In Nation and Family Narendra Subramanian has written a perceptive, multilayered monograph on India’s personal laws. Subramanian writes insightfully of the tensions inherent in postcolonial family law, which in many societies, including India, has involved the retention of personal laws. Personal laws are those culturally embedded, socio-religious laws, and customs that govern familial relations concerning marriage, divorce, guardianship, and adoption, as well as inheritance and succession. Personal laws are applicable based on one’s ascribed religious affiliation, are generally gender discriminatory, and are tarnished by their colonial legacy. Given these attributes they present the postcolonial state with a number of dilemmas expressed through the tensions “between national consolidation and cultural accommodation; between the pursuit of modernity and cultural authenticity, variously conceived; between recognition and individual liberty; and between the aims of promoting gender equality… and the gender-unequal rights recognized by the existing personal laws”.Footnote 1
The work is perceptive in its analysis of personal law “as an important arena in which official nationalism, multiculturalism, secularism, and citizenship”Footnote 2 are “formed and expressed”Footnote 3 and adept in its command of the literatures that such an exploration of complex socio-political phenomenon necessarily invokes. These literatures range from Michel Foucault’s explorations of “the disciplinary practices employed by social institutions… and the forms of knowledge that accompanied such articulations of power”Footnote 4 to Bina Agarwal’s disquisitions on gender and succession in late colonial and post-colonial India.
Subramanian’s work is multi-layered in its global, national, and regional contextualization of the socio-political policies regarding Indian personal law. For example, at the global level he correlates various national attributes with approaches to personal law, frequently presenting these correlations in charts. In one chart Subramanian correlates the extent of change in personal law [Extensive, Moderate, Limited] with the type of regime [Vanguardist, Catch-all, Led by Traditional Elites].Footnote 5 At the two extremes are the Vanguardist Regimes on the one hand versus the regimes Led by Traditional Elites on the other. The Vanguardist Regimes implemented extensive change in their personal laws, changes which Subramanian classifies as either modernist (Turkey and Tunisia) or conservative (Nigeria, Iran, Pakistan, Sudan, Afghanisan, East Malaysia, Aceh). The Regimes Led by Traditional Elites (Algeria, Morocco, Lebanon, Syria, Malawi) implemented only limited changes to their personal laws. In this chart India is characterized as a “Catch-All” regime which, like other such regimes, has made moderate changes to personal law, an analysis which places India in the company of states ranging from Libya and Egypt to Malaysia, Indonesia, and Thailand. Though the use of the term “Catch-All” here cries out for a more rigorous analysis to find a more insightful term, nevertheless, through this chart Subramanian illustrates how “the kind of coalitions that regimes aimed to build and the ways in which they sought to engage with society influenced the extent and nature of the changes introduced in personal law.”Footnote 6
At the national level, i.e. the level at which the analysis focuses on India as a nation, Subramanian develops one of the central arguments of Nation and Family. This argument holds that the majoritarian concerns of India’s “ruling elites” led them to “focus their efforts to promote the modern Indian family on the laws of the Hindu majority since independence”.Footnote 7 This focus on the Hindu majority on the part of these “ruling elites” was based upon their misunderstanding of “Muslim demands to be governed by distinct personal laws as resistance to changes in these laws” even though “certain minority traditions and initiatives supported reform”.Footnote 8
Subramanian’s argument is that support for personal law reforms favorable to women’s interests was just as strong (and contested) among Muslims as it was among Hindus at the time of Indian Independence and the first decade or so thereafter. Subramanian provides persuasive evidence of this support for reform among India’s Muslim community, citing to several developments in the late colonial and post-Independence eras. The first such development was the passage of the Shariat Act in 1937. This act “required the application of Islamic law rather than customs specific to region, caste, or lineage to Muslim family life”Footnote 9 thereby entitling women to “half the share of similarly positioned male kin in family property”Footnote 10 rather than the total exclusion that was common under most of the more patrilineal, patriarchal customs then prevalent. While the exclusion of agricultural land from the purview of the Shariat Act weakened this gender progressive result considerably, Subramanian notes that “[t]he majority of the Muslim landed elites that had pressed for” the exclusion of agricultural land from the effects of the Shariat Act “wound up in Pakistan after 1947”.Footnote 11 Finally, Subramanian notes that “[c]ertain Muslim political elites” had “proposed other Muslim law reforms by the 1940s”.Footnote 12 These proposed reforms included requiring Muslims of means to provide their daughters with dower, to give women control over their dower, and to restrict the rights of husbands to unilaterally repudiate their wives.Footnote 13 Despite this support from within the Muslim community, Indian “[p]olicy makers did not consider such changes”.Footnote 14
Given that there was the same level of support for personal law reform among both Hindus and Muslims, there was no reason for India’s political decision-makers to exclude India’s Muslim, as well as Christian, minorities from their personal law reform efforts. By misjudging “at the point of decolonization”Footnote 15 the strength of minority, especially Muslim, support for the types of personal law reform that would have given women greater autonomy and financial independence, India’s “political elites missed an opportunity to change minority laws”Footnote 16 and to build a more inclusive, pluralist society.
