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Equality and Indian Law: Western Influences and Women in India

Equality and Indian Law: Western Influences and Women in India

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An essay for the 2012 Undergraduate Awards (International Programme) Competition by Abbie Buckman. Originally submitted for Women and the State in India (Political Science 422) at McGill University, with lecturer Vrinda Narain in the category of Modern Cultural Studies
An essay for the 2012 Undergraduate Awards (International Programme) Competition by Abbie Buckman. Originally submitted for Women and the State in India (Political Science 422) at McGill University, with lecturer Vrinda Narain in the category of Modern Cultural Studies

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Published by: Undergraduate Awards on Aug 31, 2012
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10/27/2013

 
 Equality and Indian Law: Western Influences and Women in India
Keywords
India, equality, liberalism, religious minorities, accommodation
Abstract
 The struggle for gender equality has taken place in a multitude of contexts around the world and
throughout history. Indeed, it is nearly impossible to speak of a single idea or meaning of “equality.”Today’s battles for gender equality take place in a wor
ld of increasingly politicized religious identitiesand so questions of gender equality cannot ignore or escape parallel questions of religious identity,community distinctions, and modernity. Despite, or perhaps because of, these interrelated factors manyvoices object to the discourse of gender equality as a product of Western hegemony, a kind of modernvalue-imperialism. Against this claim, and given the obligations of modern scholars and activists to avoidthe pervasive influence of a racist, colonial epistemological heritage, how do we make sense of equalityclaims in India? What does such an undertaking illuminate both about our own conceptions of equalityand about the particularities of the Indian context? The legacy of colonialism is enduring and formative
as “*…+ encounters with law are shaped in part by the relationship between culture and sexuality
produced during the colonial encounter, which continues to impact on the way in which sexuality is
taken up and developed in the legal arena” (Kapur 1
3). I suggest that certain Western discourses of equality
 –
namely, a formalistic one
 –
are, indeed, products of and perpetuators of a Westernhegemony, but such a claim cannot obscure the real and valuable challenges of equality as they are livedby Indian women. Ultimately equality is a challenge that must be incorporated substantively into law
and practice, and doing so shows that binaries between ‘modernity’ and ‘tradition,’ between ‘public’and ‘private,’ between ‘equality’ and ‘religion’/’tradition,’
are themselves products of the colonialencounter. It is possible and necessary to arrive at an equality discourse that is distinctively non-Western, rejecting both false binaries and constructed traditions.
 
2
Equality and Western Liberalism
In evaluating equality in the Indian context and considering whether or not constructions of equality, in their varied and nuanced manifestations, are products of a Western hegemony
 –
and thusunfit for the Indian contexts as many claim
 –
the present work must begin with addressing Westernliberalism as the epistemological source of Western equality as is articulated in dominant narratives in
the present day West. Ratna Kapur addresses this question in her “New Cosmologies: Mapping the
Postcolonial Feminist Legal Projec
t,” specifically by critiquing in the capabilities approach as articulated
by Martha Nussbaum. It is fitting here to take the work of Nussbaum as emblematic of the liberalfeminist project, as she both identifies as a liberal feminist and has come to represent this discourse tothe postcolonial feminists and subalternists who respond to her. Nussbaum identifies Kant, John Rawls,John Stuart Mill as the predecessors of her own work, as they most fully represent the liberal tradition atits best. Following th
em, she identifies “that all individuals have worth because of their power of moral
choice; and that society and politics must respect and promote this choice and the equal worth of the
choosers” (Nussbaum, 1999, p 57 in Kapur 15).
Nussbaum concedes that such a construction has some problematic implications for feminismand Kapur addresses three key critiques put forward by feminists. First, the idea that liberalism is
“based on individualism, and treats the subject as existing prior to social relations,
outside of any social
ties” (Nussbaum, 1999, p 59 in Kapur 15) denies the inextricable nature of identity and social location, a
point that will become more important as the female body is taken to be the site on which suchstruggles of culture, community
and identity play out. Second, that the liberal vision is “abstract and
formalistic, and does not take account of important differences such as class, caste, religion, gender andrace. It relies on a formal model of equality that ignores these important s
ocial differences” (Kapur 15).Third, that liberalism’s emphasis on humans as reasoning subjects necessarily relies on a gendered,
cultural understanding of reason; that reason, especially practical reason, has been understood in the
 
3Western episteme as a male trait in counter-distinction to emotion and irrationality, female traits (Kapur16).Nussbaum defends liberalism insofar as she rejects the claim, in any form, that tradition excuses
a person of the universal obligation “to protect human functioning
and its dignity, and the dignity of 
women as being equal to *…+ men” (Nussbaum, 1999, p 31 in Kapur 16). Here she relies on a dichotomy
between liberalism and tradition and between equality and tradition. In this sense, Nussbaum is willing
“to suffer the label of Western imperialist” (Kapur 16). She sees the failures of liberalism not asproblems intrinsic to liberalism itself, but stemming from a failure of liberal thinkers to “follow their own
thought through to its socially radical conclusion (Nussbaum, 1999, p 65 in Kapur 17). Kapur, however,
offers a fitting and necessary response to Nussbaum’s liberalism, representing a voice of postcolonial
feminist and subaltern critique:Nussbaum provides an important defense of liberalism, and a response to the feminist critiquesof liberalism. However, her responses still fail to engage with the critiques of postcolonialfeminists, postcolonial theory and subaltern scholarship, which have exposed the limitations of liberalism
 –
in particular its inability to transcend assumptions about the Other on which legalreasoning and the liberal project are based. Liberalism has been able to operate partly becauseit has been able to justify the denial of rights and withholding of benefits from a vast subsectionof people. And the idea that progress is being made, that more and more people are includedwithin a discourse of rights and that the ideals of liberalism are being realized, is not borne outin practice (Kapur 17).Admitting that equality in the discourse of liberal feminism is a product of Western hegemony, relyingon such characteristic Western constructions as the Other, the universality of Western moralsupremacy, and the inevitable progress of human history along a distinctly Western trajectory, how arewe to make sense not only of indigenous movements for equality amongst women and marginalizedgroups throughout the postcolonial world, but also our own moral belief in simultaneously workingtowards such a project and rejecting the epistemological influences of colonialism and racism?

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