"Legislative and cultural change cannot come about separately."
The Daily Star (TDS): Tell us a few words about how gender, justice and religion intersect.
Flavia Agnes (FA): For women who are religious, justice cannot be placed outside their own beliefs and frameworks. Women have various identities: within the state, the family and the religious institution. If a state law goes against their religious principles, they will not accept it. So it's important that we work with them in that context to understand what they want.
TDS: You said religions do give women rights but women have to go to the court to claim those rights. Please explain.
FA: The Dissolution of Muslim Marriages Act and the Muslim Women Act 1986 that was passed after the Shah Bano judgment are state acts. You can always use them in a civil court, they can be challenged under the constitution and women can access them like any other law that Hindu or Christian women use. But people don't know that they can, in fact, go to a state court. If someone goes to a state court and a positive judgement is passed and written about, a lot more people will come to know about it. But see, they're not written about because there's no news value when something good happens to Muslims! When you only talk about negative things about Muslims, how do you expect Muslim women to know their rights?
People don't know the positive developments of the Shah Bano case. It gave rights to Muslim women. My question is: how do people not know this? There's a whole cultural bias against Muslims in India. Only the negative things about Muslims are highlighted in the media.
After 1986, for 15 years, many high courts interpreted the Muslim Women Act positively but we never heard about it. In 2001, the constitutional bench consisting five judges looked at the law and examined whether it's constitutional. It interpreted the law, taking into account Islamic principles, and concluded that a Muslim woman is entitled to a free, fair and reasonable settlement. But these positive developments never got written about.
TDS: There seems to be a tension between constitutional rights and personal laws.
FA: In India, we have personal laws but they're state enactments. Whether it's Christians, Hindus or Muslims, the laws are based on religion but they're administered in a court of law. For example, the Hindu Marriage Act can be implemented through a court of law instead of a religious institution. People don't understand this complexity. You can also challenge the provisions in a court of law and get them (re)interpreted. Again, these are state enactments. Similarly, Christian women didn't have the right to divorce on the grounds of cruelty. The Christian Divorce Act 1869 was challenged.
The Indian Divorce (Amendment) Act 2001 was fought for within the church as well as in the courts. So a consensus is needed between religious institutions and the courts. Ultimately the state will have to go to the religious bodies; you cannot leave the latter aside.
TDS: Legislative reforms aside, how important would you say cultural reforms are?
FA: Legislative and cultural change cannot come about separately. For instance, under the Hindu Marriage Act, the bride must be at least 18 years of age. But child marriage in Hindu families is still prevalent, so what does this mean? Without cultural reform, no one will care about the law. The Dowry Prohibition Act was passed in 1961 and amended in the 1980s but practices of dowry still prevail. It's because there hasn't been a cultural change.
TDS: Tell us a bit about the challenges of protecting minority rights, especially of minority women, in a multicultural world.
FA: When you constrain the space for minority activities, women suffer. Families tend to become more conservative and things like child marriages increase. In essence, the government defends regressive practices of a minority by not giving them enough of an economic and political representation. For instance, regressive Hindu laws can be reformed much more easily in India than in Bangladesh or Pakistan since Hindus in India are the majority. The same goes for Islamic laws in Bangladesh or Pakistan where Islam is the majority religion.
TDS: You mentioned the Gujarat riots of 2002...
FA: In the Gujarat riots of 2002 upto 2,000 Muslims were killed. We heard horrible stories about Muslim women being brutally tortured and raped. There were hardly any legal actions taken against the people who did it. After a couple of years, a few people were convicted but then they got bail. It's a never ending battle.
So you cannot separate women's issues from state issues. And here, we're talking about minority women. You need stability in the state and space and recognition for minorities. When you have an anti-minority government, bringing reform becomes even tougher because minorities tend to hold on to their culture and laws, whether it's Hindus in Bangladesh, Muslims in India or Christians in Bangladesh and India.
TDS: What's your take on the general view that people have of gender, justice and religion?
FA: People look at it as either/or. I think Muslim bashing has become very fashionable because of the general anti-Muslim sentiment globally. It further complicates the situation of women's rights in a Muslim country and makes it tougher to bring in new laws for women.
If you look at Morocco or India at the time of independence, you'll see that it's easier to bring reforms at a time of political upheaval. In today's world, any country would find it very difficult to change its family laws because there are so many other integrated issues. We changed Hindu laws in the 1950s but I doubt we would have been able to change it as easily today.