Case Study

ISSUE:

The Indian government predominantly represents the majority, the Hindu nationalists, and the prime minister, Rajiv Gandhi, is a very progressive young man, who represents the sentiments of postcolonial India. One particularly contentious issue his administration was confronted with were the multiple "personal laws," which were based on the agendas of disparate religious communities. The specific example we examine here is the case of Shah Bano, a sixty-two year old Muslim woman who had been divorced against her will. According to the conservative interpretation of Sharia law which applied to her community, she had to be taken cared of by only her two sons, as they constituted her immediate family/community, not her former husband, who had ostensibly been her entire means of financial support prior to their divorce. Because her sons were becoming destitute supporting her, she sought maintenance through the Indian court system and when her case made it to the Supreme Court, they ruled in her favor, essentially violating a set of "personal laws," which constitutes a very important part of the culture of this minority population. An interesting facet of why this decision is so problematic is that it was written in Hindi, though it was aimed specifically at a population that did not speak the language. However, while the number of women who will benefit from this decision versus the number of people it would disenfranchise makes this decision seem unsound, there needs to be some compromise between the rights of the many and the rights of the few, especially when regarding basic human rights.

Discussion and Analysis:

While it would seem pragmatic to overrule this, as there is already enough dissent from this group and they do not feel as though their voices are being heard, and to a degree, this opinion is justified, one must take into account the implications for the women, including but not limited to Shah Bano, who would be affected by such a decision, as it would deprive them of their rights not to have the quality of life to which they became accustomed in their previous domestic situations. The Joint Women's Programme proposed a civil code instead of the Muslim Women's Bill because they deemed it unconstitutional and discriminatory, citing Article 14 of the constitution, as it guarantees equal protection under the law. Although a uniform civil code seems like the best option to suit a growing disparity between the groups represented and their agendas, this is not apropos to maintaining the individual rights of the minoritarian populations and could possibly also violate the Indian constitution, as it would supersede the "personal laws," which are based directly on the Qu'ran, in favor of a blanketed secular code of laws. Along those same lines, enforcing the new law, as it stands, would impose a civil intervention into a matter that many would rather resolve within the community and gives no option for assistance in another way. For these reasons, a new solution must be found.

Solution:

Our plan is that instead of the ruling given, the government should institute a different sort of elective civil code. In order to ensure that both the women and the minorities are served, there would be three modes of premarital registration: either a couple could just get married through their individual religious community and accept all of the trappings of that without the interference or benefits of registering with the government, they could just get a governmental marriage license, or they could have the religious ceremony and adhere to the community social customs, as well as applying for the governmental marriage license. In the latter two options, if there were any sort of problems down the line, wherein the wife lost all income, usually through forceable divorce, she would be eligible to apply for maintenance. If one was married without a governmental marriage license, these options would not be available unless the woman could prove in a court of law that she had been forced to forgo this institution, or if there was a history of spousal abuse (Coercive Marriage Clause). In addition, any woman who seeks similar benefits and was married before this code was enacted could still be eligible for those benefits if need be, under a grandfathering clause. This allows for the women to elect which entity has the most authority over such a multifaceted personal issue. The rights of the minorities are being respected, as the authority of the government does not supersede community law, but rather, works alongside it to serve the needs of women who feel that the religious institutions are not acting in their best interests, but rather on behalf of an interpretation of a code which does not acknowledge the lives affected.

Works Cited

Jenkins, Laura D. "Shah Bano: Muslim Women's Rights, Case Study." Teaching Human Rights Online. University of Cincinnati, 2000. Web. 17 Nov. 2010. <http://homepages.uc.edu/thro/shahbano/index.htm>.

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