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Mainstream, VOL L, No 6, January 28, 2012

Multiculturalism Trumps Feminism: The Case of India

Tuesday 31 January 2012

by TAMANNA KHOSLA

Most democratic states in contemporary times are multicultural in nature. Multi-culturalism advocates the need for recognising cultural diversity and accordingly granting rights to cultural minorities. Thus living with difference has become the new age mantra. Feminists too have close affinity with the politics of difference and therefore empathise with multiculturalists. They have hence made claims for another oppressed section, that is, women. Multiculturalists and feminists both oppose oppression of women and minorities. According to them, women and minorities together face marginalisation, violence, powerlessness, exploitation and cultural imperialism. Issues like group rights etc. in Europe and the USA have played an important role with both women and minorities having benefited as a result. The whole controversy around the veil worn by Muslim women and attempts to disallow them from wearing it in Europe shows how lately feminism has trumped multiculturalism in these states.

However, in India the emphasis on granting cultural rights to minorities opens up possibilities of regressive interpretation of identity politics and stresses the fact that multiculturalism trumps feminist concerns. “Feminism and multiculturalism might find themselves as allies in academic politics; but as political vision in the larger world they are very apart.”1 “While multi-culturalism demands respect for all cultural traditions, feminism interrogates and questions all cultures.” The issue of personal laws in India is one of such major aspects where multi-culturalism overlooks feminist concerns.

Unlike polities based on uniform laws for all citizens, a polity based on separate personal laws in India is guided by certain primary beliefs. And these beliefs harm a certain section, especially women. These are:

1. Primacy to Religion over Secular Principles

Unlike Western societies where a secular (based on the principle of separation of church and state) public sphere was established and religion was relegated to the private sphere, in India (due to historical reasons) something very different followed. The system of personal laws gave sanctity to providing primacy to religion in the public sphere of the country.

2. Primacy to Community Rights over Individual Rights

A system based on personal laws is guided by the rights of the community (cultural/ religious) to be governed by their own laws. The premise here is that this will lead the community to have autonomy in deciding on its internal matters. Either the state or (in case of the minority community) the majority community will have no right to interfere in community matters.

However, what I would like to bring out in this article is that a system which is based on primacy to religion and community rights is exploitative to a large section of the population. This is because by establishing religion in the public sphere one is giving primacy to laws made during earlier times which have not much relevance in today’s times. A law needs to address the problems of the times we live in and therefore must be for “here and now”. Also religion gives automatic sanctity to community rights, which in turn gives orthodox elements within these communities an opportunity to rule on community matters and these elements, in face of dissent from within or outside the community, use the slogan of “community in peril”. This goes against individual rights as the members are often made to toe the community’s line.

Issues Raised in India by Feminists

INDIA is such a country where while inter-group equality has been addressed, issues of intra-group equality have received scant attention. Issues of personl law in India have been raised by feminists to show how multiculturalism harms women.2 Personal laws in India are one of the most complicated issues and bring out the tension between multiculturalism and feminism. Independent India opted for a model of separate personal laws for each of its religious communities. As per this model, the religious community in India governs a broad range of family law issues including marriage, divorce, maintenance, guardianship, adoption and succession. Under such a model each community is given autonomous powers to demarcate its membership boundaries and preserve its cultural distinctiveness. After independence, some scholars and many indigenous political leaders believed that a system of separate personal laws for religious minorities could be an important source of cultural autonomy in divided societies, contributing to ethnic stability and facilitating the preservation of minority cultures. On the whole this was the model to accommodate multi-culturalism and cultural diversity in India.

However, this model of cultural diversity or extreme religious particularistic model3 perpe-tuated other kinds of inequalities. Thus, while the cultural diversity model maintains the autonomy and sovereignty of different minority cultures, it is problematic in terms of women’s rights, particularly when the jurisdiction it extends to groups goes beyond pure status issues to include matters of property relations between spouses.4 These relations can be structured so as to disadvantage or even exploit women. In so doing, they put at risk women’s rights to fair and equal treatment and may interfere with their capacities to make and pursue significant life-choices.

