Feminism and Multicultural Dilemmas in India Revisiting The Shah Bano Case

Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case
Author(s): Siobhan Mullally

Source: Oxford Journal of Legal Studies , Winter, 2004, Vol. 24, No. 4 (Winter, 2004),
pp. 671-692
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/3600532
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Oxford Journal of Legal Studies, Vol. 24, No. 4 (2004), pp. 671-692
Feminism and Multicultural Dilemmas in

India: Revisiting the Shah Bano Case
SIOBHAN MULLALLY*
Abstract-Debates in India following on from the Shah Bano case

extent to which gender equality may be compromised by yielding
voices within a particular religion or cultural tradition. As the India
noted in Danial Latifi & Anr v Union of India, the pursuit of gen
questions of a universal magnitude. Responding to those questio
appeal to norms that claim a universal legitimacy. Liberal femini
uniform civil code, however, have pitted feminist movements agai
minority rights and claims for greater autonomy for minority gr
background of growing communal tensions, many feminists have
complex strategies-strategies that encompass the diversity of w
create a sense of belonging amongst women with diverse religiou
tions. Liberal theories of rights that abstract from the concrete rea
daily lives have not always addressed the institutions and procedu
build that sense of belonging. This article examines the contrib
discourse ethics theorists to debates on models of multicultural a
argues that deliberative models of democracy recognize the need for
sitive' processes of inclusion, potentially assisting feminism in resol
conflict between the politics of multiculturalism and the pursuit of
1. Introduction
Within multicultural states the conflicting claims that arise between the pursuit
of gender equality and the protection of minority rights raise particularly intract-
able questions.' Indian constitutional history has long struggled with conflicts
between gender equality and religious cultural claims.2 The name Shah Bano has
* National University of Ireland (Cork). Thanks are due to Martha Fineman, Philip Alston, Shashikala Gurpur,
Kamran Arif, Kunal Parker and Nicola Lacey for comments and assistance with earlier drafts of this article.
The research for this article was undertaken while I was a visiting scholar at Cornell Law School, on the Gender,
Sexuality and Human Rights Program. I am grateful to Professor Martha Fineman for her support during my visit.
1 For a recent discussion of these conflicting claims, see: L. Volp, 'Feminism Versus Multiculturalism' Colum. L.
Rev. 101: 1181-1218 (2001).
2 Much of the debate touches on the desirability or otherwise of a uniform civil code. For a recent discussion of
the issues raised see: Nilanjana Bhaduri Jha, 'Does India really need a Uniform Civil Code?', Times of India, Saturday,
2 August 2003, http://www.timesofindia.com , as viewed on 3 August 2003. See: 'BJP wants debate on Common
Civil Code', The Pioneer, 28 July 2003, as viewed on 3 August 2003. T.B. Hansen, The Saffron Wave (Princeton:
Princeton University Press, 1999).
Oxford Journal of Legal Studies, Vol. 24, No. 4, @ Oxford University Press 2004; all rights reserved

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672 Oxford Journal of Legal Studies VOL. 24
become synonymous with this struggle.3 In the Shah Bano

Supreme Court departed from traditional interpretations o
law, appealing to a more egalitarian Islam. The spectre of an
court choosing between competing interpretations of Islam a
the appropriate interpretations of Qur'anic verses provoked a fu
conservative forces within the Muslim community. Previous
at similar conclusions had provoked little response. The Sha
however, came at a time of heightened communal tensions
party, the Bharatiya Janata Party (BJP), although sitting in opp
in popularity, leading to an increased sense of vulnerability a
minority." The Congress Government responded to the heig
crisis by passing the 1986 Muslim Women (Protection on Div
to the claims of cultural conservatives within the Muslim c
attempting to reverse the Shah Bano judgment. In the Gover
the crisis, we see the kind of 'trafficking of women' that ac
multicultural arrangements. Gender equality was subordinated to
as the Government yielded to a discourse of communalism th
ual identities solely through religious membership.5
Shah Bano's case highlights the tensions that arise when the
equality comes into conflict with the religious claims of a mi
tensions, coupled with the communalization of politics and t
of religious minorities, have proven a constant obstacle to th
equality in India, particularly in the field of family law. T
Court ruling in the Danial Latifi case6 represents yet another
these tensions. In a judgment that recognized the diversity o
Islam, the Supreme Court concluded that the duty to make prov
women, as provided for under the Code of Criminal Procedu
to the Muslim community. The Court's ruling ran contrary
intentions of the 1986 Act, and followed a series of conflictin
by the High Courts in India in the aftermath of the Shah B
3 Mohammed Ahmed Khan v Shah Bano Begum, 1985 AIR SC 945. The Shah Bano co
considerable body of academic literature. See: Chhachhi A et al., Economic and Politi
1996, 'Reversing the Option: Civil Codes and Personal Laws'; F. Agnes 'Women's Mo
Framework: Redefining the Agenda', Economic and Political Weekly (7 May 1994) 1123; I
Daily Bread: Procedures and Case Law on Maintenance (Bombay: Majlis, 1992); Z. Has
and the Debate on Legal Reforms' in Bharati Ray and Aparna Basu (eds), From Indep
Indian Women Since 1947 (Oxford: OUP, 1999); M. Kishwar 'Pro-Women or Anti-Mu
Controversy', 32 Manushi 5 (1986).
4 See: K. Sangari, Politics of the Possible: Essays on Gender, History, Narratives, Colonia
Press; 2002) esp. pp. 405-407.
5 See generally: G. Panday, The Construction of Communalism in Modern India (Delhi: Oxford University Press,
1990); B. Chandra, Communalism in Modern India (Delhi: Vani Educational Books, Vikas Publishing House, 1984).
6 Danial Latifi & Anr v Union of India, 2001 AIR SC 3958
7 See: Arab Ahemadhia Abdulla v Arab Ail Mohmuna Saiyadbhai & Ors AIR 1988 (Guj.) 141; Ali v Sufaira (1988)
3 Crimes 147; K. Kunhashed Hazi v Amena, 1995 Cr.L.J. 3371; K. Zunaideen v Ameena Begum (1998) II DMC
468; Karim Abdul Shaik v Shenaz Karim Shaik, 2000 Cr. L. J. 3560; Jaitunbi Mubarak Shaikh v Mubarak Fakruddin
Shaikh & Anr, 1999 (3) Mh.L.J. 694.

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WINTER 2004 Feminism and Multicultural Dilemmas in India 673
Supreme Court called on the Government to move towards a uniform

