Morgan Institute for Human Rights

TEACHING NOTES

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Shah Bano: Muslim Women’s Rights

Laura D. Jenkins

“Although on the surface it may seem unequal to create different laws for different religious groups, it actually helps to protect minority freedom. Equality is not always what it seems to be. It doesn’t necessarily mean that every Indian citizen should be treated the same.”

--from American student’s response paper to Shah Bano case

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Outline

Many Dilemmas in One: Discussion suggestions for different types of classes

Interactions with online case

Simulations/role plays

Small group in class discussions or internet chats

Short paper questions

B Case: What Happened (handout)

Final discussion

Information about author and call for feedback

Bibliography

Many Dilemmas in One: Discussion suggestions for different types of classes

Dilemma: Should Rajiv Gandhi stand by the Supreme Court decision to grant maintenance to Shah Bano or reinforce Muslim personal law through the Muslim Women Bill?

International, Comparative or South Asian Politics

This dilemma forced Rajiv Gandhi to confront contradictions at several levels. While choosing to support minority rights or women’s rights, he had to choose between which ideal to stand up for: equality, for women and for different religious groups, or freedom, especially religious freedom. He had to consider what equality means: Does it necessarily mean treating everyone the same? Or, in a context in which Muslims were a minority and a UCC would most likely be shaped by the Hindu majority, does equal treatment mean allowing Muslims some legal autonomy?

As head of a country with a dizzying combination of linguistic, regional, religious, caste and ethnic distinctions, Rajiv also had to weigh considerations of equality against the imperatives of national unity. He had to weight the value of treating all citizens the same against the risk of Muslims or other disgruntled minority groups feeling left out of the nation or, in extreme cases, even wanting to leave or break off from the nation. Concerns about national integration and unity have influenced many political decisions in India, especially in the arena of personal law. According to scholar and activist Zoya Hasan: “Both the reform of Hindu personal law and the denial of legal equality to minority women were guided by political considerations of national unity and integration. In neither case was the issue of equality a prime consideration” (Hasan 1999, 123). How might Rajiv weigh these considerations?

As mentioned in the case, Rajiv also faced competing conceptions of secularism. Secularism could be interpreted as freedom or noninterference in citizens’ private religious practices. Secularism could also mean equality before the law of all citizens regardless of religion. Depending on whether he emphasized secularism as freedom or equality, Rajiv could make two different arguments based on secularism, one for personal laws and one against personal laws. What might these arguments be?

Women’s Studies

Rajiv faced a difficult decision involving the contested border between the public and private spheres. Conceptions of what is a private or public issue influences what is deemed relevant or appropriate for government action. Issues surrounding the home and domestic life are often deemed private. Feminist theorists often critique distinctions between public and private in part because women tend to be relegated to the private sphere and issues of concern to them are deemed off limits for government action. Problems arise for women when certain issues are deemed to be private, including domestic violence, family leave, marital rape, and, as in this case, family law and maintenance issues. Other issues such as abortion, can result in the opposite problem, when what some women consider a private decision is subjected to governmental limits. The private sphere of the family and community, like the state itself, may define gender relations in a patriarchal way. When the state encroaches on seemingly private issues, such as personal law, political sparks can fly. This was clearly the case in the Shah Bano controversy: “The Muslim leadership has succeeded in identifying only one area as the essence of the community identity—the private sphere. Thus all efforts at continuance and perpetuation of the community are predicated on protection of MPL…. The last refuge of Muslim politicians” (Hasan 1999, 128). How could Rajiv get beyond this singular focus on personal law and make more aspects of Muslim identity relevant to the debate? Is personal law an example of leaving religion in the private sphere or of making it even more of a public issue through official recognition?

International Law or Human Rights

A key aspect of the dilemma is the tension between group rights versus 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. Muslims fear 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. Could women’s rights be better enforced at the national level via a uniform civil code? 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?

The drafters of CEDAW could not have considered all possible scenarios, such as the often desperate situation of elderly divorced women in India. Thus, in an overriding emphasis on equality, Shah Bano’s need for and, perhaps, right to maintenance, a right her husband does not have, may not be recognized in this document. Again Shah Bano’s case highlights a Third World critique of the dominant human rights discourse, the tendency to emphasize formal civil and political rights over economic rights. How might one’s context and perspective affect the way one weighs rights to basic subsistence against rights to basic civil rights?

