FAMILY, COMMUNITY AND THE STATE: FEMINIST DIALOGUES ON WOMEN’S RIGHTS

FAMILY, COMMUNITY AND THE STATE:

FEMINIST DIALOGUES ON WOMEN’S RIGHTS

Newsletter Sep 2014 - Aug 2015

Soon after the BJP government came into power at the centre in May 2014, there was an anxiety amongst many of us in women’s movements surrounding the Hindu Right’s agenda of a Uniform Civil Code (UCC), as promised in the BJP’s election manifesto in the name of gender justice. The issue of women’s rights in family and marriage as governed by religious personal laws was a major issue in the mid-1980s, following the Shehnaaz Sheikh, Shah Bano, Lata Mittal and Mary Roy cases.

These women, from different communities, raised issues of discrimination that they were facing within their respective religious personal laws. Women’s organisations raised the demand for a UCC (a Directive Principle of State Policy enshrined in the Constitution of India) for women of all religious communities – the objective was gender equality.

The vocabulary of Uniform Civil Code was eventually dropped by women’s movements in the late 1980s when the issue was co-opted by right wing forces, led by the BJP, as part of the Hindutva agenda. We began using terms like Egalitarian Civil Code, Equal Rights, Equal Laws and Gender Just Code to differentiate our demand for women’s rights from that of the BJP. Later, because of the increasing communalisation of Indian polity, especially following the Babri Masjid demolition, different positions emerged on how to secure these rights. By the mid-1990s, discussions on the issue died down because of the lack of clarity over strategies on how to move forward with our demands for equal laws on matters relating to marriage and family in a highly communalised atmosphere.

For a period of about 20 years now, there has been little dialogue on the issue, though some progress has been made in furthering women’s rights within respective personal laws. Following the BJP’s rise to power, many feminists felt a renewed need to return to the issues we were engaging with during the 1990s, to touch base with different positions and to re-engage with the work done during this period, in order to strategise for the future. We discussed, within Saheli and among like-minded feminists, the need to revisit these debates, and to talk about how we look at the issues involved after two decades.

There were some very enthusiastic initial responses from various parts of the country that highlighted the different contexts and locations of women which impact these issues. Some pointed to the existence of other such practices in other parts of the country and the need to understand the efforts and strategies of different groups working within specific communities.

What we thought would be one or two meetings to plan towards a national dialogue eventually turned into a series of four meetings, in which we were able to deliberate on a range of issues with different dimensions and complexities, debates that we had not been able to have together for a long time. Below, we give an account of the discussions.

The first meeting was planned for 7th June 2014 at the Saheli office with a view to discussing the issue of the UCC as it has evolved over the years. We wanted to discuss possible strategies for sharpening a nuanced feminist position in the light of the current government's interest in pushing for a UCC and to set in motion plans for us - as a movement - to try and arrive at something of a common position on the issue. The meeting was attended by around 20 feminists. We began by understanding the historical context of the debate; the constitutional basis for the UCC (Article 44) and legal reforms within personal laws, starting with Hindu personal laws in the 1950s, Special Marriage Act, etc. including their limitations and possibilities; the political contexts of the debate after the Shah Bano case and the beginning of the polarisation around UCC in the 1980s. Nivedita Menon shared various approaches that were arrived at after years of deliberation and work, towards the end of the 1990s, ranging from the 'compulsory common code', 'reforms from within', 'legislation of areas not covered by personal laws', 'optional gender-just code' and 'reverse optionality'.

There was a clear position within feminist movements on the need to move away from uniformity while at the same time asserting the citizenship rights of women vis-à-vis family, of which uniform gender just principles were at the core. Many at the meeting who had been part of the debates and discussions in the 1980s and 1990s spoke about various tensions within the feminist movement, and how they were trying to thrash out their positions on a range of over-arching issues around marriage, family, monogamy, non-matrimonial, non-heteronormative relations etc., many of which had not been discussed before in this particular context. The meeting also deliberated on more recent work on moving beyond the heteronormative definition of the household, and moving from 'wife-centric' rights in family law - e.g. in cases of non-monogamy –and the potential of such piecemeal legislations to offer gender-justice outside of personal laws/UCC framework.

Hence we felt that in the current context, we should define certain areas for further discussion, look at what changes have happened and what our lessons have been. Some of the themes that got highlighted in the discussion were:

•      Reforms from within - So many years down the line, what has been the experience of pushing for reforms from within - particularly on Muslim, Christian and Parsi personal law? Has it worked for women? What challenges remain? Which personal laws and communities have moved on the reforms?

