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The Shah Bano controversy: gender versus minority rights in India Weldon, Sirje Laurel 1992

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THE SHAH BANO CONTROVERSY:GENDER VERSUS MINORITY RIGHTS IN INDIAbySIRJE LAUREL WELDONBA., Simon Fraser University, 1991A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARTSinTHE FACULTY OF GRADUATE STUDIES(Department of Political Science)We accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAAugust 1992Sirje Laurel Weldon 1992In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.Department of  poc_i 11 	 SC The University of British ColumbiaVancouver, CanadaDate     DE-6 (2/88)ABSTRACTShah Bano was a seventy-three year old Indian Muslim divorcee whosuccessfully sued her ex-husband for maintenance. Her husband, an advocate byprofession, appealed the verdict all the way to the Supreme Court of India. In April 1985,after a ten year legal battle, the Supreme Court decided in favour of Shah Bano.The decision provoked massive demonstrations. Muslim fundamentalistsprotested the Court's interference in Muslim personal law, and Hindu fundamentalistsorganized anti-Muslim rallies to celebrate the decision and to protest Muslim backwardness.The political backlash from the decision prompted the government of Rajiv Gandhi, whohad initially supported the Supreme Court decision, to do an about face on the issue.Almost a year after the controversy began, the Prime Minister introduced a bill intoParliament, the Muslim Women (Protection of Rights on Divorce) Bill 1986, thateffectively reversed the decision. This bill proved to one of the most unpopular bills thePrime Minister ever introduced, and it cost him important support even within his ownparty.Why did the rights of the Muslim minority conflict with the rights of Muslimwomen in the Shah Bano case? How could the conflict have been better resolved? In orderto answer these questions, this thesis explores the theoretical literature on conflicts betweengender and minority rights. I argue that, as it stands, the theory contributes little to anunderstanding of Shah Bano and other conflicts between gender and minority rights. Thisthesis draws on the example of Shah Bano in order to begin to fill the theoretical gap.The problem in the Shah Bano case was that Muslim demands for autonomy inregard to Muslim personal law conflicted with the concern of some women's groups thatautonomy for Muslims would deprive Muslim women of even the most minimal legalprotection. The issue was which group would have the final word on reforming Muslimpersonal law. Women's groups demanded that the government not relinquish its ability topursue the goal of sexual equality for Muslim women. Simultaneously, Muslimsdemanded control over any reform of the personal law.Shah Bano is an example of one of the most complex problems that arises inregard to minority rights: what to do when granting autonomy to minorities threatens toexacerbate the situation of groups that are systematically oppressed within the minorityculture. How is it possible to grant autonomy to a minority without depriving minoritywomen of the legal protection they would otherwise have enjoyed? In this thesis I proposethat some protection for women's rights could be obtained by requiring that institutions thatrepresent the minority group must include a significant number of women representatives inorder to be officially recognized by the State. I then briefly examine this proposal as apossible solution to the Shah Bano case, and consider a few practical obstacles toimplementing the proposal.i i iTABLE OF CONTENTSPageAbstract 	Table of Contents	 ivAcknowledgement	Chapter One: Introduction 	  1Cultural Relativism as a Methodological Problem 	  5Chapter Two: Gender Versus Minority Rights	  7Minority Rights	  8A Liberal Perspective 	  10Autonomy and Patriarchal Minorities	  16Community or Social Group'? 	 20Minority Rights, Autonomy and Difference	 24False Consciousness 	  27Opposition by Elites	  28Conclusion 	  30Chapter Three: The Shah Bano Controversy	  32Muslims in India 	  33The Political Context	  38The Decision 	  39The Reaction to the Decision	  45Critiques of the Decision	  49The Muslim Women Bill	  52"A Disaster for the Prime Minister"	  57Chapter Four: Shah Bano and Minority Rights	  59Personal Law and Muslim Identity	  59Minority Autonomy and Gender Rights	  62Community or Social Group?	  64Muslim Autonomy and Sexual Equality	  66False Consciousness	  68Opposition by Elites	  71Conclusion 	  73Implications for Minority Rights Theory	  75Bibliography	  77ivACKNOWLEDGEMENTI am greatly indebted to my advisor, John Wood, who never failed to makeuseful comments and suggestions during our many, many discussions of this thesis. Hispatience and and encouragment have made this thesis a great deal easier to write. I wouldalso like to thank Avigail Eisenberg, whose insightful comments helped me clarify mythoughts. Both of these people went out of their way to help in the quick completion ofthis thesis.I would also like to thank my mother, my father, and my grandmother whohelped me get to graduate school in the first place. Without their love and support I wouldhave been lost this summer. Finally, I would like to thank Sean,whose patience and senseof humour kept me sane during a very intense summer.CHAPTER ONE: INTRODUCTIONShah Bano was a divorced Indian Muslim woman who took her husband tocourt to sue for maintenance. Shah Bano, who was in her sixties, had been married to herhusband for over forty years at the time of the divorce. In 1979 she was awarded Rs. 25per month under section 125 of the Criminal Procedure Code of India. She appealed thisaward to the High Court of Madhya Pradesh, which increased her award to Rs. 179.20 permonth. Her husband, an advocate by profession, appealed the order of maintenance to theSupreme Court of India, arguing that the order for maintenance conflicted with Muslimpersonal law. He argued that since he had already fulfilled his obligation to Shah Banounder Muslim personal law, he could not be ordered to pay her any further maintenance.The Muslim Personal Law Board, an organization known for its traditionalist leanings,intervened in the case on behalf of the husband. In April 1985, after a ten year legal battle,the Supreme Court upheld the order for maintenance and dismissed the husband's appeal. 1The Muslim Personal Law Board and other Muslim fundamentalist groupsbegan to organize demonstrations against the decision. Muslims, both men and women,gathered in the thousands to protest against the Supreme Court judgement. In October1985, more than four hundred thousand Muslims gathered to attend a conference onMuslim personal law. In November 1985 in Bombay, more than three hundred thousandMuslims joined a protest march against the judgement. The agitation that followed theShah Bano judgement was the biggest one launched by Muslims in the post-independenceperiod. The fundamentalist groups that organized the demonstrations demanded that thegovernment enact legislation that would exempt Muslims from the provisions of section1 Nawaz Mody, "The Press in India: The Shah Bano Judgement and its Aftermath," Asian Surveyvol. XXVII, no. 8 (August 1987): 935-936; 7akia Pathak and Rajeswari Sunder Rajan, "Shah Bano,"inSigns: Journal of Women and Culture vol.14, no.3 (Spring 1989): 559-587.1125 of the Criminal Procedure Code, the section under which Shah Bano sued formaintenance.2The government of Rajiv Gandhi had initially come out strongly in favour of theShah Bano decision. However, after all the agitation began, the Prime Minister executed avolte face and introduced legislation, the Muslim Women (Protection of Rights on Divorce)Bill, 1986, that exempted Muslims from the purview of section 125 and set out newprovisions for awarding maintenance to divorced Muslim women.This Bill was condemned by women's groups as well as by liberal Muslims.The Bill was criticized as discriminating against Muslim women since, of all women inIndia, only Muslim women would be unable to appeal to section 125. 3 Furthermore, theprovisions for maintenance were criticized as inadequate. 4 Some Muslims such as AliAsghar Engineer even argued that the Bill was unIslamic. 5 Arif Mohammed Khan, theMuslim Congress Party member who had vocally supported the Shah Bano decision onbehalf of the government (when the decision was first made), resigned when the Bill waspassed. Women's groups and secular Muslim representatives felt betrayed by RajivGandhi, who seemed to have essentially ignored or repressed their opinion on the Bill,while catering to a few representatives of fundamentalist Muslims. 6In the view of one observer, the Shah Bano controversy was one of RajivGandhi's biggest political disasters. 7 It is clear that the Prime Minister saw himself as2fina3Zoya Hasan, "Minority Identity, Muslim Women Bill Campaign and the Political Process,"Economic and Political Weekly , January 7 1989, 44-50.4Madhu Kishwar, "Pro-Woman or Anti-Muslim", Manushi, no.32, 1986, 4-13.5Ali Asghar Engineer,The Shah Bano Controversy, (Bombay: Orient Longman, 1987): 17.6Mody, "The Press in India", 935-936.7Elisabeth Bumiller, May You Be The Mother of a Hundred Sons: A Journey Among the Womenof India (New Delhi: Penguin Books India, 1990): 165.2having to make a choice between the rights of Muslim women and the rights of Muslims asa whole. Why did gender rights conflict with minority rights in this case? How could thisconflict have been better resolved?One way of addressing these questions would be to ask when it is acceptable tosacrifice women's rights in order to protect minority rights and vice versa. From thisperspective, Shah Bano raises the question of whether violating the rights of Muslimwomen was a necessary and acceptable sacrifice in order to protect the autonomy andcontinued existence of Muslim culture in India.I shall argue that answering this question provides only a partial understandingof Shah Bano. The issue in the Shah Bano case was which group, the minority or themajority8, had ultimate control over reform of Muslim personal law. Muslimrepresentatives did not argue that women's rights had to be sacrificed to protect Islam.Rather, they argued that the Supreme Court did not have the authority to interfere inMuslim personal law. Muslims, as a distinct minority within India, perceived themselvesas having a right to operate under separate personal laws, and the Court decision seemed tothem to threaten that right.Similarly, women's groups and progressive Muslims were not opposed to theseclaims to minority rights in and of themselves. Rather, they suspected that increasedautonomy for the Muslim minority would give legitimacy to traditional patriarchal elites forwhom sexual equality was not a priority. The concern was that autonomy for the minorityas a whole might be a step backwards for the rights of the women of that minority. At leastin the Shah Bano case, this seemed to be a legitimate concern.What was at stake in the Shah Bano case can be clarified by a brief comparisonwith the position of aboriginal women in Canada. Self-government has long been a goal of8The term 'majority' shall refer to the dominant group in a society rather than the group which isnumerically the majority.3native groups in Canada. Recently, the Native Women's Association of Canada opposedthe proposal to give native communities the right to self-government and to exclude themfrom the purview of the Canadian Charter of Rights and Freedoms. The Native Women'sAssociation opposed self-government on the grounds that if the sexual equality provisionsof the Charter of Rights and Freedoms did not apply to native communities, there would beno restraints on the mostly male-dominated band governments to ensure that they respectedthe rights of women. Thus some women's groups oppose greater autonomy for minoritiesbecause they fear that it will give greater legitimacy to traditional patriarchal elites while atthe same time exempting those elites from any obligation to respect the principle of sexualequality.9Shah Bano is an example of one of the most difficult problems that arises inregard to minority rights: what to do when granting autonomy to minorities threatens toexacerbate the situation of groups that are systematically oppressed within the minorityculture. Minority rights theories offer little guidance on this issue. I shall argue that it maybe possible to begin to fill this theoretical gap by thinking in terms of social groups ratherthan communities. Thinking in terms of community does not aid in conceptualizingconflicts within the community or in understanding how these conflicts relate to otherconflicts in the society at large. The concept of a social group, on the other hand, isparticularly useful for conceptualizing conflicts between minority and gender rights. Bothminority cultures and women are social groups that are far from homogeneous. While themembers of these groups have important common interests, they also may have conflictinginterests as members of other groups. For example, a Muslim woman may have more incommon with a Muslim man on one issue, and may identify more strongly with a Hinduwoman on another issue. Social groups crosscut each other. For example, genderdivisions may appear within ethnic groups, and women are divided along ethnic lines.9Patrick Nagle, "Fear of Chiefs Prompts Self-Government Battle," Vancouver Sun, April 2, 1992.4Once the conflict between gender rights and minority rights is understood in thisway, the question of resolving the problem becomes how to design institutions that willprotect a minority's right to autonomy without compromising the rights of the women (orother oppressed sub-groups) of that minority. This was the problem that presented itself toRajiv Gandhi in the Shah Bano case, and which he attempted to resolve.Could the Shah Bano controversy have been better resolved? I shall proposethat some protection for women's rights could have been obtained by requiring thatinstitutions which represent the minority include a significant number of womenrepresentatives in order to be officially recognized by the State. I shall then briefly examinethis proposal as a possible solution to the Shah Bano case, and shall consider a fewpractical obstacles to implementing the proposal.Cultural Relativism as a Methodological ProblemIn addressing the conflict between gender and minority rights, my method isessentially to see what light Western liberal democratic theorists can shed on India. It mayseem that this project blithely ignores the problems that cultural difference poses forminority rights theories. Because of the many differences, cultural and otherwise,between Western and non-Western contexts, Western theory should be carefully applied innon-Western contexts. In many cases, the theory requires substantial revision in order tobe appropriate to a non-Western context, or it is completely irrelevant.A great deal can be learned from cases where Western theory does not apply atall. The problem is not actually applying Western theory to non-Western contexts, since itwould be equally as controversial to assume that Western theories of justice had noapplication to non-Western contexts. What is necessary is a sensitivity to possibleshortcomings or inappropriateness in the theory.5India is the largest liberal democracy in the world, and 'rights discourse' isprevalent in India. In the Shah Bano case, minority groups demanded freedom of religionand protection of minority cultures while women's groups demanded equality before thelaw and legal protection for women's rights. Thus, if the theorists considered here hadnothing to say about the Shah Bano controversy, it would be very significant indeed. Ishall argue that in fact these theorists can shed some light on the Shah Bano controversy.However, I will also examine how Shah Bano brings the shortcomings of these theoriesinto sharp relief. Let us turn now to a more thorough examination of the exact nature of theproblem raised by Shah Bano, namely, why do minority rights conflict with gender rights?6CHAPTER TWO: GENDER VERSUS MINORITY RIGHTSWhy did gender rights conflict with minority rights in the Shah Banocontroversy? Before even beginning to answer this question, it is necessary to clarify whatis meant by 'minority' group and to discuss why minorities should have any special claimsat all.For the purposes of most minority rights theories, a minority is more than just agroup which is numerically not the majority. Some definitions include all disadvantaged orpowerless groups as minorities. As Louis Wirth writes, "We may define a minority as agroup of people who, because of their physical or cultural characteristics, are singled outfrom the others in the society in which they live for differential and unequal treatment, andwho therefore regard themselves as objects of collective discrimination." 10 In this paper,however, I shall mainly be using the term 'minority' to refer to ethnic groups that are in aposition of political and economic disadvantage, or cultural minorities.An ethnic group is "any group of people, dissimilar from other peoples in termsof objective cultural criteria and containing within its membership, either in principle or inpractice, the elements for a complete division of labour and for reproduction." 11 Objectivecultural markers may include language, dress or other lifestyle differences. Paul Brassdefines ethnic groups as including 'in principle or in practice, the elements for a completedivision of labour and for reproduction' in order to distinguish ethnic groups from othersocial groups (which he calls non-cultural groups), such as age groups, class, or gender. 12lkouis Wirth, "The Problem of Minority Groups," in Minority Responses, ed. MinakoKurokawa, (New York: Random House, 1970): 34.11 Paul R. Brass, Ethnicity and Nationalism: Theory and Comparison (New Delhi: SagePublications, 1991): 19.127bid. p.19 ; cf. Iris Marion Young, Justice and the Politics of Difference (Princeton: PrincetonUniversity Press, 1990): 43.7The concept of a right could use some clarification , but since an adequatediscussion of the issues surrounding this concept is far beyond the scope of this paper, Iwill employ the definition of a moral right adopted by Vernon Van Dyke in his paper "TheIndividual, The State, and Ethnic Communities in Political Theory." 