Eva Pföstl, Istituto di Studi Politici S. Pio V

Indian law today increasingly turns its back on supposedly European or “Western” models, and has been developing its own country-specific and situation-sensitive methods of handling complex socio-legal issues. The future of the world lies evidently not in simplistic legal uniformity, but in considered, carefully weighed respect for diversity. Globalisation comes out prominently as localisation, creating new hybrid entities of ever-growing plurality. Therefore, we must learn to handle and understand more deeply how plural legal arrangements operate and what their potential is for making progressive improvements to human lives and sustainable development.

The key lesson from this evidence is that Personal status laws, which governs in all matters pertaining to family from marriage, divorce, separation and custody of children to inheritance and maintenance, may well endure and survive the much-desired uniformity of legal reforms all over Asia and Africa, and probably elsewhere, too. This may contain some important lessons for European lawyers, specifically in terms of managing cultural diversity through plurality-conscious legal intervention, rather than the traditional insistence on state-centric legal uniformity. But these Personal laws are often highly inimical of gender justice. We spook with Neera Chandhoke, Professor of Political Science, University of Delhi and Director of the Developing Countries Research Centre, University of Delhi about how successful has India been in reconciling unity and diversity.

Professor Chandhoke, India’s political system is often considered a model for other countries. India’s achievement is the reconciling of unity and diversity. Does the reality matches the rhetoric? It is well known that communal, regional, and caste tensions continue to haunt Indian politics, sometimes threatening its democratic and secular ethos. So, human rights in India: still a problem?

Yes, India’s record of human rights in regions in which dissent has been expressed in the form of armed struggle is poor. We cannot wish away the fact and neither should we desire to do so. The only mitigating circumstance is that political democracy provides checks and balances on human rights abuses through a free media, civil liberty organisations, an active judiciary, and the right to file public interest litigation on behalf of others. A vigilant civil society may not be able to prevent abuses, but it can help bring the abuser to book.

As you surely know, in Europe there is an intensive discussion regarding the compatibility of Islam and democracy, in particular also regarding the tension between Islamic religion and women condition. Can you briefly explain the situation in India?

The community was allowed to retain its personal laws after the partition of India in 1947 for various reasons, particularly to stave off the fear of the Muslims who stayed behind that they would be overwhelmed by Hindu majoritarianism. These personal laws are highly inimical of gender justice. Matters came to a head in the mid 1980s with the Shah Bano case. The case was not the first of its kind in independent India. Nor was the Supreme Court judgement the first time the judiciary had ruled on the issue of maintenance of divorced Muslim women. But in the 1980s the decision of the Court, and the subsequent passage of the Muslim Womens Bill by Parliament, aroused a storm of protest from the Muslim community, and in particular from the patriarchal sections of the community. The scale of the protest can only be understood as a response to the massive mobilisation of the Hindu right in the mid-1980s. But whatever the reason, the unprecedented protest of the Muslim community had important political implications. To return to the argument, the case at hand was fairly straightforward.

Shah Bano, an elderly woman who had been divorced by her husband, appealed to the High Court of Madhya Pradesh that her former husband should pay her maintenance under section 125 of the Criminal Procedure Code. According to this section the former husband of a divorced woman has to pay her maintenance if she is destitute, and if she possesses no means for her own survival for as long as she lives or until she remarries. The High Court ruled in favour of Shah Bano. However Shah Bano’s husband Ahmed Khan, moved the Supreme Court as an appellant on the ground that he was not obliged to pay his former wife maintenance beyond the traditional three month period of iddat under section 127 (3) of the CPC. This section rules that if under the personal law of certain communities certain sums were payable to women in the form of meher or dower agreed upon at the time of marriage, then this along with maintenance for the period of iddat released the husband from further obligation. The Supreme Court in effect had to pronounce on the relation between section 125, and 127 (3) of the CPC on the one hand, and the relationship between the CPC and personal laws on the other. On 23 April 1985 a Supreme Court Bench under Chief Justice Chandrachud confirmed the judgement of the M.P High Court, and stated that article 125 of the CPC overrides all personal laws, and that it is uniformly applicable to all women. The Court thus subordinated not only section 127, 3(b), of the CPC to section 125 but also personal laws to the civil code. The Bench also called upon the Government of India to enact a Uniform Civil Code under article 44 of the Constitution.

