India: State, Gender, Community The Construction of Hostile Identities

By Soma Marik

IN THE COLONIAL and post-colonial periods in India, both the state and the religious communities identified women as a site of concern.  Yet at the close of the 20th century, the condition of women in India remains deplorable—a condition that should not be belittled on the ground that colonialism used it in order to discredit India's peoples and achievements.

Colonial Modernism and a New Patriarchy

The British colonial state, in order to justify and legitimize its rule and to dominate the colonized, always referred to the "backward" and "retrograde" social conditions of Indians, denigrating India's religions, customs, cultures, norms, values.  One of its strongest claims was that women in India were extremely oppressed.

From the ban on sati to the age of consent controversy the state portrayed itself as the "protector" of women from obscurantist Indian males. [See note 1]  A sati is a faithful/loyal/ chaste wife.  The ban on sati was a ban on the "self-immolation" of widows on the funeral pyres of their husbands.  The ban came after protracted debates, with conservative Hindus asserting that the colonial state had no right to dictate law to them.

The next major disputes were over the remarriage of widows and the ban on polygamy.  Remarriage was legislated, again in the teeth of stiff conservative masculine opposition.  Polygamy illegalization had to await independence.

In the 1890s a three-way controversy arose over the age of marriage.  Phulmoni, a young girl of 10, died as a result of sexual intercourse forced on her by her husband.  For Hindu nationalist conservatives, the British were unable to understand the willing sacrifice of Hindu women.  For some, the way out was simply to raise the age of consent to 12.  For a few others, like Iswarchandra Vidyasagar, the point was to wait until a girl had matured physically and mentally for the childbearing function rather than mechanically setting an age.

There are two points to note.  First, the oppression of women was very real, regardless of who was raking up the data in order to score brownie points.  Second, there did exist a line, however thin, of men, and as the century progressed, of women, [See note 2] who were highlighting women's oppression rather than an issue between two groups of men in a struggle for power.

It is interesting to note that it was a Brahmin reformer, Pandit Iswar Chandra Vidyasagar, who stressed the liberal value of the rights of women as individuals.  He pointed out that male control over women's sexuality was what kept women in their widow stage, while it was the British state which agreed to legislate only when provided with evidence that Hindu shastras, namely the Parashar Samhita, provided for widow remarriage.

Contrary to its assertions, the process of personal law codification by the British colonial state did not have "modernization" of India on the agenda.  The British had conquered an extensive territory within which there lived different peoples with different laws and customs.  In those areas where the politico-economic needs of the capitalist rulers and their colonialist state was paramount, there was no hesitation in the imposition of uniform laws entirely under their supervision.

But in other areas, eventually to be designated as "personal laws," notably for marriage, divorce, inheritance, adoption, rights of widows and guardianship, where contemporary English law talked about ecclesiastical laws (laws based on the scriptures), the British were willing to be flexible.  In the formative period of colonialism the British were aware of the need for collaboration with the indigenous elites.

The flexibility was based on the aim of the colonial state to create a base for itself by pushing its homogenizing agenda, through negotiating with local elites.  As a result, lawmaking in what came to be called "personal laws" was based neither on the principle of pluralism and respect for the customs of all the diverse groups nor on the principle of liberal individualism.

Beginning in 1772 the colonial state tried to codify the Hindu and Muslim laws separately to create monolithic and mutually opposed Hindu and Muslim communities.  To explain these laws, to get at the proper interpretations, they called upon maulavis and Brahman pandits. This had two clear-cut consequences: 1) Despite all the condemnations of "barbaric" customs like sati, the state was willing to enact reforms in the sphere of personal laws only when there existed clear shastric or shariat-based (i.e.  Hindu or Muslim) sanctions; 2) the rights of women were not paramount but expendable.

Thus the personal laws created by the British were themselves the result of an artificial homogeneity imposed by the state in its own interests, a homogeneity created often through negotiations with local religious and economic elites, who wielded power at the sanction of the colonial state.