13 Van Dyke defines amoral right as a morally justified claim. On this view, a minority right is a morally justifiedclaim that can be made by or on the behalf of a minority. A gender right, similarly, is amorally justified claim that can be made by or for either gender.Having clarified some key terms, let us return to the question at hand: why dothe legitimate claims of minority groups conflict with the morally justified claims of womenas a group? How are such conflicts best resolved? The answers to these questions willshed some light on why the legitimate claims of Muslims as a group conflicted with thelegitimate claims of Muslim women in the Shah Bano case. Therefore, before we turn todiscuss the details of Shah Bano, let us further examine the theoretical basis of theproblem.Minority RightsIn order to understand how minority rights conflict with gender rights, it isnecessary to understand why minority groups qua minorities can make any legitimateclaims at all. Only then is it possible to explore which (if any) of the legitimate claims thatminorities can make conflict with the legitimate claims that women can make.Most contemporary arguments for minority rights are based on a recognitionthat culture is central to our sense of identity. Contemporary thinkers are becoming13Vemon Van Dyke, "The Individual, The State and Ethnic Communities in Political Theory,"World Politics vol. 29, no.4 (July, 1977): 344.8increasingly aware of how our ability to make sense of ourselves and others depends on thesocial context in which we find ourselves. Most recently, writers of the school ofphilosophy known as communitarianism have focused on how we depend on a culturalcontext to give our lives meaning and direction.At the core of most communitarian arguments is an understanding of the self asbeing constituted by the community. The actions that we perform and the roles that wechoose only have significance in so far as they are situated within a social context ornarrative which gives them meaning. The way we and others understand our actionsdepends on the narratives and conventions that we share. 14The control one has over the shared meanings that arise from these narratives islimited. Individuals cannot control how the actions they perform appear to others. Aperson's self-understanding depends partly on how others perceive them. For example, itmay be hard for a woman to maintain the belief that she is as valuable and intelligent aperson as a man if others do not treat her as if she is.The narratives an individual shares with others determine which lifestyles orplans seem valuable to her. Becoming the president of the United States, a secretary or arabbi may or may not occur to a person as a viable career option depending on the storiesand characters she identifies with and with which others identify her. The lifestyles orplans from which she may choose are further limited by other historical circumstances inwhich she may find herself. Individuals may possess little control over what life plans theydecide to pursue. As Maclntyre writes, "...we are never more (and sometimes less) thanthe co-authors of our own lives." 1514 See, for example, Alasdair Maclntyre, "The Virtues, the Unity of a Human Life and theConcept of a Tradition" in Liberalism and Its Critics, ed. Michael Sandel (Oxford: Basil Blackwell, 1984):138.15/bid., 135.9Communitarians argue that most contemporary political philosophy, includingboth liberalism and marxism, overlooks the importance of culture in human lives.Liberalism is a philosophy based on individual choice, but an individual cannot choosewhether or not to preserve her or his cultural context, for a culture is necessarily sharedwith others. Nor can cultural community be reduced to class, since cultural differences cutacross class lines. Communitarians argue that political philosophy must be made torecognize how human choices and actions are limited by culture.Communitarianism is not particularly useful for understanding how minorityrights conflict with gender rights, since it focuses on the problems individual rights posefor communities, rather than on conflict between groups within a community.Nevertheless, the communitarian critique of contemporary political theory has been veryimportant in the development of minority rights theories. In particular, Will Kymlicka'srecent attempt to address the communitarian critique of liberalism has resulted in one of themost thorough attempts to justify minority rights from a liberal perspective. AlthoughKymlicka does not directly address conflicts between minority and gender rights, his viewsare sufficiently developed that it is possible to flesh out his position on these issues.A Liberal PerspectiveKymlicka argues that the liberal insensitivity to the importance of community,on which the communitarian critique rests, is a post-World War Two phenomenon. Thepre-war liberals, such as Dewey, Mill, Hobhouse and Green all stressed the importance ofthe community to personal identity and to human happiness. The pre-War liberals valuedcommunity for the benefits it offered to individuals. These liberals recognized that a securecommunity was a precondition for other liberal values, such as individual autonomy.10Kymlicka argues that contemporary liberals should revive this lost concern forcommunity. He argues that a liberal justification for minority rights would be based on theimportance of community to individual happiness. Having a stable cultural background or"context of choice" is essential for individuals making meaningful decisions about how tolive their lives. The culture to which one belongs determines the different ways of life oneconsiders as options:...The range of options is determined by our cultural heritage. Differentways of life are not simply different patterns of physical movements. The physicalmovements only have meaning to us because they are identified as havingsignificance by our culture, because they fit into some pattern of activities which isculturally recognized as a way of leading one's life. We learn about these patternsof activity through their presence in stories we've heard about the lives, real orimaginary, of others...We decide how to lead our lives by situating ourselves inthese cultural narratives, by adopting roles that have struck us as worthwhile ones,as ones worth living. 16Individuals who are born into minority cultures face disadvantages that thoseborn into the dominant or majority culture do not face. They must work to secure a contextof choice while those of the majority culture take it for granted. Liberals believe that, asmuch as is possible, no one should be disadvantaged due to circumstances which arebeyond her or his control. But what culture one belongs to is not a matter of choice. Onecan not change one's culture like a piece of clothing. Nor is cultural membership likemembership in a club. So if some individuals are disadvantaged because of their culturalheritage, a serious injustice has occurred.What does protecting minority rights entail? Kymlicka argues that providing acontext of choice does not involve preserving the content of the culture as it currentlyexists, or its character, but rather preserving the existence of a secure cultural communityitself:16/bid. 165.11I use culture in a very different sense, to refer to the cultural community, orcultural structure, itself. On this view, the cultural community continues to existeven when its members are free to modify the character of the culture, should theyfind its traditional ways of life no longer worth while. 17This raises the issue of what happens when it is essential to violate individualrights in order to preserve the very existence of the cultural community. Kymlicka arguesthat it is only justifiable to restrict individual rights in order to protect the existence of thecultural community under certain circumstances. This depends on the seriousness of theviolation and the benefit that supposedly accrues from it. In Canada for example, theQuebecois argue that if the majority of immigrants to Quebec choose to educate theirchildren in English, which is probable, the francophones would very quickly become aminority within Quebec. In order to preserve Quebec's status as the political and culturalfoothold of Canada's francophone population, French Canadians in Quebec want to be ableto restrict the access of immigrant children to schooling in English. This involvesrestricting the individual rights and opportunities of some (immigrant children) in order toensure that the francophone cultural community continues to exist. Such a violation ofindividual rights might be permissible within a liberal paradigm.Kymlicka argues that these cases must be decided on their merits on a case-by-case basis. There is no principle that is going to dictate what to do in any particularsituation:Assuming that there can be some legitimate restrictions on the internalactivities of minority members, where those activities would literally threaten theexistence of the community, to find these precise limits would be enormouslydifficult, and I doubt anything useful could be achieved without reasonably detailedknowledge of particular instances. These are complex issues in which ourintuitions are pulled in different directions, and I don't see how any simple formulacould cover all the relevant cases. 1817/bid., 167.18/bid, 199.12What implications does this view of minority rights have for the problem ofconflicts between minority rights and gender rights? Kymlicka does not address this issuedirectly, but it is possible to piece together the implications of his position for suchconflicts.As discussed above, Kymlicka distinguishes between two reasons for acceptingviolations of individual rights in order to protect minority cultures. One is that the existenceof the community itself is actually threatened. The second is that the current character ofthe cultural community is threatened. Kymlicka does not accept arguments of the secondtype. Kymlicka gives the example of Islamic fundamentalists who want to restrict religiousand sexual freedoms, among others, in order to protect Islamic culture. He likens theIslamic fundamentalists to Lord Devlin, the famous opponent of homosexuality in England,who argued that public morality is a seamless web, the very fibre of which is threatenedwhen individual members of society reject any of its practices. Kymlicka argues that whileminority groups are entitled to take special measures to ensure the existence of theirculture, they may not violate individual freedoms to protect the character of their culture.He argues that protecting customs and traditions which violate individual rights contradictsthe very reason for protecting minority rights in the first place—to enrich the lives of theindividual members of that minority.It is wildly implausible to suppose that allowing individuals freedom ofreligion or sexual practices would lead to the breakdown of that community, be itEngland or Iran...Protecting the homophobic character of England's culturalstructure from the effects of allowing free choice of sexual life style undermines thevery reason we had to protect England's cultural structure—that it allowsmeaningful individual choice. 19Kymlicka stresses that minority rights should not be used to justify one part ofthe minority community oppressing another. From this it seems that Kymlicka would19/bid., 169.13argue that in conflicts between minority rights and the women of that minority, violationsof women's rights usually can not be justified on the basis of protecting the culture.The difficulties involved in putting this principle into practice come out inKymlicka's discussion of the Lave11 case in Canada.20 The issue in the Lave11 case wasthat section 12(I)(b) of the Indian Act discriminated against women. Section 12(I)(b)allowed male registered Indians to retain their Indian status even if they married a non-aboriginal woman. Furthermore, the wives and children of these men became members ofthe band and received the benefits of status Indians. Registered Indian women, on theother hand, lost their own registered status if they married non-aboriginal men. 21 JeanetteLavell took the case to the Supreme Court of Canada. The Native Brotherhood intervenedin the case to argue against her. They argued that the reservation system made it necessaryto restrict the growth of the population on reserve. This meant that not all members of theband could have their spouses and children living on reserve. Some distinctions had to bemade in order to preserve the community. 22Kymlicka raises the Lave11 case as an example of some of the issues involved inprotecting minority rights in Canada. But he does not directly say what implications histheory would have for this case. 23 He does note that while there are more egalitarianmodels for regulating membership, all such arrangements involve restricting the marriageand/or voting rights of both Indians and non-Indians. In this case, it seems as if there mustbe some violation of individual rights in order to preserve the actual existence of the culturalcommunity. Kymlicka argues that the acceptability of rights violations depends on thenbid , 148-149, 155.21John D. Whyte, "The Lavell Case and Equality in Canada," Queens Quarterly 81:1 (Spring1974): 28-30.227bid, 35-36.23Kymlicka, Liberalism, Community and Culture, 149.14severity of the violation and by whom it would be borne. In particular, a violation may notbe acceptable if the group whose rights are violated is disadvantaged in other ways. Forexample in Lavell, the fact that women already suffer systemic oppression within aboriginalcommunities makes it even less acceptable to violate women's rights to preserve thecommunity.The Lavell case highlights another difficulty with Kymlicka's distinctionbetween the existence and the character of a cultural community. In Lavell, women'sgroups argued that simply allowing native women to retain their status in no way threatenedthe existence of the cultural community. The Native Brotherhood, however, argued thatthe administration of membership in the community, which is central to its very existence,was at stake. Thus, whether or not it is essential to restrict rights in order to preserve theexistence of the cultural community will often be a matter of contention in itself. The pointis not that the distinction cannot be made, but rather, that there are cases in which drawingthe distinction between existence and character is very difficult.This approach to minority rights begins to suggest answers to the questionswith which we began this discussion: Why do minority rights conflict with the rights of thewomen of that minority? How are such conflicts best resolved? Kymlicka would arguethat many conflicts between women's rights and minority rights result from confusion overwhy minority communities are entitled to protection in the first place. In his view, anyspecial measures to protect minorities must ultimately benefit the individual members of thatcommunity. Furthermore, minority communities are entitled to use special measures onlyto preserve the existence of their cultural community, and not to protect specificcharacteristics of their culture. In rare cases where the individual rights of some or all ofthe members of the minority community really must be violated in order to preserve theexistence of a cultural community, the severity of the violation as well as the social positionof those singled out for disadvantage within the community are relevant factors. This15position would most likely rule out justifying the violation of women's rights in order topreserve the cultural community.Autonomy and Patriarchal MinoritiesIt seems that we have a clear justification for minority rights which offers areasonable amount of guidance on how to deal with apparent conflicts between women'srights and minority rights. But this approach is not as useful as one might expect when oneexamines actual instances of conflict between women's rights and minority rights.Minority groups rarely argue that the oppression of women is a price that must be paid toprotect the community. The issue in many cases is not whether women's rights should orshould not be violated but rather which group, the minority or the majority, ought to decidehow minority women should be treated.For example, in the recent constitutional debate in Canada, aboriginalrepresentatives argued that the Charter of Rights and Freedoms should not apply to nativecommunities. At the same time, the Native Women's Association demanded that theCharter apply to native communities because they wanted the protection of the sexualequality sections of the Charter. Those who opposed having the Charter apply toaboriginal communities did so not on the grounds that women did not deserve sexualequality, but rather on the grounds that there was a stronger basis for sexual equality inaboriginal traditions. The main objection was not to sexual equality for native women, butto having the alien jurisprudential tradition of the Charter apply to aboriginal communitiesinstead of traditional aboriginal jurisprudence. 2424Sarah Scott, "Aboriginal men have learned sexism, women fearing self-rule on reserve say."Vancouver Sun, Mar 30, 1992. See also Mary Ellen Turpel, "Aboriginal Peoples and the Canadian Charterof Rights and Freedoms: Contradictions and Challenges," in Canadian Woman Studies/Les Cahiers de laFemme vol. 10, nos. 2 &3 (Summer/ Fall, 1989): 149-157.16Kymlicka's justification for minority rights does not address this issue. AsKymlicka himself writes: "In any event, my concern is with what the principles beingenforced ought to be, not with who ought to have the power to determine, interpret, andenforce those principles."25 But who, specifically which group, determines, interprets,and enforces principles is at least as much at issue as what principles ought to be enforced.Kymlicka argues that whenever it does not threaten the existence of the culturalcommunity, individuals ought to have the right to make decisions about the content of theirculture. In this sense, Kymlicka does address issues of who decides. When it comes tochoosing between individuals and groups, it is better that individuals decide what thecontent of their culture should be. But when it comes to deciding which group shoulddecide just principles, Kymlicka does not offer much guidance. For example, Kymlickatouches on the concern aboriginal groups have as to whether or not self-government isdelegated to them by the government. If self-government were delegated by the federalgovernment, that would imply that the government had the right to revoke the self-governing status of aboriginal communities. On the other hand, if aboriginal communitiesare sovereign, they can reject any government proposals which they perceive asthreatening. The issue is not whether or not aboriginal communities have special status,but rather, who ultimately controls that special status.The issue of which group has the right to decide the outcome is central to manyconflicts over minority rights. That is why 'self-government' is so strongly resisted bysome outside the community and why 'outside interference' is one of the most commoncharges a minority levies against a majority community. Yet Kymlicka says little thataddresses this problem. In regard to the issue of whether self-government is delegated, henotes that "The question of whether self-government is delegated or not is clearly25Kymlicka, Liberalism, Community and Culture, 197.17important, but it is somewhat distinct from the questions I am addressing." 