•     Women's rights in the family/household - Personal/family laws fundamentally define rights of women within marriage, but there is a need to build a better understanding of the issues faced by women in all kinds of families/households, including those not necessarily defined by marriage (e.g. non-monogamous relationships, sisters, mothers, etc.). This issue was also linked to the question of women's right to 'maintenance', whose philosophical roots lie in the analysis of their unpaid domestic labour.

•      Understanding of property 'versus' land/commons issues – There was a general feeling that in several instances in the country and elsewhere, an overwhelming focus on individual women's right to private property under uniform codes for inheritance has been linked to the growing privatisation/corporatisation of property. An observation made was how individual property rights is a neoliberal agenda given that land owned by individuals is easier to acquire. Another complexity of "UCC" that we need to understand are the implications for property and land in communities where women have traditionally inherited land, but lose their rights if they marry 'outside their community'. This is also a mechanism for protecting the commons, though it may seem anti-women. The area of property and land is one that requires more discussion.

•      Asserting rights on the ground – Codification does not always translate into reform. It was proposed that we build a better and more nuanced understanding of the issues involved in reform. The focus of discussions and efforts should not be simply at the level of law and its implementation, but also alternative dispute resolution mechanisms. It was felt that discussions on personal laws have primarily been limited to the roles and responsibilities of legal institutions (over-burdening already non-responsive institutions), while in practice there are many non-legal mechanisms that may protect and support women particularly on personal/family issues that we may need to work with. Given the hostile political climate and the complexity of the issues, there were suggestions to strategise at many levels. To start this process, one suggestion was to have local/regional/state level meetings to understand the various struggles and efforts to save and/or secure women’s rights in terms of their economic security. Another suggestion was to have an early consultative meeting at the national level with a view to building a shared understanding and arriving at some agreed positions through a wider consultative and inclusive process. Some of the questions that needed to be discussed were identified- (a) what is the stage of reform from within?; (b) what gaps still remain?; (c) how is this linked to expanding the definition of family and women's rights within them?; (d) issues related to property as well as land/commons; (e) sharing of experiences of the implementation of law, as well as experiences of working with institutions outside the law (e.g. Jati Panchayats, Nari Adalats, etc.)

Another meeting was planned in July, with a focus on understanding the processes and work that has happened in the last twenty years, a period when women’s movements stopped demanding a Gender Just Code and worked towards reform from within communities. We tried to structure the meeting by dividing it up into five parts –

• Revisiting the debate – By Saheli

• Community identity and Women’s Rights

• Reforms in various personal laws

• The issue of Customary Laws

• Suggestions for follow up work, and ways to move ahead.

The meeting on 12 July 2014 was attended by about 25 people. Saheli gave a background to the meeting and to the debate, outlining the present issues and the need to extend our understanding to customary laws and practices of tribal and other areas of the country. This was followed by a presentation by Sanjoy Ghose on various aspects of reforms in personal laws, raising the question of what we mean when we talk about ‘reform from within’. Sabiha Hussain shared details of processes happening within Muslim women’s groups on issues relating to Muslim Personal law. Papori Bora, from the Women’s Studies Centre in JNU, made a crisp presentation on customary laws and practices in the North East and the desire for reform in these from a women’s rights perspective. She argued that any reform has to be understood in the context of the relation of the people of the North East with the Indian State and the government at the centre. This was followed by an engaged discussion, in which the need for a deeper understanding of various specific issues was articulated, for instance:

•      How do we approach the issue of a common law on the rights of women in family and marriage by taking it out of the community identity framework?

•      The grassroots experiences of various women’s groups working on the issue of reform in personal laws.

•      Reforms that have happened in various personal laws.

•      The specific experience of UCC as it has operated in Goa

•      Struggles on changing anti-women customary practices and laws and the issues involved.

•      The working of already existing secular laws like the Special Marriages Act (SMA) and Indian Succession Act (ISA).

Each meeting was opening up newer areas of discussion and need for sharing of the work happening at various levels, so two meetings were planned – one focusing on Personal laws, the Special Marriages Act and Indian Succession Act, and another on Customary Laws and Practices – to be followed by a national-level meeting.

The third in this series of meetings was organised by Jagori and Saheli on 22 September 2014 and was attended by 40 people from 14 organisations. We began with an elaboration on the discussions from the last two sessions on Uniform Civil Code (UCC) and Personal and Customary Laws organised by Saheli, and a setting of the context in which we were seeking to deepen our collective understanding on customary laws and practices in different regions that are linked to community identities; the challenges it raises from a constitutional perspective of individualised rights, and where women’s struggle for equal rights is placed within these debates. In this meeting, we also sought to expand the debate beyond women’s rights within the family.