Expectedly the leaders of the Muslim community and in particular the Ulama opposed the judgement on the ground that it constituted a disregard for the personal laws of the Muslim community which are based on the Shariat. They argued that since the Sharia is divinely sanctioned, it can neither be tampered with nor interpreted by the Court. The controversy snowballed into a major political problem as thousands of Muslims took to the street to demonstrate against the judgement. Ultimately P.M Rajeev Gandhi’s government, then in power at the centre, bowed before the uproar. In February 1986, the Government introduced a Bill in Parliament which sought to exempt Muslim women from the protection provided by article 125 of the CPC. The Muslim Women (Protection of Rights on Divorce) Bill in essence abrogated the limited right to maintenance under section 125, because it stipulated that the husband at the time of divorce should pay the amount of the mehr/dower, the properties given to his former wife by her relatives, friends, husband, and his relatives, make a one-time fair and reasonable provision for her as provided for in the Koran, and provide two years maintenance for her children as well as three months payment.

The woman could ask a magistrate to direct her husband to give her these properties. In case the woman could not maintain herself, the magistrate could order her relatives to maintain her if they were to inherit her property. Alternately the state wakf board would support her. If the woman and her husband so decided they could apply to be governed by section 125-128 of CPC. That is if the man consented, the exemption from article 125 could be overruled. The Bill was passed in Lok Sabha on 6 May and in Rajya Sabha on 8 May 1986. The passage of the Bill aroused massive demonstrations as liberal, left and feminist sections who considered the Bill as regressive and as violative of gender justice mobilised against it. Though the judiciary continues to play an important role in this context, the move for gender justice and personal codes has unfortunately been put onto the back burner, for some time at least.

There has been a lot of discussion with respect to increasing activity of fundamentalist forces in India; especially hindu fundamentalist groups. Can you briefly elucidate on how the Hindu fundamentalist groups address issues related to women?

In theory Hindu fundamentalists speak of equal rights of women and the need to empower women. But most of this rhetoric is meant to highlight the unequal nature of Muslim women in personal laws. In the Shah Bano case mentioned above, oddly enough feminist protestors shared a common ground with the Hindu religious right which attacked the Bill on the same grounds. In fact the latter argued even more vociferously than the feminists did about the need to subordinate personal laws of the minority to a Uniform Civil Code in order to secure for all women their basic rights. Though it became increasingly clear that right wing forces were interested in gender justice less and in subordinating the minority identities to majoritarianism more, the argument was persuasive to many right thinking Indians. Those who defended the rights of the minorities to their own cultures and community identity were frankly on a weak wicket. How could the government or the defenders of secularism justify the retention of personal laws of the minorities, when these violated the basic precepts of gender justice? Secondly, why did the state not interfere in personal laws in the cause of social reform when it had done so in the case of the Hindu majority? The religious right in sum does not speak of a lesser status for Hindu women, but neither does it do anything to improve this status. Hindu women continue to be as exploited and as oppressed as Muslim women.

In contrast to the French laïcité, the Indian concept of secularism finds its cornerstone in the idea of unity in diversity. For the founding fathers of contemporary India, secularism did not mean practicing irreligious atheism. On the contrary, it meant an exercise in peaceful coexistence among faiths. Do you think that the Indian Model can be viewed as “a third way” solution to the crisis of political societies in the Middle East and in opposition to the secular authoritarianism of the state and the rise of religious fundamentalism in the civil society?

When in the 1920s Mahatma Gandhi set out to forge a major mass movement that could take on colonialism, the politicisation of religious identities hampered the project of building a Pan-Indian freedom struggle. Mahatma Gandhi looked for a principle that could bind people who subscribed to different faiths together, and which could weld them into a mass movement. This principle he found in the doctrine of sarva dharma sambhava which can be read as ‘equality of all religions’ or that ‘all religions should be treated equally’. Given Mahatma Gandhi’s religiosity, the notion of sarva dharma sambhava was not only a pragmatic principle designed to bring people together; it was also a normative principle that recognised the value of religion in people’s lives. On the other hand, for Pandit Nehru who became India’s first prime minister, secularism meant a wall of separation between religion and the state. But he could not continue to believe that the state could abstract the domain of policy making from that of religion. For recurrent communal riots which culminated in the frenzy of the partition proved that religious prejudices more than religious sensibilities had become a constituent feature of Indian politics. To ignore this would have been bad historical understanding as well as bad politics. In the process of coming to terms with this unpalatable reality of Indian politics, Pandit Nehru’s understanding of secularism came much closer to the notion of equality of all religions. Firstly secularism did not mean ‘a state where religion as such is discouraged. It means freedom of religion and conscience, including freedom for those who may have no religion’.