26 The failureto address the issue of which group has control is a serious shortcoming in Kymlicka'stheory because the toughest issues in minority rights arise in regard to a minority's right toself-government.It might be said that since Kymlicka's goal was simply to find a justification forminority rights that is acceptable to liberalism, it is unfair to criticise his justification on theabove grounds. But if Kymlicka's justification of minority rights is supposed to berelevant to actual disputes over minority rights, the job is only half done. A justification ofminority rights that will be relevant to real conflicts must address not only the minority'sconcern that they receive special treatment or benefits, but also their concern that they havecontrol over decisions that affect them directly. Kymlicka's liberal justification for minorityrights should include a justification for minorities' demands regarding how policiesaffecting them ought to be formulated, enforced and interpreted, that is, their demand forautonomy.Why is self-government, or autonomy, so important to minority rights? A keycharacteristic of oppressed groups is their powerlessness to affect decisions that have adirect impact on their lives. Having control over one's life has benefits that cannot bemeasured materially. For example, many people find self-employment less of a hardshipthan working for someone else, even though they work harder and longer hours as self-employed persons.When people have control over their own lives, they can make decisions aboutwhen and how to protect their own interests. The powerlessness of those groups who areoppressed and marginalized in society at large is reinforced by the fact that they also tend tobe underrepresented in democratic institutions. As John Stuart Mill argued:26Kymlicka, Liberalism, Community and Culture, 160.18We need not suppose that when power resides in an exclusive class, that class willknowingly and deliberately sacrifice the other classes to themselves: it suffices that,in the absence of its natural defenders, the interest of the excluded is always indanger of being overlooked; and when looked at, is seen with very different eyesfrom those of the persons whom it directly concerns. 27This means oppressed groups are at the mercy of those groups who form the majority indemocratic institutions. Individuals in these oppressed groups can benefit from increasedcontrol on the part of the group.As Kymlicka points out, the main injustice cultural minorities suffer is the lackof a secure cultural context. Consequently, oppressed ethnic groups usually want to assurethe existence of their cultural context by having control over decisions by which it could beaffected. For example, the Quebecois demand autonomy mainly in regard to Frenchlanguage and culture. Minorities usually demand autonomy in those areas which are mostcentral to their identity.A minority's right to autonomy raises especially difficult questions for thoseconcerned with promoting sexual equality. Despite the legitimacy of certain groups'demands for autonomy, many problems arise in the attempt to implement this right. Inregard to women's rights, the main problem is that giving autonomy to minority groupsoften results in reinforcing the disadvantages women already face within the group. Anyattempt on the part of the majority community to assure the protection of women's rights ismet with accusations of 'outside interference'. How is it possible to devolve authority tominority communities while at the same time respecting the rights of those who areoppressed or marginalized within the community?27J.S. Mill, "Of the Extension of the Suffrage," in Essays on Politics and Society, ed. J.M.Robson (Toronto: University of Toronto Press, 1977): 405.19Community or Social Group?The conceptual tools provided by contemporary minority rights theory do littleto help in raising these questions, much less in answering them. In this section, I shallargue that some of the problems that arise in regard to a minority's right to autonomy arebest understood through a closer examination of the nature of the minority group itself.Conceptualization of the most difficult issues in minority rights, such as conflicts betweengender and minority rights, is facilitated by thinking of minorities in terms of social groupsrather than 'cultural communities'.The term 'community' refers to a particular form of social organization, agrouping of people, usually (but not necessarily) small in size, who are united by feelingsof solidarity and shared understandings. But the term community also carries strongpositive normative implications:...Community is both empirically descriptive of a social structure andnormatively toned. It refers both to the unit of a society as it is and to the aspects ofthe unit that are valued, if they exist, desired in their absence. Community...expresses our vague yearnings for a commonality of desire, a communion withthose around us, and extension of the bonds of kin and friend to all those whoshare a common fate with us.28The most important problem with the term community in addressing issues ofgender versus minority rights is that it does not aid in conceptualizing conflict within theminority group. How do the conflicts within the group relate to the conflicts in society atlarge? Conversely, how does conflict between 'communities' affect other social conflicts,such as gender and class conflicts? Gender and class conflicts affect relationships withinand between 'communities'. Because the term 'community' focuses on the positive aspects28David W. Minar and Scott Greer, The Concept of Community: Readings with Interpretations,(Chicago: Aldine Publishing Company, 1969): ix.20of common identification, it is not particularly useful for exploring the limits of the 'sharedunderstandings' that form the basis of community.Nor is the concept of community useful for explaining changes in these sharedunderstandings. This is especially important to conflicts between gender and minorityrights because introducing women's rights usually means changing traditions. As JudyFudge argues:Thus, the concept of community cannot help us to understand conflict,domination, or change because the very use of the term obfuscates the existence ofconflict and domination and the continuing process of change...Once communitybecomes the central focus of political analysis there is a tendency to ignore the factthat all communities are located in a broader political economy which, in turn,conditions the existence and formation of communities. 29In her discussion of group rights, Iris Young advocates rejecting the idea ofcommunity and replacing it with the concept of a social group. She argues that the conceptof community misrepresents social relations. Furthermore, as a political ideal, the conceptof community is not only hopelessly utopian but has undesirable political consequences.Young argues that the ideal of community implies social relationships which areunmediated, in which people directly and immediately understand and relate to one another."Whether expressed as a common consciousness or as a mutual understanding, the ideal[of community] is one of transparency of subjects to one another. In this ideal eachunderstands the others and recognizes the others in the same way that they understandthemselves."30 Young argues that social relations are never unmediated. People are nottransparent even to themselves, therefore it is impossible that they would be transparent to29Judy Fudge, "Community or Class: Political Communitarians and Workers' Democracy" inLaw and the Community: The End of Individualism?, eds. A. Hutchison and L. Green, (Toronto: Carswell,1987): 60.30Young, Justice and the Politics ofDifference, 231.21each other. Thus, the ideal of unmediated social relations misrepresents the possibilities ofrelations between selves.As a political ideal, the concept of community has undesirable consequences.The ideal of community is usually seen to require small, decentralized, self-sufficientcommunities. While Young recognizes that there are certain positive experiences which areonly possible in small groups, she argues that privileging face-to-face direct democracy inthis way has some undesirable political consequences. In this view, political community isbased on mutual identification and shared history. This ideal often operates to excludethose who are different, and to legitimize some groups' feelings of fear and aversion togroups that are different. "If community is a positive norm, that is, if existing togetherwith others in relations of mutual understanding and reciprocity is the goal, then it isunderstandable that we exclude and avoid those with whom we do not or cannotidentify."31 Thus taking mutual identification as an ideal, and as the basis for politicalcommunity, legitimates some groups' exclusion of those individuals or groups who aredifferent.There is an additional problem with the term community when it is applied tothe South Asian context. In South Asia the term has different connotations than in theWest. While in the West 'community' conjures up images of small, close-knit socialunits, in South Asia, 'community' has strong negative connotations because of itsassociation with communalism. Communalism in South Asia is a derogatory term used todescribe violent, politicized conflicts between religious or cultural groups. The differentmeaning 'community' has in the Western and in the South Asian context makes it difficultto use effectively in explaining conflicts between gender and minority rights in India.Young rejects the concept of community both as an analytical tool and as anideal. She argues that rather than thinking in terms of the dichotomy of individual or31/bid., 235.22community, we ought to recognize both individuals and social groups. By a social group,Young means "a collective of people who have an affinity with one another because of a setof practices or way of life; they differentiate themselves from or are differentiated by atleast one other group according to these cultural forms."32 Such groups are distinguishedfrom interest groups or ideological groups. Interest groups are voluntary organizationswhich promote or oppose specific interests, such as a movement against the spraying of aspecific pesticide. Ideological groups are groups of people who aggregate based on theirshared political beliefs. Women are a social group, and feminists are an ideological group.The concept of a social group is more useful than the concept of a communitybecause identity is constituted by different aspects of the social context in different andsometimes conflicting ways. Not only culture, but also gender, class, and sexuality havean important impact on how individuals understand themselves and others. There is noobvious reason to privilege that aspect of identity constituted by culture over thatconstituted by class or gender, for example. Thus the concept of a social group is moreflexible and can more easily accommodate the complexity of group difference and politicalidentity than can the concept of community.Thinking of minorities as social groups highlights the divisions withinminorities. When the potentially autonomous group—the minority— is thought of in thisway, granting autonomy to the group becomes problematic. Just as minorities have rightsagainst the majority, some groups within the minority may have rights against other groupswithin the minority. How can one be sure that oppressed and marginalized groups withinthe minority will not be excluded from power? The goal is to grant comprehensiveautonomy to the minority group, rather than to leave some groups at the mercy of otherswithout the benefit of the legal protection they would otherwise have enjoyed.Comprehensive autonomy means that no social group is excluded from decision making32/bid., 186.23because of their oppressed status within the minority: the whole group participates in theautonomous decisions of the minority.Minority Rights, Autonomy and DifferenceWhat implications does all this have for how conflicts between women's rightsand minority rights are best dealt with? The problem is that giving more autonomy tominority groups on certain issues sometimes allows that group to oppress certain sectionsof the community, such as women. How, in a democratic society, is it possible to grantsome autonomy to minority groups while simultaneously protecting the rights of thewomen of that minority?Young's approach to group rights begins to suggest an answer to this problem.Young argues that truly democratic processes must recognize the differences between aswell as within groups. For example, women's groups must be careful that in their searchfor solidarity they are sufficiently sensitive to the differences between women that arisefrom class and racial differences. Similarly, anti-racist groups should respect thedifferences in class, gender and sexuality among their members. As Young argues: "Thoseaffirming the specificity of a group affinity should at the same time recognize and affirm thegroup and individual differences within the group."33Young's approach to individual and group rights is one which recognizes andaffirms difference. Eliminating group-based oppression does not necessarily entaileliminating group based difference. Young rejects what she calls the "assimilationist33Young's critique should not be seen as delegitimizing the efforts of those oppressed groups whoare attempting to build solidarity between members in order to fight their oppression more efficiently.Rather, it should be seen as a reminder to such groups that there may be important political differenceswithin the oppressed group itself. Ibid., 236.24ideal," the idea that eliminating group-based difference is either possible or desirable. Sheargues that:Since ignoring group differences in public policy does not mean that peopleignore them in everyday life and interaction, however, oppression continues evenwhen law and policy declare that all are equal. Thus I think for many groups and inmany circumstances it is more empowering to affirm and acknowledge in politicallife the group differences that already exist in social life. One is more likely toavoid the dilemma of difference in doin4. this if the meaning of difference itselfbecomes a terrain of political stTuggle. 34People have multiple and crosscutting group identities. Any mechanism whichattempts to represent social groups accurately must reflect this reality. Both women anddisadvantaged minority cultures are oppressed social groups that are entitled to grouprepresentation. This means that mechanisms created to ensure that women have input intothe political process must include specific mechanisms to ensure that minority women haveeffective representation. Similarly, mechanisms or organizations which represent minoritygroups must ensure minority women have effective representation within the organization.Thus, if a minority group is to be given the right to administer certain aspects of its ownaffairs, the organization to which authority is entrusted must have mechanisms to ensurethe effective participation of women. The traditional institutions within minority societiesfrequently operate to exclude women rather than to ensure they are properly represented.Therefore, the state would have to create (or require the minority group itself to create) aseparate institution or mechanism which could include traditional leaders as well as specialrepresentatives for women in order to provide more just means of representing andadministering the group.34/bid., 169. It is worth stressing that allowing that different treatment can be equal treatment doesnot mean that different treatment is not sometimes unequal treatment. The point is that equality is not aquestion of sameness and difference but rather is a question of power or disadvantage. There is a whole bodyof feminist jurisprudence on this subject. See for example, Catharine MacKinnon, Feminism Unmodified:Discourses on Life and Law, (Cambridge, Ma.: Harvard University Press, 1987): 32-45.25Recognizing that treating people equally does not always mean treating peoplethe same has important implications for institutions designed to represent minorities,women, or other social groups. While there can be a general commitment to certainindividual rights, there may be different ways of implementing these rights. Some leewayin the way rights are protected should be allowed in order to recognize that differentcultures may have different ways of implementing these rights. For example, aboriginalcommunities in Canada have resisted having the Charter of Rights and Freedoms apply totheir communities because certain elements of the Charter are seen as inimical to aboriginaljurisprudential traditions.35 Some room for variety should be allowed to suchcommunities to implement their commitment to groups and individuals in their own way.Measures which severely disadvantage a group within the social group, such as women, inrelation to other parts of the group should not be allowed without the agreement of thespecial representatives for that group.It is true that some methods of protection of rights will be inferior to others.But if one method is only slightly less effective, it still may be preferred over others since itseems more familiar or easily understandable. In other words, individuals might havemore of a sense of ownership and respect towards a rights protection scheme thatoriginated from their own group than they would towards an alien scheme, even if itproved to be more effective. Sometimes decisions which are less just or reasonable aremore acceptable to those who are affected by them if they have a sense that they had someinput into the decision. Group oppression can be somewhat alleviated by granting groupssome control over the decisions which have an impact on their lives.35Turpel, "Aboriginal Peoples and the Canadian Charter of Rights and Freedoms:", 149-157.26False ConsciousnessOf course, this does not address the problem of 'false consciousness'. Forexample, women's representatives may support the traditional patriarchal structure sincethey are as much a part of it as men are. This is a difficult problem, but it may not beinsurmountable. While many women may suffer from false consciousness on anyparticular issue, most women are aware that as women they face special problems andissues that distinguish them and sometimes place them in opposition to men. Even ifwomen do not have a well developed sense of their common interest as a group whenwomen's representatives are first introduced, it is likely that women will develop a sense oftheir own interests if they are entitled to separate representation. Thus, even if therepresentatives are not effective at protecting women's interests at first, in the long runwomen will develop a sense of the important political differences between women andmen, and group representation for women will become more effective.A bigger problem with this proposal is that the women's representatives mayuse their power to defend class interests. The women most likely to fill the positions ofwomen's representatives—women university professors, for example—may identify morestrongly with middle class interests than they do with poor women. Womenrepresentatives