(Mis)appropriated liberty: identity, gender justice, and Muslim personal law reform in India.

• Author: Choudhury, Cyra Akila

"Muslims, particularly, are an undigested lump in the throat of Hindu professionals. They must be absorbed-that is Hinduized--or coughed up." (1)

"The Religious Right is writing the obituary to imagination, imagination that is born of diversity, difference, dissent. And in India, it is doing it in and through the discourse of secularism." (2)

Muslim women in India often find themselves caught between loyalties to their religious or ethnic communities and a desire for greater freedom and equality as women within those communities. (3) They face significant constraints in reconciling these conflicting influences, and a great many of them do it in the context of poverty. As Zoya Hasan notes, "Muslim women are triply disadvantaged--as members of a minority, as women, and most of all as poor women." (4) On one hand, traditionalists within Muslim communities in India seek to universalize and ossify interpretations and practices of Islam that maintain women's status as second-class members with far fewer rights than men. Resistance to conservative interpretations of Islam is cast as disloyalty and can call into question the very identity of a Muslim woman within her community. On the other hand, loyalty to religious interpretations and to principles that are clearly gender-biased calls into question Muslim women's commitment to emancipation and gender justice. (5) These experiences are exacerbated for women who are economically impoverished. (6)

In spite of these opposing forces, Muslim women continue to struggle articulately for their rights at the crossroads and margins of Indian and Indian-Muslim society. Although they have made progress, Muslim women are still subject to a separate code of religious family law that, after being codified nearly seventy years ago, has never been reformed and is outdated. Under this code, Muslim women continue to be disadvantaged. (7)

This Article argues that, in order for Muslim women to be fully emancipated from an unjust and discriminatory family law, their unique position and experience at the intersection of gender discrimination and religious discrimination must be taken into account. (8) Proposals for reform that fail to reconcile communitarian religious loyalty and the importance of Muslim-Indian identity with individual gender rights will hold little appeal for the majority of Muslims. (9) This Article argues that Muslim Personal Law has become so interwoven with significance for Muslim identity that dismantling the law or even reforming it constitutes a threat to this identity. This is true regardless of the fact that the actual impact of the formal law on the everyday lives of Muslims may be minor.

Furthermore, the way in which Indian secularism operates reinforces religious identity and protects religion in the public sphere. Following the ancient maxim sarva dharma sambhava, or "all religions are valid," India's founding fathers wrote respect for all religions into the constitution. This allows each religious community to be governed by its particular set of family laws, while a universally applied secular law governs all other areas of the law. However, this respect for religious pluralism has come at the cost of many women's rights. (10) It has meant that Muslim Personal Law remains in the limbic state of being subject both to state intervention, through codification and enforcement, as well as nonintervention, as part of the private religious sphere of Muslims. This Article explores this impasse and its effects on formal gender injustice and inequality in the areas of dower, marriage, divorce, and maintenance under Muslim Personal Law.

In order to eliminate these inequalities and injustices encoded in the law, a number of solutions have been advanced. This Article evaluates the two most enduring solutions. First, there has been a recurrent call for the passage of a uniform civil code (UCC) that would either supplant personal laws entirely, resulting in the abolishment of state recognition of religious law, or offer an "opt-in" alternative, under which each woman can choose (at the time of her marriage or in later litigation of family law issues) to have the union governed by either secular or religious law. Support for the UCC has come from the Hindu Right, which demands the abolition of personal laws generally. Support has also come from secular feminists both within and outside of India, including Muslim secular feminists, who generally prefer the half-measure of an opt-in code. The second solution, offered by Muslim traditionalists, calls for a more faithful and strict application of existing Muslim law. Proponents claim this is both just and protective of women.

Neither the secular feminist UCC nor the traditionalists' solution is adequate to provide Muslim women the rights they deserve. (11) The secular feminist approach of an opt-in UCC fails to recognize certain key limitations. First, it assumes that a robust secularism exists in India and would produce a code that operates neutrally across all religions. Second, it assumes that there is political will for gender justice, as opposed to, for instance, gender protectionism based on patriarchal notions of womanhood. (12) An examination of the influence of the Hindu Right in Indian politics and on secular institutions reveals that neither of these assumptions is warranted. Therefore, a "secular" code would be unlikely to operate neutrally or give women the kind of equality and justice they desire. Moreover, a secular opt-in marriage law already exists. Examining this law reveals the limits of Indian secularism and its vulnerability to majoritarianism. (13) The opt-in UCC approach also fails to recognize the limits of formal rights and makes assumptions about the effects of these rights that may not be defensible.

Traditionalists, on the other hand, take the position that Islamic law already adequately provides for women's rights, and that all that is required is more robust enforcement. Relying on the divinity of the Islamic law, traditionalists further argue that human reform of the law is unadvisable, if not forbidden. (14)

These two dominant options pose a difficult choice between a secular code that requires women to abandon religion and acceptance of a traditional patriarchal construction of religious law. This Article offers a third approach--albeit also a half-measure--to improving Indian-Muslim women's lives. This Article argues for an intermediate move that couples a renewed commitment to personal law reform--through direct community action and with the support of secular feminists--with the drafting of a mandatory Uniform Civil Code with a feminist focus advocated for by secular feminists. This dual approach, inspired by the grassroots efforts of Muslim women in India and worldwide, (15) pushes both the Muslim traditionalists and the state to move women's rights forward. It is more likely to succeed because it creates pressure both within the community and on the state to change, but does not threaten the edifice of personal laws, at least in the short term. This approach, which argues that religious laws are flexible and capable of being just, preserves the role of religion in family law while challenging religion to meet women's substantive justice demands. It is a solution that has not been seriously considered by secular feminists who assume that religious laws can only be patriarchal and unjust--a curious mirroring of the position of religious traditionalists who make similar claims of immutability. Further, this approach recognizes that personal law is an important element of Muslim identity and that attempting to remove it would be considered a threat to the community. At the same time, it challenges Muslims and other religious minorities to commit to the secular nature of the Indian State and to move toward a universally-applied code that realizes the social justice concerns of Islam. Though the code may not be a religious document, if properly drafted without communal bias, it can and should be construed as not conflicting with Islamic norms and, therefore, as legitimate.

Before discussing the legal reform proposals, two contextual considerations require elaboration in Part I. First, in order to explain why personal law is such an important symbol to Muslims in India, so much so that any attempt to reform it by the state has been met with strident and successful resistance, a genealogy of a specifically "Muslim" identity is key. The purpose of tracing this history is to illuminate how religious legal concessions made by the British in order to create a separate group became entrenched as the bedrock of Muslim identity in the Indian State. Moreover, this genealogy demonstrates how the independence movement later used religion to reinforce the separation of Muslims from "Indians." It also shows how Muslims began to see themselves as a separate political identity group with specific, common needs for representation and security in a state increasingly defined and created by majoritarian discourse. The genealogy also explains, to some degree, the reasoning behind traditional Muslims' unwillingness to shed the personal law system entirely.

A second genealogy, that of Indian secularism, helps to explain how secularism in India has been able to accommodate religious law and practice in ways that reinforce separation and make it difficult to enact a civil code that supersedes personal law. Moreover, it puts the role of religion in public life into context and underscores the strikingly different attitudes regarding secularism of Indian jurists and constitutionalists as compared to their American counterparts. This second genealogy, consequently, explains the different evolutions of jurisprudence regarding religion in the public sphere.

With this historical background in place, Part II lays out the black letter of Muslim Personal Law. While Muslim Personal Law covers a number of areas...