Rosemary Dzuvichu, a feminist activist from Nagaland spoke about the interpretation and implementation of customary laws in the North East with special reference to Nagaland, and the conflations and contradictions within the laws and criminal justice system as per the Indian Constitution. She started by saying that patriarchal and discriminatory customary laws rule everywhere in the North East and it is a misconception that they are gender equal. Article 371-A is enforced in Nagaland and 371(G) in Mizoram which provides legal sanction to customary laws and practices of different tribal groups. One of the major issues relating to customary laws in Nagaland is that they are not documented and are therefore subject to different kinds of interpretation by the village councils and elders. At the same time, because they are not codified, they are amenable to change and even progressive interpretation. However, these councils are patriarchal bodies which exclude women from decision making forums. Rosemary also pointed out that practices like bride price are common, divorces by men are frequent, custody of children always lies with men and maintenance is virtually unheard of. Because of the difficult terrains and poor connectivity in the interiors of the State, community members are largely dependent on village councils as they take up all kinds of cases, from civil to criminal, and village councils are known to give retrogressive justice in cases of violence against women and sexual assault.

However, women access the Indian legal system only in limited cases. It is not mandatory that people seek justice under their customary laws alone, but the pressure not to abandon their traditional practices lies heavy on women seeking justice in case of sexual assault, etc.

Rosemary shared an instance from Nagaland where the senior council members from the Naga Hoho (the community council) deterred women from participating in the Nagaland Municipal Elections, citing that it goes against Nagaland’s customary practices to allow women to take up decision making positions. Article 371 of the Constitution that gives special protection to customary social practices has been cited to stall the reservation for women in rural and urban local bodies. Women’s organisations in Nagaland have challenged Article 371-A in the court of law and the case is pending for hearing in the Supreme Court of India. Unlike other States, the 73rd and 74th constitutional amendment does not apply to Nagaland, because of which women are excluded from participating in the village council elections as well (members of village councils are picked by senior politicians and Hoho members and their selection remains uncontested). Interestingly, she pointed out that at the same time Art 371-A is interpreted in a different way to protect land from coming under special economic zones or being handed over to non-Naga people! Rosemary also drew similarities between Nagaland with other North East States saying that for instance, even in Meghalaya, with matrilineal system of the Khasis, Garos and Jaintias, women are controlled in the public sphere and not allowed to participate politically.

Rosemary further elaborated on the need to bring about changes in these customary laws and to make them inclusive. The UCC cannot be seen as a solution to this issue as different tribes have different ways of functioning and accordingly have different customary laws and practices. We have to navigate both the customary laws and the judicial system. One key point she asserted was that, especially in Nagaland, women are very well organised in village/region/city level groups so that they have an effective flow of information. Consequently, coordinated action is highly possible and many women are able to access justice despite their difficult circumstances.

Her suggestions were that:

•      Customary laws need to be documented to avoid selective interpretations.

•      Public debate on these practices needs to be initiated.

•      The manner in which land is being given to non-Naga people is an issue that needs attention. Since land is an important asset, lots of protests are happening.

•      It is important to preserve community identity and practices, but also to acquire and use gender sensitive laws. That needs a lot of work. If changes are to happen, it first has to happen at the State level. We require political will for this, which is the first step towards fair, just approach for all citizens, keeping in mind tribal identities and practices. She concluded by saying that while she was happy that these important conversations were happening, the women’s movement also needs to engage more deeply with regions such as the North East.

Roma, with her vast experience of working on forest and land rights issues with Dalit and Tribal women in the Taimoor region of Uttar Pradesh, Bihar and Jharkhand, started by questioning the idea of women’s relationship with land as only linked to property and talked about how the oppression of women historically has been linked to the notion of private property–an idea which has become clear with the position of Dalit and Adivasi women. She pointed out that the state wants to keep women within the family, telling them to seek their rights from within what the family owns, so that forests, water and other commons are kept out of their reach. She highlighted the struggles of women in the unorganised sector in peri-urban and rural areas, basing her analysis on her work in Uttar Pradesh, Bihar and Jharkhand. She raised a critical question, asking that while state and other agencies always talk about family property, why is there no interest in talking about community property? Inheritance guidelines in various acts also puts them in a framework of personal relationships, thus strengthening patriarchal bonds. Despite the many amendments in acts like Hindu Succession Act (HSA), there has not been a clear path of a just approach for women in many states, because of the lack of proper implementation. Within this framework, women from families/communities who are not owners of property often remain unnoticed. She highlighted the concept of reproduction of labour which entails recognition and value for work especially that of women. She also raised the issue that there is no talk of strengthening the powers of Zila panchayats, while the powers of Collector need to be curtailed.

