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The Shah Bano controversy: gender versus minority rights in India

University of British Columbia

Shah Bano was a seventy-three year old Indian Muslim divorcee who successfully sued her ex-husband for maintenance. Her husband, an advocate by profession, 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 fundamentalists protested the Court's interference in Muslim personal law, and Hindu fundamentalists organized anti-Muslim rallies to celebrate the decision and to protest Muslim backwardness. The political backlash from the decision prompted the government of Rajiv Gandhi, who had 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 into Parliament, the Muslim Women (Protection of Rights on Divorce) Bill 1986, that effectively reversed the decision. This bill proved to one of the most unpopular bills the Prime Minister ever introduced, and it cost him important support even within his own party. Why did the rights of the Muslim minority conflict with the rights of Muslim women in the Shah Bano case? How could the conflict have been better resolved? In order to answer these questions, this thesis explores the theoretical literature on conflicts between gender and minority rights. I argue that, as it stands, the theory contributes little to an understanding of Shah Bano and other conflicts between gender and minority rights. This thesis 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 in regard to Muslim personal law conflicted with the concern of some women's groups that autonomy for Muslims would deprive Muslim women of even the most minimal legal protection. The issue was which group would have the final word on reforming Muslim personal law. Women's groups demanded that the government not relinquish 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 complex problems that arises in regard to minority rights: what to do when granting autonomy to minorities threatens to exacerbate the situation of groups that are systematically oppressed within the minority culture. How is it possible to grant autonomy to a minority without depriving minority women of the legal protection they would otherwise have enjoyed? In this thesis I propose that some protection for women's rights could be obtained by requiring that institutions that represent the minority group must include a significant number of women representatives in order to be officially recognized by the State. I then briefly examine this proposal as a possible solution to the Shah Bano case, and consider a few practical obstacles to implementing the proposal.

Thesis/Dissertation

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2008-12-16

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http://hdl.handle.net/2429/2930

Political Science

University of British Columbia

UBCV

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