Interactions with online case

Students read case online, jump to links and related sites.

Students answer questions posed within case.

Students can post short reactions on online bulletin board and post newly discovered, relevant links.

Students can respond to multiple choice and True-False questions and get instant feedback on their understanding of the concepts and background of the case.

Students can submit essays via the web, which can be read by instructor. Several model student essays can be posted for other students to read. These should include some making different decisions.

Simulations/Role plays

Students can simulate making arguments before Rajiv Gandhi over the Shah Bano case and the Muslim Women’s bill. While not arguing, the class plays the role of a collective Prime Minister, asks questions and takes notes. Ideally students have completed their major essay (on the question in the case) prior to this activity, as part of their preparation. One way to use the in class arguments as teachable moments for those not arguing at the time, is to offer them the chance to make additions, changes and other (legible) notations on their own papers prior to handing them in at the end of the class. These could be taken into account when grading. Students may post online short summaries of their arguments ahead of time, based on individual or small group work.

The premise of the simulation could take a number of forms. Advisors and activists could make presentations to aid deliberations of Rajiv Gandhi on whether or not to overturn the Supreme Court in the Shah Bano case by advocating the Muslim Women’s bill. Possible cast of characters include: Female member of cabinet, liberal Muslim MP advocating reform of MPL, conservative Muslim MP, Hindu nationalist politician opposed to “pandering,” Hindu concerned about preserving personal law (which includes Hindu personal law), Supreme Court justice, dissenting justice, women’s organization activist, Shah Bano, Shah Bano’s husband Mohammed Ahmed Khan (a lawyer).

Another option is to have Members of Parliament debate the Muslim Women’s bill. The politicians portrayed should include women and men, Muslim moderates and conservatives, Hindu moderates and conservatives. The students in a larger class could be divided into small groups to polish their arguments and choose a spokesperson to present their position in the debates. The size of different groups should be in approximate proportion to their actual presence in the Parliament at the time of debates. In a smaller class each person in class could portray someone, but in classes of any size, time should be saved for general discussion, when all students have a chance to ask questions and add to the debate. All ultimately vote. An extended version of the B case could include links (or a handout) with text of the actual debate, but this should not be read ahead of time.

Students may be encouraged to come up with their own relevant characters, which forces them to consider who is likely to support each argument and the possibilities of coalitions between different people and groups. Such an exercise may be useful in a political science class. Another strategy is to assign characters. If one of your teaching goals is to combat stereotypes (of Muslims, women, or Muslim women, for example), it can be useful to assign characters specifically to complicate stereotypes. For instance one could have someone play a Muslim woman arguing for personal laws. This might facilitate a discussion of the multiplicity of identities within individuals, the diversity within Muslim society and opinions, as well as the difficult political position of Muslim women, as a minority within a minority--or as one student put it in our debate, an “extraminority”!

Small group, in class discussions or internet chats :

Discussion could further press students to consider some of the many rights dilemmas outlined in the problem: Can the various dilemmas be reconciled?

Discussion could focus on similar dilemmas raised in US and other international cases. Students should be encouraged to come up with more examples of such parallels.

An international internet or video conference could prove a lively forum for discussions or debates of minority rights issues; pairing with an Indian class would be fascinating if technical and equipment issues could be overcome. If elsewhere, a US class should read article about similar issues in the country of the other class to aid in discussion (option of customary marriage law in south Africa, multiculturalism in Canada, etc.).

Short paper questions

Students can draw on case bibliography, small group discussions, links, and the text of the case to write individual papers.

What would you do if you were Rajiv Gandhi? Be sure to weigh legal, moral and political considerations in your answer.

Secularism arguments could support either side of the Shah Bano case, depending on one’s definition. Make such arguments. Should secularism be rooted in freedom or equality?

Can we discuss compromises when we talk about rights? Write a paper on the pros and cons of personal law in India and possibilities for compromise solutions.