(UCC) and to return to the Nehruvian ideal of universal citizenship. Th
however, has continued to remain elusive.
Many feminist activists in India have called for reform of religious
laws and for the application of fundamental rights principles to the s
marriage and family relations. In more recent years, however, the ris
Hindu right and Hindutva as a political phenomenon led to fears that r
personal laws would become yet another tool to silence religious min
Secularism became a powerful weapon in the Hindu right's quest for p
did the discourse of human rights.9 Against this background, calls for a un
civil code ran the risk of becoming a vehicle for greater Hinduization of th
and its institutions. This hijacking of the secular agenda left feminists and
rights activists without their traditional supports, reluctant to chall
discriminatory practices of religious minorities lest this added further sup
the Hindu right.
Negotiating these conflicting agendas has raised many challenges for
as the pursuit of gender equality is, once again, constrained by religiou
For some within the women's movement, calls for reform of personal laws
an exclusionary impulse that denies the recognition of religious differe
result, while many feminists continue to campaign for a uniform civil
path to a just multicultural arrangement continues to be contested.
This article explores the conflicting claims that have arisen in India
feminism and multiculturalism, focusing, in particular, on the Shah B
Danial Latifi cases. In the Shah Bano and Danial Latifi cases, the Suprem
drew on egalitarian strands within Islam, attempting to ensure a con
respect for Muslim women's claim to equal treatment, regardless of
membership. A commitment to the universal legitimacy of Muslim w
claims to equal citizenship underpinned the choices made by the Supre
in both cases, enabling the Court to negotiate a complex web of c
claims. Conflicts between gender equality and religious cultural claims
8 Hindutva is the ideology underpinning the Hindu right movement in India. It is a movement that i
to the establishment of a Hindu state and is against the appeasement of religious minorities, a policy th
has contributed to the malaise within contemporary Hindu society in India. The primary organization
promoting Hindutva are the Bharatiya Janata Party (BJP), the Rashtra Swayamsevak Sangh (RSS)
Hindu Parishad (VHP) and the militantly anti-Muslim, Shiv Sena. The BJP and its allies on the H
have argued in favour of a uniform civil code. See generally: D. Chakrabarty 'Modernity and Ethn
in D. Bennett (ed), Multicultural States: Rethinking Difference and Identity (London: Routledge; 1
G. Panday, The Construction of Communalism in Modern India (Delhi: Oxford University Press, 19
and B. Cossman, Subversive Sites: feminist engagements with law in India (London: Sage Publica
234-35. Basu et al describe 'Hindutva' as follows: 'At the heart of Hindutva lies the myth of a cont
sand year old struggle of Hindus against Muslims as the structuring principle of Indian history. Both
are assumed to have been homogenous blocks-of Hindu patriots, heroically resisting invariably tyr
eign" Muslim rulers'. T. Basu et al, Kahki Shorts, Saffron Flags: A Critique of the Hindu Right (New D
Lonman, 1993) 2.
9 See: B. Cossman and R. Kapur, Secularism's Last Sigh? Hindutva and the (Mis)Rule of Law (New Delhi: Oxford
University Press, 1999) 2.

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of course, unique to India. In many jurisdictions, the defence of cu
accepted, to borrow Leti Volpp's term, as an excuse for 'bad
these conflicts, culture is all too often taken as a given and the p
and the traditions of dissent within religious communities are
lenge for feminism, in India and elsewhere, is not to dismiss
claims, but to highlight the potential for re-defining and reformi
traditions.
In recent years, liberal feminism has tended to dismiss multicultural politics as
'bad for women'." Dismissing multiculturalism as an oppositional force, how-
ever, denies the possibility of arriving at just multicultural arrangements-
arrangements that both define the limits of reasonable pluralism and recognize
the significance of religious and cultural differences. A deliberative democratic
model of multiculturalism recognizes the possibility for reconciling both the
pursuit of gender equality and the existence of cultural pluralism. Essential to
this reconciliation is an ongoing process of cross-cultural dialogue. Against a
background of heightened communal tensions, an ongoing process of dialogue is
essential if feminism is to avoid becoming complicit in the politics of communalism.
The beginnings of such a dialogue can be seen in the Shah Bano and Danial
Latifi judgments and in feminist arguments made in support of Muslim women's
claims in the debates surrounding both cases. Underpinning this dialogue is a
dual-track approach to cultural conflicts, one that combines legal regulation with
an expanded moral political dialogue on the competing claims at stake.12 A dual-
track approach recognizes both the dangers of yielding to religious-cultural claims
and the paralysing relativism that comes with assertions of difference. At the
same time, however, the commitment to an expanded dialogue recognizes the
significance of religious and other differences, the diversity of voices within
religious communities and the de facto marginalization of many minority
communities. The Shah Bano and Danial Latifi cases highlight the diversity of
voices that have participated in debates on India's multicultural arrangements
and also the extent to which the State has been willing to compromise the
pursuit of gender equality in the interests of placating communal tensions.
10 L. Volpp 'Blaming Culture for Bad Behaviour', Yale Journal of Law and the Humanities 12/89, (2000).
" S.M. Okin, 'Is Multiculturalism Bad for Women?' in J. Cohen, J. Howard and M. Nussbaum (eds), Is Multi-
culturalism Bad for Women?: Susan Moller Okin with Respondents (Princeton: Princeton University Press, 1999) 7-26.
For further discussions on the tensions that arise between feminism and the politics of multiculturalism, see:
A. Phillips, Which Equalities Matter? (London: Polity Press, 1999); M. Nussbaum, Sex and Social Justice (Oxford:
Oxford University Press, 1999); U. Narayan, Dislocating Cultures: Identities, Traditions and Third World Feminism
(London: Routledge, 1997).
12 The dual-track approach to cultural conflicts is set out by Seyla Benhabib in her recent book The Claims of
Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002). S. Benhabib, Situating
the self gender, community and postmodernism in contemporary ethics (Cambridge: Polity P, 1992); S. Benhabib 'Cul-
tural Complexity, Moral Interdependence, and the Global Dialogical Community' in M. Nussbaum and J. Glover
(eds), Women, Culture and Development (Oxford: Clarendon Press, 1995) 235-55; S. Benhabib 'Of Guests, Aliens,
and Citizens: Rereading Kant's Cosmopolitan Right' in W. Rehg and J. Bohman (eds), Pluralism and the Pragmatic
Turn: Transformations of Critical Theory (Cambridge: MIT Press, 2001) 361-87; S. Benhabib, Transformations of
Citizenship: Dilemmas of the Nation-States in the Global Era: The Spinoza Lectures (Amsterdam: Van Gorcum
Publishers, 2001).

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2. Shah Bano, Communal Politics and Feminist Dilem

Debates surrounding gender equality and religious-cultural differenc
long and troubled history in India. Colonial rulers viewed Indian wom
'dependent subjects', tied to the claims of their husbands, families, com
Victorian feminists also contributed to the portrayal of the Indian w
a dependent subject. As feminists, their own claims to political agen
supported by what they claimed as a special moral responsibility to
downtrodden women of the colonies. Indian women appeared as the na
logical 'white woman's burden'. The claim of Victorian feminists to s
Indian women was replicated in the claims of many Indian nationalist
their political roles as crucially bound up with improving the status
women and safeguarding their honour against the polluting forces of the
For many nationalists, the home, and women's place within in it, was r
kind of inner space, within which colonial hegemony could be challe
denied. Colonial rule was portrayed as an interruption in the authentic
of the Indian nation.14 Within the private, domestic sphere, women were
with safeguarding that story, becoming the bearers of culture, the rep
traditions. Many women were complicit in this idealization of Indian
hood, supporting nationalist claims that 'their' religion or culture treat
with greater respect than did the cultures and traditions of the West
Narayan notes, gender came to play a role in the ideological service of
nial Empires and of Third World nationalist movements, 'helping to
Western and non-Western women against each other as competing c
embodiments of appropriate femininity and virtue'.'5
The division between public and domestic spheres was given legal san
the Warren Hastings Plan of 1772, which provided that Hindus and M
the Indian sub-continent were to be governed by their own laws in dispute
to inheritance, marriage, caste and other religious usages and institut
1781, succession and inheritance were added to this list. In all other ma
courts were to act, 'according to justice, equity and good conscience'
reception of secular and western laws into other spheres of the legal f
created a sharp dichotomy between systems of personal law and the ge
13 U. Narayan, Dislocating Cultures: Identities, Traditions and Third World Feminism (London
1997) 18.
14 Ibid at 17.
15 Ibid at 19.
16 Although the courts followed British models of adjudication and procedure, the plan had provided for Hindu
and Muslim experts (Pandits and Maulvis respectively) to instruct the courts as to the nature of the Hindu or
Muslim law, whenever a matter of Hindu or Muslim law come to be decided upon. The Pandits and the Maulvis
were bound by the 'laws of the Shastras' in the former case and 'the laws of the Koran' in the latter case. In 1793
this Regulation was replaced by Section 15 of Regulation IV to read 'Hindu laws' and 'Mohammedan laws'. See
generally, M. Anderson, Islamic Law and the Colonial Encounter in British India; C. Mallat and J. Connors, Islamic
Family Law (London: Graham and Trotman, 1990) 205.
17 Section 60 of the 1781 Regulation. See generally, D. Pearl, A textbook on Muslim Personal Law (London:
Croom Helm, 2nd edn, 1987) 26.