Another major issue raised was that of right to ownership of forest land for indigenous populations. Do these women who come at the bottom of the social class enjoy their land rights to the fullest? Livelihood rights are frequently cut off when land rights are not recognised for those belonging to indigenous populations. These two critical issues were raised to draw attention to women’s right to land. Roma pointed out that women’s movements need to stop thinking of the very small percentage of women who have access to property and widen their concern to the majority of the country which does not even have a right to livelihood. These communities are under threat from development projects, the state etc. She made some critical linkages which clearly need more work and attention:

•      Land rights and forest rights as linked to livelihood rights.

•      Any reform in property rights has to be translated into revenue laws, or it has no meaning. The only state to have done that is UP under Mayawati, but it is not publicised and many women don’t even know they have the right to land.

•      The need to talk about community rights along with individual rights. Commons are very important for the rural and tribal poor, especially women. These are controlled by the powerful in rural economies or by the State Forest Department.

•      Despite all the promise of the Forests Rights Act, there are problems with its implementation.

•      The issues of women’s rights in the propertied class and those among the property-less are different. These issues can’t come under UCC. For this we need to look at the struggles of tribals, dalits and the poor in rural India.

Roma agreed with the importance of engaging with the property rights of women within families in the middle class as well, but asserted a need for a class struggle for women’s rights on a broader scale. She warned that many women’s personal lives would be deeply affected if the UCC was to be implemented.

Discussions and the Way Forward:

The discussion that followed brought out the following points:

•      There is a need to have an in-depth understanding of the various customary laws and practices of different tribal, Dalits, Adivasi groups along with the personal laws relating to various religious minorities. This will further enrich our understanding of the debates/challenges around the UCC and prepare us in formulating responses to the government at the appropriate time. This could involve laying out a proper framework to engage with the state, or a set of common principles towards gender justice for women in matters governing the personal arena of rights.

•      Various nuances related to personal laws need to be studied and brought to the fore. The Hindu Succession Act and different states’ Tenancy Acts, for instance, need to be studied to understand what they really mean for ownership of land by women.

•      To understand and see if middle class women and their struggles can be involved in these discussions revolving around property rights and customary practices.

•      While no formal change has happened in customary laws and practices in the last 60 years, we need to look at how interpretations/implementation of customary law has changed, and seek opportunities within for gender justice.

•      Need to look at other struggles for land and livelihood resources and within that the issue of   violence against women.

•      We need to strengthen our efforts towards other secular laws – like the Domestic Violence Act of 2005 – that redefined or widened the definitions of marriage, women’s right to residence, sexual violence within marriage, etc.

•      Need to update ourselves on personal laws, for instance about the kinds of changes that have taken effect in Christian personal law and what are the issues still remaining.

•      A more holistic understanding needs to be developed on matters of social security such as pension for widows, elderly women, etc., and people who do not fall under the realm of personal laws related to matrimony.

•      The position of the Indian state vis-à-vis definition of ‘family’ as being only the heteronormative family needs to be scrutinised.

It was apparent that there was still much to be discussed and understood, and positions need to evolve that address both – questions around affirming religious and community identities and practices without compromising on the individual rights and women’s need for gender justice and gender equality.

Towards this end, our next meeting was held on 15 October 2014. It focused on struggles of Women from Religious Minorities (Muslim and Christian) for the Rights of Women in the Personal Realm. The meeting placed the issues in the current political climate where subtle and open attacks on minority communities are increasing. In this atmosphere, raising the demand for a single gender just law for all the communities is difficult since it runs the risk of projecting minority communities as being against change. There is also a feeling that it would come with an anti-minority bias, given the history of the demand. The meeting brought home the experiences of engaging with Muslim women by organisations like Awaaz-e-Niswan and a bigger Muslim Women’s Rights Network (MWRN).

Hasina, a long time feminist activist, raised the point that with the silence of women’s movements in the 1990s over the personal law issue, Muslim women’s groups were pushed to discuss these issues at their own level and engage with their communities and community leaders over Muslim women’s rights within family and marriage. This has not been an easy process and even within the Muslim women’s rights groups there are different understandings as to how to approach these issues.