might use the power given them as women's representatives to defend theirown class interests.It is not clear that women representatives would necessarily act to defend rulingclass interests. The class status of women is more problematic than that of men. Women'srelationship to class is mediated by their relationship to men. As Catharine MacKinnonargues:What is the class of a nurse who marries a doctor, continuing to work as apart-time nurse? the woman from an academic family with three children who goeson welfare when her psychoanalyst husband mysteriously disappears? the daughter27of a professional mother and a middle-management father who worked up fromoffice boy? the secretary who marries her executive boss? the "Sears card" middleclass girl abducted into pornography? the steelworker's daughter in law school?the young runaway fleeing rich suburban incest being pimped downtown? Theseexamples do not mean that class does not exist or that true class mobility is all thatsignificant. They do suggest that women's class status is significantly mediated bywomen's relation to men.36The point is not that women will not defend middle class interests, but rather, that it is notclear which class interests they will defend.It is possible that initially women representatives would defend middle classinterests. However, in the long run, it is probable that through the process of choosingrepresentatives, women will develop a sense of solidarity strong enough to override a senseof identification with the dominant class. Eventually, women's identification with themiddle class will prove to be weaker than their sense of solidarity with other women.Thus,at least initially, false consciousness as it relates to class and gender could inhibit theeffectiveness of women's representatives as a means of protecting women's interests.However, in the long run, false consciousness will diminish as women develop a strongersense of their own interests.Opposition by ElitesA further obstacle to implementing the idea of women's representatives is thatsuch proposals are likely to be opposed by the elite of the minority group. Since newinstitutions, if effective, would take power away from the existing elites in the minority36Catharine MacKinnon, Toward a Feminist Theory of the State , (Cambridge, Ma.: HarvardUniversity Press, 1989): 48; In India, class relations are further complicated by caste. Unfortunately, itwould be impossible to discuss this issue here. Even if there was space to discuss caste in India in general,the operation of caste among the Muslims is even more complicated, since there is disagreement as towhether caste even exists among Muslims. For a discussion of caste among the Muslims see ImtiazAhmad, ed. Caste and Social Stratification Among the Muslims, (New Delhi: Academic press, 1973).28group, they are likely to oppose the proposal, and as a result any state-created institution islikely to lack legitimacy.However, one must be careful not to overestimate the power that the eliteswould have within their own group. Elites can not whip up opposition to whatever policythey choose. In fact elites are significantly constrained by the predispositions of the groupthey hope to influence. In the book Ethnicity and Nationalism: Theory and Comparison,Paul Brass argues that elites who wish to exploit symbols of cultural difference to enrichtheir own power must be very skillful as well as lucky in order to succeed: "Some symbolsare emotionally powerful, but may be dangerous to use	 not only because their usethreatens civil disorder, but because their use will benefit one elite group rather thananother. Other symbols may be useful for conflict with a rival community, but potentiallydivisive internally."37It should not be assumed that the elite of the minority group will be able tocreate opposition to the proposed women's representatives. The proposal will no doubt bechallenged by the elite as outside interference by the government. But whether or not theysucceed in identifying the proposal as outside interference will depend on whether they canmake the proposal seem like a credible threat to the bulk of the minority. The governmentstrategy should be to argue that the goal of the proposal is comprehensive self-governmentas opposed to elite rule. If the government is effective in emphasizing that the proposedmechanism will give the group more control over certain issues, then elites within theminority group may find themselves competing in order to be included in the newrepresentative body rather than opposing the proposal.Another possible way of getting around elite opposition would be to graduallyincrease the effectiveness and importance of women's representatives. Initially, thegovernment could require that organizations that wish to be recognized as officially37Brass, Ethnicity and Nationalism 101.29representing a minority group include some women representatives. Then, gradually, thegovernment could introduce more stringent requirements, such as having a certainminimum number of women representatives, or giving existing women representativesmore power. Of course, this process of gradually introducing effective representation forwomen would have to be completed before control was completely relinquished to theminority group. Thus, although opposition from elites with vested interests could be aformidable obstacle to this proposal, it would not necessarily be sufficient to make theproposal unworkable.ConclusionTo sum up, then, in conflicts between minority and gender rights, the mostdifficult issues arise in regard to a minority's right to autonomy. The problem is thatincreased autonomy for the minority tends to give greater legitimacy to traditionalpatriarchal elites while at the same time exempting those elites from any obligation torespect sexual equality.Despite the shared interest of its members, a minority group is not a monolithicentity, but rather a social group which is divided internally. When the divisions within aminority group are recognized, granting autonomy to that group becomes problematic. Is itpossible to grant comprehensive autonomy to the minority group, rather than to leave someoppressed groups within the minority without the benefit of the legal protection they wouldotherwise enjoy?I have argued that any organization which is recognized by the State asrepresenting the minority group must recognize the important differences among themembers of the group by, among other measures, taking steps to enhance the effectiverepresentation of the women of that minority. In addition, in attempting to promote sexual30equality within the minority, there must be some room for variety among cultural groups asdifferent groups may want to pursue that goal in different ways. It is true that some may berelatively disadvantaged as a result of variation in the effectiveness of various measures toensure sexual equality. These disadvantages would have to be balanced against the benefitsthat accrue to the minority group from living by rules they have chosen themselves ratherthan those which have been imposed by another group.There are several obstacles that will make this solution extremely difficult toimplement. In addition to false consciousness arising from gender and class conflicts, thisproposal will most likely meet with opposition from elites within this minority group.Despite these obstacles, I have argued that this solution is at least possible. As it is the onlydefensible solution to conflicts between gender and minority rights, it should at least betried.Understanding conflicts between gender and minority rights in this way clarifiesthe issues at stake in the Shah Bano controversy. Why did the legitimate claims ofMuslims as a group conflict with the legitimate claims of Muslim women? How effectivewould the proposal outlined above have been as a solution to the problems raised by ShahBano? Let us turn now to a discussion of the conflict between gender and minority rightsin the Shah Bano case.3/CHAPTER THREE: THE SHAH BANO CONTROVERSYAs previously indicated, Shah Bano was a seventy-three year old IndianMuslim divorcee who sued her ex-husband for maintenance. Her husband, an advocate byprofession, appealed all the way to the Supreme Court of India. In April 1985, after a tenyear legal battle, the Supreme Court decided in favour of Shah Bano.The decision provoked massive demonstrations. Muslim fundamentalistsprotested the Court's interference in Muslim personal law, and Hindu fundamentalistsorganized anti-Muslim rallies to celebrate the decision and to protest Muslim backwardness.The political backlash from the decision prompted the government of Rajiv Gandhi, whohad initially supported the Supreme Court decision, to do an about face on the issue.Almost a year after the controversy began, the Prime Minister introduced a bill intoParliament, the Muslim Women (Protection of Rights on Divorce) Bill 1986, thateffectively reversed the decision.Why did the Shah Bano decision create such a severe political backlash? On theface of it, it seems strange that so many people could be mobilized to protest an order for ahusband to provide a negligible amount of maintenance (which he could well afford) to hisseventy-three year old divorced wife of over forty years. The other decisions which set theprecedent for Shah Bano occasioned little interest from anyone. But the turmoil thatresulted from this case convinced the Prime Minister to introduce one of the mostunpopular bills his government ever introduced, a bill which cost him important supporteven within his own party.It is clear that Rajiv Gandhi felt he had to make a choice between women'srights and the rights of a significant minority. What legitimate claims did Muslims makewhich conflicted with the legitimate claims of women in the Shah Bano case? Why did thePrime Minister make the choice he did, that is, of introducing the Muslim Women(Protection of Rights on Divorce) Act, 1986? How could the conflict have been better32resolved? In order to answer these questions it is necessary to trace the development of theShah Bano controversy, which began when Shah Bano took her husband to court in 1987and which culminated in the introduction of the Muslim Women (Protection of Rights onDivorce) Bill, in May 1986.Muslims in IndiaIn order to understand the Shah Bano controversy it is necessary to review theposition and history of Muslims in India, especially in regard to the Muslim personal law,or Shariat. Muslims are a significant minority in India. There are over 90 million Muslimsin India, comprising approximately 11% of the population. 38 Despite the fact that "it is...undeniable...that no party has been able to win elections at the National level without thesupport of the Muslim vote," Muslims are a disadvantaged group in India. 39 They sufferdiscrimination by the Hindu majority, which results in their being economically depressedand educationally backward. Ali Asghar Engineer quotes one survey as estimating thatover 70% of Indian Muslims live in poverty. Muslims are underrepresented in technicalschools and the civil service. "The Muslim representation in the civil services, army,private and public undertakings is abysmally low and on the decline. They arediscriminated in other walks of life as well."40 It is estimated that 90% of the prostitutesin India are Muslim women. 4138Zakia and Sunder Rajan, "Shah Bano," 559.39Mody, "The Press in India," 948.`0Ali Asghar Engineer, Indian Muslims: A Study of the Minority Problem in India (New Delhi:Ajanta Publications, 1985): 320.41Sakina A. Hasan, "What Muslim Women Feel," Indian Express, Mar. 21, 1986.33Islam first came to India with the invasions from the North, and Muslim rule inIndia lasted from the early thirteenth century to the late eighteenth century. The policy ofIndian Muslim rulers towards other religions ranged from "tolerance and syncretism" to"bigotry and fanaticism." Hindus, and even some sects of Muslims such as the Ismailis,were at times subjected to religious persecution and discrimination. Over several centuries,tens of millions of Indians, mostly from the lower castes, converted to Islam:*The British first arrived in India in the seventeenth century with the British FastIndia Company, which eventually became the colonial government of India. For the mostpart, the British pursued a policy of non-interference in the religious matters of India. Theypreserved the existing cleavage between Hindus and Muslims by granting Muslims "aseparate political arena, in which they would not have to compete with non-Muslims." 43Muslims were granted political representation proportionately greater than the percentage ofthe population they comprised in recognition of their status as the class that had ruled Indiaprior to the arrival of the British. In return, Muslim elites were expected to support thecolonial government of the British. 44As the struggle for independence from British colonialism developed, Hindu-Muslim tensions grew. In 1906, the Agha Khan headed a Muslim deputation to the Britishcolonial government which demanded that any scheme of representative government inIndia include separate representation for Muslims. "Against a background of mutualdistrust between the two communities, the demand was made by the Muslim minority forseparate electorates." 45 Separate electorates for Hindus and Muslims were established in1909.42Donald Eugene Smith, India as a Secular State, (Princeton: Princeton University Press, 1963):62.43Brass, Ethnicity and Nationalism, 91.44Smith, India as a Secular State, 65; cf. Brass,Ethnicity and Nationalism, 91.45Smith, India as a Secular State, 85.34Over the next twenty years or so, a coalition was forged between Muslimreligious leaders (the ulema) and Muslim secular leaders in the form of the Muslim League.The goal of this coalition was mainly to secure satisfactory political representation forMuslims in India. In 1929, the famous Muslim leader Mohammed Ali Jinnah presented hisfourteen points as the demands of the Muslim leadership, arguing that Hindus and Muslimswere distinct peoples, and that thus Muslims were entitled to separate representation. 46The Muslim League failed to achieve these goals in India, and at independence,separate elections for Hindus and Muslims were abolished. However, the demands of theMuslim League had led to the creation of Pakistan as a separate state for Muslims. Thepartition of the subcontinent into India and Pakistan in 1947 led to unprecedentedcommunal violence.47 Paul Brass argues that partition seriously weakened the Muslimminority in India:Muslim minorities no longer could depend upon the support of the greatMuslim populations of the Punjab and Bengal. Instead of belonging to a Muslimnation 100 million strong, they found themselves reduced to provincial minorities ina predominantly Hindu country in which all provinces but one were alsopredominantly Hindu. Nor were their demands in any way satisfied by partition.Instead, separate electorates were abolished, no provisions were made inindependent India for special representation for Muslims in services and education,and Hindi in the Devanagari script was declared the official language of the Unionand of the North Indian provinces. Finally, their most prominent leaders desertedthem for Pakistan."Since partition there have been several important rallying points for Muslims inIndia which have become central to Muslim identity; for example, the Urdu language,Aligarh Muslim University, and the Muslim personal law, or Shariat. Each of these46Brass, Ethnicity and Nationalism, 94. See also Paul Brass, Language, Religion and Politics inNorth India, (London: Cambridge University Press, 1974): 178 - 179.47Brass, Language, Religion and Politics, 178- 179; Smith, India as a Secular State, 92-93.48Brass, Language, Religion and Politics, 178.35symbols is worth discussing, but here I shall deal only with the Muslim personal law, sinceonly it is directly relevant to the Shah Bano controversy.In 1862 the British established a secular system of criminal and procedurallaws in India, the Indian Penal Code and Code of Criminal Procedure, which were appliedregardless of religion. However, the British did not interfere with civil and family law. Infact, the personal laws of the Muslims and Hindus were formally recognized andadministered by government courts. At Independence, the promulgation of a uniformcivil code was formally adopted as a goal of the government in one of the directiveprinciples of the constitution, article 44, which states that "the State shall endeavor tosecure for the citizens a uniform civil code throughout the land." 49 However, nearly fiftyyears later, Hindus, Muslims and other religious groups are governed by their ownpersonal law. In family law, Indian Muslims are governed by the Muslim Personal Law(Shariat) Application Act of 1937. The ulema, or Muslims clerics, have long opposed anyreform of Muslim personal law. Successive governments have refrained from interferingin Muslim personal law for fear of antagonizing the ulema, who are seen as having a stronginfluence on the Muslim population. As Paul Brass notes: "Neither the British nor theleaders of postindependence India were willing to antagonize the ulema on the matter ofreform of Muslim personal law, for it is believed that the ulema have succeeded inimparting to most Muslims the feeling that any tampering with the personal law wouldamount to an attack on Islam."" Thus the Muslim personal law has become an importantsymbol of the distinctness of the Muslim minority in India.Muslims see themselves as members of a single international religiouscommunity or ummah. The religious community is central to the practice of Islam. It isimportant to a Muslim to go to the mosque to pray with others. It is said that 'one Muslim49Mody, "The Press in India," 944.50Brass, Ethnicity and Nationalism, 81.36is no Muslim at all'. Islam emphasizes the oneness of the believers, and submission todivine will: "Islamic ritual emphasized unity among the Muslim community, thebrotherhood, the ummah."51Despite all this emphasis on oneness, Indian Muslims are far fromhomogeneous or monolithic ideologically or culturally. 52 Although Muslims aredistinguished from other Indians by their observance of the Shariat, they are alsodistinguished from each other in the particular ways that they choose to interpret theShariat.53 As Paul Brass argues:Internal religious and social differentiation among Muslims in India hasalways been great The sectarian differences between Sunnis and Shi'as in Indiaare well known and have been frequently bitter and violent, but there have beenother sects in Indian Islam some of them hardly distinguishable from Hindureligious groups. Caste differentiation among Muslims was in the nineteenthcentury and continues in the present to be great. 