RECLAIMING THE NATION: MUSLIM WOMEN AND THE LAW IN INDIA.

By
Vrinda Narain. University of Toronto Press 2008. Pp.213. $52.00. ISBN:
0-802-09278-0.

In her aptly titled study of Muslim women and the law in India,
Vrinda Narain compellingly makes the case that the manner in which the
Indian state has dealt with gender equality reflects the importance of
"Reclaiming the Nation" for India. In reclaiming the nation, she argues,
India must realize its vision as a nation that constitutionally guarantees
equality, including gender equality, for all its citizens. Further, the
nation must be reclaimed from framing discourses on gender rights in
protectionist language and from supporting patriarchal elements in
society in the name of communal harmony.
The book opens with an observation drawn from Zoya Hasan that
under Muslim personal law in India, despite "formal constitutional
guarantees of equality, Muslim women's lives within the family are
regulated and structured by explicitly discriminatory laws" that serve "to
establish the boundaries of the group and the scope of state authority to
regulate religion." (3) The status of Muslim women is central to the
Muslim community's self-definition as a minority in India, rendering
Muslim women "both the border guards of the group and the
transmitters of cultural values." (3) Although the constitution of India
guarantees equality and freedom from discrimination based on gender or
religion, family matters in the major religious groups in India—Hindus,
Muslims, Christians, and Parsis—are governed under their respective
personal laws, (4) resulting in a system of "differential citizenship" and
inequality for women of these religious traditions. (5) In what Narain
terms a "contradictory embrace," through the personal law system, the
Indian Constitution attempts to express its commitment to protecting
group life, while simultaneously promising to introduce a uniform civil
code. This contradiction results in a disjuncture between the equality
promised to "Muslim women as citizens and its legitimization of their
unequal status under the personal law." (5)
Narain situates the claim for Muslim women's equality squarely
within the Indian Constitution. However, rising Hindu right-wing
chauvinism, Islamist fundamentalism, and politicized religious identity
strategically enter the scene to impede progress on family law reform.
(8) She identifies the challenge facing Indian feminists as needing "to

663
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disrupt hegemonic ways of seeing group interests and gender justice that
serve to reify these relations of power and reify women's
subordination." (8) The book thus "seeks to interrogate the manner in
which Muslim women are simultaneously granted and denied an equal
citizenship in the post-colonial Indian nation." (8) By focusing on the
celebrated 1985 Shah Bano case as a lens through which notions of
citizenship and the relation between gender and nation can be examined,
Narain argues that the case raises issues at the heart of the complex legal
status of Muslim women: gender justice, minority rights, and the state's
duty to uphold a uniform civil code. However, fear of raising minority
anxieties over their citizenship rights and what the minority Muslim
"community" regards as the assimilationist impulse of the majority
community has led many Indian feminists today to reject advocacy for
Muslim women. (10)
Prior to the Shah Bano case, the Supreme Court in India settled in
favor of divorced Muslim women in cases dealing with maintenance
despite attempts by Muslim husbands to evade responsibility for
payments under clauses in Muslim personal law. However, the Shah
Bano case elicited conservative Muslim furor over the Supreme Court
recommendation that a UCC (uniform civil code) be enacted to address
gender discrimination under the personal law system. A UCC begins the
process of examining a legal code; however, in this case, it was
interpreted as an assault on Muslim personal law and the state's
guarantees of privacy and autonomy for religious communities living in
a secular state. The loss of a by-election to an anti-Shah Bano campaign
activist led the government to reverse its position and, ignoring the
voices of progressive and reformist Muslims, Muslim women's groups,
and feminists, to pass the Muslim Women's (Protection of Rights on
Divorce) Act of 1986, which effectively excluded Muslim women from
the general law of spousal support. Far from protecting Muslim women,
through this Act
men's rights within the family were reinforced, unequal gender
relations were buttressed, and patriarchal structures of authority
were strengthened. Men's right to unregulated, extrajudicial
divorce was reaffirmed, and their right to polygamy remained
unchallenged. Muslim husbands were absolved of the duty to
support their ex-wives beyond their obligation to repay the dower
amount and to pay maintenance for the three-month iddat period.
After this time, divorced Muslim women were to be supported by
their children, their parents, their future heirs, or, in the last resort,
by the Wakf Boards (Muslim charitable institutions). (14)
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Ostensibly, the Act sought to "protect" Muslim women from

