In this essay I will review three case studies in order to explain how the dominant communal norms surrounding family have suffocated ambitions to build an equal society for women in India, and how religious infighting has precluded the creation of a secular framework in which the dignity of all Indian women can be upheld. When reviewing the situation in India it is of vital importance that both Hindu and Islamic perspectives are taken into account, as the political and legal contexts would make any study that excludes the experience of the women of one of these groups a gravely incomplete picture. First however I will explain how the political history of India has shaped both an oppressive system of marriage and reinforced the patriarchal conception of the Indian woman that persists to this day.
In India’s very early history, during the time known as the Vedic period, women enjoyed equal status as men, with historical evidence to suggest that they were well-educated and well treated in their marriages (Harita, 500-300BCE ), in which they were free to choose their (multiple) spouses. This state of affairs persisted until the end of the Vedic period and the imposition of Sharia law by the Muslim conquerors of India. When the British came to rule India, they brought with them a ‘civilising’ attitude inspired by ideas of the “women’s question” banning barbaric local practices towards women such as sati (1829) and the practice of forcing widows (many still children) to live an austere and chaste life to protect the honour of their husband’s family (1856) (Chakrabarti, 1994 ).
This colonial attitude, characterising the Indian man as violent and the Indian woman as oppressed was an inherent part of the education given by the British to the new Indian elite, urban upper caste men for whom such traditional practices were social evils and a civilizational lapse (Chatterjee, 1992 ). Many of these men would go on to advocate for the colonial state to fully engage in the emancipation and education of women, and they set up organisations to pressure the government and extend the benefits of their modern education and outlook to women (initially wives and close family of the elite men). Malavika Karlekar, who in 1991
published an edited collection of memoirs and biographies written by a group of these educated women in Bengal , observes that even though some women did have the support of their families this didn’t mean that their struggle to get educated and attain positions of employment or engage in politics was without cost: often social ridicule and harassment, and possible ostracism should a women’s family not support her efforts.
This reaction to the emergence of modernist thought and ‘new (emancipated) women’ on the part of conservative Indian opinion was seen as part of the resistance to the colonial interference in Indian social tradition, in effect a belief that these new women were part of an effort to erode Indian identity. This attitude would underpin the result of the controversy over the Age of Consent Act 1891, the subject of my first case study.
If the cause of the colonial government’s attempt was to further emancipate the Indian woman, and to protect her so that she may further develop her own rights and interests, then the result can only be interpreted as a spectacular own goal. The act represented the Rubicon for the Indian conservatives, who through the narrative of protecting Indian traditions from the colonial occupier had also attracted the nascent nationalist movement to their side. It is readily apparent why the act elicited such a strong response, for the fundamental unit of Indian society is and always has been the family. And in their attempt to keep this sacrament of Indian communal life out of colonial hands the nationalists transformed the very idea of the woman and thus denied women for generations to come the right to shape their own identity.
The Indian woman became the embodiment of the ideal of domestic Indian society, she was moral, chaste and motherly – a spiritual and powerful heroic figure (Sen, 1993, 2000 ). This naturally had long term consequences, primary amongst them was to iron cast in to the collective consciousness a female ideal that placed her firmly in the domestic rather than public setting. By establishing such a gender role and tying it directly into the identity of the nation and the idea of the moral health of society women were encouraged to assimilate this ideal and subordinate their aspirations for gender equality to claims for equality or justice stemming from other identities, such as membership of a minority community. This ideology, centred around but in no way serving the Indian woman, was to be further buttressed by legal and administrative measures advocated for by elite men (Sen, 2000 ).
The colonial administration found it opportune to work with these men in establishing this new patriarchy for two reasons, the first (and of greatest importance to the Crown) was due to the structure of the Indian economy. The economy that at the colonial power had inherited was based on the household with strict roles organised by gender and age and of course intrinsically linked to the structure of the family. It was therefore in the British interest to help the Indian elite prop up these family structures for the maintenance of colonial revenues. They did this by increasing the power given to the male heads of household by the institution of marriage, underwriting the control of women. The emergent urban middle class, and the upper castes advocated the construction of a Hindu and a Muslim law that placed the husband and father as the ‘unassailable’ head of the household and universalized the upper caste conception of marriage (Sen, 1996). The only view of marriage accepted by Brahmins (the elite caste) was that it was a sacrament and therefore indissoluble. This meant the Pickering your government taking their advice from the elite Indians enforced this view of marriage throughout a Hindu society in which divorce had been up until this point accepted practice. The immediate effect would have been felt by those women already remarried, as they would be guilty of the criminal offence of bigamy (there was naturally no such law concerning polygamous men); however until the Hindu marriage act of 1955, there remained absolutely no legal recourse for woman to leave what by modern standards would have been an extremely oppressive marriage.
The legacy of colonial politics for India’s Hindu women, as seen above, was to trap them into structures from which they had little hope to escape, in which they were not allowed to control property and by which their husbands gained legal cover for the gross abuse of their rights. However, as the Hindu elites worked with the British to create ‘personal laws’ that enforced a conception of the family, patriarchal Muslim elites were engaged in the codification of a parallel Islamic ‘personal law’. The post-independence constitution of India called for a creation of a secular uniform civil code, but over 70 years later this has still not happened for reasons discussed below.
The post-independence government of Jawaharlal Nehru sought to create such a civil code, however given the context of partition the Prime Minister instead opted to concentrate on replacing Hindu personal law with a code modelled on the uniform civil code as a model to build on later. He immediately faced opposition from those Hindus who felt that it was unfair to target one community for reform, who argued that the only legitimate course was to implement the full uniform civil code. The debate, which raged through the 1950’s pitted the supporters of the Hindu civil code against those most invested in the structures of personal law, who saw it as a mortal threat to the ideology outlined above concerning Indian morality. As a result, by the time the Code was adopted it had been stripped of many rights pertaining to female ownership of property (Basu, 1999 ) which alienated women from their human rights under Article 17 of the UDHR .
Another negative consequence of the debate was the reinforcement of the idea that personal law was a ‘minority privilege’, and therefore constitutionally protected. Sen (2000) identifies that this really means ‘male privilege’, as elite men still spoke on behalf of communal groups. This privilege nonetheless established helped those Muslims and other minority groups, who felt the uniform civil code was a hegemonic initiative by a Hindu majority to homogenise their beliefs and impose them on all faiths, to operate on the principle of community authority under personal law.
This conflict between a majority secular civil code and a largely unreformed Muslim personal law