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applying irrespective of religion.18 The division between p

spheres underpinning the Hastings Plan was a familiar one to
It reflected a 'cult of domesticity' that permeated much of
system.19 It also reflected the peculiarly western liberal traditio
privatizing of religion as essential to a modus vivendi between co
tions of the good life. For the colonial rulers, maintaining s
religion-based personal law was administratively convenien
religious claims, it was hoped to dissipate at least some of th
colonial project. In the context of colonial rule, however, th
the public and the private created difficulties.
The colonizing state could not command a 'sense of belong
colonized. This 'sense of belonging' developed instead within
religious communities. As a result, political identities were i
along communal lines. The ideology of communalism was rei
of the categories of caste and religion in the censuses undert
in India. Political representation also became communal, as se
tive assembly were earmarked for different communities ac
proportionality.20 Personal laws played a key role in demarca
of communal and gender identities, becoming highly contest
struggle. Hindu and Muslim women increasingly came to be d
markers',21 leading to minutely defined, stringent controls
iour, their roles and status. These controls were exercised particu
domestic sphere, where colonized communities continued to
of autonomy or 'freedom' from colonial rule.
The struggle to control and delimit women's roles and stat
independence. British historians of the colonial era often ch
a society weakened by religious divisions. This characteriza
by Indian nationalist leaders themselves. To remedy the fai
politics, Nehru proposed a secular, pluralist state and the id
citizenship. However, although the principle of secularism
constitutional framework, the precise meaning of secularism
throughout the history of the State.22 As Kapur and Cossma
has never been taken for granted in India, 'The struggle to secur
is See, for example, the Indian Penal Code (1860); Code of Criminal Procedure (186
dure (1859).
19 K. Sangari, Politics of the Possible: Essays on Gender, History, Narratives, Colonial English (London: Anthem
Press, 2002) 163.
20 See: Chakrabarty D above n 8 at 98. The process of communalization has been described as involving
a 'dynamic nominalism', according to which people came to fit the categories that colonial authorities fashioned
for them. See: I. Hacking, 'Making Up People' in T. Heller, M. Sosna and D.E. Wellbury (eds), Reconstructing
Individualism: Autonomy, Individuality and the Self in Western Thought (Stanford, CA: Stanford University Press,
1986) 227-28.
21 Sangari K above n 19 at 238.
22 A. Nandy, The Intimate Enemy: Loss and Recovery of Self under Colonialism (Delhi: Oxford University Press,
1983); Ibid. Traditions, Tyranny and Utopias: Essays in the Politics of Awareness (Delhi: Manohar, 1987); B. Parekh,
Gandhi's Political Philosophy: A Critical Examination (Indiana: University of Notre Dame Press, 1989).

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and political protection has been long and hard'.23 As a principle adop
cause of national unity and integrity, secularism was intended to provide a
vivendi between communities that had come to define themselves by
attachments. For many, it has involved a process of drawing lines, de
the spheres that 'legitimately appertain to religion',24 distinguishing betw
secular and spiritual aspects of daily life. Under colonial rule, religiou
laws had become closely intertwined with communal identity.25 Est
a secular state, it was hoped, would replace communal identities with
of universal citizenship, an ideal that was articulated by Nehru and his fol
For Nehru, national unity required greater uniformity in the adminis
justice and the universal application of a set of general laws. Moving
the boundaries of communal identities required reform of the separat
of personal laws inherited from the colonial era. This meant developin
form civil code (UCC) that would apply to all citizens, regardless of co
attachments.
In a struggling nation state, scarred by the trauma of partition and civil war,
however, 'gender trouble' could not be countenanced. As many commentators
have noted, at times of national crisis and rapid social change, changes in
gender relations are perceived as paradigmatic symptoms of cultural threat
and loss.26 To ease the sense of anxiety in the fledgling nation-state, a com-
promise was arrived at. Rather than insisting on uniformity within personal
laws, article 44 of the Directive Principles of State Policy directed the State to
move towards the adoption of a UCC. The UCC was an aspiration of India's
constitutional framework. This compromise, it was hoped, would secure the
loyalty of Muslim leaders. Even this compromise, however, attracted criticism
from Muslim members of the Constituent Assembly. Ambedkar, one of the
chief architects of the constitutional text was unmoved by this opposition.
Noting that for almost every aspect that governed human relationships, a uni-
form code of laws already existed in the country, he defended the need to
extend the general protection of the law to marriage and family relations.27 In
defence of Article 44, Ambedkar argued that the intention was not to invade
the domain of religion but merely to introduce uniformity into the regulation
23 Cossmann and Kapur above n 9 at 1.

24 Per Shri KM Munshi, Member of the Drafting Committee, in the Constituent Assembly, (Constituent Assembly
Debates, Vol. VII, pp. 547-48, quoted in V.N. Shukla's Constitution of India (9th edn) by M.P. Singh (Eastern
Book Company, 1994).
25 See generally: T. Metcalf, Ideologies of the Raj (Cambridge: Cambridge University Press, 1995); J. Nair, Women
and Law in Colonial India: A Social History (New Delhi: Kali for Women, 1996); M. Galanter and J. Krishnan
'Personal Law and Human Rights in India and Israel' 34 Isr L. Rev. (2000) 34 at 101-33; F. Pereira, The Fractured
Scales: The Search for a Uniform Personal Code (Calcutta: Stree, 2002); S.S. Ali, Gender and Human Rights in Islam
and International Law (The Hague: Kluwer, 2000) esp ch 6.
26 See U. Narayan above n 13 at 20. See also: V. Moghadam, 'Patriarchy and the Politics of Gender in Modernising
Societies: Iran, Pakistan and Afghanistan' (1992) International Sociology 7:35-47.
27 See: Constituent Assembly Debates, Vol. VII, pp. 550-52. See generally: D.C. Ahir, Ambedkar and the Indian
Constitution (Delhi: Low Price Publications, 1997) 99.