54These social and religious differences among the Muslims also vary according to region.Thus, despite the ideological emphasis on oneness and brotherhood, there are significantsocial, regional and religious divisions among Muslims.51Akbar S. Ahmed, Discovering Islam: Making Sense of Muslim History and Society (NewYork: Routledge and Kegan Paul, 1988): 17.52 For example, one of the most famous sub-communities of Muslims is the Dawoodi Bohracommunity Even this community is divided into reformists and non-reformists. See Uma Prabhu,"Hearing against Syedna Today", limes of India (Ahmedabad), June 13, 1992; cf. "Reforming the Faith",Times of India (Ahmedabad), June 13, 1992.; See also Brass, Ethnicity and Nationalism, 86-87.53Zoya Hassan, "Minority Identity, Muslim Women Bill Campaign and the PoliticalProcess,"Economic and Political Weekly, January 7, 1989, 45.54Brass, Language, Religion and Politics, 125.37The Political ContextThe Shah Bano controversy occurred at a time when communal tensions inIndia were running high. In the early 1980's the Hindu-Sikh conflict in the Punjabescalated to the assault on the Golden Temple at Amritsar, in which thousands died. In1984, the assassination of Prime Minister Indira Gandhi by two Sikh bodyguards sparkedcommunal riots in which thousands of innocent, mostly poor, Sikhs were massacred. 55At the same time, Hindu-Muslim relations were strained as the issue of themosque at Ayodhya grew into an issue of national importance. In 1986, Hindufundamentalists began to revive an earlier claim that the Muslim mosque in Ayodhya, theBabari Masjid, had been built on the birthplace of the Hindu god Ram. They demanded therestoration of the site to its original purpose, that is, Hindu worship. In February a districtjudge agreed to return the mosque to the Hindus. This decision provoked communalviolence in various places in India, and Muslims formed a national committee to press forthe restoration of the mosque to Muslims. Meanwhile, Hindu fundamentalist groups begandrawing up lists of other Muslim mosques allegedly built on sites sacred to Hindus. 56Thus, at the time of the Shah Bano decision, the political context was becomingincreasingly volatile as communal conflicts escalated. A sense of the political context inwhich the Shah Bano controversy developed, as well as an understanding of the symbolicsignificance of the Shariat to Muslims is essential to understanding the Shah Bano decisionand the events by which it was followed. Let us turn now to the details of the decision andthe controversy that resulted.55Paul Brass, The Politics of India Since Independence, (Cambridge: Cambridge University Press,1990): 173.56 Ibid., 193-194.38The DecisionShah Bano was the first cousin of her husband, Muhammed Ahmed Khan,whom she married in 1932. She had five children with her husband before he was marriedagain, in 1946, to another first cousin, Halima Begum. Apparently, there was an on-going dispute within the family over a specific piece of property. Shah Bano and herhusband began to fight over this same issue and the relationship between Shah Bano andher husband grew strained. In 1975 Khan drove Shah Bano from the house. 57Three years later, Shah Bano filed for maintenance under section 125 of theCriminal Procedure Code. Section 125 reads:125(1) If any person having sufficient means neglects or refuses to maintain—(a) his wife, unable to maintain herself,...A magistrate of the First Class may, upon proof of such neglect or refusal, ordersuch a person to make a monthly allowance for the maintenance of his wife...atsuch monthly rate not exceeding five hundred rupees in the whole, as suchMagistrate thinks fit. 58According to the explanation of the section, the word "wife" in this contextrefers not only to a person's current wife, but also to divorced wives, as long as they arenot remarried. The most that can be awarded as maintenance under section 125 is Rs. 500monthly. This upper limit is set because this section is mainly meant to prevent vagrancy,and thus only applies when a woman is unable to maintain herself. This section was notintended to capture the totality of the spouses' obligations to each other, nor was it meant tobe applicable to all cases. It was intended to apply only those cases in which the wife wasdestitute.57 Mody, "The Press in India," 935-936.58 Quoted in Chandrachud,	 "Mohd. Ahmed Khan vs. Shah Bano Begum and Others", in TheShah Bano Controversy, ed. Ali Asghar Engineer, 25.39Shortly after Shah Bano filed for maintenance her husband divorced her usingthe irrevocable triple divorce or talaq in one sitting. Khan then argued that he had noobligation to support Shah Bano since she was no longer his wife. Furthermore, heargued, he had already paid her Rs. 200 per month by way of maintenance for the previoustwo years. In the period of iddat, a three month period following the divorce, Khan haddeposited Rs. 3000 in the court as Shah Bano's mehr. Mehr is an amount given by thebridegroom to the bride at the time of marriage. Mehr is often given in two parts. Promptmehr is given at the time of marriage. Deferred mehr may be paid at a later time, but it mustbe paid to the bride in full upon divorce or death of the husband. 59 Khan argued that sincehe had paid Shah Bano her mehr during the period of iddat, he had fulfilled all hisobligations to her and could not be ordered to pay any more maintenance. In 1979, thelocal magistrate ruled in favour of Shah Bane and ordered Khan to pay Rs. 25 per month.A year later Shah Bane filed a revised application for maintenance in the High Court ofMadhya Pradesh, and she was awarded increased maintenance of Rs. 179.20 per month. 60Her husband then appealed to the Supreme Court of India. The MuslimPersonal Law Board sought and obtained permission to intervene on behalf of the husband.In the Supreme Court, counsel for Khan argued that since under Muslim personal law adivorced woman is entitled to maintenance only during the period of iddat, he could not beordered to pay maintenance to Shah Bano beyond that period, since to do so would becontrary to the principles of Islam. Furthermore, Khan argued, since he had already paidShah Bano her mehr, he had fulfilled his obligations to her under Muslim personal law,59Chandrachud, C.J., "Mohd. Ahmed Kahn vs. Shah Bano Begum and Others", in The Shah BanoControversy, ed. Ali Asghar Engineer, 25; See also Jack Goody, The Oriental, the Ancient, and thePrimitive: Systems of Marriage and the Family in the Pre-Industrial Societies of Eurasia (Cambridge:Cambridge University Press, 1990); and Lucy Carroll, "The Muslim Woman's Right to Divorce",Manushi, no.38, Jan-Feb 1987.60Mody,"The Press in India", 936.40and that therefore section 125 did not apply. 61 This last point rested on another section ofthe criminal code, section 127(3)(b), which reads:127. (3) Where any order has been under section 125 in favour of a woman whohas been divorced by, or has obtained a divorce from, her husband, the Magistrateshall, if he is satisfied that—(b) the woman has been divorced by her husband and that she has received,whether before or after the date of the said order, the whole of the sum which,under any customary or personal law applicable to the parties, was payable on suchdivorce, cancel such order-(i) in the case where such sum was paid before such order, from the date on whichsuch order was made.(ii) in any other case, from the date of expiry of the period, if any, for whichmaintenance has been actually paid by the husband to the woman. 62Chief Justice Chandrachud of the Supreme Court of India ruled in favour ofShah Bano and dismissed Khan's appeal. He ruled that section 125 did apply to Muslimwives:By clause (b) of the Explanation to section 125(1), 'wife' includes adivorced woman who has not remarried. These provisions are too clear and preciseto admit of any doubt or refinement. The religion professed by a spouse or by thespouses has no place in the scheme of these provisions...Neglect by a person ofsufficient means to maintain these and the inability of these persons to maintainthemselves are the objective criteria which determine the applicability of section125. 63Secondly, Chandrachud C.J. ruled that since meter was paid with regard tomarriage, and not divorce, the fact that Khan had paid Shah Bano's meter did not mean hehad fulfilled his duties under Muslim personal law as required by section 127(3)(b). Inruling that Khan had not fulfilled his duty under Muslim personal law, the judge drew ontwo Ayats (verses) of the Quran which (according to one translation) read:61 /bid., 936.62Quoted in Chandrachud,	 "Mohd. Ahmed Khan vs. Shah Bano Begum and Others", in TheShah Bano Controversy, ed. Ali Asghar Engineer, 25.63/bid., 25.41For divorced womenMaintenance (should be provided)On a reasonable (scale)This is a dutyOn the righteousThus doth GodMake clear His SignsTo you: in order that you mayunderstand.MThis particular translation is that of Yusuf Ali. In fact several translations were consideredby the judge, but this was the one on which he chose to base his decision. There were twomain points of contention about these two verses. Counsel for the husband argued that theword mataa should be translated as provision rather than maintenance. Furthermore, it wasargued that the obligation discussed in these two verses only applied to the particularlypious, and not to the general run of Muslims.The judge rejected both these arguments. While he recognized that severalauthorities on Islamic law contend that the husband's obligation to the wife extends onlyover the period of iddat, the judge argued that these authorities cannot be interpreted asspeaking to the special case of a woman who is unable to maintain herself.We are not concerned here with the broad and general question whether ahusband is liable to maintain his wife, which includes a divorced wife, in allcircumstances and events. That is not the subject matter of section 125. Thatsection deals with cases in which, a person who is possessed of sufficient meansneglects or refuses to maintain , amongst others, his wife who is unable to maintainherself.6564mody, "The Press In India," 938.65Chandrachud, C.J., "Mohd. Ahmed Khan vs. Shah Bano Begum and Others", in The Shah BanoControversy, Ed. Ali Asghar Engineer, 27.42The judge ruled that whether mataa meant provision or maintenance wouldmake little difference to the case, calling it "a distinction without a difference." The judgealso contended that the verses were addressed not only to the very pious, but to the generalrun of Muslims. Ayats 240-242 describe a husband's obligation to his wife on death ordivorce. Various translations refer to an obligation or a duty on the righteous, god-fearingor reverent. The judge argued that especially since one of the marks of Islam is that there isno clear division between belief and action, between words and deeds, these ayats clearlyimpose an obligation upon the husband to make provision for his wife. 66Finally, the judge addressed the issue of whether the order for maintenancecould be cancelled under section 127(3)(b). The judge considered whether Khan hadfulfilled his obligation to Shah Bano under the applicable personal law , in this case Muslimpersonal law. Khan had argued that in paying mehr he had fulfilled that obligation.Chandrachud, C.J. argued that even if mehr is paid "on divorce", as in the case of deferredmehr, it is paid in respect of marriage.Divorce may be a convenient or identifiable point of time at which thedeferred amount has to be paid by the husband to the wife. But, the payment of theamount is not occasioned by the divorce, which is what is meant by the expression`on divorce', which occurs in section 127(3)(b) of the Code. If mehr is an amountwhich the wife is entitled to receive from the husband in consideration of themarriage, that is the very opposite of the amount being payable in consideration ofdivorce. 67Counsel for the husband argued that when sections 125-127 were beingcomposed, Muslim representatives lobbied the government to prevent it from interfering inMuslim personal law, which was why section 127 was worded the way it was. The judgeaccepted the argument that the government did not wish to reform Muslim personal law,66 Ibid., 29.67/bid., 31.43but rather wished to leave such reform to Muslims themselves. However, the judge arguedthat even if section 127 was worded the way it was because the framers believed that mehrwas paid in respect to divorce, such a conception of mehr would have been mistaken. "Theprovision contained in section 127 (3)(b) may have been introduced because of themisconception that dower [mehr] is an amount payable "on divorce". But that cannotconvert an amount payable as mark of respect for the wife into an amount payable "ondivorce"."68 Furthermore, the judge argued that sections 125 to 127 were not intended toreform Muslim personal law. They were intended to prevent vagrancy and thus applied toall denominations, as is indicated by the lack of reference to any particular group in thesection. These sections were intended to operate simultaneously with, and not to replace,Muslim personal law.However, the body of the judge's argument did not receive as much publicity orattention as his introductory and closing remarks. In closing, the judge noted with regretthat Article 44 of the constitution, which provides that the state will endeavor to secure acommon civil code, has remained "a dead letter." He also referred to a reportcommissioned by the Government of Pakistan, which drew attention to the plight of manydivorced women who were being "thrown into the streets without a roof over their headsand without any means of sustaining themselves and their children." 69 In the introductoryparagraph of the decision, the judge noted that many issues which arise under civil andcriminal law are of broad importance to large segments of society which have traditionallybeen subject to unjust treatment, such as women. In this context, the judge referred to the68/bid., 32.69/bid., 33.44laws of Manu, the Hindu lawgiver, and quoted the Prophet. In addition, the judge quoteda British author to the effect that the "degradation" of women in Islam is its "fatal point".7°The Reaction to the DecisionThese introductory comments were widely quoted in the press, usually out ofcontext. Combined with the judge's recommendation for the promulgation of a uniformcivil code, many Muslims perceived the decision as being an attack on Islam and on theright of Muslims to be governed by their own personal law. The tendency to see thedecision as an attack on Islam was exacerbated by the fact that Hindu fundamentalistgroups organized anti-Muslim demonstrations to celebrate the decision and to condemnMuslim 'backwardness'.71 In September, 1985, thirty to thirty five thousand Muslimwomen attended a conference in Malegaon, Maharashtra, and condemned the SupremeCourt decision in a resolution. In October, 1985, more than four hundred thousandMuslims attended a conference on Muslim personal law in New Delhi. On November 20,1985, the All India Muslim Personal Law Board issued a call to observe a Shariatprotection week. This call received an impressive amount of support; in Bombay, 200,000 people gathered to demonstrate against the Shah Bano decision.Five women's organizations—the All India Democratic Wornen's Association,the National Federation of Indian Women, the All India Lawyers' Association, the YoungWomen's Christian Association, and the Mahila Dakshata Samiti, responded by presentinga joint memorandum to the Prime Minister. The memorandum read:70 Chief Justice Chandrachud quoting Edward William Lane, Selection from Kuran, 1843,Reprint 1982; XC (Introduction), in Chandrachud, C.J., "Mohd. Ahmed Kahn vs. Shah Bano Begum andOthers", in The Shah Bano Controversy, ed. Ali Asghar Engineer, 23.71 Balraj Puri, "Muslim Personal Law" in Economic and Political Weekly, vol XX, no.23, June 8,1985, 987.45Given the fact that the dismally low status of women is a reality for allsections of women regardless of caste or community, the necessity for affordingminimum legal protection to all women is self-evident...The unseemly controversyover Section 125 aims at excluding a large section of women from minimum legalprotection in the name of religion. 72Muslim members of the ruling party, the Congress Party, were divided on theShah Bano issue. Arif Mohammed Khan, a prominent Muslim member of the CongressParty who was very close to Rajiv Gandhi, became a prominent supporter of the decision.He was seen by many as representing the 'progressive' Muslims. Another prominentMuslim Congress MP and previous Supreme Court Judge, Baharul Islam, also supportedthe Supreme Court decision. 73 However, within the Congress Party, there were manyMPs who were violently opposed to the decision. Z.R. Ansari, for example, delivered aspeech condemning the decision in the Lok Sabha which "inflamed" many members ofParliament.74 Thus, initially, the Congress Party had not taken a clear position on theissue.The Congress Party was not alone in avoiding taking a stand on the Shah Banodecision. Since the Muslim minority is a significant portion of the electorate, mostpoliticians wanted to avoid alienating what they perceived as the majority of Muslims whowere opposed to the decision. At the same time, communal tensions made politicians verywary of offending the Hindu majority by seeming too "pro-Muslim". While there werevocal opponents and proponents of the decision in almost all the parties, only the72 Pathak and Sunder Rajan, "Shah Bano," 587.73 See for example, "Interview with Baharul Islam," Current, 8 March 1986, reproduced in TheShah Bano Controversy, ed. Ali Asghar Engineer, 130.74"Bowing to Orthodoxy," The Week, March 9-15, 1986, 23.; see also Mody, "The Press inIndia," 944.46communist parties (the CPI, the CPI(M)) and the Hindu fundamentalist party, the BJP,came out openly in support of the decision. 75Perhaps the most influential opponents of the decision were the Indian UnionMuslim League (IUML) and the All India Muslim Personal Law Board. The president ofthe IUML, Ibrahim Sulaiman Sait, was one of the fiercest critics of the ruling. He arguedthat "No Muslim will ever tolerate any interference in the Shariat or personal law...It isobligatory to mould personal life according to the Shariat." 76 On July 27, 1985, GeneralSecretary of the IUML, MP Banatwala, introduced a private member's bill to amendsections 125 to 127 of the criminal code. His introduction to the bill was a blisteringcondemnation of the ruling. 77The Muslim Personal Law Board (MPLB) was another staunch and influentialopponent to the decision. In fact, it was in large part the influence of the MPLB that led tothe introduction of the Muslim Women (Protection of Rights on Divorce) Act. OnDecember 21, 1985, a seventeen member delegation led by Maulana Abul Hasan Nadwi,president of the All-India MPLB, met with Prime Minister Rajiv Gandhi to express theiropposition to the Shah Bano decision. Among the mullahs, lawyers, academics andpoliticians, who gathered to meet the Prime Minister, were Congress (I) leaders NajmaHeptullah and Begum Abida Ahmed, who came as representatives of Muslim women. 