In pre-British India, many Hindus and Muslims lived under laws based in local custom.  So why was it necessary to retain a particular kind of Hindu or Islamic law only in one particular domain?  Clearly, the state was providing support to Hindu upper caste, economically powerful, patriarchal elites.  So the supposedly uniform Hindu or Muslim community, far from being the original social grouping, appears from the outset as the creation of the state.

The creation of religious identities was pure politics.  Muslims in colonial India lived under local laws/customs, and had different cultures.  Muslims in the Punjab, the North West Frontier and the Central Provinces were governed by local customary laws.

Three groups had an interest in homogenizing all these forces—British imperialism; the ulama [Muslim religious authorities] and the conservative semi-feudal landlords; and also, the Westernizing liberal reformers.  The conservatives wanted to establish their own control over the large-scale Muslim population.  As for the Westernizers, the Government of India Act of 1935, followed by the elections of 1937, made it clear to them that if they wanted to win the Muslim seats, they had to make a stronger appeal to a much more homogeneous community. [See note 3]

The two Acts which were passed in this period reflected the concerns of both groups.  The Shariat Application Act of 1937 claimed that its stated purpose was to bring Muslims under the shariat instead of customary laws in order to recognize their property rights.  In fact, women's right to property was supposedly the motivating factor for this law.

But an amendment by Muslim leader Muhammad Ali Jinnah kept the property of landed elements out of the purview of the act, under the pretext that it would lead to fragmentation of consolidated agrarian holdings.  Moreover, individuals had the right to dispose of their wealth through wills.  Thus an artificial community was homogenized while professing the protection of women's rights. [See note 4]

A similar situation came up in 1939.  A majority of Indian Muslims were governed by the Hanafi School of Law in Sunni jurisprudence, a provision of which allowed Muslim women to come out of difficult marriages by converting to some other religion.  The bill proposed in 1939, instead of making the terms of divorce easier, sought to debar Muslim women from the advantages they had earlier.  In the name of protecting women, the act helped certain conservative elements to establish control over women's sexuality.

So the laws that for the first time created the Muslim community also subordinated gender to community.  Further, this process of creation of a common identity overlooked the space needed by the Shias, a minority within the Muslims of India.  Only one school of Sunni jurisprudence was recognized.

Since the British had claimed that their rule would bring about the modernization of India, the majority of Indian responses also accepted this premise.  But accepting the terrain of the British also meant accepting claims about religious authorities' "correct interpretations" of the scriptures, as the basis for law reform.  Few deemed the need for reforms concerning women as a project needed for its own sake.

Most reformers also accepted that community laws/ shastric injunctions should be considered the basis for reforms.  Even the best of reformers kept gender subordinated to community identity, with a clear prioritization of North Indian shastric traditions.[See note 5] Gender was thus a contested terrain between two sources of patriarchal interpretation and practice—colonial and indigenous.

Competing Hindu Nationalisms

There next developed a clear break between a "cultural nationalism," tinged with Hinduism, and a "militant Hindu chauvinism." The rise of this militant Hindu chauvinism in the early 20th century appears to have resulted from challenges to the upper caste and class power from peasants, from activists of the non-Brahmin movements, and others, especially the newly emerging non-Hindus.  In the early twentieth century worries about a further decline of upper-caste hegemony were heightened by the prospect that untouchables might secede from the fold of Hindu community.

The struggle against this threat led to the creation of a reformed fundamentalism with a Hindu supremacist agenda.  Tanika Sarkar has argued that this Hindu supremacist discourse also incorporated considerable manipulation of gender issues. [See note 6]  In this discourse, upper caste Hindu women were seen simultaneously as the objects of Muslim lust, marginal figures within the community and, at the same time, mothers of the future leaders of the community who needed to learn the new politics.