While in India women are guaranteed on paper full and equal citizenship rights by the state law, in practice their basic rights may be circumscribed with impunity by their group’s family law traditions. To highlight this I would like to point out how property and inheritance rights are discriminatory in most personal laws. If one were to look at the Hindu Succession Act, it did not challenge the Mitakshara coparcenary or the exemption to equal inheritance in agricultural land.5 It was based on the north Indian Brahmanical patriarchy and marginalised the rights of matrilineal communities on the question of “Hindu” succession.6

Even within the north Indian communities, it eroded the property rights of widows who had customarily been entitled to marital property despite remarriage by making remarriage an event forcing all Hindu widows to forgo property. According to Srimati Basu, ”The Hindu Succession Act (1956) stands as a prime signifier for the contemporary position of Indian women with respect to personal law.” “It includes some change that gives Hindu women greater access, while veiling the significant patriarchal and patrilineal scripts on which personal law is grounded.” Further, numerous studies show that the inheritance provisions for daughters are rarely availed of, that women generally turn down shares of natal inheritance.

As far as the Muslim law is concerned, the Shariat grants the right to inherit property as embodied in the Muslim Personal Law. However, this is not actually implemented. Studies by Srimati Basu, Zoya Hasan and Ritu Menon have similar findings as far as property rights are concerned. According to them, women traded away the right of inheritance for what they perceived as more long-term gains, in the way of maintaining good relations with brothers.

As far as Parsis are concerned, in 1991, by amending the succession laws, the discri-mination between female and male descendents was abolished. However, up till 1991 Section 51(1) of the Indian Succession Act, 1925 (here-inafter ISA) dealing with the death of a male intestate, divided the share between the daughter and the son/widow in the ratio of 2:1.7

Christians follow the Indian Succession Act, 1925, which is more equitable than other religious succession Acts. Though it is a law made during British time, it grants equal rights to daughter and son. Christians, however, do not have their own succession Act.

Parsis and Christians have followed the Hindu Marriage and Divorce Act. The Hindu Act introduced the husband’s rights to maintenance. (As far as Parsis are concerned, they followed the Hindu Act rather than the more progressive Special Marriage Act which does not have the right of husbands to maintenance.) Here the Christian law is more equitable as it does not have the right of husbands to maintenance. As far as the Muslim law is concerned, triple Talaq and maintenance are problematic areas. The Muslim law and clerics do not consider it inappropriate that a man’s responsibility for his wife should end after the three-month iddat period. The Muslim Women’s Act, 1986, made divorced Muslim women ineligible to file suit for maintenance against their former husbands under Section 125 of the Cr.P.C. As per this Act, if a Muslim woman has no other means of subsistence, she may instead file an application, under the MWA, 1986, to obtain financial support from parents, siblings, other natal relatives, adult children, grand children or, if they are lacking or without sufficient means, the Waqf Board of the State in which they reside.

Hence, the preservation of the group’s cultural distinctiveness through multicultural accommo-dation often imposes severe internal costs, which are disproportionately allocated in a way that tends to compromise the citizenship status of certain sub-sections of the group by upholding the structural impediments imposed upon them by a rigid reading of the group’s traditions.

