Shah Bano and Human Rights

Although not an international legal case, Shah Bano raises issues important to a broader understanding of human rights. A key aspect of the dilemma is the tension between group rights and individual rights, especially the individual rights of women. Rights scholars in the developing world have launched various critiques of a Western tradition that privileges individual rights over collective or community rights and duties. Moreover, cultural relativists argue that universal human rights may be impossible in a culturally diverse world, since values vary from country to country and community to community (Vincent 1986, 37-91). The strongest players’ values may prevail, first world over third world at the global level, Hindus over Muslims in India, and men over women within the Indian Muslim community. Third World concerns about a global human rights regime are echoed in microcosm by Indian Muslims’ fears of what will happen if a Hindu dominated polity designs a universal civil code; yet within the Muslim community a similar dynamic occurs, as dominant male politicians reinforce a legal system which disadvantages women.

India has signed and ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is hampered by weak enforcement mechanisms. Parts of CEDAW are relevant to the personal law debates in India. Article 16 of CEDAW includes the following:

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women… the same rights and responsibilities during marriage and at its dissolution.

If enforced, how might this international law play out in the context of Shah Bano’s situation? It could support reforms of personal laws to make it as easy for Shah Bano as it was for her husband to get a divorce. On the other hand, it could be used to argue that maintenance for Shah Bano would be unequal treatment of men and women, unless her husband got maintenance too. How would various groups in India react to enforcement of CEDAW? Article 5 of CEDAW says that “States Parties shall take all appropriate measures: a. to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” On the basis of the Shah Bano situation, what challenges face a state that tries to “modify the social and cultural patterns of conduct of men and women?” Could women’s rights be better enforced at the international level through CEDAW, the national level via a uniform civil code, or the community level via reform from within? What about the dual identities of Muslim women? Are their rights fully recognized if their individual rights as women are supported but their Muslim autonomy is squelched? How can these individual and group rights be balanced?