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of marriage and succession.28 He and other drafters of the C
ever, underestimated the extent to which communal identities had become
intertwined with separate systems of personal law. The connection between
religion and personal laws was to prove resistant to the reforming agenda of
a secular state for many years to come. As a result, women's claims to equal
treatment in matters of marriage and family relations continued to be
constrained by the demands of religious communities and attempts at reform
of Muslim Personal law, in particular, were to be repeatedly thwarted by con-
servative forces.29
Shah Bano's case highlights both the potential of expanding the rights
accorded to women within minority communities and the dangers to feminism
in yielding to dominant voices within religious communities.30 The Shah Bano
case arose from an application for maintenance brought by Shah Bano against
her former husband, Mohammed Khan. Her application relied upon section
125 of the 1973 Code of Criminal Procedure. The 1973 Code, based on the
earlier 1872 Code, applied to all Indian citizens, regardless of religion, and was
enacted primarily as a safeguard against vagrancy, 'or at least some of its con-
sequences'.31 Shah Bano's husband contended that his liability to pay main-
tenance should be determined, not under the general law but rather under
Muslim Personal Law, in accordance with which the liability of the husband
to maintain his divorced wife was limited to the three-month period of iddat
following divorce. The All India Muslim Personal Law Board, a statutory body
intervening on behalf of Mohammed Khan, argued that the courts had no right
to interfere with the arrangements made by Muslim communities for the main-
tenance of divorced Muslim women. These arrangements included the
payment of mahr (marriage settlement or dower) and the provision of support
through Shah Bano's extended family network.32 The case, which culminated in
an appeal to the Supreme Court, raised the question of how and whether the
personal laws of a religious community could be subject to the scrutiny of
a general law. The key question to be decided by the Court is summarized by
Veena Das33:
How would one resolve conflicts which arise between the desire to preserve culture by
a filiative community such as an ethnic or religious minority, and a similar but affiliate
28 See: Constituent Assembly debates, Vol VII, pp. 550-52. See also D.C. Ahir above n 27.
29 On reforms of Hindu personal law, see: L. Sarkar, 'Reform of Hindu Marriage and Successsion Laws' in
Bharati Ray and Aparna Basu (eds), From Independence Towards Freedom: Indian Women Since 1947 (Oxford: OUP,
1999).
30 See generally: A.A. Engineer, The Shah Bano Controversy (Hyderabad: Orient Longman, 1985); K.R. Khory,
'The Shah Bano Case: Some Political Implications' in R. Baird (ed), Religion and Law in Independent India (Delhi:
Manohar, 1993) 121-37.
31 Per Sir James Fitzjames Stephen, architect of the Code, cited in V. Das, 'Cultural Rights and the Definition of
Community' in O. Mendelsohn and U. Baxi (eds), The Rights of Subordinated Peoples (Delhi: Oxford University
Press, 1994) 117-58 at 128.
32 Above n 3 at 954, para. 31 per Chandrachud C.J.
33 V. Das, above n 31 at 137.

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community such as the community of women, which wishes to reinterpret th

according to a different set of principles.
It was not the first time that this question fell to be negotiated by t
judiciary. Two earlier decisions of the Supreme Court had concluded that
section 125 could be relied upon by Muslim women seeking maintenance.34
A number of adjudication strategies were open to the Supreme Court. They
could simply accept the claims of Mohammed Khan and his supporters and
adopt a policy of non-interference in the personal laws of religious communities.
They could, in other words, ignore the apparently general provisions of the 1973
Code and yield to the privatizing rule of the Shariat Act. This, in itself, however,
would not resolve the dispute as the precise meaning and scope of Muslim
Personal Law (MPL), itself, was contested. Not all Muslims agreed with the
interpretation of the Shari'ah put forward by the MPL and Shariat Boards. The
Supreme Court could also have chosen to simply apply the general provisions of
the 1973 Code and reject the 'defence of culture' raised by Mohammed Khan
and his supporters. Choosing this route would have had the added advantage of
bringing uniformity to the rules regulating the payment of maintenance, reflect-
ing the constitutional imperative to introduce a uniform civil code. The
Supreme Court, however, did not choose either of these strategies. Instead, the
Court engaged in a process of reinterpreting the Shari'ah, to determine whether
or not there was a conflict between the Code and the requirements of MPL.
The Chief Justice concluded that in cases of conflict, the Code of Criminal
Procedure would override the personal laws of religious communities.35 The
obligation imposed by section 125 was founded upon the obligation to prevent
vagrancy and destitution. That, he said, was 'the moral edict of the law' and
morality, he said, could not be 'clubbed with religion'.36 The duty to pay main-
tenance 'cut across the barriers of religion'.37 This view was accepted by the five
judge bench (all of whom were Hindu). It was open to the Court at this point, to
simply apply the general law. The Court, however, did not stop at simple legal
regulation. Having determined the priority of the general law, the Court went on
to examine whether there was in fact a conflict between the requirements of
Muslim personal law and the Code of Criminal Procedure. Noting the Shari'ah's
capacity for evolution, and citing the Report of the Pakistan Commission on
Marriage and Family Relations in support of this view,38 the Court undertook
34 Two of the earlier decisions were: Bai Tahira v Ali Hussain Fidaalli Chothia (1979) 2 SCC 316 and Fazlunbi v
K Khader Vali &Anr (1980) 4 SCC 125.
35 Above n 3.
36 Ibid at 948, para. 7.
S7 Ibid.
38 Above n 3 per Chandrachud C.J., at 955, para. 34, citing Report of the Commission on Marriage and Family
Laws, Gazette of Pakistan, Extraordinary, 20 June 1956, (Majority report) 1197. The Report's conclusion draws
on the work of Muslim scholar, Allama Iqbal. In the Commission's view, MPL was a 'growing organism', that had
become a conservative and rigid force under colonial rule, failing to respond to 'progressive forces' and 'changing
needs' (p. 1203). The Commission's report included many proposals and recommendations for reform, leading

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a review of a range of sources of the Shari'ah capable of givin
question of maintenance. Contrary to the view of the All Ind
Boards, the Court concluded that the Quran imposed an obl
maintenance beyond the period of iddat. Also contrary to the
they concluded that the payment of Mahr (dower) was not
charge this obligation. Much of the debate turned on the int
Arabic word mata, which the Court interpreted as requirin
make provision for his divorced wife, where she was unable t
In other words, the duty to make provision for a divorced wife
purpose as section 125 of the Code, to prevent vagrancy and destitution.
Following this interpretation, the Court concluded that there was no conflict
between MPL and section 125 of the Code.39 Any contrary view, they said,
would 'do less than justice to the teaching of the Holy Quran'.40
Much of the Supreme Court judgment is couched in the discourse of protec-
tion. The duty to pay maintenance was conceived as a societal obligation to prevent
vagrancy and destitution. Divorced women were represented as a segment of
society that had traditionally been subject to unjust treatment and in need of
special treatment. Chandrachud C.J. cited Verse 241 of the Quran to support
his finding of a duty 'in kindness' to provide for divorced Muslim women.41 He
spoke also of the 'suffering sections of society' and the duty to ameliorate this
suffering.42 The Supreme Court perhaps recognized the discontent that its findings
would generate. Hiding behind the discourse of protection, rather than simply
asserting the fundamental rights of Muslim women was perhaps a strategy to
diffuse further conflict. If this was their strategy, however, it failed. As Seyla
Benhabib notes, the Shah Bano controversy raised issues that went far beyond
the case at hand, 'into the very heart of the practice of legal pluralism, of reli-
gious coexistence.., .and of the meaning of Indian national unity and identity'.43
Touching as it did on communal sensibilities, the Supreme Court's negotiation
of the conflicting cultural claims raised in the Shah Bano case was to give rise to
considerable controversy.
ultimately to the adoption of the 1961 Muslim Family Law Ordinance in Pakistan. A strong note of dissent,
however, was entered to the Commission's final report by Maulana Ihtehshamul Haq, signalling the beginning of
a controversy that was to plague reforming forces for many years to come. See: Gazette of Pakistan Extraordinary,
30 August 1956 (note of dissent) 1604. See generally: J.L. Esposito, 'Muslim Family Law Reform in Pakistan'
Journal of Malaysian and Comparative Law (1977) 4(2) at 293; D. Pearl, 'Family Law in Pakistan' Journal of Family
Law (1969) at 165; S. Mullally, 'Separate Spheres: protective legislation for women in Pakistan' Asian Yearbook of
International Law (1994) 4 at 47-67.
39 In arriving at this conclusion, the Court followed two of its earlier judgments: Bai Tahira v Ali Hussain Fidaalli
Chothia (1979) 2 SCC 316 and Fazlunbi v K Khader Vali & Anr. (1980) 4 SCC 125.
40 Above n 3 at 952, para 22.
4' Above n 3 at 952, para 19, citing M. Pickthall, The Meaning of the Glorious Quran (Text and Explanatory
Translation by T. Pickthall) (Taj Company Ltd: Karachi).
42 Ibid at 954, para. 29
43 S. Benhabib, above n 12 at 92.