78At this meeting, the framework for the Muslim Women (Protection of Rights onDivorce) Act was laid. By their own account, the members of the delegation found thePrime Minister very cooperative and willing to take up their suggestions. For example, the75 "Bowing to Orthodoxy," in The Week, March 9-15, 1986, 23.76 "Controversial Verdict," India Today , September 15, 1985 (International edition), 81.77"Bowing to Orthodoxy", in The Week, March 9-15, 1986, 21.78 Ibid., 21; See also "The Gathering Storm", India Today, March 31, 1986 (InternationalEdition), 15.47Bill's controversial provision to transfer the obligation for maintenance from the ex-husband to the bride's family and then to the community was suggested by members of thisdelegation.Part of the reason why the MPLB and the Muslim League were so influential onthis issue was the influence they seemed to have on the Muslim electorate. After meetingwith the Prime Minister on December 21, the mullahs, maulanas and the Muslim Leagueleaders went to various parts of the country to mobilise opinion against the Supreme Courtdecision. 79 Shortly after Arif Mohammed Khan voiced his support for the decision, theloss of the sizable Muslim vote in some some constituencies cost the Congress some keyby-elections. In one case, Syed Shahabuddin, a Janata candidate, defeated the Congresscandidate, also a prominent Muslim, in an election in which Shahabuddin campaignedmainly on his opposition to the Supreme Court decision. 80 Meanwhile, Arif MohammedKhan encountered angry demonstrations opposing the decision and in one of them his carwas actually stoned.81On February 2 1986, the MPLB threatened to use the same tactic again tomobilize opinion against the decision if the demands they had made were not met. WhileMuslims are a minority in India, the number of Muslims is large enough that the Muslimvote is crucial to any party hoping to win a national election in India. The Congress Partyin particular had always relied on the Muslim vote. So the Prime Minister took theMPLB's threat to organize agitations against the decision very seriously.79"Bowing to Orthodoxy", in The Week, March 9-15, 1986, 23.80Mody, "The Press In India," 938.81 "Bowing to Orthodoxy", in The Week, March 9-15, 1986, 21.48Critiques of the Shah Bano DecisionThere were four main aspects of the decision that were cited as offensive by theMuslim Personal Law Board. First, the MPLB condemned the judge's remarks about thestatus of women in Islam and the husband's unbridled right to divorce. The MPLB arguedthat these statements were false and that they revealed the judge's ignorance about theMuslim personal law. The judge's comments were often quoted out of context in thepress, giving the impression that the judge had singled out Islam as a religion which deniedwomen fundamental rights. Taken in context, however, it is clear that these remarksreferred to the problems posed for women's rights by religious personal law in India ingeneral.The MPLB rejected the judge's suggestion that in Islamic law men can divorcetheir wives without rhyme or reason. The judge was alluding to the practice of triple talaq,or talaq in one sitting. Some argue that divorce in one sitting is not allowed under Islamiclaw, or that triple talaq in one sitting may be tolerated, but it is not approved of. Whetheror not triple talaq is allowed under Islam, it is apparently widely practised among IndianMuslims without any comment from the religious leaders who opposed the Shah Banodecision.82 It is interesting to note that Mohammed Khan used instant talaq to divorceShah Bano as soon as she sued him for maintenance.Second, the MPLB condemned what they perceived as the arrogation on thepart of the Court of the right to interpret Muslim personal law. In fact, the Muslim PersonalLaw Board warned that the interference by the courts in Muslim personal law could meanthe death of Islam in India. In an interview, Chief Justice Chandrachud replied that thecourt had merely interpreted Muslim personal law, and had not interfered in it.82 Shaikh, W.M., "Personal Law in Islamic Nations", The Times of India, 14-15 March, 1986,reproduced in The Shah Bano Controversy, ed. Ali Asghar Engineer, 76-79; see also Interview with BaharulIslam, Current, 8 March 1986, reproduced in The Shah Bano Controversy, ed. Ali Asghar Engineer, 130-133.49Furthermore, the judge argued, the interpretation of personal law is both the function andduty of the courts.83The main thrust of the judge's decision left the autonomy of Muslim personallaw intact. In fact, the judge stressed that the purpose of sections 125427 was to preventvagrancy, not to reform Muslim personal law. The judge stressed that Section 125 was notintended to replace Muslim personal law, or to capture the entirety of the spouses' legalobligations to each other, but merely to prevent vagrancy, which is a duty imposed on theState by the constitution.84The judge did investigate the claim that providing maintenance to one's divorcedwife beyond the period of iddat is actually contrary to the principles of Islam. Heconcluded that there is no conflict between section 125 and Muslim Personal law. It shouldbe noted that the issue was raised by the MPLB, which was intervening on behalf of thehusband, and that arguments about the content of Muslim personal law were raised by bothsides, including the MPLB. In order for the judge to address all the issues raised in thecase, therefore, he had to make some comment on the arguments which had been raised.Even if he had decided in favour of Khan (the husband) he would still have beeninterpreting Muslim personal law.Third, Chief Justice Chandrachud was criticised for displaying a lack of respectfor the intentions of the legislators. Specifically, it was alleged that in dismissing the factthat the framers of section 127 intended to exempt Muslims from section 125, the ChiefJustice ignored the clear intent of the framers not to interfere in Muslim personal law. Butthe judge did not interpret sections 125-127 as reforming Muslim law, and so did not seeany conflict between his decision and the intentions of the framers. The judge argued that83Mody, "The Press in India", 938; see also "The Supreme Court Interpreted Muslim Law, itDidn't Interfere With It." The Sunday Observer, December, 1985, reproduced in The Shah BanoControversy, ed. Ali Asghar Engineer, 80-82.84Chandrachud, 	 "Mohd Ahmed Kahn vs. Shah Bano Begum and Others", in The Shah BanoControversy, ed. Ali Asghar Engineer, 28.50the criminal procedure code and Muslim personal law ought to operate simultaneously. Sothe issue here is not really whether the judge respected the intention of the legislators, butrather whether or not the judge was "interfering in" or reforming Muslim personal law.Finally, Chandrachud C.J. was roundly criticised by fundamentalists andprogressives alike for recommending the promulgation of a uniform civil code as providedin section 44 of the constitution. Many "progressive" Muslims who supported all the otherelements of the decision did not support a uniform civil code, arguing that Muslim personallaw is crucial to their identity and that it is symbolic of Muslim distinctiveness as a minoritygroup in India.The Shah Bano decision was handed down at a time when two significantpolitical events made many Muslims in India feel especially threatened. The first event wasthe controversy surrounding the anticipated opening of the Ram Janmabhoomi temple atAyodhya in Uttar Pradesh on February 1, 1986. The second event was the petition filed inthe Calcutta High Court seeking the banning of the Quran on the basis that it incitedviolence against non-Muslims. Although the petition was eventually dismissed, twelvepeople were killed in the demonstrations that the petition provoked. 85 The Chief Justice'scomments about a uniform civil code were threatening to the Muslim identity. The judge'srecommendation of a uniform civil code also earned him the wrath of many other minoritygroups such as Christians, Jews and Parsees. In response to the judgement, manyminority groups began demanding reassurance from the Prime Minister that no uniformcivil code would be introduced. 8685Mody, "The Press in India", 945.86 Mody,"The Press in India", 950; See, for example, Shariat Rai, "We are Absolutely Against aCommon Civil Code", Indian Express, June 29, 1986.51The Muslim Women (Protection of Rights on Divorce) BillAfter two months of consultation with representatives of the MPLB and theIUML, the Muslim Women's (Protection of Rights on Divorce) Bill was introduced inParliament. The Bill basically transferred the long-term responsibility for maintaining adivorced wife from her husband to her own family. According to the Bill, a divorced wifeis entitled to "a reasonable and fair provision and maintenance to be made and paid to herwithin the iddat period by her former husband." 87 In addition, if the wife maintains herchildren, the husband must make a "reasonable and fair provision and maintenance for aperiod of two years from the respective dates of birth of such children."88 After the periodof iddat, if a woman is unable to maintain herself her relatives are obliged to support her inthe proportion in which they are likely to inherit from her. For example, if a relative isentitled to inherit one quarter of her wealth, he or she would be obligated to pay one quarterof the cost of maintaining the woman. If her own family was unable to maintain her, thewaqf or community boards would be obligated to provide for her and her children.From September 1985 to May 1986, Muslim women throughout Indiaorganized various demonstrations against the Muslim Women's Bill that were attended byhundreds of women. On February 22 1986, a delegation of Muslim divorcees representinga Muslim reformist organization called the Muslim Satyashodak Mandal came to Delhi tooppose the Bill. The following month, hundreds of women gathered in New Delhi toattend a demonstration against the Bill which was organized by fifteen different women'sorganizations. In Bombay, two weeks later , a rally for a secular civil code organized bythe Women's Liberation Movement was attended by thirty-five women's organizations. 8987The Muslim Women (Protection of Rights on Divorce) Bill, 1986, reproduced in The ShahBano Controversy, ed. Ali Asghar Engineer, 85-88.887bid., 85-88.89Pathak and Sunder Rajan, "Shah Bano," 578-79.52On March 8, 1986, a statement protesting the bill, signed by 118 prominentMuslims, was published in the journal Mainstream. The signatories included actors,lawyers, journalists, writers, painters and so on. On the first of May, 1986, the Forumagainst Oppression of Women sent a memorandum demanding the withdrawal of the Bill,signed by over 6,000 people from all over India, to the Justice minister, Ashoke Sen.While the Bill was being passed on May 5, 1986, over a hundred women chainedthemselves to the iron gates outside Parliament to protest the Bill. In Pune on May 13,1986, approximately two hundred people, many of whom were Muslim divorcees,demonstrated against the Bill. Three days later, in New Delhi, fourteen Muslimorganizations formed a joint action committee to launch an agitation against communalforces and the Muslim Women's Bill, and to press for a common civil code. 90The Prime Minister presented the Bill to Parliament as a fait accompli , using athree line whip to pass it. Despite the fact that a whip was used, over 40 Congress Partymembers chose not to comply with the whip directing them to vote. In spite of thisopposition from within the Party, the Bill was passed by a comfortable margin in both theupper and lower houses of Parliament.91 The Prime Minister had promised to circulate abackground paper on the laws on maintenance in other Muslim countries and to consult theMuslim community. Although the material had been gathered, no discussion paper wasever circulated, and many members of the Prime Minister's own party felt that they werenot adequately consulted in regard to the Bill. 92 Many Congress MPs who did show upand vote for the Bill bitterly resented being reduced to "hand raising in Parliament." 93 In9°Ibid91 Mody,"The Press in India," 950.92 In an article on Arif Mohammed Khan, Arun Shourie speculates that the reason the discussionpaper was never circulated was that "it showed that one Muslim country after another had in fact modernizedits family laws." See Arun Shourie, "The Arif Mohammed Affair," in Jana Raj Jai, Shah Bano,Foreword by Baharul Islam (New Delhi: Rajiv Publications, 1986): 141.93"Bowing to Orthodoxy", in The Week, March 9-15, 1986, 23.53introducing the Bill, the Justice Minister, Ashoke Sen, claimed to have consulted everysection of the Muslim people. This prompted Arif Mohammed Khan to resign, saying,"You say the fundamentalists are the leaders...But the people voted for the Prime Minister,they voted for you, for all of us, not for the fundamentalists."94 Thus much of theopposition to the Bill stemmed from the way it was formulated and passed. Thegovernment had basically accepted two fundamentalist organizations, the MPLB and theIUML, as the legitimate voice of Muslims without any discussion or consultationwhatsoever with Muslims as a group. Furthermore, the Prime Minister neglected toconsult with elected Muslim representatives. In doing so he gave legitimacy to thefundamentalists and ignored the concerns of the 'progressive' section of the Muslimcommunity. This failure to consult the more progressive elements of the communityparticularly rankled those who expected Rajiv Gandhi to fulfill his election promise to bringIndia into the 21st century. 95The main criticism of the substance of the Bill was that it denied Muslim womenthe recourse to section 125 of the Criminal Procedure Code to which all other Indianwomen were entitled. 96 In this sense, the Bill discriminated against Muslim women andviolated the fundamental rights guaranteed to all women in the constitution. The Bill wasalso criticised as being too complicated to perform the function of section 125, which wasto provide a quick remedy for women, children and elderly people in need. Instead of therebeing one person who would be responsible for maintaining a divorcee, she would nowhave to get a court order against the various members of her own family who were obligedto provide some part of her maintenance. Apart from the unlikeliness that any woman94 Shourie, "The Arif Mohammed Affair," 137.""Bowing to Orthodoxy", in The Week, March 9-15, 1986, 21.96 Zarina Bhatty, "Muslim Women Bill Evades Issues", The Times of India, 8 March 1986,reproduced in The Shah Bano Controversy, ed. Ali Asghar Engineer, 107-110; Mody, "The Press InIndia," 950.54would have the money or the desire to take her own family to court, the Bill was criticisedas sending destitute women "from pillar to post" in search of relief. 97Some criticised the Bill as unIslamic because it did not recognise a husband'sobligation to provide for his wife, the obligation to provide mataa. Traditionally, ahusband was bound to make a generous provision for his wife, allowing her to continueliving in the style to which she was accustomed. A wealthier woman would receive aservant to look after her for the rest of her life. One of the main reasons for giving awoman a generous mataa was to make it easier for her to marry again. But the Bill makesno mention of mataa, and thus eliminates an important obligation of a husband to hisdivorced wife.98Indian women's groups criticized the whole debate for missing the point thatneither section 125 nor the new Bill really recognized a woman's right to maintenance fromher husband. According to Madhu Kishwar, this is a problem not only with Islamic lawand with section 125, but with all the religious personal laws in India. She argued that awoman, destitute or not, ought to have a right to maintenance by her husband in proportionto the amount of money he makes:In practice, all the laws of maintenance are highly inadequate. It is notenough to state that a woman should get a "fair" or "generous" payment because thedefinition of generosity varies widely. Women have too long been dependent onthe generosity of men. What is needed is an assertion that maintenance is awoman's right. She does not have to be a destitute to claim maintenance."Finally, the Bill was criticised for making women ultimately dependent on the waqfboards.Many argued that the waqfboards did not have the money to support destitute women and97 K.A. Jaleel, "Driving Her From Pillar to Post" in The Week, March 9-15, 1986, 18-20.98 Latifi, Daniel, "The Muslim Women Bill", The Times of India, 12-13 March 1986, in TheShah Bano Controversy, ed. Ali Asghar Engineer, 102-107.99 Kishwar, "Pro-Woman or Anti-Muslim," 8.55their children. In addition, many argued that it was illegal and unprincipled to use themoney donated to the waqf boards to support destitute women and their children. Moneydonated to the waqfboards is intended for religious purposes only. It is not clear whythose who give religious donations to the local waqfboards should bear the cost ofmaintaining a divorced wife and her children rather than the man who is responsible for thewoman's condition to begin with. As one commentator put it:[The Bill] means in effect that a man can marry and divorce at his sweet willand pleasure as many times as he likes and get away with it every time and if thewoman finds herself on the street, she can knock at any door for relief but not thatof the man primarily responsible for her plight. A greater concession to malechauvinism cannot be imagined. 100But the Bill drew great praise from the Muslim Personal Law Board and theIndian Union Muslim League. These organizations made statements to the effect that theintroduction of this Bill showed that the Congress Party was really committed to protectingthe interests of Muslims. The President of the Indian Union Muslim League defended theprovisions of the Bill, saying that it protected the dignity of Muslim women by offeringthem alternatives to begging for maintenance from their former husbands. "The new billgives the woman more dignity. It only sends her back to the natural family. In [Islamic]divorce the relations are completely cut. In Islam, after marriage a woman's ties with herparents continue to exist." 1o1 Defenders also pointed out that unlike section 125 the newBill placed no limit on the amount of maintenance a woman could be awarded. So the Billwas defended as improving women's rights, rather than denying them. 102100K.A. Jaleel, "Driving Her From Pillar to Post", 17.1131 "In Defense of the Bill", The Week, March 9-15, 1986, 24.1°2Ahmed, Badar Durrez, "Women's Rights are far superior under Shariat to those Provided bySection 125 Criminal Procedure Code." The Telegraph, 29 April 1986, reproduced in The Shah BanoControversy, ed. Ali Asghar Engineer, 97-102.56However, section 125 was not intended to capture the entirety of a woman'sright to maintenance. It was only intended to provide quick relief for destitute women andtheir children. In this regard, the proponents of the Bill can hardly argue that destitutewomen are better off trying to hunt down their maintenance from various members of theirown family than simply going to their previous husband. Similarly, just because a womanis entitled to more maintenance under the new Bill than under Section 125 does not meanthat the Bill is an improvement on the rights women held prior to the introduction of theBill. In fact, by most accounts, the Bill seemed to have left out or played down a Muslimwoman's traditional right to mataa and thus to have eroded her rights. 