Sharia and Shah Bano: Multiculturalism and Women's Rights
Philips, Amali, Anthropologica
This article traces the unfolding and outcome of the sharia controversy in Ontario, Canada and the Shah Bano conflict in India to discuss then- siimlarities and differences in relation to the key issues of women's rights, cultural rights and identity poUtics in multicultural settings. Specifically, I draw insights from the two cases to examine their implications for multiculturalism and women's rights as equal citizens.
The rights of cultural minorities and the ideals and values of democratic citizenship are two areas that have received considerable attention in recent times (KymUcka and Norman 2000). They are also the areas that have caused the most tension in Canada and countries such as France, England and Germany with a significant number of immigrants. In these countries, personal laws and other cultural symbols (e.g., veüing) have become the battleground for the defense of purportedly "authentic" religious and ethnic traditions and identities, with gender often being the focal point in these battles. MulticulturaUsm has provided a context for groups to negotiate their coUective cultural rights and citizenship rights as part of multicultural accommodation and equality of citizenship (see Asad 2006; Kepel 2004; Soysal 2001; Turner 1993; Wilson 1997; Yuval-Davis 1997). "Culture" is also becoming a "ubiquitous synonym for identity" (Benhabib 2002:1; Sahlins 1999), and the "claims of cultures" for recognition and protection (Kymlicka 1996) have transformed the "political" and "public" arenas into sites of conflict and contestation. These developments have brought into sharp relief the tension between the rights of religious minorities and the equality rights of women in multicultural societies.
A dramatic manifestation of these tensions occurred on 8 September 2005, when several cities in Canada and across Europe held mass protests against a proposal to. establish sharia courts in the Province of Ontario, Canada. SimUar tensions have arisen in the multicultural societies of South Asia with plural legal systems governing the public and private realms. A highly publicized instance is the Shah Bano case in India, where the Supreme Court, in 1985, ruled in favour of Shah Bano, a divorced Muslim woman who challenged her husband for extended maintenance in contravention of Muslim Personal Law. The opposition of Muslim groups to the court ruling forced the Government of India to override the Supreme Court's decision and enact the Muslim Women's Protection of Rights on Divorce law, which entrenched Muslim personal law and placed the responsibility for protecting divorced women after the iddat1 period on their natal families and not their husbands. In Canada, protests against sharia courts resulted in the government of Ontario moving away from religious arbitration in family disputes, previously permitted under an arbitration law of the province.
I use the sharia and Shah Bano cases as comparative sites to interrogate the contentious issue of group rights and women's citizenship rights with particular reference to religious-based personal laws. My paper falls within the tradition of the comparative approach in anthropology, and is in keeping with critical legal anthropological (Moore 2001; Wilson 1997) and feminist discourses on citizenship in national and transnational settings (McCain and Grossman 2009; Merry 2006; Mukhopadhyay 1994; Sweetman 2004). My interest in personal laws partly stems from my research on personal law disputes involving Christian women in the southern Indian state of Kerala. My purpose in comparing Canada and India, however, needs elaboration.
Multiculturalism emerged in Canada as the "official doctrine and corresponding practices" (Fieras and Elliott 1992:22) to manage (Bannerji 2000) and accommodate the cultural diversity of immigrants, Aboriginal communities and French and English groups (Fieras and Elliott 1992). Charles Taylor (1992:25) characterizes the "politics of multiculturalism" as "politics of recognition," with two distinct components. …