But while Subramanian is sympathetic to culturally sensitive changes to personal laws that enhance women’s autonomy and security, Nation and Family is no feminist manifesto. Indeed, Subramanian admonishes Bina Agarwal, an Indian feminist whose advocacy was instrumental in the passage of the Hindu Succession (Amendment) Act, 2005, for holding the mistaken belief “that strong and cohesive women’s organizations are necessary for the enhancement of women’s rights”. Subramanian holds up “early republican Turkey and early postcolonial Tunisia” as regimes that increased women’s rights in the absence of influential women’s movements.Footnote 17 Assuming this to be a correct analysis, one could argue, nevertheless, that Turkey and Tunisia were responding indirectly to the achievements of women’s movements in the West.
On the whole, Subramanian’s narrative allows too little scope to female agency. I quote at length:
While women’s organizations had been the most active advocates of women’s empowerment in India since the 1920s, their influence was too limited for them to have a major say in legislation in the 1950s or even over the 2000s, when they had grown stronger. Various lawyers, political elites, and bureaucrats, most of whom were men disengaged from women’s organizations, initiated proposals for personal-law reform in the 1940s and 1950s. They responded more to mainstream visions of national and community revitalization, legal rationalization, and democratization than to agendas of women’s empowerment. Their efforts nevertheless provided women’s organizations the occasion and space to form and press their more ambitious agendas. I give more central attention to the formation of the visions of these agents, which contributed most to the initial reform proposals of the executive and attend to how discourses of nation and community framed that vision, than does Agarwal who sees “social perceptions” and “social norms” only as constraints to reform.”Footnote 18
This passage suggests two weaknesses in this otherwise erudite analysis of Indian personal law. First, Subramanian has a tendency to see amorphously defined “political elites” – even in democratic systems – as making their decisions apart from electoral politics and the influences of civil society, a failing which leads in turn to the second problem, i.e. the failure to see women as crucial agents in the process of female empowerment. Thus, there is room in Subramanian’s narrative to explore more of the nuances of electoral politics and the influences of civil society initiatives by not eliding the approaches of authoritarian and democratic states -- even while acknowledging that some states (Thailand, for example) vacillate over time between democratic and authoritarian rule.
Despite these flaws, Subramanian’s work succeeds in capturing the mutability of the customs, conventions and beliefs that form the foundation of personal laws, a variability that may provide for avenues of exchange between state and community. As he asserts, “many of the cultural traditions that personal laws recognize are diverse and dynamic, and their implications for contemporary life are contested. This provides states considerable space to introduce culturally grounded personal-law reforms that reduce inequalities, promote liberties, and treat various religious groups similarly.”Footnote 19 In sum, Nation and Family should be mandatory reading for both scholars and activists seeking to understand the religious, social, cultural, and political dynamics of personal law reform in any jurisdiction.