What have developing countries brought to the human rights table in terms of an emphasis on group/community rights as well as economic rights? Should human rights encompass competing conceptions of rights or stick with the predominant emphasis on individualism and civil and political rights?

B Case

In order to try to prevent students from being swayed in their own decisions by what happened, the B case might best be used after the papers and debates. With the internet and case bibliography readily available, the curious students will be able to find out what happened if they want to ahead of time. Students with a South Asian family or academic background may also know something about the outcome of this famous case. Such curiousity or knowledge is not a bad thing; nor will it ruin the case experience. It may suffice to simply discuss the case teaching method at the outset; say you will be handing out the “B case,” and suggest that they may get more out of it if they wait to find out and refrain from discussing the outcome with others if they already know. The brief description (in bold below) of “what happened” can be handed out to be read in class, followed by discussion. Below the text of the handout are some additional commentaries on what happened, for the instructor’s benefit, to help engage the students in further discussion.

Shah Bano had waited seven years for her case to reach the Supreme Court. She was economically supported by her two sons and lived in a small house owned by her husband. Rajiv Gandhi went through a stage of indecision, during which a liberal Muslim Member of Parliament and member of the Congress cabinet, Arif Mohammad Khan, supported the Supreme Court ruling by making a daring speech in Parliament. Groups on both sides engaged in demonstrations beyond all expectations in various parts of India in response to politicians mobilizing people over the ruling. Gandhi eventually supported the Muslim Women’s Bill. He later made a cultural relativist argument: “In our [Hindu] system, the girl, once she leaves the home, goes to the husband. And that’s also in many ways the Christian system. The family washes its hands of their responsibility. The Muslim system is the opposite. The family never washes its hands of the responsibility for the girl. Now you have to view it from that perspective, and it’s totally different. You can’t try and take one set of values and put them in the other one” (Quoted in Bumiller, 1990, 168-9). Many Muslims saw his decision as a political victory, but the liberal Muslim MP and member of the Congress cabinet, Arif Mohammad Khan, resigned in protest. In ensuing years, the Hindu dominated Bharatiya Janata Party gradually has formed a government at the center, in coalition, and the Congress Party seems to be losing its predominant role in Indian politics. A final, bizarre twist in the story is the illiterate Shah Bano’s thumb print, in place of a signature, on a letter, composed after a visit by some prominent Muslim men, renouncing the Supreme Court judgement in her favor.

The following texts may also be distributed in class as part of the B Case, depending on your goals.

Excerpts from the letter bearing Shah Bano’s thumbprint:

“[R]espectable gentlement of Indore came to me and explained the Commands….After listening to them and understanding what they said, I have come to the conclusion that the laws and Allah and the Prophet are everything for me and in them I have full faith and belief….Now the Supreme Court has given judgement on 23 April 1985 concerning maintenance of the divorced women, which is apparently in my favour; but since this judgement is contrary to the Quran and the hadith and is an open interference in Muslim personal law, I, Shah Bano, being a Muslim, reject it and dissociate myself from every judgement with is contrary to the Islamic shariat”(quoted in Engineer 1987, 211).

How empowering, or disempowering, is it to become a symbol for larger issues? What pressures did Shah Bano likely face?

Ved Mehta, Yale Professor of history and English, argues that “Rajiv’s Muslim Women’s bill… was seen as a terrible blunder all around…. The passage of the Muslim Women’s bill turned a civil issue into explosive material for religious strife. There were signs everywhere of a Hindu backlash against the bill, of anti-Muslim feeling, and of a resurgence of Hindu extremism, whose adherents sought to turn the secular Indian state into an out and out Hindu state” (Mehta, 1994, 99). By protecting Muslims’ rights, a backlash ensued. The political climate has only grown more hostile in subsequent years.

A backlash is no reason to ignore people’s rights; it makes a stance in favor of their rights perhaps even more compelling. In the end, how was the well being of Muslims improved and how was it harmed by this defense of their rights?