This new politics of community was based on the creation of an "other," which was usually the Muslim community.  Two key figures in the development of this discourse were Dayanand Saraswati and V.D. Savarkar.  Dayanand accepted the movement for social reform with the overt agenda of the liberal reformers regarding women.  The reasons he gave, however, were exclusively about serving the interests of the community, in an ominously fascist way.  For instance, he was in favor of widow remarriage because he wanted the optimum use of potential childbearing wombs.

For V.D. Savarkar creation of the Muslim "other" as opposed to the "self" of Indian (=Hindu) culture/civilization was a concrete political necessity.  His major theoretical work is The Six Glorious Epochs of Indian History.  Savarkar identified the Hindu community with the Indian nation.  He replaces god with the nation as the crucial referent for moral decisions.

This is important because then the demands of the community/nation can be perceived as adequate justification for actions which, by traditional as well as by modern secular ethics, would be considered immoral.  This is made explicit when Savarkar repeatedly criticizes Hindu heroes like Shivaji for humane behavior to Muslim women.  (The incident of Shivaji capturing the daughter of the governor of Kalyan and sending her back with full honors was often celebrated by other communalists, particularly in Maharashtra, as a sign of Hindu tolerance in opposition to Muslim behavior to Hindu women.) Savarkar rejected the moderate form of Hindu communalism and advocated brutality toward Muslim women.  The nation tracing its contours on the bodies of women: Women of the upper-class, upper-caste majority community were the custodians of the national honor—not honor for their own sakes, but for the male-defined community/nation.  For the same reason, defiling the honor of the opposite community was best done through the women of the opposite community. [See note 7]

Savarkar's definition of a community was a purely political entity based on race and the joining of religious dogma, so as to mobilize the majority of Hindus while streamlining all differences, creating a monolithic entity.  Race theory was the normal basis of his creation of others, excepting Muslims: He lumped together all the Islamic peoples, to validate the construction of Muslims as the principal enemy to the Hindu nation.  Savarkar's narrative consistently projected Muslim males as rapists who could be stopped only if Hindu men gave up their misplaced sense of chivalry and plunged into a "tit for tat" policy. [See note 8]

Since women were imagined as perennially threatened, a major step was taken when the Rashtra Sevika Samity (RSS) agreed to launch a separate women's wing.  [RSS is a militant Hindu-communalist cadre group that forms a crucial component of the current governing party BJP—ed.] The RSS was founded in 1925 as a response to mass anti-colonial movements, as well as to the fear of united Hindu-Muslim action.  Over the next two decades the RSS attempted to counter secular nationalism and never took part in any anti-British movement.

Gender fitted into this discourse in two ways: 1) The revival of the narrative of continuous assault on Hindu womanhood; 2) A distorted use of the census data and whipping up the fear that the Muslim population in India would overtake the "dying Hindus." This eugenic emphasis focused on the Hindu female body and its capability for bearing strong and heroic sons. [See note 9]

State and Community in Independent India

The Indian constitution adopted in 1947 created a tension among the rights of 1) the abstractly equal individual, posited in articles 14 and 15; 2) the historically/ socially marginalized/deprived sections, so that substantive equality can be achieved (article 15, section 3, for example); 3) the community (articles 25-30).

At the time of the adoption of the fundamental rights, Amrit Kaur, one of the members of the Constituent Assembly explained that the constitutional guarantee of freedom of religious practice might stand in the way of any progressive legislation in the future.

In the communally charged atmosphere of the 1940s and early 1950s the constitution makers highlighted the need for national integration by proposing in the Directive Principles the eventual promulgation of a Uniform Civil Code (UCC).  In the proposal for a UCC the concern for gender justice was submerged into a national integrationist perspective.

One secular act passed in this period was the Special Marriage Act of l954, by which any two Indians could marry regardless of their religion.  It is noteworthy that the first retrograde legislation also concerned this act.  During the (1970s) emergency, Mrs.  Indira Gandhi had an amendment to this act passed, whereby if two Hindus married they would continue to be governed by Hindu property laws instead of the Indian Succession Act of 1925.