dependence upon their husbands, shifting the burden of responsibility to
other actors within the Muslim community. In upholding personal law,
the state simultaneously upheld Muslim regulation of gender roles and
community identity, allowing minority rights—and minority political
support—to displace gender equality, thereby overlooking the needs as
well as the citizenship guarantees of real, economically vulnerable
Muslim women. (16)
In all of this, Shah Bano herself stands out as a subaltern woman
who "at one level... was able to challenge her subject position, [while]
at another she was restricted by her location." (18) Indeed, Narain
argues that as post-colonial, gendered subjects located at the intersection
of multiple axes of discrimination—as women, as Muslims, and as
Muslim women—all Muslim women continue to be among the most
marginalized, disadvantaged, and impoverished groups in Indian society,
making the examination of their situation critical. The challenge then is
to give voice to Muslim women's needs, to hearken to their signals for
change, and "to demarginalize the intersection of gender and religion .. .
to realize the constitutional promise of equality." (19)
Exploring the lack of reform in Hindu as well as minority personal
law, Narain notes that the public/private divide was, in a move
reminiscent of colonial policies, reinstituted by the nascent Indian state
in the struggle to define minority rights and establish a secular state. In
excluding "the natives" from political participation, the colonial state
rendered the private sphere, that is, the realm of family and personal
law, one in which "the natives" or religious leaders could exercise
authority and control. In addition, the partition of India along religious
lines led the new Indian state to give precedence to minority rights over
women's rights, thereby marginalizing the interests of Muslim women,
and unwittingly perpetuating the private/public divide and the authority
of religious leaders. (21)
The state's political appropriation of religion through personal law,
which served as a signal of its secular commitment to pluralism, also
rendered Muslim women's subjectivity as one mediated by religion
alone, leading to the analytic failure to see Muslim women as Indian
women. That is, Muslim women are "viewed as a category apart, with
religion seen as the main oppositional force in their lives" while "the
systemic nature of gender discrimination in India has been disregarded."
(22)
While Narain acknowledges that Muslim women are distinguished
from other Indian women due to "the legal aspects of change" (without
666 JOURNAL OF LAW & RELIGION [Vol. XXVI

elaborating what exactly is meant by this phrase), she points out that the
category "Muslim women" is, in reality, "defined not simply by religion,
but also by other situated and locational experiences that affect all
Indian women equally... [such as] religious fundamentalism,
patriarchy, nationalism, as well as communalism. All these experiences
together have shaped the struggle for greater rights." (23) Thus, the
failure of the state to see women as subjects, rather than objects, of the
debate on gender equality, combined with the state's view of women as
victims rather than agents, allows the state to uphold "the dual legal
structure that disadvantages Muslim women, while at the same time
professing to be the emancipatory ally of all Indian women." (23)
In the book, then, Narain undertakes a feminist understanding of
Indian law, since the law is a critical arena for rectifying systemic
discrimination against women and arguably should include women's
perspectives in the formulation of public policy. Suggesting that
oppressive social structures that perpetuate women's subordination must
be problematized in order to situate women's struggles for equality,
Narain turns to an analysis of three discrete but interconnected
discussions. The first discussion, examined in Chapter Two, deals with
"the relationship between feminist struggle, nationalism, and
colonialism in the years immediately preceding India's independence
from Britain in 1947." (28) The second discussion, examined in Chapter
Three, examines the status of Muslim women within the constitutional
context to show that "the question of Muslim women's rights became
subsumed under the larger question of the rights of the Muslim
collectivity" (95) and analyzes the complex responses of the courts to
various cases that posed constitutional challenges to the personal law
system. The third discussion, examined in Chapter Four, looks at the
"problematic nature of citizenship for Muslim women in light of the
contradiction between equal citizenship in the public sphere and explicit
discrimination with the family." (31) While veering away from "an
explicit agenda for law reform," Narain offers instead "questions for the
directions that the struggle for gender equality might take," in the hopes
that the book will serve as a
call to understand the question of a UCC and personal law reform
within the context of gender equity and a caution to negotiate the
challenge while being attentive to the particular social and political
context in which Muslim women find themselves [and] also a call
to make the living experience of Muslim women, as affected by
personal status law, the locus for understanding current debates on
the need for gender-just family legislation. (33)
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Chapter Two traces the trajectory of the women's rights movement