103"A Disaster for the Prime Minister" 104The Prime Minister, concerned about Congress losses of Muslim electoralsupport, hurriedly introduced a bill which would appease the Muslim fundamentalists,without making a concerted effort to consult or inform women's groups, prominentmembers of the Muslim community or members of his own party. These groups wereshocked at the lack of importance the Prime Minister attached to their suggestions andinput. As a result, the Prime Minister lost support within the Congress party as well assupport from traditional Congress supporters such as women's groups and "progressive"Muslims. In addition, by giving the leadership of the MPLB and the IUML so muchlegitimacy, the government strengthened the hand of the communal forces in both theHindu and Muslim camps. The public perception that he was sacrificing principle in a103Engineer, "The Shah Bano Controversy," 14; see also Kishwar, Madhu, "Pro-Woman or Anti-Muslim," 8.1°4Elisabeth Bumiller calls the the Shah Bano affair "one of Rajiv Gandhi's biggest politicaldisasters." See Bumiller, May You Be the Mother of a Hundred Sons, 165.57scramble to capture the Muslim vote also cost Rajiv Gandhi important support among theHindu majority.The Shah Bano controversy brought to the fore the conflict between advocatesof Muslim women's rights and advocates of the rights of the Muslim minority over reformof the Muslim personal law in India. Was the Prime Minister faced with an irresolvableconflict, or could the Shah Bano controversy have been better handled? In the nextchapter, I shall draw out why the legitimate claims of Muslim women conflicted with thelegitimate claims made by the minority as a whole, and sketch a possible solution to theconflict.58CHAPTER FOUR: SHAH BANO AND MINORITY RIGHTSWhat legitimate claims did Muslim representatives make which conflicted withthe legitimate claims of women in the Shah Bano case? How could the conflict have beenbetter resolved? In this chapter I shall argue that the problem in the Shah Bano case was notso much that Muslims argued that the rights of women had to be violated in order to protectthe community, but rather that certain elements of the Supreme Court judgement whichgranted Shah Bano maintenance were perceived as threatening the distinctness and identityof the Muslim minority. The crux of the problem was not whether the Muslim need foridentity was strong enough to justify a violation of women's rights, but rather, how to meetthe Muslims' legitimate concern for autonomy with respect to personal law withoutendangering the rights of Muslim women. In the last part of this chapter I shall sketch apossible solution to this problem.Personal Law and Muslim IdentityHow exactly did gender rights conflict with the rights of the Muslim minority inthe Shah Bano case? As we have seen, most Muslim accounts of the Shah Banocontroversy linked it to two other important political events which made many Muslims inIndia feel especially threatened. The first event was the controversy surrounding theopening of the Ram Janmabhoomi temple at Ayodhya in Uttar Pradesh. The second eventwas the petition filed in the Calcutta High Court seeking the banning of the Quran on thebasis that it incited violence against non-Muslims. The escalation of communal tensions ingeneral, and Hindu-Muslim tensions in particular, created a heightened sense of insecurityamong the Muslims at the time of the decision.59The Chief Justice's recommendation that a uniform civil code be promulgatedwas perceived as yet another threat to Muslim identity. Many Muslims regard the Muslimpersonal law as symbolic of the distinctness of the Muslim minority. Any threat to Muslimpersonal law is seen as a threat to the minority's distinctiveness, and to the Muslim identity."The issue of personal law is, in fact, closely linked with the Muslim urge for identity." 105The fact that Hindu fundamentalists took advantage of the decision as an opportunity tostage anti-Muslim protests and to emphasize Muslim backwardness contributed to theperception that the decision was an attack on Muslim personal law.Kymlicka argues that the importance of culture to the ability of individuals tomake sense of their lives justifies taking special steps to ensure a minority group has asecure cultural context. This only justifies measures to protect the existence and not thecharacter of the cultural community. However, the Shah Bano case demonstrates the factthat whether it is the existence or the character of the culture that is at stake is often an issuein itself in conflicts over minority rights. In the Shah Bano case, Muslims perceived theSupreme Court decision as directly threatening the existence of their 'cultural community'.But women's groups ridiculed the idea that granting maintenance to a seventy-three yearold divorcee threatened Islam.In itself, the decision to grant maintenance to Shah Bano did not represent athreat to the autonomy of Muslim personal law. However, the judge's call for a uniformcivil code was directly threatening to the autonomy of Muslim personal law. At a timewhen the anti-Muslim efforts of Hindu fundamentalists were intensifying, and when Hindufundamentalist groups seemed to be achieving some of their communalist goals, theMuslim concern for the autonomy of the Shariat may not have been unwarranted. As such,the Muslim claim to autonomy over personal law seems a legitimate one, according to the105Balraj Puri, "Muslim Personal Law: Questions of Reform and Uniformity be Delinked,"Economic and Political Weekly, June 8, 1985, 987.60criteria laid out by Kymlicka. How does the Muslim demand for autonomy conflict withthe legitimate claims of Muslim women?Most Muslim leaders who opposed the decision did not argue that women hadno rights. Nor did they argue that the violation of the rights of Muslim women wasnecessary to protect Islam. In fact, many Muslims argued that women have better rightsunder Islam than those granted by the decision. 106 They argued that Islam hastraditionally been more progressive than other religions in regard to women's rights,especially in the areas, for example, of property and divorce rights. This argument isstrikingly similar to the argument of aboriginal groups in the recent constitutional crisis inCanada. Aboriginal representatives rejected the Charter of Rights and Freedoms notbecause they thought that women's rights were unimportant but because, they said,aboriginal traditions would give women a stronger basis for sexual equality than would theCharter. 107The decisions which set the precedent for the Shah Bano case aroused littleinterest from anyone. Both previous decisions, written by Justice Krishna Iyer, grantedmaintenance to Muslim women under section 125. In both decisions, Justice Krishna Iyerstressed the importance of alleviating the social injustices that women suffer. He arguedthat payments made to the divorcee by the ex-husband should be taken into considerationwhen the judge is settling the maintenance. However, if the amount paid by the husband isinsufficient to maintain the woman, maintenance must be granted to the woman in order toprevent destitution. The main differences between the two previous decisions and ChiefJustice Chandrachud's decision were the Chief Justice's comments about a uniform civil106See, for example, Badar Durrez Ahmed,"Women's Rights are Far Superior under Shariat tothose Provided by Section 125 Cr.P.C." in The Shah Bano Controversy, Ali Asghar Engineer, ed., 97.107Sarah Scott, "Aboriginal Men have Learned Sexism, Women Fearing Self-rule on ReserveSay," Vancouver Sun, Mar 30, 1992; On the problem the Charter poses for aboriginal communities ingeneral ( as opposed to just women) see Turpel, "Aboriginal Peoples and the Canadian Charter of Rightsand Freedoms", 149-157.61code and his comments directed specifically at Islam. 108 These comments were the partsof the decision that the fundamentalists emphasized in statements to the media in order tocreate opposition to the decision. 109 Muslim representatives who opposed the Shah Banodecision argued that the Supreme Court did not have the authority to interpret the Quran,and that the Supreme Court was interfering in Muslim personal law. Thus, Muslimopposition to the decision was based on concerns about the autonomy of the group, ratherthan on opposition to the substantive effects of the decision on Muslim women.Minority Autonomy and Gender RightsWhy did Muslim demands for autonomy conflict with demands for sexualequality ? It is possible that, within limits, different communities can protect women'srights in different ways without violating the principle of sexual equality. Just as humanrights are protected in different ways (albeit some better than others) in Canada., Britain andthe United States, women's rights may be protected differently in different communities.So resistance to specific provisions that protect women's rights is consistent with acommitment to sexual equality. This is the position that many Muslim representatives tookin the Shah Bano case. While recognizing the need for reform and the problems Muslimwomen faced, many Muslims opposed the Shah Bano decision on the grounds that itrepresented outside interference. 110108Kishwar, Madhu, "Pro Women or Anti Muslim?", 4; The two cases which set the precedentfor the Shah Bano decision were Bai Tahira v. Ali Hussain Fissalli, 1979, and Fuzlunbi v. K Khader Vali1980.109Ibid.; See also Mody, "The Press in India," 950.11°See, for example, Balraj Puri, "Muslim Personal Law."62In the Shah Bano case, many women's groups joined the Chief Justice incalling for a uniform civil code. Similarly, in Canada, the Native Women's Associationopposed native self-government unless the Charter and its provisions regarding sexualequality continued to apply to native communities. In both cases the minority group inquestion claimed to be committed to sexual equality, but argued that reform had to comefrom within the community, and had to be consistent with the traditions of the minoritygroup. Why did native and Muslim women continue to demand guarantees from themajority group in the form of a common civil code or a charter?Actually, these women's groups have very good reasons to be suspicious ofpromises for reform from within. This is the real crux of the reason why minority rightsand women's rights so often seem to conflict. Often, increased autonomy for the minoritymeans increased legitimacy for traditional elites who rarely represent women's interestseffectively. In the Shah Bano case the result of giving the minority more autonomy wasmore power and legitimacy for the Muslim Personal Law Board. This organization has notdemonstrated any commitment to reforming Muslim personal law or to improving the statusof Muslim women. Previously, women at least had the minimal guarantees of theconstitution and the Criminal Procedure Code. Similarly, some native women in Canadafear that self-government will give more power to traditional chiefs, mostly men, who willbe unchecked by any obligation to respect women's rights and their organizations. 111In the Shah Bano case, Muslim demands for autonomy in regard to Muslimpersonal law conflicted with the concern of some women's groups that autonomy forMuslims would deprive women of the minimal legal protection they previously enjoyed.Muslim personal law, like other religious personal laws in India, helps to perpetuate sexualinequality. Women's groups demanded that the government not relinquish its ability to111Sarah Scott, "Aboriginal men have learned sexism, women fearing self-rule on reserve say,"Vancouver Sun, Mar 30, 1992.63pursue the goal of sexual equality for Muslim women. At the same time, the MuslimPersonal Law Board demanded that the government cease interfering in the Shariat.Muslims demanded control over any reform of the personal law. Thus, the central issue inthe Shah Bano controversy was which group, the majority or the minority, had ultimatecontrol over the Muslim personal law.Kymlicka's account of minority rights outlines a justification for minority rightsbased on the importance of culture to individuals' identity, and provides some guidelines asto how to deal with conflicts between minority rights and individual rights. Although thisis interesting and important work, it is incomplete as an account of the issues that areinvolved in minority rights. The toughest issue in conflicts between women's rights andminority rights is not whether or not women have rights, or whether they are entitled tocertain things, but rather, which group decides how conflicts should be dealt with. Anythorough account of minority rights must address the issues that minority autonomy raises.Because Kymlicka's justification has neglected these issues, it is incomplete, and offerslittle guidance in dealing with many conflicts between minority rights and women's rights,such as Shah Bano.Community or Social Group?Thus far, our theoretical discussion has shed little light on the Shah Banocontroversy. This suggests a gap in minority rights theory. Minority rights theory offerslittle guidance in dealing with conflicts between groups within a minority as opposed toconflicts between individuals and groups. Earlier, I argued that thinking in terms of socialgroups rather than communities will help us begin to fill this gap. Recognizing theconflicts within groups highlights the difficulties involved in devolving power to a minoritygroup. Is it possible to grant comprehensive autonomy to the minority group, rather than64leaving some oppressed groups without the benefit of the legal protection they wouldotherwise have enjoyed?Thinking of Muslims as a social group rather than as a community helps toexplain why giving Muslims autonomy in the area of Muslim personal law was soproblematic. While Muslim representatives have often used the rhetoric of community topress their claims, in reality, Muslims as a group fall far short of community. This is not toargue that Muslims do not share a strong sense of identity, or to deny that Muslims havesignificant common interests as a group. The point is that these commonalities arecomplicated by other conflicts within the group. Recognition of the interests Muslimsshare must be balanced by an acknowledgement of the significant differences within thegroup. As previously argued, Muslims are characterized by deep social, regional andreligious differences. In addition, the many Muslim women who demonstrated in supportof Shah Bano brought to light the important gender cleavage between Muslims. The termsocial group, as defined by Young, better captures the limits of the mutual identificationbetween Muslims and makes it easier to recognize how this mutual identification iscomplicated by gender.This is not to suggest that Muslims will stop referring to themselves as acommunity. They almost certainly will continue to use 'community' since it is sopolitically charged. The very reason why this concept is inappropriate for politicaltheorizing about the Shah Bano case makes it especially useful to Muslim elites who wishto represent themselves as the sole legitimate voice of a united group.Recognizing the importance of the political divisions among Muslims is crucialto understanding why the Shah Bano controversy was such a political disaster for thePrime Minister. By consulting only Muslim fundamentalist groups such as the MPLB, thePrime Minister alienated progressive Muslims, Hindus and women's groups. Even theMuslims who were elected representatives of the Congress party were not consulted. ThePrime Minister's decision to recognize .the MPLB as the official representative of Muslims65without even engaging in consultation with other groups outraged those Muslims whorejected the fundamentalist leadership. Thus, Rajiv Gandhi's failure to recognize theimportant divisions among Muslims was a key factor in his mishandling of the Shah Banocontroversy.Muslim Autonomy and Sexual EqualityHow could Rajiv Gandhi have better handled the Shah Bano controversy?Recognizing that Muslims are a deeply cleaved group explains why simply giving in to thefundamentalists was such a bad decision. But it also highlights the difficulty of resolvingconflicts between gender and minority rights. Is it possible to protect a minority's rights toautonomy without compromising the rights of the women of that minority?Iris Young's approach to democracy and group rights begins to suggest asolution. Young argues that in a democracy, oppressed social groups ought to havespecial representation. Dominant groups do not need special representation since they arealready assured of a voice by virtue of being dominant. However, since people haveshifting and conflicting group identities, it ought to be recognized that social groups are nothomogeneous, and that the oppressive relations within the society at large are oftenmirrored in social groups. Racial or cultural minority groups are often riven by gender andclass divisions. For example, as a largely disadvantaged minority in India, most Muslimsshare some common interests. But other equally important interests, such as gender,crosscut the social group.Young argues that any institution designed to give special representation todisadvantaged social groups ought to reflect the divisions within that group. Anyinstitution designed to give special representation to the Blacks in the United States, forexample, ought to provide for a Black Women's caucus to ensure that women are not66excluded. Similarly, any body designed to represent women in the United States shouldprovide special representation for Black Women and Latinas, to ensure that women groupsrepresent all women, and not just white middle class women.With reference to the Shah Bano case, this would mean that any organizationdesigned to give Muslims autonomy in the area of personal law would have to include aMuslim women's caucus or body of representatives to ensure that the law is beingadministered in a way which respects the concerns of Muslim women. Instead of treatingMuslims as homogeneous, this organization would include all the social groups which hadan interest in the matter, especially Muslim women. This would recognize the fact thatalthough Muslims have many interests in common, Muslims may also have divergentinterests based on gender.By recognizing the Muslim Personal Law Board as the authority on Muslimpersonal law, the Prime Minister alienated many liberal Muslims as well as women'sgroups who felt that the MPLB did not represent their views. This situation could havebeen avoided if a new organization was set up to determine Muslim personal law. Thisnew organization could be elected by Muslims only, and could include several femalerepresentatives. These women's representatives would have a veto over any changes to theMuslim personal law which concerned Muslim women. This would have the benefit ofavoiding situations in which the secular state apparatus (i.e. the Lok Sabha) createsreligious personal law such as the Muslim Women's Bill. Muslims would be assured thattheir personal law was secure from interference from the Hindu majority, and Muslimwomen would have some control over those decisions which affected their lives and senseof identity.67False ConsciousnessBut would the control of Muslim women as a group be sufficient to guaranteethe rights of individual Muslim women? Some may object that education and socializationhave made Muslim women incapable of protecting their own interests. Democraticinstitutions can not be expected to work when the members of that democracy are notadequately informed about the issues they must decide. Muslim women are educationallythe most backward women in the country. 