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3. Reinstating the Ties that Bind: the Aftermath of Shah Ban

The spectacle of an exclusively Hindu Supreme Court determining the sco
and content of Muslim personal law provoked an outcry from conservatives wit
the Muslim community. Shah Bano, under pressure from her own commun
disassociated herself from the judgment of the Court and withdrew her claim f
maintenance. The All India MPL Board called for legislation to reverse
Court's ruling.44 Their call led to the enactment of the 1986 Muslim Wom
(Protection of Rights in Divorce) Act, which attempted to reverse the Supr
Court's judgment in Shah Bano and provided for a limited obligation to p
maintenance to divorced Muslim women only for the period of iddat. Bey
the period of iddat, the duty to provide for a divorced woman's well-being fell
the extended family, or failing that, to the broader community through its wa
boards.
Many individual Muslims and Muslim organizations had spoken out in defence
of the Supreme Court decision and Shah Bano. Cabinet Minister Arif Mohammad
Khan argued that the 1986 Act was anti-constitutional, anti-Islam and inhuman,
and several Muslim groups sent protest letters and demonstrated against the
Act.45 In spite of this diversity of Muslim opinion on the matter, the Congress
Government yielded to conservative forces within the Muslim community. The
mass rallies and political power of the legislation's proponents were important
considerations for the Government. The Congress Party had lost support in a
number of Muslim dominated districts in the 1985 elections. The Muslim com-
munity had been a key constituency of the Congress Party since independenc
By passing the 1986 Act and granting continuing autonomy in the area of pe
sonal law, the Government hoped to assure the support and votes of the Musl
community. The Government tempered its deference to the claims of conserv
ive Muslims by recommending the adoption of a UCC by the year 2000. The
pursuit of gender equality was deferred, yet again, in the interests of placatin
communal sensibilities. Absent from the response of the ruling Congress par
was a recognition of the legitimacy of Shah Bano's claims to equal treatmen
and of Muslim women's rights to participate in debates determining the limi
of cultural claims. The silencing of Shah Bano, following the Supreme Cour
judgment in her favour, illustrates further the denial of this right. Feminist and
other emancipatory interpretations of the Shari'ah were ignored as the rulin
Congress party rushed to placate the dominant voices within the Muslim
community.
The pursuit of a feminist agenda following on from the Shah Bano case was
further complicated by the response of the Hindu right. The BJP campaigned
against the 1986 Act, arguing that it violated both the constitutional principle of
44 See: A.A. Engineer, above n 30.

45 Ibid at 241.

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secularism and the rights of Muslim women. It violated the princ
because the Muslim community was allowed to opt out of th
Criminal Procedure and it violated Muslim women's right to
because they were to be treated differently from Hindu wom
a Hindu nationalist politician argued that the issue was 'not
of poisonous seeds of treacherous tendencies... Those who
out Constitution and laws, should quit the country and go to Karachi or
Lahore... There might be many religions in the country, but there must be one
constitution and one common law applicable to all'.46 The exclusionary impulse
underpinning many calls for reform of MPL is evident in this statement. The
Hindu right was not concerned with gender equality but rather with further fuel-
ling the politics of communalism. As Kum Kum Sangari notes, the dominant
model in twentieth century Hindu communal discourse had come to rest on
male rivalry;47
the excessive patriarchal privileges of Muslim men were chastised; women were figured
as property endangered by men of 'other' groups, men as proprietors governing com-
peting patriarchies, communal tension as between Hindu and Muslim men.
Ultimately, in this debate, conservative nationalists within both the Hindu and
Muslim communities distorted the discourse of equality to undermine substan-
tive equality as between women and men, and 'substantive secularism', that is,
equal respect and accommodation for minority communities.48
The role of the judiciary in adjudicating cultural claims was again the subject
of debate in Danial Latifi & Anr v Union of India.49 This case followed on from
the Shah Bano controversy and arose from a constitutional challenge brought
against the Muslim Women (Protection on Divorce) Act, 1986. The Shah Bano
controversy and the enactment of the 1986 Act had given rise to a series of
constitutional challenges and conflicting judgments in High Courts throughout
India. The Kerala, Bombay and Gujarat High Courts had each concluded that
a husband's duty to make 'fair and reasonable provision' for his divorced wife,
(provided for under section 3 of the 1986 Act), included a duty to make arrange-
ments for his wife's future well-being beyond the iddat period.5o A similar
conclusion was arrived at by a full bench of the Punjab and Haryana High
Court." Opposing views had been adopted in other High Courts, however,
limiting Muslim women's right to maintenance to the iddat period, following the
46 Cited in A.A. Engineer, above n 30 at 243-45.

47 K. Sangari, above n 19 at 238.
48 Kapur and Cossmann, above n 9 at 257.
49 2001 AIR SC 3958
50 See: Arab Ahemadhia Abdulla v Arab Ail Mohmuna Saiyadbhai & Ors AIR 1988 (Guj.) 141; Ali v Sufaira
(1988) 3 Crimes 147; K Kunhashed Hazi v Amena 1995 Cr.L.J. 3371; K. Zunaideen v Ameena Begum (1998) II
DMC 468; Karim Abdul Shaik v Shenaz Karimr Shaik 2000 Cr. L. J. 3560; Jaitunbi Mubarak Shaikh v Mubarak
Fakruddin Shaikh &Anr, 1999 (3) Mh.L.J. 694.
" Kaka v Hassan Bano &Anr., II (1998) DMC 85 (FB).

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letter of the 1986 Act.52 These judgments contributed to the emerg

complex web of institutional materials on the subject of Muslim wom
to maintenance following divorce. They also brought into question th
bility of the 1986 Act with the constitutional guarantee of equality and th
of India's multicultural arrangement.
In the Danial Latifi case, the Supreme Court was finally given the op
to review the constitutional validity of the 1986 Act. The case arose from
of petitions claiming that the Act violated the constitutional guarantees of
ity, life and liberty53 and that it undermined the secular principles under
India's constitutional text. The Solicitor General, defending the constit
of the Act, urged the Supreme Court to adopt a contextual approach
claims raised. He argued that in assessing the fairness and reasonablen
Act, the Courtishould take account of the distinct personal laws of th
community. Irt other words, he argued, religion-based personal laws
be sub, -c~ +o the same tests of justice as applied to other legislation. T
was no nr, xt-4or Muslim women, no 'opt out' of the personal la
applied to was not considered problematic. The All India MPL Board,
intervening in .de case, argued that the Supreme Court judgment in Shah Bano
was based on" an erroneous interpretation of MPL, which the 1986 Act had
attempted to correct. The Board criticized the 'unsafe and hazardous' route
taken by the Supreme Court in Shah Bano,54 and also criticized the Court's
failure to recognize the distinct social ethos of the Muslim community, in par-
ticular, the role of the extended family network in providing for the needs of
divorced women. The 1986 Act, they argued, attempted to correct these failings
and to recognize the legitimacy of the Muslim Community's claim to a distinct
religious-cultural identity. The National Commission for Women, also interven-
ing in the case, urged the Supreme Court to follow the judgments adopted by
the Kerala, Gujarat and Bombay High Courts-viz. that the duty to make fair
and reasonable provision for a divorced Muslim woman extended beyond the
iddat period. The Commission argued that any other construction of the 1986
Act would be a denial of Muslim women's equal right to life and liberty, as guar-
anteed by the Constitution.
In its judgment on the competing claims brought to it, the Supreme Court
adopted what might be viewed as a quintessentially universalist stance. Questions
relating to basic human rights and the pursuit of social justice, it held, should be
decided on considerations other than religion or other 'communal constraints'.55
52 See: Umar Khan Bahamami v Fathimnurisa 1990 Cr.L.J. 1364; Abdul Rashid v Sultana Begum 1992 Cr.L.J. 76;
Abdul Haq v Yasima Talat 1998 Cr.L.J. 3433; Md. Marahim v Raiza Begum 1993 (1) DMC 60.
53 See Articles 14, 15 and 21 of the Constitution of India. In Olga Tellis v Bombay Municipal Corporation 1985 (3)
SCC 545 and Maneka Gandhi v Union of India 1978 (1) SCC 248, the Supreme Court held that the right to life
and personal liberty, guaranteed by Article 21 of the Constitution, included the right to live with dignity.
54 See above, n 3.
" See above, n 6, per Rajendra Babu J. at 3967, para 20.