in colonial India and the manner in which the discourse on women's
rights "impacted and was implicated in" (35) colonial and nationalist
discourses. The two most important issues for women's struggle for
rights centered on attaining universal suffrage and equal rights within
the family. Narain traces how both colonial and nationalist discourses
utilized the status of women to further their own political agendas. In
the case of the British, the status of women was made to signal the
civilizational backwardness of India (a strategy also deployed in Egypt)
to legitimize colonial rule. Recognizing that choosing between
feminism and nationalism would adversely affect women's rights, pre-
Independence women leaders made a calculated choice to ally their
organizations with the nationalists. This pragmatic choice unfortunately
did not allow for "the development of a radical ideology that would
challenge the root of patriarchal oppression" (36), despite the
remarkable place the women's organizations occupied in articulating
and bringing women's issues to national political attention.
Further, while the nationalists welcomed women's participation,
challenges to inequitable family law were met with suspicion, as they
were by the British. As Narain notes, for the British, the woman
question was tied up closely with establishing political and economic
control:
Whereas the public law was reformed to facilitate the freedom of
the individual in a market economy, the private sphere was now
subject to only those changes that would reinforce patriarchal
controls over women and strict social control over individuals
within the community so as not to upset those groups upon whom
the British relied for the collection of revenue. (38)
Additionally, British criticism of the status of Indian women, as
well as of Indian male patriarchy, "fostered an alliance between the
women's movement and the nationalist movement against a common
enemy." (39) Noting that the nationalists' chief aim was to decolonize
India, but without causing a social revolution or upsetting traditional
gender roles (41), Narain observes that the women's movement was
severely constrained by both colonial and nationalist interests. The
women's movement had to articulate its interests within the goals of
national liberation (42), drawing the lesson that "any alliance of
disparate groups around common issues must necessarily confront not
conflate, those issues that are not common, as indeed the national
question sought to conflate the woman question without a serious
examination of the deeper causes of women's subordination." (43)
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Despite such constraints, in her detailed examination of the various

women's movements and their struggles for emancipation, suffrage for
marginalized groups, and personal law reform, Narain shows that the
women's movement did not always work in consort with nationalist
agendas. Nonetheless, the combination of the political turmoil of the
historical moment and the resistance from conservative elements, even
to modest personal law reforms, led to the acceptance of universal adult
franchise and civil and political equality for women, but not to
acceptance of the principle of gender equality in family law. (61)
Further complicating the issue was that several prominent women
leaders withdrew from the feminist cause, arguing, as Narain points out,
"that women's first obligation was to nation, and it was only after the
goal of national liberation had been achieved that women's liberation
from oppressive custom and practice could occur." (62)
Ultimately, the idea of a uniform civil code that would replace
personal law was written into the Indian Constitution as a directive
rather than as an enforceable principle. (64) Meanwhile, the realities of
communal politics also meant that Muslim women, who had hitherto
participated in the All India Women's Conference (AIWC), now formed
the All India Muslim Women's League, which caused further
divergence of interests between Indian women's organizations and
Muslim women leaders. (66)
This league, formed in response to the formation of the Muslim
League, intended to safeguard Muslim women's interests in the struggle
for national liberation. Thus, Muslim women
had to face not simply the choice Hindu women faced between
feminism and nationalism, but indeed a choice between feminism,
community, and nation. The communal question was a persistent
strand of the dominant discourse on the national question and the
woman's question, not least because of the British policy of
communal representation. (67)
The continuing legacy of the communalization of politics along religious
lines "fostered the development of the Hindu self as the true national self
in opposition to the Muslim other" and "continues to pose a serious
threat to progressive politics for women's empowerment today." (68)
Further, Narain argues that it is imperative to dislodge the
understanding of women as victims. In the discourses framing Indian
women as a whole, they have been accorded victim status by various
constituencies: the British colonial rulers, the Indian nationalist
movement, the post-colonial state, the Indian Supreme Court, Muslim
men, and the Hindu Right, each adopting a protectionist attitude towards
663] BOOK REVIEW 669

