes did in various societies) or the reinforcement of kin group authority (as powerful agrarian groups tended to). The vanguardist projects were modernist in early republican Turkey and early postcolonial Tunisia, and conservative in Pakistan, Iran, Sudan, northern Nigeria, Afghanistan, and east peninsular Malaysia at different points from the late 1970s.
To take some examples of regimes dominated by traditional social elites, the maintenance of community courts was an aspect of the agreement that forged the Grand Alliance that gave the clan leaders among Lebanon’s various sects political representation. The elites that led these courts retained the existing personal laws. The close alliance of certain factions of Algeria’s ruling Front de Libération Nationale (FLN) with conservative lineages, like the restriction of the Syrian regime’s support mainly to the minority Alawi sect since the late 1960s, restrained the reformist inclinations of certain regime members. The Moroccan monarchy’s reliance more on rural lineages than on the urban groups aligned with the nationalist Istiqlal party also predisposed it not to alter colonial Islamic law until the growth of civil society mobilization changed its calculus over the past two decades.
The experience of Egypt is representative of the approaches of catchall regimes. The Free Officers regime that came to power in 1952 and whose successors retained control over the national government until 2011, upheld a secular understanding of the nation and claimed to represent a socialist understanding of public religion. This suggested that the regime might either secularize family law or substantially reform Islamic law. Either approach could have drawn on intellectual and political currents that had been vigorous in the country since the late nineteenth century. Secular nationalism was influential in the anticolonial movement, particularly among the legal elite; Islamic modernists such as Muhammad Abduh and Muhammad Rashid Rida pioneered innovative religious reasoning that influenced policy debates around the Islamic world; and the women’s movement had begun to take root. These forces urged the government to change Egypt’s personal laws extensively, building on the minor changes introduced through the first half of the twentieth century.