One of the goals of the case is to point out the internal diversity of the Muslim community, especially in terms of gender and ideology. Arif Mohammad Khan is mentioned in the A case and B case as a Muslim opposed to the bill. After its passage he argued: “There might be some leaders, there might be some individuals masquerading as leaders of the community who may be speaking the language of communalism, but definitely the ordinary Muslim is not. He or she has many other problems…. This leadership used the bill to divert the attention of the Muslims from the real issues which it has failed to solve, which it has never tried to solve” (Engineer 125). Gandhi argued in defense of the bill that “The majority of Indian Muslims, the average Muslim, is very worked up about it. The Muslims felt at the time of independence and soon after, that India will protect their system” (Engineer 123). How do these interpretations of the Muslims as a group differ? What are the dangers of making general arguments about “Muslims” or any other group?

The Hindu dominated Bharatiya Janata Party has formed a government at the center, in coalition, and the Congress Party is losing its predominant role in Indian politics. In part the slide of the Congress party is due to the assassination of Rajiv Gandhi and the end of the Nehru-Gandhi dynasty, but it is also in part due to disillusionment over Congress corruption and mishandling of communal politics, including the Shah Bano case. The most high profile organization currently advocating a Uniform Civil code is the BJP. The BJP, a Hindu revivalist political party currently in power, has tried to portray itself as a “champion” of women, not by critiquing the still troubled status of Hindu women but by focusing on Muslim women. The national president of a BJP women’s organization made arguments for a uniform civil code: “One people, one nation, one law.” A prominent female BJP politician, Uma Bharati says: “I feel for my Muslim sisters, but they do not seem to feel for themselves. How can they agree to wear the burqa? How can they abide by Muslim Law?” (both quotes from Basu 1995). See also links to BJP and Congress Party homepages in the case itself. How does this advocacy shape the UCC debate in the eyes of Muslims? In the eyes of progressive feminists? What might a UCC written under a BJP dominated government look like? Does this growing importance of the BJP shape your outlook on what should/could be done about a UCC right now?

Laura Dudley Jenkins, Ph.D. University of Wisconsin-Madison, is an Assistant Professor of Political Science at the University of Cincinnati. A Fulbright-Hays Scholar in India in 1995-96 and a Peace Scholar of the United States Institute of Peace in 1997-98, she has also received grants and presented papers as a member of the MacArthur Consortium on International Peace and Cooperation. She has recently published "Preferential Policies for Disadvantaged Ethnic Groups: Employment and Education," in Ethnic Diversity and Public Policy: A Comparative Inquiry. Her chapter, "Personal Law and Reservations: Volition and Religion in Contemporary India" appears in Religion and Personal Law in Secular India: A Call to Judgement (Indiana University Press, 2001). Her research on competing claims for religious minority rights and women’s rights in India is the focus of her “Competing Inequalities: The Struggle over Reserved Legislative Seats for Women in India,” in Complicating the Categories: Gender, Class, Race and Ethnicity (Cambridge University Press and the International Review of Social History, 1999). Muslims and Christians are featured in her article, “Becoming Backward: Preferential Policies and Religious Minorities in India,” Journal of Commonwealth and Comparative Politics (July 2001). Her research and teaching focus is comparative politics and public policies in the developing world, especially domestic initiatives to prevent conflict and achieve justice in countries characterized by extreme cultural pluralism.

Comments and feedback on this case and its use in classes are appreciated. Laura.Jenkins@uc.edu

Bibliography

These are works cited in the teaching note. See also the more extensive bibliography in the case itself.

Basu, Amrita. (1995). “Feminism Inverted: The Gendered Imagery and Real Women of Hindu Nationalism.” In Tanika Sarkar and Urvashi Butalia, eds. Women and the Hindu Right. New Delhi: Kali for Women.

Bumiller, Elizabeth (1990). May You Be the Mother of a Hundred Sons. New York: Fawcett Columbine.

Engineer, Asghar Ali (ed.) (1987). The Shah Bano Controversy. Hyderabad: Orient Longman.

Hasan, Zoya (1999), “Muslim women and the Debate on Legal Reforms” in Bharati Ray and Aparna Basu, eds. From Independence Towards Freedom: Indian Women Since 1947. Oxford: OUP.

Mehta, Ved (1994). Rajiv Gandhi and Rama’s Kingdom. New Haven: Yale University Press.