women in service of their respective agendas. Ironically, such

discursive practices have also encouraged feminists to portray women as
victims in order to gain concessions from the state. In the contemporary
moment, a "discourse of victimhood serves to isolate women,
disconnecting them from the larger social structures while at the same
time masking the role of these structures in perpetuating women's
subordination." (71) Whether historical or contemporary, discourses of
women's victimhood have furthered the First World/Third World divide
as gender and cultural essentialisms come together to reify the Third
World woman "as always dispossessed, marginalized, and without
agency." (70) Such reifications can indeed be seen in Western works
that identify Third World male patriarchy as reasons for continuing
imperial domination or other forms of Western intervention, while
continuing to frame Indian women as subject victims. As a result,
indigenous feminist activity is often denounced as being "western," that
is, tainted by an agenda of orientalism or neocolonialism.
In Chapter Three, Narain examines Muslim women and the law to
substantiate her observation that "the post-colonial state continues to
sanction inequality for Muslim women by perpetuating the personal law
system and by making no effort to reform Muslim family law to address
women's legal disadvantage." (80) She analyzes constitutional
challenges to discrimination under personal law and the judiciary's
responses in order to evaluate the potential of constitutional law as a
critical discursive site with the potential "[to] challenge the contradiction
between formally guaranteed equality rights and the discriminatory
personal law system." (82) The Shah Bano case, in particular, points to
the state's failure to acknowledge dissent with Muslims as a group,
choosing instead to privilege the religious leadership as its sole
legitimate representatives.
Further, because the Muslim Women's Act reinforces male control
over Muslim women, Narain criticizes the state since "it not only
undermined Muslim women's claims to equality but also refused to
acknowledge the economic and social vulnerability of Muslim women in
situations of family breakdown" (92), thereby further marginalizing
Muslim women. Additionally, the failure of the All India Muslim
Personal Law Board (AIMPLB) to address women's inequality within
personal law, despite appeals from moderate Muslims and Muslim
women's groups, finally led the latter to establish their own Personal
Law Board in 2005. Given these realities, Narain argues that since the
state must be understood "as itself constituted of competing interests and
open to differing influences" (96), "efforts to forward gender equality in
670 JOURNAL OF LAW & RELIGION [Vol. XXVI