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In the Court's view, the duty to secure social justice was one t
recognized by all religions. Vagrancy and destitution were so
universal magnitude and had to be resolved within a framew
rights. Applying a literal interpretation to the 1986 Act, th
would deny Muslim women the remedy claimed by Shah Ba
125 of the Criminal Procedure Code. The Court concluded th
the 1986 Act would lead to a discriminatory application of
excluding Muslim women from the protection afforded to C
Parsi women, simply because of their religious membership.5
sumption of constitutionality to the Act, the Court conclude
could not have been intended by the legislature as it would b
constitutional guarantees of equality and non-discrimina
concluded, therefore, that while the duty to pay maintenance
iddat period, the requirement to make fair and reasonable
divorced Muslim woman extended to arrangements for her f
Adopting this interpretation of the 1986 Act enabled th
constitutionality of the Act and to avoid the communal tri
have accompanied a finding of unconstitutionality. It also en
Court to go beyond the limited remedy provided for in th
Procedure under which a statutory amount is set out for the
tenance. The duty to make reasonable provision for a divor
for much greater flexibility and attention to the particular
women.
The strategies adopted by the Supreme Court in the L

those adopted in Shah Bano and are of particular inter
with the politics of multiculturalism. In the Latifi cas
bined an appeal to universal principles of human right
ology', drawing on internal traditions of resistance withi
Insider methodologies, however, do not remove the re
justification. Cultures and traditions consist of many
tives. The problem is how to choose between competin
justify that choice against those who would deny th
choices. The Supreme Court in the Danial Latifi case,
legitimacy of women's claim to equal citizenship. Ult
Muslim women a more egalitarian application of the Shari'ah. The Court's
judgment treads a fine line between yielding to the cultural claims of the Muslim
community, on the one hand, and on the other hand, ensuring Muslim women's
56 Ibid para 33.

57 Ibid.
58 We see examples of such methodologies in the work of Muslim feminists such as Shaheen Sardar-Ali and
Fatima Mernissi: S.S. Ali, Gender and Human Rights in Islam and International Law (The Hague: Kluwer, 2000);
F. Mernissi, The veil and the male elite: a feminist interpretation of women's rights in Islam (Reading, Mass.: Addison-
Wesley Pub. Co., 1991).

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right to equal citizenship. As in the Shah Bano case, priority was given
Supreme Court to the general law-in this case, the constitutional gua
equality. The Court recognized that the rights of Muslim women cou
constrained by their membership of a religious community.
The interpretation of the 1986 Act adopted by the Court avoided th
binary reasoning that could have led to a condemnation of MPL and to
communal tensions. In both the Shah Bano and the Latifi cases, the S
Court adopted a dual-track approach. Not content to remain within the
of strict legal regulation, they went on to explore the meaning and
MPL, initiating a dialogue that recognized the diversity within Islam a
the Muslim community itself. The risk, as always, however, is that th
judgment will be perceived as yet another denial of the Muslim com
right to a distinct cultural identity and will serve to further under
community's 'sense of belonging' in the Indian state. Against a backg
continuing tensions between Hindu and Muslim communities, this ri
continue to threaten the pursuit of gender equality. While a uniform
remains elusive, the search for egalitarian interpretations of the Shari'
the essential to securing greater equality for Muslim women.
4. Is Multiculturalism 'Bad for Women'?

In the controversy surrounding the Shah Bano and Danial Latifi case
the tensions that arise between feminism and the politics of multicul
The adoption of the 1986 Act, apparently denying divorced Muslim w
right to maintenance, illustrates just how 'bad' multicultural arrangem
be for women. No doubt, Susan Okin would view the Congress Govern
response to the Shah Bano judgment as yet another example of why f
should oppose the politics of multiculturalism.59 However, the Suprem
in both the Shah Bano and Danial Latifi cases, found alternative ways o
ating cultural conflicts without adopting the oppositional either/or stance
see in Okin's writings. Deliberative democratic models of multicultura
find alternative ways of negotiating such conflicting claims and are of par
interest to feminists concerned with the politics of multiculturalism.
One of the most insightful discussions of multicultural politics in recent
is to be found in Seyla Benhabib's work, The Claims of Culture.60 Be
discussion of cultural conflicts is rooted in a 'cosmopolitan point of view',6
which the negotiation of difference is both a pragmatic and a moral im
Her proposals are rooted in a deliberative model of democracy and a n
framework that draws on the insights of discourse ethics. Rather than
59 S.M. Okin, above n 11.

60 S. Benhabib (2002), above n 12 at 101.
61 S. Benabib (1995), above n 12 at 253.

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to an 'overlapping consensus',62 or to a universal legislating

relies on a virtuous circle-a dialectical process of reflecting
and necessary presuppositions of communicative speech'. 63
presuppositions as the principles of universal respect and e
city.64 These core moral principles define the limits of rea
providing a normative framework within which conflicting cult
negotiated. Within a constitutional framework, they are the con
tials that trump other legal claims.
Drawing on the core moral principles of universal respect
reciprocity, Benhabib sets about defining the terms of a ju
arrangement. She sets out three key principles for such arra
tarian reciprocity; (b) Voluntary self-ascription; (c) Freedom
ation.65 Adhering to these principles, she argues, avoids what
described as the 'paradox of multicultural vulnerability'66 -
children become the bearers of culture, the repository of tr
principle, egalitarian reciprocity, requires that members of m
ties should not be granted lesser civil, political, economic a
because of their membership status. Any other arrangemen
reinforce inequalities within groups. The denial of such righ
Shah Bano and Danial Latifi cases. In both of these cases, th
within the Muslim community were seeking to limit the r
Muslim women. If the Supreme Court had listened to these
status as a Muslim would have defined the limits of her right
of the 1986 Act, the Congress Government attempted to d
Supreme Court, and a number of High Courts, however, reas
of Muslim women's right to equal citizenship. The requireme
reciprocity, albeit couched in the discourse of protection, ultima
The second requirement set out in Benhabib's dual-track a
voluntary self-ascription. This requirement recognizes the im
vidual self-determination. Underpinning this requirement is
the right to define and control membership cannot be gran
the expense of the individual. In the Shah Bano case, Moham
supporters were attempting to confine Shah Bano within t
membership by denying her the right to invoke a generally
the passing of the 1986 Act, the Government defined Musl
62 See: J. Rawls 'The Domain of the Political and Overlapping Consensus', New Yor
64(2) at 233-55 (1989). Ibid. 'The Idea of an Overlapping Consensus' (1987) OJLS 7(1)
63 See J. Habermas ,'Discourse Ethics: Notes on a Program of Philosophical Justificatio
and S.Weber Nicholsen) in Moral Consciousness and Communicative Action (Cambrid
43-116 at 86.
65 Ibid at 130.
66 A. Shachar, 'The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictiona
Harvard Civil Rights - Civil Liberties Law Review (2000) 35(2) at 387-426.