When Hindu communalists claim that in the name of secularism the Indian state has always appeased Muslims, we should understand that the reality is different.  The state has compromised with Muslim communalists in the same way it has compromised with Hindu communalists.  Thus the bill which sought to bring about a uniform law for child adoption for all Indians was repeatedly, as shown by Kirti Singh, [See note 10] dropped because of resistance from so-called Muslim community heads.  And this was done despite the support to this bill by many Muslim intellectuals, and despite the fact that this is not a law compelling anyone to do anything, but merely allowing people, if they so desire, to adopt children.  Thanks to the resistance on this point, today one has to declare oneself as belonging under particular religions in order to adopt, as a couple, both CPI(M) members and atheists, discovered a few years back when they adopted a child.

Similarly the Shah Bano Case (1985) resulted in the Government of India succumbing to pressure from Muslim communalists and promulgating the Muslim Women (Protection in Divorce) Act.  This law tried to take away from Muslim women the right to seek compensation under the secular and uniform Criminal Law.

Out of a laudable desire to protect minorities from state action by majority communalism, scholars like Partha Chatterjee [See note 11] and Nivedita Menon have been arguing that empowering the state is the wrong way of protecting individual rights in civil society.  According to them the abstract individual does not exist in civil society, but is embedded in the communities.

In the name of protecting the pluralism of civil society, this perspective grants a totalizing power to communities.  Chatterjee assumes that the community has the right to regulate the life of individuals without any interference.  Since the state is an outsider, the community is not obliged to explain why it is different. [See note 12]

Chatterjee's arguments, further carried forward in his 1998 essay "Communities in the East," end up glossing over the internal structure of the supposed communities in favor of a notion of moral bond and cultural authenticity.  We see how in contemporary scholarship class and material critiques of capitalism have been increasingly replaced by a critique of colonial and post-colonial discourse.  The politics of recognition has come to replace the struggle for emancipation. [See note 13]

Kumkum Sangari's response to this viewpoint is very important.  For her there is no abstract disembodied patriarchy.  Rather, there is a multiplicity of patriarchies located in a variety of institutions in the civil society, apart from the state. [See note 14]

Communalism Today

With the BJP in power, the RSS claim to represent the entire Hindu community and to equate them with the nation is getting substantial state support.  Their strategies for whipping up support are diabolical.  The BJP spokesperson K.R.  Malkani has asserted that population growth in itself is not bad.  (In Hitler's Germany, "Aryan women" were encouraged to have more children while even before the holocaust there were large scale sterilizations of Jewish women.) [See note 15]

The old fantasy of getting Hindu women to bear many strong sons is being revived by the government, so that Hindu women should expect to become compulsory wombs, while Muslim women have to await their fate with trepidation.  Malkani's thrust is not on reproductive rights or health.  He is fed up with the frittering away of resources in futile population control projects.

Savarkar's call for "a tit for tat response" has been taken up even more enthusiastically.  Having created with great care the image of the Muslim rapist, and having constantly called on Hindus to resist by counter-violence, the BJP and its allies in the Sangh fraternity implemented Savarkar's call in the Surat mass rape of the post-Babri Masjid period.  Reports by women's and human rights' delegations made it clear that a rumor of Hindu women being insulted and molested by Muslims was spread and violence consciously organized. [See note 16]

This trend has been intensified since the BJP came to power, for instance, the rape of nuns in Jhabua, Madhya Pradesh.  At that time, the general Secretary of the Viswa Hindu Parishad declared the incident as a patriotic Hindu reaction to Christian conspiracies concerning conversions.  Home Minister L.  K.  Advani refused to condemn this statement in Parliament.