India must necessarily interrogate the binary of either state or society as

a force to forward women's equality." (95) Noting that the law is
"implicated in contradictory ways in the oppression of women" (96), she
nonetheless sees the law as "an emancipatory ally," (97) despite the fact
that it is contradictory in being both an instrument of patriarchal
oppression and an instrument of social change.
Considering that women's bodies are the sites for negotiating
modernity, equality, and liberty, in symbolizing "the progressive
aspirations of a secularist elite or a hankering for cultural authenticity
expressed in Islamic terms" (97), some cases that have come before the
law reveal the intertwining of personal law, gender discrimination, and
constitutional challenges. Narain points out that, important as the
Constitution is as a framework that articulates the rights of women and
other minorities, the custodian of fundamental rights is the judiciary.
But while the judiciary has proactively enforced the rights of many
disadvantaged groups, such as children and bonded labor, it has not
meaningfully addressed gender discrimination under the personal law
system and has in fact issued conflicting decisions.
For instance, the Narasu Appa case, decided in 1952, "held that
personal law was not subject to fundamental rights" (101), a decision
that Narain avers must be rejected as an incorrect interpretation of the
constitutional status of personal law. Indeed, several cases following the
1952 decision have argued that personal law must conform to
fundamental rights. However, to address inequities in personal law, a
legislative UCC would have to be enacted. But the Supreme Court has
been unwilling to initiate such an undertaking, choosing instead to deal
with legal technicalities rather than with constitutional principles.
In cases involving Hindus, Christians, and Muslims, the courts
acknowledged discrimination in the personal law system. In her
analysis of cases involving international conventions such as CEDAW
(Convention on the Elimination of all forms of Discrimination Against
Women), Narain notes that "Indian courts have recognized the need to
interpret women's constitutional rights in conformity with relevant
international law, and international conventions." (110) Nonetheless,
even though cases have often been decided in favor of women, the
"Supreme Court has vacillated on the question of the state's obligation
to reform gender discriminatory aspects of personal law and to enact a
uniform family code, changing its position from case to case." (112)
Further complicating the issue, even when a court has decided in favor
of a woman, as in the Shah Bono case, the controversy "fuelled the
agenda of the Hindu right's anti-Muslim campaign and was used to
663] BOOK REVIEW 671

present the notion of Muslims and of Muslim law as backward . .. and

the consequent need to intervene to save Muslim women from Muslim
men." (131) Thus, even though the task of addressing uneven personal
law gender discrimination across religions seems relatively
straightforward, the "struggle between competing hegemonic
discourses" (131) shows the importance of constitutional change in the
project. Specifically, constitutional change is necessary to reclaim
women's equal rights within national constitutional principles and in
accordance with international protections of gender rights.
In the final, fourth chapter, Narain presents the UCC as "a
continuing process of negotiation rather than as a one-time enactment of
a grand universalizing law." (136) She argues "that the notion of a UCC
with its multiple, contested meanings has the possibility of
reformulating our conceptions of women's rights, equal citizenship, and
the accommodation of group interests, within the legitimacy of a
constitutional framework." (136) Narain thoughtfully and perceptively
examines the various conflicting and convergent positions taken by
various actors on the idea of a UCC, an idea that provokes anxieties in
Muslims concerned with both safeguarding identity and taking a stand
against the Hindu right, but also holds out the promise of gender justice
for feminist groups. Suggesting that it is "necessary to recognize a UCC
as the means of translating the constitutional principle of gender equality
into actual legal equality for women" (151), Narain notes that it is
essential first to move away from binary constructions "of women's
rights versus community rights, personal law versus uniform family law,
and community versus nation" (154), all of which "have forced
unnecessary oppositions." (154)
In this context, Narain suggests that the frameworks through which
issues of personal law reform, gender justice, Muslim women's rights,
and a uniform civil code are viewed and debated must be reformulated.
Rather than viewing the UCC "as a means of fostering national unity,
we see that it is important to craft a more nuanced understanding of a
UCC as ever-changing, constantly in flux in relation to fluid conceptions
of gender justice, shifting political coalitions, and political imperatives."
(155) In this regard, the law "should be viewed as a site of contest,
where feminist interventions have the potential to subvert gendered
assumptions of legal ideology and state regulation of family relations."
(155)
Further, the notion that women's rights should be compromised in
order to respect group integrity must be re-examined so that group rights
and gender rights are not viewed as competing. Rather, the
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call for a UCC requires taking women's rights out of the protected
sphere of the home and subjecting them to public scrutiny; we
need to reconceptualize the UCC as gender-conscious, gender-
responsive, constitutional civil rights legislation... as a
continuation of a dialogue about the rights of women within the
context of the Constitution and the fundamental rights. (156)
To avoid the trap of identity politics while taking into account difference
among women, Narain suggests drawing upon Nira Yuval-Davis's
model of transversal politics, which emphasizes unity in diversity, as "a
way out of the paralysis of action that may result once the differences in
women's social complex reality are understood" (165) to make possible
"common collective action across identities." (165)
In the remainder of the chapter, Narain discusses the challenges
raised by identity politics, universalism, multiculturalism, feminist
readings of Muslim canonical law {Shariat), feminism as a secular
project, and the idea of citizenship as a space of subaltern secularism
that is both empowering of women and affords "the possibility of a
counter-hegemonic discourse." (191) She concludes that
The Indian state must move away from a simplistic discourse of
post-colonialism and assertions of national progress and modernity
to truly engage with the continuing struggle for subjectivity,
rejecting the continuing exclusions of post-colonial society that
disenfranchise not only Muslim women, but indeed all
marginalized groups within Indian civil society. (194)
Narain's work presents rich discussions on the role of law and the
constitution in establishing a gender-just society. Her perceptive
analysis of the gender-related legal cases brought before the courts,
including but not limited to the hallmark Shah Bano case, provide a
complex and nuanced understanding of the various forces at work that
both impede and promote gender justice. Despite some repetition,
Narain's key argument that the law remains a fertile and promising—
indeed, foundational—arena for actualizing the vision of a nation that
offers equality to all its citizens is borne out in her examination of the
court cases and the issues and agendas they play out. Narain
underscores the point that by "subscribing to the homogeneous concept
of community put forward by conservative Muslim leaders, the state is
reifying a neo-colonialist discourse in its understanding that a single
tradition of religious authoritarianism speaks for the entire community."
(179) The notion of imposing homogeneity on communities as a
strategic imperative allows scope for Narain to make, perhaps in future
studies, a stronger case for diversity both within the Muslim population
663] BOOK REVIEW 673