112 Thousands and thousands of Muslimwomen rallied against the Shah Bano decision. The rallies in support of Shah Bano weresmall in comparison, usually numbering in the hundreds. What explains the opposition ofmost Muslim women to a decision that is seemingly in their interest? Can Muslim womenbe expected to protect their own interests through democratic institutions?The large number of Muslim women who demonstrated against the Shah Banodecision is not necessarily evidence that Muslim women do not support a Muslim women'sright to maintenance. Some commentators argued that the number of women at thedemonstrations in the Shah Bano controversy could not be seen as an indication of the levelof support for or against Shah Bano because it would have been difficult for a woman todemonstrate against the will of her husband and the local religious authorities. 113 Manywomen who privately supported Shah Bano may have been afraid to do so publicly for fearof social ostracism.Even assuming that there were thousands of women who privately supportedShah Bano, but were afraid or otherwise unable to demonstrate, what of the thousands ofwomen who did demonstrate against the decision? As has been pointed out, opposition to112Salcina A. Hasan, "What Muslim Women Feel," Indian Express, Mar. 21, 1986.113Ibid.; Zarina Bhatty, "Muslim Women Bill Evades Issues", The Times of India, 8 March1986, reproduced in The Shah Bano Controversy, ed. Ali Asghar Engineer, 107-110.68the decision was not necessarily equivalent to opposition to Muslim women's rights.Muslim women, like many other Muslims, opposed the Chief Justice's recommendation ofa uniform civil code and were insulted by his references to the degradation of women inIslam.Many liberal Muslims are convinced that Islam is very progressive in regard towomen's rights compared to other religions. As Arif Mohammed Khan argued: "Thepoint is, my faith has always been progressive on matters relating to women." 114 In histime, Mohammed was a social reformer who did bring many important improvements forwomen, although certain Q'uranic injunctions are far from fair to women. 115 As BalrajPuri argues, "...the only way to judge the spirit of Islam is by the direction it gave topreIslamic laws and customs. The attempt to humanise an unjust patriarchal system wasindeed revolutionary. It is unfair to measure the reforms introduced by Islam, torn out ofits historical context, in terms of the values of today." 116Many practices which discriminate against women are customary practiceswhich have survived from the time preceding Islam and which have come to be associatedwith Islam, rather than practices which derive originally from Islam. Although the ulema,who currently possess the authority to interpret Muslim personal law, do not see reformregarding women's rights as an important goal, many liberal Muslims and Muslim womenwho support women's rights see reform as pressing and as continuing the traditional roleof Islam as a progressive religion. As Zoya Hassan argues, "Every law needs to keep pacewith the times and this applies even more to something like the Muslim personal law,114Interview with Arif Mohammed Khan, in Janak Raj Jai, Shah Bano, 115.115For example, while Mohammed made the marriage contract between men and women muchfairer for women at the time, there are still glaring inequalities in the laws governing marriage and divorce.In addition, in Islam a son inherits twice as much as a daughter. See Indira Jaising, "The Politics ofPersonal Law", reproduced in The Law and Gender Justice, ed. Subhadra Patwa, (Bombay: Research Centrefor Women's Studies, SNDT Women's University, 1991): 10-11.116Balraj Puri, "Muslim Personal Law," 20.69which even to begin with was rather liberal for its times. The Prophet was extremelyconscious of the need for the uplift of women." 117 Even poor, illiterate Muslim womenseem to have the conviction that Muslim women have a right to maintenance. As AshaBee, a Muslim women living in a slum near Madras argued, "Of course the man shouldgive maintenance to the woman he has divorced. Where will she go, and how will shelive?" 118 Thus, the seemingly large number of Muslim women who opposed the ShahBano decision is not evidence that Muslim women do not support women's rights, even aMuslim women's right to maintenance.While Muslim women are formally educationally backward, they are certainlysufficiently educated to participate in democratic institutions, especially in those designed toprotect their own interests. However, it is possible that Muslim women would simplydefend inequitable Muslim traditions because they identify more strongly with traditionalideas about women than with more progressive views. This would be a bigger probleminitially than it would be in the long run. Involvement in the process of electing women'srepresentatives to administer Muslim personal law would foster a sense of the importantpolitical differences between men and women. In addition, Muslim women's identity aswomen would grow stronger if their identity as Muslims was more secure. Thus, it ispossible that giving Muslim women some control over the administration of Muslimpersonal law would enhance sexual equality in the long run.Class differences between women might also pose a problem for the women'srepresentatives. For example, the issue of maintenance has different implications forwomen married to poor men than it does for women married to rich men. It would be littleconsolation to Muslim women that they had a right to maintenance if their ex-husbands117 Zoya Hassan quoted in Janak Raj Jai, Shah Bano, 46.118 Rasheeda Bhagat, "How poor Muslim women look at maintenance," Indian Express, April11, 1986.70could not afford to pay it. On the other hand, women married to rich husbands mightthink the right to maintenance very important.But since this new organization would only have control over personal law, itwould have little opportunity to address class issues. For example, in the case ofmaintenance, the real problem is that poor men often do not have enough money to supportall their dependents. This problem would not be alleviated by reform of personal law. itrequires broad social policy initiatives that would be beyond the powers of the proposedrepresentative institution. Since class differences between women could not be resolved byreforming personal law anyway, whether or not the Muslim women's representativesdefend class interests in this case is not as pressing an issue as it might be in othersituations.Opposition by ElitesPerhaps the biggest obstacle to implementing this proposal is that anyorganization created by the government to represent a minority will have to compete forlegitimacy with those institutions or organizations by which the minority is alreadyrepresented. In the Shah Bano case, for example, the Muslim Personal Law Board wasperceived as having a great deal of influence among Muslims. This was part of the reasonwhy the Prime Minister conceded as much as he did to the Muslim Personal Law Board. Ifthe Muslim Personal Law Board opposed the idea of women's representatives, they couldhave brought the same threats against the Prime Minister that they did in the Shah Banocontroversy.As Brass argues, elites of minority groups often exploit political problems toenhance their own political power. It is clear that the MPLB exploited the Shah Banocontroversy to this end. But it is important to remember that such political elites are limited71by the real concerns of the members of the group. It would be much more difficult for theMPLB to organize demonstrations against setting up an instrument specifically designed togive the Muslim community more autonomy than it would be to stir up discontent over aSupreme Court decision recommending a uniform civil code. In addition, if organizationssuch as the MPLB were entitled to some representation it might not be as difficult toconvince them to agree to participate in the mechanism. Furthermore, the newrepresentative body would gain significant legitimacy from the fact that it focussed on beingtruly representative and provided for the participation of women.Gradually introducing effective representation for Muslim women is anotherway of getting around opposition from Muslim fundamentalists. At first, the governmentcould consult elected women representatives, university professors and Muslim women'sgroups. The government could then require that the MPLB consult such groups, or requirethat such groups send women representatives to attend meetings of the Board and castvotes. The government could then require that the number of women representatives beincreased, or that existing women representatives be given more power.In the case of Muslim personal law, one problem with the idea of women'srepresentatives is that only certain people have the authority to interpret the law. The non-traditional female representatives might be objected to on those grounds. But it would bedifficult to argue that female Muslim university professors and elected officials should nothave at least the opportunity to participate in making decisions which affect Muslimwomen. It is said that Islam must be adapted to the specific circumstances of the societywhich it governs. Who better to advise on the specific circumstances of Muslim womenthan Muslim women themselves? I think that the debate surrounding Shah Bano makesclear that there is fertile ground for reforming Islam from within, including involvingwomen in the reform process.This is not to suggest that there will not be serious political obstacles to settingup a new representative mechanism. But these obstacles may not be insurmountable. And72it is clear that merely giving in to vested interest groups is not an unproblematic solutioneither. That is precisely what Rajiv Gandhi did in recognizing the MPLB as a group ofcardinals for the Islamic religion, and his handling of the Shah Bano controversy has beencalled "one of Rajiv Gandhi's biggest political disasters." 119 Giving in to vested interestgroups is at best a short sighted palliative to ethnic conflict. It lends even more legitimacyto the group that makes the loudest demands, confirming the old adage that it is the squeakywheel that gets the grease. In the Shah Bano case, Rajiv Gandhi essentially intervened inthe power struggle that was occurring within the Muslim community between the MPLBand other Muslim organizations and gave the MPLB more legitimacy than it already had.This alienated the Congress Party's traditional Muslim support among the more enlightenedor progressive segment of the Muslim community, which did not see the MPLB asrepresenting them. There are no easy solutions to these conflicts. But it is clear that tryingto create a more representative mechanism to administer Muslim personal law would havebeen less costly politically and more effective in the long term for both India and theCongress Party than giving in to the MPLB proved to be. At the very least, introducingeffective representation for women is worth trying.ConclusionIn conclusion then, the problem in the Shah Bano case was that Muslimdemands for autonomy in regard to Muslim personal law conflicted with the concern ofsome women's groups that autonomy for Muslims would deprive women of even the mostminimal legal protection. The issue was which group would have the final word onreforming Muslim personal law. Women's groups demanded that the government not119 Elisabeth Bumiller, May You Be The Mother of a Hundred Sons, 165.73relinquish its ability to pursue the goal of sexual equality for Muslim women.Simultaneously, Muslims demanded control over any reform of the personal law.Shah Bano is an example of one of the most difficult problems that arises inregard to minority rights: what to do when granting autonomy to minorities threatens toexacerbate the situation of oppressed groups within the minority. Minority rights theoriesoffer little guidance on this issue. Thinking in terms of social groups, rather thancommunities, helps to fill this theoretical gap. The concept of community does not aid inconceptualizing conflicts within the community. Nor does it help to understand how theseconflicts relate to other conflicts in the society at large. The concept of a social group, onthe other hand, is quite useful for conceptualizing the nature of conflict within minoritygroups. In the Shah Bano case, thinking of Muslims as a social group highlighted theproblems involved in granting Muslims autonomy in regard to Muslim personal law. Theproblem is how to grant comprehensive autonomy to the minority group rather than leavesome oppressed groups without the benefit of the legal protection they would otherwiseenjoy.I have argued that conflicts over the rights of minority women are best dealtwith by creating new representative bodies which have special provisions to ensure thatwomen are sufficiently represented. In the Shah Bano case, this would have meantcreating a new mechanism to administer Muslim personal law instead of simplyrecognizing the Muslim Personal Law Board as the legitimate representative of the Muslimcommunity. Creating a new mechanism is more sensitive to the political reality of Muslimsin India, which is that they consist of widely dispersed groups characterized by significantdifferences. It would also make some provision to ensure that Muslim women have someaccess to the institutions which make the rules which govern their lives. I have recognizedthat while creating such a mechanism would be a difficult process, it is at least a viablealternative to the kind of fiasco that followed the Supreme Court decision. In a countrywhich is supposedly committed to sexual equality, it ought to be tried.74Implications for Minority Rights TheoryWhat does this discussion of the Shah Bano controversy reveal about minorityrights theory? As initially noted, there is no political theorist who directly addressesconflicts between minority and gender rights, which itself suggests a gap in the theory.Certainly, the theorists discussed in this paper do not deal with the issue adequately.Because Kymlicka does not thoroughly address the issue of which group should controlthe outcome in conflicts over minority rights, his approach is incomplete as a theory ofminority rights. Young's approach is a general theory of justice rather than a theory ofminority rights, although the implications of her general approach to political theory haveclarified the issues in the Shah Bano controversy.Part of the reason why minority rights theories have so little to say aboutconflicts like Shah Bano is that they tend to focus on the conflict between individual andcommunity. But this framework is not adequate for dealing with conflicts between groupswithin the 'cultural community', which are some of the most difficult issues in minorityrights. This gap in minority rights theory could be rectified by building on some of theprinciples suggested by Young. Our discussion of Shah Bano suggests that conflicts overminority rights will be easier to understand and resolve if the complexity of the socialaspect of identity is recognized. The social aspect of our identity is limited by more thanjust cultural community. Gender and class, for example, also contribute to our self-understanding in important ways that are not captured by the term 'cultural community'.Understanding a minority group as a social group clarifies the issues at stake inconflicts over minority rights and gender rights. When the minority is conceptualized as adivided body, which nevertheless shares some extremely important interests, grantingautonomy to a minority group becomes a theoretical a well as a practical problem. When75the rights of a group, as opposed to those of an individual, are at stake, different solutionsare possible. The solution outlined in this thesis recognizes that giving oppressed groupsincreased control over decision making can help to alleviate group oppression.76BIBLIOGRAPHYBooks and ArticlesAhmed, Akbar S. Discovering Islam: Making Sense of Muslim History and Society.New York: Routledge & Kegan Paul Inc., 1988.Brass, Paul, R. Ethnicity and Nationalism: Theory and Comparison. 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Readings on Women Studies Series;4, Research Centre for WOmen's Studies, SNDT Women's University, Bombay,1991.Balraj. "Personal Law Board: Questions of Reform and Uniformity be Delinked,"Economic and Political Weekly, vol XX, no.23, June 8, 1985, 987.Ramazanoglu, C. Feminism and the Contradictions of Oppression. London:Routledge,1989.Shourie, Arun. "The Arif Mohammed Affair," in Shah Bano, ed. Janak Raj Jai, forewordby Baharul Islam (New Delhi: Rajiv Publications, 1986): 125-142.Smith, Donald Eugene. India as a Secular State. Princeton: Princeton University Press,1963.Stout, Lucy Carroll. "The Shah Bano Case: Implications for Pakistan," Presented atAssociation for Asian Studies Meeting, Washington, D.C., 1989.Subhamma, Maliadi. Islam and Women. trans. M.V. Ramamurty, New Delhi: SterlingPublishers, 1988.Taylor, Charles. "Cross-Purposes: The Liberal-Communitarian Debate" in Liberalism andThe Moral Life, ed. 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Princeton: Princeton UniversityPress, 1990.79Newspapers and PeriodicalsBhagat, Rasheeda. "How poor Muslim women look at maintenance," Indian Express,April 11, 1986.Hasan, Sakina A. "What Muslim Women Feel," Indian Express, Mar. 21, 1986.Latifi, Daniel. "The Unfriendly Act," Sunday (Calcutta, India), June 8-14, 1986. p.32-37.Malhotra, Raghubir. "Shah Bano Judgement and Aftermath," The Economic Times(Bombay, India), Mar. 30, 1986.Nagle, Patrick . "Fear of Chiefs Prompts Self-Government Battle," Vancouver Sun, April2, 1992.Prabhu, Uma."Hearing aginst Syedna Today", Times of India (Ahmedabad), June 13,1992.Punwani, Jyoti. "Muslims in Danger," The Sunday Observer (Bombay, India), Oct.6,1985.Rai, Shariat . "We are Absolutely Against a Common Civil Code", Indian Express, June26, 1986.Scott, Sarah."Aboriginal men have learned sexism, women fearing self-rule on reservesay." Vancouver Sun, Mar 30, 1992.Shahabuddin, Syed. "The Turmoil in the Muslim Mind," The Onlooker. 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