Secondly, for Nehru the word secular was not opposed to religion. “It is perhaps not very easy even to find a good word for secular”, he stated on one occasion. “Some people think that it means something opposed to religion. That obviously is not correct. What it means is that it is a state which honours all faiths equally and gives them equal opportunities; that, as a state, it does not allow itself to be attached to one faith or religion, which then becomes the state religion”. For Nehru the concept of the secular state thus carried three meanings: (a) freedom of religion or irreligion for all, (b) the state will honour all faiths equally, and (c) that the state shall not be attached to one faith or religion which by that act becomes the state religion. The creed of secularism therefore discouraged fears that one group had the right to stamp the body politic with its ethos even if is in a majority. Conversely a religious group would not be disprivileged in any way even though it happened to be in a minority. In effect, the meaning that secularism acquired in the Indian context, added one more dimension to the generic concept of secularism: not only the recognition of faith but the equal treatment of all faiths. This understanding has been reinforced in various ways. The notion that secularism means equal respect for all religions has come to dominate legal and political thought: One former Chief Justice of India interpreted secularism as (a) the state does not owe loyalty to one religion (b) it is not irreligious or anti-religious (c) it gives equal freedom to all religions and (d) that the religion of the citizen has nothing to do in the matter of socio-economic problems.

In your important work on civil society, you caution that civil society is not an institution, it is rather a process whereby the inhabitants of the sphere constantly monitor both the state and the monopoly of the power within itself. What is the role of civil society in India?

For one, social movements of farmers that demand the withdrawal of agriculture from the WTO, protests against the setting up of Special Economic Zones in Singur and Nandigram, and demands that information, education, work, and food be made a right, has drastically curtailed the capacity of the government to withdraw from the social sector, or act according to the mandate of global organisations such as the WTO. Secondly, the grant of civil and political rights in chapter three of the Constitution, has not only given enough space to groups to collectively mobilise on various issues, it has enabled them to demand the realisation of social and economic rights as a matter of right. Groups have mobilised on the issue of social and economic inequalities since the onset of independence in 1947. Since then a number of social struggles have insistently and relentlessly fought somewhat entrenched systems of domination. Among these movements are the movements for land rights, the women’s movement, the anti-caste movement, the environmental movement, the movement against displacement on account of large projects, and the radical armed struggle being fought by Maoist groups – the Naxalite movement. Whereas the struggle of Naxalite groups is grounded in a strong redistributive ethos, the feminist movement demands a restructuring of power relations that are endemic to a patriarchal society. Whereas the anti-caste movement demands that the balance of power that has consistently favoured the upper castes for centuries be reversed in favour of those who have been consistently marginalised from history, the environmental movement and the movement against big development projects have argued that local communities have the first right over resources that have been traditionally been exploited by and for the rest of society.

Since the mid nineteen nineties, we have witnessed the onset of campaigns for the right to food, the right to work, the right to health, the right to education, and the right to information, that seek to upgrade Directive Principles of State Policy to the status of rights. Somewhat, significantly, the campaigns which aim to put provisioning of social goods onto the political and the policy agenda haven not raised issues that relate to either redistribution of power or of resources. Nor do they press for any kind of structural changes. What these campaigns have accomplished is to expose (a) the lack and lags in conceptualisation of policy, (b) accentuate flaws in the making of policy, and (c) emphasise the major problems that are attached to the implementation of social policy. Skilfully employing civil rights granted by the Constitution, and drawing upon the entire repertoire of political strategies that are available to non-violent struggles: public hearings or rallies, sit-ins, processions, research, media, advocacy, and lobbying of members of Parliament and State Assemblies, some campaigns have borne results either in the form of policy formulations or increased outlays. Others have not yet drawn a response from the Indian state. But all of them have served to highlight the fact that the social objectives of policy in India, which have been encoded in chapter four of the Constitution, have been betrayed. Civil society in India in other words has pressed the government to realise the objectives of the Constitution.