Multiculturalism hikes up cultural membership to the status of primary good. Thus giving cultural membership to groups trumps all other considerations. Feminists are deeply skeptical of the multiculturalists’ claim to inter-group equality. Though Kymlicka regards the culture that discriminates against women as not worthy of cultural rights, feminists like Okin feel that sex discrimination is often informal and private and that virtually no culture in the world today can pass the ‘no-sex-discrimination’ test, if it were to be applied in the private sphere. Domestic violence is a huge problem in countries like India and this is what Okin wants to bring forth. Further, multiculturalists like Bhikhu Parekh’s emphasis on operational public values and shared public norms, as cherished in the Constitution, may lead to themselves supporting structures of discrimination. The laws, as enshrined in the Constitution, are codified by men and not women. Parekh, for example, contends that public values can be challenged in case of sexist regimes. However, how do women simply challenge entrenched patriarchal values as reflected not only in the Constitution and laws but also societal values? Thus issues like Women Reservation Bill, despite several discussions across party lines, have failed to be passed by the Parliament in India. Moreover, several thinkers advocating deliberation as a way forward forget how a dialogue can be open-ended and free-flowing, when the prevailing laws are patriarchal in nature. Patriarchy therefore needs to be attacked with full force.

Feminist Response to “All-Inclusive Multiculturalism”

WHILE multiculturalism has outdone feminism in India, several feminists worldwide came out in support of the need to protect women’s rights. They have questioned multiculturalism in its present form in Third World societies like India.

Liberal feminists prioritise individual rights over group rights. Feminists like Okin looking at Third World countries, and traditional cultures like India in particular, regard group rights not as a part of the solution. These may in fact aggravate the problem. According to her, women might be much better off if the culture in which they were born were to become obsolete or be encouraged to reinforce the equality of women. To her, unless women, and more specifically younger women (since older women are often compelled to reinforce gender inequalities), are fully represented in negotiations about group rights, their interest may be harmed rather than promoted by granting such rights. For example, in India lately khap panchayats or community panchayats are notoriously known for giving anti-women judgements. Women are hardly represented and thus several anti-women acts are passed, for example, honour killings as seen in some recent cases. According to Okin, what we need to strive towards is a multiculturalism that effectively treats all persons as each other’s moral equals.

Like Okin, there are several secular feminists who tend to view religion itself as patriarchal and a powerful ally of women’s oppression. Secular feminists8 are not averse to muzzle religion and do not see it as doing a whole lot of good in anyone’s life, especially women’s lives.9 Religion, according to them, perpetuates and reinforces women’s subordination and religious freedom obstructs reforms. Religion contributes to women’s subordinate status not only within religious communities but also in broader culture. Thus secular feminists view secularism as of considerable value specially for the protection of women’s rights.10 The reverse optionality in India is agreed upon by several theorists to the present system of personal laws.11 According to them, while all citizens need to be governed by the secular laws of the country, all citizens would, however, have the right to opt for the personal laws of their community at any point of their lives. In case of difference in the options between the parties to a dispute, the secular law would prevail.12

Thinkers like Derrida too feel the need to prevent a ”return of the religious” and promote the Enlightenment spirit.

According to Gurpreet Mahajan,13 preservation of cultural practices can be and often is an excuse to continue customs that perpetuate the discrimination of some groups. Within the community, special rights cannot be justified for this end. Thus respect for other cultures is always premised on first respecting individual citizens.14

Here I would like to point out how several Muslim feminists proclaim the need for separation of religion and state. Valentine Moghadam asserts that as long as feminist movements are focused on theological rather than socio-economic and political questions, and so long as their point of reference is the Koran rather than the universal standard, their impact will be limited at best.15 According to her, Islamic feminists are seeking to bring about revolutionary change of political and social institutions by questioning the exclusive right of clerics to interpret the Islamic texts and those on Islamic jurisprudence. Haideh Moghissi too has a dim view of religion, specially as a driving force for meaningful change.16

Nevertheless, there are several feminists who proclaim the need to look at religion and culture through a different lens. According to them, the complex relationship between religion and culture on one side and feminism on the other should be taken into consideration and fully understood. They believe that religion is important and the only course is to interpret religion in a progressive manner. Martha Nussabaum, another liberal feminist, focuses on the need for religion.17 She agrees with Okin that the current liberal interest in multiculturalism holds grave dangers for women’s equality. However, Nussabaum and several other feminists take a totally different view on religion despite agreeing with Okin on the necessity of existence for women members.