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and foremost as members of a religious community. Any choice as to whet

religion-based system of personal laws would be applicable to them was de
Group membership and the consequences it entailed was not based on
voluntary decision of Muslim women, but rather was determined by the c
of community and religion. Many feminists have been critical of the prio
accorded to individual autonomy in liberal theories of rights. As the Shah Bano
illustrates, however, without a commitment to the overriding priority of indiv
autonomy, women remain vulnerable to the claims of nation, religion or commun
This brings us to Benhabib's third and final requirement, that of freedo
exit and association. To satisfy the requirements of a just multicultu
arrangement, the freedom of the individual to exit and to disassociate from
group must be unrestricted. Shah Bano, in invoking the Code of Criminal
cedure-a general law-was seeking to exit from the confines of Muslim p
sonal law. Following on from the Supreme Court judgment, the Governm
sought to deny Muslim women this right to disassociate themselves from
personal laws associated with their religious membership. Danial Latifi, i
challenging the constitutionality of the 1986 Act, was questioning the den
this right to Muslim women. At the heart of this dispute is a tension betw
communitarian politics of multiculturalism and the requirements of dem
cratic equality. Communitarian multiculturalists, such as Bikhu Parekh,
culture as constitutive of individual identities.67 For Parekh, culture cann
viewed as a context of choice alone; cultural membership is not an op
extra. This stronger reading of the role of culture has implications for mul
tural arrangements. If we accept the claims of the communitarian multicu
alist, we must recognize cultural membership as a basis for legitimate
differentiation. On this reading, states would be required to allow minority
groups to opt out of general laws, including constitutional guarantees of equality
and fundamental rights. India's declaration under the 1979 UN Convention on
the Elimination of All Forms of Discrimination Against Women, stating its policy
of non-interference in the personal laws on minority communities,68 would not
67 B. Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge MA: Harvard Uni-
versity Press, 2000).
68 India ratified the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women,
(the Women's Convention) subject to a declaration limiting its obligation to challenge the personal laws of religious
communities. The full text of the declaration reads: i) With regard to articles 5 (a) and 16 (1) of the Convention on
the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares
that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal
affairs of any Community without its initiative and consent. ii) With regard to article 16 (2) of the Convention on
the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares
that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a
vast country like India with its variety of customs, religions and level of literacy. See: United Nations Treaty Collec-
tion http://www.unhchr.ch/html/menu3/b/treaty9_asp.htm (as of 5 August 2002). See also: Concluding Observations
of the Committee on the Elimination of Discrimination Against Women: India. 01/02/2000. UN Doc. A/55/38,
paras 30-90, para 40. Unlike other states parties to the UN Convention on the Rights of the Child, India has not
entered a reservation or declaration invoking religious-cultural claims. The declaration submitted on ratification
refers only to the question of child labour and the need for progressive reform in this area. For the full text of the
declaration, see: http://www.unhchr.ch/html/menu3/b/treaty 15_asp.htm

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only be permissible, it would, in fact, be required to protect the
identities of religious communities. The Government of India
policy of non-interference. However, as we see in the contro
the Shah Bano and Danial Latifi cases, both the judiciary and t
wavered between a reforming agenda and a deference to cultur
The principles for a just multicultural arrangement, as set o
are not compatible with the stronger reading of the role of cu
by communitarian multiculturalists. Critics might argue th
principles are themselves rooted in a commitment to individu
reflects a peculiarly western set of values. This argument has
Will Kymlicka's model of multicultural citizenship. Kymlick
the politics of difference within the constraints of liberal j
restrictions' denying the priority of individual autonomy, re
roots in religion, culture or tradition, cannot be permitted. Altho
cultural membership is recognized, it is its contribution to
flourishing that is valued and granted legal recognition.70 K
theory of minority rights is criticized as being too tied to wester
and insufficiently sensitive to cultural differences.71 For women
however, the right to invoke a generally applicable law, and
terms of her cultural membership, is as fundamental as it i
woman. Unless the freedom of exit and association is recogni
ciple in any multicultural arrangement, the pursuit of gender equ
be subject to the constraints of communal claims, whether fro
family or religious community. Not only will women be denied a
the very possibility of reinterpreting religious laws or reneg
cultural legacies will be denied. There may also be times when
are not enough, when the possibility of radical social critici
move outside of, or beyond, the constitutive norms of partic
There may be times when one's own culture and traditio
dominated by such brutal forces, when debate and conversati
or simply made impossible, that the social critic becomes th
When that happens, the right to exit and disassociation is fu
pursuit of an emancipatory agenda.
69 W. Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Ox

Press, 2001) 44.
70 W. Kymlicka, Multicultural citizenship: a liberal theory of minority rights (Oxford: Clarendon P, 1995) (Oxford
political theory, p 83. A 'societal culture' is important because, Kymlicka argues, it gives people 'access to a range
of meaningful options'. Ibid.. See: Human Rights Committee, General Comment 23, Article 27 (Fiftieth session,
1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI\GEN\I\Rev.1 at 38 (1994).
7 See generally: M. Malik, 'Communal Goods as Human Rights' in C. Gearty and A. Tomkins (eds),
Understanding Human Rights (London: Mansell, 1996) at 138-69; C. Joppke and S. Lukes, Multicultural Questions
(Oxford: Oxford University Press, 1999); W. Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and
Citizenship (Oxford: Oxford University Press, 2001) 49.

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The deliberative democratic model of multiculturalism outlined by B

may challenge different 'ways of life' in a very fundamental sense. V
self-ascription or freedom of exit and association are principles that
incompatible with a way of life that views group membership as a giv
conditions are necessary, however, if gender equality is to be safeguar
multicultural society. Importantly, however, the dual-track approach r
the need to go beyond mere legal regulation of conflicting cultural cl
is important in a context where communal tensions are running high
regulation of cultural claims may fuel those tensions further. A comb
legal regulation and enforcement of constitutional essentials with an
moral-political dialogue allows for a process of contestation and chal
also allows for subordinated voices within religious communities to b
Such dialogues can lead to a reinterpretation of inherited traditions, an
nition that religious communities and systems of personal law may ha
themselves the possibilities of more egalitarian outcomes. The strategie
by the Indian Supreme Court provide us with valuable lessons on the
mediation of human rights norms. In the Shah Bano case, we see the
Court appealing to an egalitarian Islam, recognizing the diversity with
and rejecting the dominant voices of the Islamic Shariat and All-Indi
Personal Law Boards. Instead, the Supreme Court chose to listen to s
voices, voices that were seeking equality within and between religious comm
Those voices, though often appealing to background cultural justific
support their claims, accepted Muslim women's right to be treated a
citizens. A commitment to the constitutional essential of equality was the
point for the Supreme Court's judgment in the Latifi case. In the Sh
case, it was the generally applicable law, the Code of Criminal Proced
the societal obligation to ensure that Muslim women were not vulne
destitution and poverty as a result of a discriminatory application of t
both of these cases, we see an attempt to combine legal regulation w
expanded moral-political dialogue on the meaning and scope of const
essentials and religion-based personal laws.
The emphasis on the importance of ongoing dialogue and contestatio
guishes Benhabib's dual-track approach from alternative multicultural
ments such as Ayelet Shachar's 'joint governance' model.73 Shachar's
involves a complex system of multicultural jurisdictional authorities each d
on diverse sources of legal authority, depending on the nature of the
question. The problem, however, is that Shachar privileges legal regu
the expense of political-cultural dialogue. The legal process is shielded f
the dynamism and the unpredictability of such dialogue. The result is
multicultural cold war',74 peace without reconciliation, bargaining without
73 See: A. Shachar, above n 66 and ibid. Multicultural jurisdictions: Cultural Differences and Wom
(Cambridge: Cambridge University Press, 2001).
74 S. Benhabib, above n 12 at 129.