One approach is to locate women’s rights within a religious framework and take Islamic religious texts as the source of women’s rights – the approach that has been followed by Bhartiya Muslim Mahila Andolan (BMMA). Hasina briefly discussed the draft of Muslim Personal Law as prepared by BMMA and expressed her discomfort with an approach which works within a religious framework rather than a secular feminist perspective. The idea of having arbitrators who are well versed in Islamic religion and social issues as propounded in the BMMA draft and starting a process of promoting Shariat Courts to decide cases in which women complain of denial of rights in domestic spaces is problematic. Hasina shared MWRN’s dialogues with Muslim women in four states of India who are in favour of banning of one sided divorce and of taking forward their rights within a constitutional framework alone. Many women have expressed their unwillingness to work with religious organisations as they feel that their interests are not represented. MWRN has actively spoken against the drafts that have been prepared by religious organisations. She emphasised that this also needs to be heard as Muslim women’s voices. Significantly, she also shared the process of discussing with Muslim women the draft on Gender Just Laws prepared by Forum Against Oppression of Women, which speaks also of homosexual relationships and expands the scope of discussion on rights within various intimate relationships that do not fall within the structures of heteronormative family and marriage presently covered by the existing personal laws. The need to take the history and complexity of the debates to present generations who do not know much about it was emphasised.

Talking about the Christian Personal Law, Vinodini Moses of Young Women’s Christian Association highlighted the fact that, despite some reforms, Christian personal laws continue to suffer from anti-women biases. She raised the issue of community leaders who are picked up by the government as voices of the Christian community during dialogues on reform in personal laws. The silence of other women’s groups as an area of discomfort was also pointed out. Advocate Helen Saldanha raised the issue of shrinking secular democratic spaces in which to raise the concerns of women of minority communities, even within the community. She mentioned that there are rightist Evangelical groups coming up who are anti-women, and even in Churches women are losing their space. She argued for locating women’s rights as citizens in a secular Special Marriages Act. The community itself is not a homogeneous one and different sects have different kinds of laws which need to be analysed.

The discussion that followed these presentations raised a number of issues. One was to understand the dominant notions of marriage and family. Only those women whose marriage has been recognised by the society could access the Shariat Court, but those women who view themselves differently would not be able to access these mechanisms. The issue of the insistence on getting religious legitimacy to women’s rights was also raised. There is a need to understand religion and religious communities and it is important to the question of how we critique religion. The stereotypes of the community and women within the community persist, especially in the context of Muslims. Though Sharia courts and women’s jamaats are generally seen as a counterpart of similar male dominated bodies, how these spaces are actually working out for women needs to be assessed.

In addition, the role of women’s wings of religious fundamentalist organisations of both majority and minority communities needs to be looked at. The issue of the codification of law without a perspective on the rights of women and without understanding institutions of family, marriage and community will not lead to any progress in the rights of women.

There was also the issue of using different kinds of laws and not just focus on personal laws to access one’s rights. For example, the Domestic Violence Act of 2005 can be used to assert rights in the matrimonial home and also for stopping violence within family by women of all communities and religions. There are strategic ways in which women are using customary laws and accessing civil and criminal laws in different ways, and communities are trying to make a balance and are negotiating with these options, using the fluidity provided by all these. In fact, this multiplicity of formal and informal laws should not be killed. So there are not just constitutional provisions and personal laws but also other informal customary practices or similar provisions, so we can preserve a wider ambit of spaces to be used to resolve matters.

Practically, we need to work out our non-negotiable principles. We need to then revisit debates that have been happening, and develop a working draft. There was, however, a general sense of satisfaction that women from different communities are not just talking of reform within personal laws but actually thinking of gender just laws.

The four meetings were exhaustive and brought in many new and fresh angles to the whole debate on gender just laws not only in the areas that fall within the spheres of family and marriage but also outside these, taking the debate beyond individual rights to community rights and women’s positions within them. This meant that the issues of women’s rights need to be addressed in varied ways, requiring multipronged efforts. There is a need to actively connect with struggles which at times are against families (or even notions of family), at times against communities and at times against the state. There is a need to take into account their socio-cultural, historical and economic locations which again are varied and complex, and also to understand the fluidity of these situations and possibilities that these offer. In the current political situation where market and right wing forces are hand in glove with each other, the idea of rights and claims of the marginalised is very precariously situated and needs to be addressed from different slants. This is a difficult process requiring not just solidarities but actually engaging with women at different intersections with a clear secular socialist and feminist perspective.