Firstly, according to Nussabaum, several movements such as abolitionism, US civil rights movement, movements against racism, even the Indian struggle for independence have had a religious base. Many feminists, past and present, worldwide have been deeply religious.

Secondly, like Nussabaum, several Jewish and Islamic feminists have felt the need to enter the temple of religion by undertaking the most revered of its internal mechanisms of cultural reproductions: theological study.18 For instance, female and progressive scholars have offered revisionist readings of the Koran, readings which are inclusive of women and which treat women and men as equals before Allah. One of the most prominent Islamic feminists Irshad Manji, in her work, establishes the need for reform in Islam.19 Irshad has founded Project Ijtihad, an initiative to renew Islam’s own tradition of critical thinking, debate and dissent.

Yet despite her critique of present-day Islam, she continues to work within the folds of Islam. “She wants to embrace her faith by under-standing it fully, by realising its vision of human equality, by resuscitating the ancient Islamic tradition of ijtihad,20 questioning, asking, and thinking.” Even Egyptian feminist Nawal el Saadawi writes that “We have to compare the Koran to other holy books before we judge Islam.”21 “A fair comparison will help us to discover that the Koran or fundamental teachings of Islam are relatively progressive in relation to women and democracy.”

Conclusion

THIS paper sought to look at the complex relation-ship between multiculturalism and feminism. Personal laws in India potentially reflect the tension between multiculturalism and feminism. Both the feminist and multiculturalist political theories have maintained the story of Western history to date as being one of arbitrary exclusion in course of which various victim groups have been created—in case of women by patriarchy, and minorities by majorities. Feminists point to the need to consider not only inter-cultural but also intra-acultural equality. According to Anne Phillips, the need for us is to consider equitable treatment of minority and majority cultures22 alongside other considerations, that is, between men and women. Thus in India too the task is for giving equitable treatment not just to communities but also between men and women. Anne Phillips cautions against elevating cultural membership to the status of primary good as it potentially trumps all other considerations.23 Feminists say respect for other cultures is always premised on first respecting the individual citizen—which is not abstract but a gendered, differentiated citizenship within which multiple differences and diverse perspectives of the previously excluded ‘other’ might be recognised, affirmed and represented. The Constitution and policy-makers in India should consider this.

Therefore, from a feminist perspective and given the culturally diverse nature of India, multi-culturalism is a problem today and foreseeable future—a problem for politics and ethics of politics.24 This is because feminist and many such other issues still need to be addressed in their true complexity within the domain of the present multicultural societies like India. Multiculturalism and feminism need not work against each other but indeed they need to function side by side in a pluralist democracy as ours. Multiculturalism need not trump feminism but they should work alongside. In India feminists feel that personal laws should not overtake women’s rights.