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understanding. The process of moral and political learning,
vibrant multicultural society are stifled by legal manoeuvres.
out, 'The laws, as the ancients knew, are the walls of the cit
passion of politics occur within those walls'." What is ne
between constitutional essentials and the actual politics of multicultural
societies. This is a dialectic that is missing from Shachar's multicultural accom-
modationism.
The failure to provide for an ongoing process of dialogue and confrontatio
can lead either to a legitimation of 'culture-controlling elites' or to fragmentation
and conflict. In the aftermath of the Shah Bano case, the Congress Governme
yielded to the demands of conservative forces within the Muslim community
legitimating the claims of 'culture-controlling elites'. This led to fragmentati
and conflict within the women's movement, within the Muslim community itself
and between minority and majority communities in India. Such conflict, in turn,
limits the possibility of transforming the inherited traditions of religious commu
nities. Issues relating to group-specific rights and cultural claims need to b
understood in the context of the lives of religious communities, who are oft
isolated from the comforts of citizenship and denied a sense of belonging.76
the context of Hindutva and the rise of the Hindu right, a vulnerable minority is
unlikely to accept a proposal for reform that threatens its own dominant trad
tions. This is the challenge faced by feminists in India who, on the one han
advocate universal human rights principles as a means to peaceful co-existenc
and, on the other hand, recognize that these principles have been hijacked an
distorted by the policies of Hindutva.
5. Concluding Remarks
Proposals to reform the personal laws of religious communities raise particul
difficulties for feminism. On the one hand, many feminists have criticized
discriminatory personal laws. They have called for a uniform civil code that would
guarantee women equal rights regardless of their religious membership. On t
other hand, feminists have been concerned to recognize the significance of re
gious and cultural differences between women and have sought to avoid the
homogenizing tendencies of universal norms. A concern not to further isolate and
marginalize minority communities further complicates debate. Martha Nussbau
argues that the role of religion in debates on models and multiculturalism mak
criticism and scrutiny more difficult. It is, she says, a peculiarly liberal dilemma:
If the government defers to the wishes of the religious group, a vulnerable group
individuals will lose basic rights; if the government commits itself to respecting th
"7 Ibid at 130.

76 See H.K. Bhabha, 'Liberalism's Sacred Cow' in S. Okin, Is Multiculturalism Bad for Women? (Princeton:
Princeton University Press, 1999) at 79-84.
77 M. Nussbaum, Sex and Social Justice (Oxford: Oxford University Press, 1999) at 84.

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equal human rights of all individuals, it will stand accused of indifference to t

of conscience.
Missing from this debate, however, is a recognition of women's right to liberty of

conscience as dissenting voices are silenced and feminist interpretations of
religious traditions are rejected. Protecting the right to liberty of conscience also
requires that dissenting voices within religious communities are given a say.78
The right to 'opt out' or to follow more egalitarian religious teachings forms part
of the right to liberty of conscience. Multicultural arrangements too often deny
such intra-group liberties. Though accommodation is made in the name of
respecting differences, dissenting voices within religious communities are given
little support. A defensive liberalism seeks to resolve multicultural dilemmas by
dismissing multicultural politics, as Susan Okin does, or by placing cultural
conflicts on the privacy side of the public/private divide, as Rawls does. We see
such defensiveness in the Government of India's declaration of a policy of 'non-
intereference' in the personal laws of religious communities made on ratification
of the 1979 UN Convention on the Elimination of All Forms of Discrimination
Against Women. A democratic multiculturalism, recognizing the need both f
legal protection of universal norms and for ongoing debate and contestation
attempts to avoid the dangers of such compromises.
The deliberative democratic model of multiculturalism, proposed by Benhabi
recognizes the importance of challenging, negotiating and if necessary, subverting
the boundaries of cultural identities. This process of challenge and re-negotiat
takes place at a number of levels, within and between minority and majorit
cultures. We can see the beginnings of such a process of negotiation and ch
lenge in the Supreme Court judgments in the Shah Bano and Danial Latifi cas
The Supreme Court engages in a close scrutiny of the cultural claims made
support restrictions on a divorced Muslim woman's right to maintenance. In t
Shah Bano case, the Court, perhaps recognizing the heightened nature of com
munal tensions in India, sought to root its findings in Islam itself. In the Lat
case, the Court remained within the constraints of the 1986 Act and avoide
a finding of unconstitutionality while continuing to assert the primacy of t
constitutional guarantee of equality. Opting to listen to subaltern voices
concerning the meaning and scope of Islam, rather than those of the All-India
Muslim Personal Law Board and the Islamic Shariat Board was, in many ways,
more controversial than an application of constitutional principles or inter-
national standards. The Courts' judgments, by appealing to an egalitarian Islam,
however, ultimately lend more support to those seeking to reinterpret inherited
traditions and practices. For Muslim feminists, seeking to challenge the domi-
nant voices within Muslim communities, it offers support to their claim to define
78 See generally: V. Das, 'Cultural Rights and the Definition of Community' in O. Mendelsohn and U. Baxi
(eds), The Rights of Subordinated Peoples (Delhi: Oxford University Press, 1994) at 117-58.

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their own 'minority selves'.79 As Uma Narayan points out, how
of renegotiating religious legacies can only take place if wome
equal right to participate in the definition of religious norms.8o
of egalitarian reciprocity, voluntary self-ascription and freed
that women's human rights are not determined by religious m
limits are necessary to ensure that multicultural arrangeme
ments of gender justice.
Engaging in feminist critique becomes difficult where comm
running high. In India, the Hindu Right had, for some time,
course of equality and human rights, challenging the religiou
communities, not in the name of equality but rather domin
Hindutva as a political phenomenon left little space for femin
discriminatory personal laws and practices.
In both the Shah Bano and the Danial Latifi cases, the Supreme Court
appealed to the universal legitimacy of human rights principles to support its
reading of the Shari'ah. In doing so, they refused to yield to the dominant voices
in the Muslim community or to exempt cultural traditions and practices from
scrutiny and challenge. These cases illustrate the role that universal norms can,
and must, play in resolving conflicting claims. As Benhabib points out, 'Moral
autonomy and cultural pluralism need not always conflict, but when they do it is
important to know where one stands'.81 In the context of multicultural societies,
the pursuit of gender equality requires us to engage in an ongoing moral conver-
sation, informed by the core principles of universal respect and egalitarian reci-
procity. Such dialogues can be risky and unpredictable. They may lead to
further polarization or to greater intercultural understanding. Ultimately, the
goal is to arrive at just multicultural arrangements and to ensure that the
rights and responsibilities of citizenship are accorded to vulnerable minorities.
A deliberative democratic model of multiculturalism and a dual-track approach
to cultural conflicts can assist feminism in the pursuit of these goals.
79 This term is borrowed from Karen Knop. See: K. Knop, Diversity and Self-Determination in International Law
(Cambridge: Cambridge University Press, 2002).
so U. Narayan, above n 11 at 37.

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