of India and within the Muslim male population. In this work, she only
briefly notes in a footnote that Muslims are not a homogenous group in
India. Similarly, later, she briefly recognizes liberal and progressive
voices of Muslim males. Making the case for diversity would allow her
to explore alternatives to conservative and state formulations of legal
regimes governing family issues.
Other slight flaws in the book include mild contradictions such as
found on page seventy-one. Here, Narain says that the Supreme Court
chose to decide in Shah Bano's favor, whereas on page seventy-three
she says instead that since Shah Bano "was a victim of Muslim law and
of male patriarchy, the court was left with no choice but to offer her
protection." (73) The contrast in language between "chose" and "left
with no choice" underscores the larger point that the Supreme Court
continued the protectionist narrative of colonial authorities towards
women, in this case Muslim women, but leaves the reader in some slight
doubt regarding Narain's own position. Elsewhere, however, Narain
seems to hold all religiously contrived law, and not just Muslim personal
law, to be patriarchal in its application towards women.
It may be the case that Muslim personal law (and indeed all
religiously based law) may benefit from the work of the Muslim (and
correspondingly, other religious) gender activists, such as those flagged
by Narain who seek to address gender inequities imbricated in Islamic
(and other religious) law. This is especially true where political realities
may no longer make a secular alternative possible. Such possibilities
raise the question whether it is possible for a UCC to grapple with the
very serious issue Narain has taken up in this work of offering gender
equity under the legal system while respecting religious mores. Here,
the work of religiously attuned gender activists could establish the
feminist coalitions Narain calls for. This study also warrants a fuller
future examination and comparison of Hindu and Muslim personal law
regimes and cases. Such an examination would support her
recommendation that Indian women need to build networks of solidarity
across religious and class lines in order to claim their full rights as
citizens. This perhaps will be the subject of a subsequent book-length
study, as Narain is certainly well positioned to undertake it.
This remarkable study is essential for advancing our understanding
of the tendentious question of Muslim women and the law in India, and
should be required reading for anyone interested in Indian law, the status
of women in India, including Muslim women, or gender and Islam. It is
also important reading for those examining the broader issues of
constitutional law, pluralism, and multiculturalism, as well as for classes
674 JOURNAL OF LAW & RELIGION [Vol. XXVI

examining issues faced by post-colonial, especially post-colonial British,

societies. Well worth a read.

Zayn Kassam*

* Professor of Religious Studies, Pomona College, Claremont, California.