NOTES AND REFERENCES
 
1. Katha Pollitt, ‘Whose Culture?’ in Is Multiculturalism Bad for Women?, Princeton: Princeton University Press, p. 27.
2. Feminists stress that all cultures have shades of patriarchy, which attempt to control women’s sexual behaviour, establishing control over their bodies. This can be demonstrated in different countries by looking at issues varying from circumcision, forced marriage, polygamy, personal laws, rape in minority cultures from abortion and ERA (in both majority and minority culture).
3. See Ayelet Shachar, Multicultural Jurisdiction, Cultural Differences and Women’s Rights, Cambridge University Press, UK, 2001.
4. Ibid.
5. Bina Aggarwal, A Field of One’s Own: Gender and Land Rights in South Asia, Cambridge: Cambridge University Press, 1994.
6. Bina Aggarwal, ‘A Field of One’s Own’, p. 10. Also see, Archana Parasher, Women and Family Law Reforms in India, New Delhi: Sage Publications, 1992.
7. D.N. Sengupta, Indian Succession Act, 1925, Calcutta: Kamala Law House, 2008, p. 84. Gajendragadkar, Justice, The Hindu Code Bill, Dharwar, Karnatak, University Extention lecture Series, 1951.
8. Many secular feminists are Marxists and following Marx are bound to take a negative view of religion and unlikely to give free exercise of religion a high degree of respect.
9. See Mary Becker, ‘The Politics of Women’s Wrongs and the Bill of Rights: A Bicentennial Perspective’,
The University of Chicago Law Review, 59, 1992, pp. 453-517.
10. For secular feminists see the works of Allison Jaggar, Feminist Politics and Human Nature, N.J: Rowman and Littlefield, 1988. And Catherine Mackinnon, Towards a Feminist Theory of State, Cambridge, MA, Harvard University Press, 1989.
11. Several scholars such as Zoya Hasan, Tanika Sarkar, Kumkum Sangari, Nivedita Menon, Urvashi Butalia have supported this model.
12. Muslims for Secular Democracy support any endeavour by the state to bring about a uniform civil code. Endeavour, in our view, can only mean encouragement of nationwide discussion and deliberation on the issue (based on tentative draft(s) that could give citizens some idea of what a uniform civil code is going to look like.
13. Gurpreet Mahajan, ‘Rethinking Multiculturalism’, Seminar, 484, p. 61.
14. Gurpreet Mahajan, The Problem, Seminar, 484, p. 13.
15. Valentine Moghadam, ‘Islamic Feminism and its Discontents: Towards a Resolution of the Debate’, Signs: Journal of Women in Culture and Society. I am mentioning here some of the Islamic feminists because they too share similar concerns of individual rights, human rights and secularism with their liberal counterparts.
16. Haideh Moghissi, Feminism and Islamic Fundamentalism: The Limits of Postmodern Analysis, London: Zed Books, 1999.
17. Matha Nussabaum, ‘A Plea for Difficulty’ in Is Multiculturalism Bad for Women, p. 105.
18. Ibid., p. 109.
19. Irshad Manji, The Trouble With Islam Today: A Muslim’s Call for Reform in her Faith, New York: St. Martin Press.
20. See http://www.irshadmanji.com Project-Ijtihad, Retrieved on January 10, 2009. According to Manji this is a charitable initiative to promote the spirit of Ijtihad, Islam’s own tradition of critical thinking, debate and dissent. We support a positive vision of Islam that embraces diversity of choices, expression and spirituality. To achieve this, Project Ijtihad will help build the world’s most inclusive network of reform-minded Muslims and non-Muslim allies. Reform-minded Muslims already exist in shades. Our goal is to bring them out of the shadows. They need to know that Islam gives them the permission to be thoughtful and faithful at the same time. Because they’re not alone, they can have such faith without fear. Progressive non-Muslims are crucial partners in our mission. When non-Muslims work with reform-minded Muslims, they’re sending notice that moderates and fundamentalists are no longer the only voices that count in Islam. When non-Muslims recognise reform-minded Muslims, they’re spurring a healthy competition of ideas and interpretations. Above all, they’re affirming that reform-minded Muslims are as authentic as the mainstream, and quite possibly more constructive.
21. Nawal el Sadaawi, ‘Women, Islam and Democratisation’, Egypt, Cairo, October 30, 2002 http://www.nawal saadawi.net/oldsite/articlesnawal/02articles/womenislamand democracy.htm, retrieved on January 10, 2009.
22. Anne Phillips, ‘Why Worry About Multiculturalism’, Dissent, 1997, pp. 57-63 at 63.
23. Ibid.
24. Joseph Raz, ‘Multiculturalism: A Liberal Perspective’, Dissent, 1994, p. 67.

Dr Tamanna Khosla did her Ph.D from Jawaharlal Nehru University, New Delhi on multiculturalism and feminism. She is now working with Women in Security, Conflict Management and Peace (WISCOMP).

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