2018

Feminist Dilemmas: The Challenges in Accommodating Women’s Rights within Religion-Based Family Law in India

by Tanja Herklotz

This paper finished third place in the the 2017 Audre Rapoport Prize for Scholarship on Gender and Human Rights

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Abstract:

As with other postcolonial states, India maintains a so-called “personal law system” in the area of family law, according to which individuals are governed by the laws of their respective religious community. For feminist and women’s rights activists in India — as in other parts of the global South — these personal laws create a positioning dilemma. On the one hand, there is the critique that personal laws are patriarchal and in need of reform as they often violate international human rights law by discriminating against women. On the other hand, many Indian feminists do not want to mimic the secular agenda of their Western counterparts when considering the reform of personal laws, but rather seek to accommodate cultural and religious identities.

Against the backdrop of broader debates on Third World Feminism,[1] intersectionality, legal universality and cultural relativism, this paper will outline the manifold feminist engagements with personal laws. Drawing on feminist scholarship and publications by Indian activists and women’s rights groups, I will differentiate: 1. the call for major state-led reforms (such as the introduction of a secular Uniform Civil Code), which draw on specific ideas of modernity and secularism, constitutional provisions and international human rights law, and 2. the call for community-led reforms, which accept legal pluralism as a fact and acknowledge the intersection of gender and religion. I relate these two positions to Amartya Sen’s[2] distinction between “arrangement-focused” and “realisation- focused” views of justice.

About the author:

Tanja Herklotz is a research fellow and PhD candidate at the Chair for Public and Comparative Law at Humboldt University Berlin. She holds an LLM degree from the School of Oriental and African Studies (SOAS), University of London. She works primarily on topics related to law and gender, social movements, and the global South. For her research on the Indian women’s movement, she has spent several months in Delhi, Mumbai and Bengaluru.

 

An earlier version of this paper is published in: Normative Pluralism and Human Rights: Social Normativities in Conflict, ed. by Kyriaki Topidi, Routledge, 2018.

[1] The terminology refers to Mohanty’s work. Her concept of Third World Women as an “imagined community” will be elaborated in the paper. Chandra Talpade Mohanty (1991). Introduction: Cartographies of Struggle: Third World Women and the Politics of Feminism. In C. T. Mohanty, A. Russo & L. Torres (Eds.), Third World Women and the Politics of Feminism: Indiana University Press.

[2] Amartya Sen (2009). The Idea of Justice. Cambridge, Massachusetts: Harvard University Press.

Project & Publications Type: Working Paper Series