This politicizing of rape was reflected in the National Commission for Women (revamped by the BJP) document on Rape: A Legal Study, which claims that women's condition had been consistently good in ancient India until the coming of the Muslims.  The study asserts that women became insecure because of the Muslim invasions and that the protection they craved led to male domination. [See note 18]

Well before the BJP had come to power, Asha Sharma, an RSS activist, had attributed the occurrence of rapes to the fight for equal rights.  The only way out of this is through a series of bans on freedom of expression and democratic rights of women.  The rhetoric of freedom and modernity wears out here, showing what kind of women the Hindu right wants to construct.  If women transgress the boundaries set out by the fascist ideology, they can expect violence.

Vijay Raje Scindia defended the burning of Roop Kanwar under the plea that voluntary sati was a traditional heritage.  She even claimed it under the rhetoric of "freedom of choice." [See note 19]  S. Mahajan, Minister in charge of Women and Children, declared in January 2000 that on 8th March, International Women's Day, she would institute sati awards for women who have combated great odds to win a goal in life.

Choices for the Women's Movement

Combating the multiple patriarchies in Indian society calls for complex strategic thinking.  In national women's conferences over the last two decades, communalism has never been off the agenda.  A woman-centered strategy has been hard to develop, but certain directions are now clear.

To say that a declaration of Atheism is the precondition for united work is to ensure a ghettoized existence for the women's movement.  Activists like Amrita Basu, Flavia Agnes, Fareeda Shaheed and Patricia Jeffrey have noted that despite their secular democratic strategy, feminists have failed to mobilize women the way Hindu communalists have done.  They suggest that this is because the kind of identity which feminists project compel women to take a stand in defiance of their surroundings, while the communalists' discourse makes them feel empowered without having to take on the tremendous weight of the patriarchy.

It should be noted here that caste, a boundary marker distinct from communal identities, have also generated forms of gendered violence and its own regional politics which have done a disservice to women.  This has been far less studied than communalism and this needs rectification.

It is also now clear that participation in concrete struggles within the artificially homogenized communities, like the attempt by Awaaz-e-Niswaan for dialogues within Islamic communities for greater rights for women is a step forward.  Recently Sachetana, a feminist group, held a seminar where Sayeeda Hamid, a member of the National Commission for Women, explained that Muslim women organized in the Muslim Women's Forum had effectively argued on the basis of the Hadis (legal interpretation of the Koran) that Muslim Personal Law in India is flawed and unjust to women.

In Islamic law, a woman has the right to initiate divorce proceedings provided it is stated in the Nikahnama (marriage contract).  Thus the Muslim Women's Forum is trying to pressure the Muslim Personal Law Board (one of those "community" head organizations, in fact created by law) to abolish the verbal talaq and to adopt a standardized Nikahnama drafted by the women, where women's right to divorce is recognized.

Feminists are also demanding compulsory marriage registration, irrespective of religious affiliation or lack thereof.  This can be done by a provincial government no less than the central government.  But none will do so.  The leftist law minister of West Bengal told us in the Sachetana Seminar that compulsory registration was difficult due to "pressure from communities." The central government will not pass any such measure since in Hindu marriage registration is not needed.

In fact Hindu marriages are often difficult to prove due to the absence of registration.  There are a plethora of forms of Hindu marriage, yet courts recognize only the "saptapadi" form (which has a Vedic sanction).  Thus in the absence of registration a Hindu woman, after believing herself married for a decade can find herself abandoned with no protection.  Yet it is the so-called community heads who resist such reforms.

Having said all this, there has been a redefinition of the feminist agenda.  Many women were boldly calling themselves feminists in the 1970s and early 1980s.  The preferred term today is women's rights activists.  Yet the shift away from mass movements over prices, food supply, and the like has also meant that concerns of many worker and other low-income group women are not being taken up sufficiently.

Just as there has been a deepening of the reformism of the left parties to the point where they are now more fervent champions of national capitalism than is the Indian big bourgeoisie itself, so there has been a retreat of the women's movement.  This points to the need to organize coordinated movements,including local and national struggles that can unite women across communal divides.

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