Negotiating women's rights and cultural diversity
A qualitative study about Naari Adalats (women's courts) and the implementation of women's rights in Karnataka, India
Despite the increasing institutionalisation of women's human rights at the international level, in particular with the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) from 1979, and as well as at national level, in the case of India through the
Constitution from 1947, there is still a huge gap between women's legal rights and their implementation. In many cases the rights of minorities
and the freedom of religion are used for justifying the discrimination of women. However, statistics and studies of India demonstrate that women
independently of caste, ethnic and religious differences are structurally discriminated against in comparison with men. This is illustrated in the
field of education, politics and health care as well as in the so called private domain, the family. India has ratified CEDAW, but like many
other states it submitted a reservation regarding family law. The reservation is concerned with the pluralistic religious family law.
The pluralism of rights was criticised at international as well as at national level because of the gender inequalities it produces. In its concluding comments related to the country report from 2001/02 and 2007 the CEDAW committee was concerned about the religious family law in India. Within India different women's rights groups especially feminist groups advocate for a uniform civil code within the family law. Since the 1980s also the Hindu-nationalist positioned itself in favour of a uniform civil code. But instead of advocating against the discrimination of women they use the language of religion and women's rights to act against religious minorities, most notably Muslims but also Christians and Sikhs. Religious family law become politicized.
New positioning related to the pluralism of family law became necessary. In particular women and women's rights groups who themselves declared to be feminist and Muslim were faced with the dilemma of re-positioning. Until then, the advocates of pluralistic family law were, besides conservative caste-communities, mainly conservative Muslims, like the All India Muslim Personal Law Board (AIMPLB) which claimed to represent all Indian Muslims. Some of the Muslim women activists who initially positioned themselves in favour of a uniform civil code later changed their position in favour of a pluralistic family law. Since the 1990s there has been an increase in the establishment of Muslim women's organisations. Today in the 21st century they influence the societal development in numerous ways. One example is their call for the reform of Muslim family law. Also women independent of their religious belonging face problems of domestic violence for which anyway no different religious family laws exist.
Women's statutory rights are quite important but they alone do not depict women's daily life-worlds, particularly their possibilities to implement and negotiate their rights. As a consequence, neither the uniform civil code nor the reformed Personal Law in favour of women's rights will alone bring about equality of gender. If and how the decisions between applying Personal Law, national civil code and international law (CEDAW) influence the daily life of women in India and as such the actual negotiation and implementation of women's rights, is a relevant topic. Until now here has been little analysis of this question in connection with practical case studies.
Due to that my paper does not focus on a composition analysis of laws regarding women's rights and equality of gender as some studies about Personal Law already did. In contrast my approach focuses on diverse strategies and rationalities of actors in different social arenas involved in the implementation and negotiation of women's rights and (legal) norms regarding women's rights. I analyse informal women courts in rural Karnataka called "Naari Adalat" to illustrate divers processes of giving justice to women beyond the dualistic debate on religious family law and a uniform civil code.
Naari Adalats are particularly interesting institutions because they try to empower women at local level in their communities and families. This is where their rights, in particular with regard to decision making, are most violated. They are an institution acting in the ambivalence of governmental, religious, social and international law making and norm setting. In this regard the conventional legal concept based on Western nation states become challenged because the societal frontiers extravagate from social, religious norms to local customary law. Thereby the state's exclusive right to law enforcement, norm setting and its claim to exclusive definition of the common good become challenged and can potentially be broadened by intra-statal pluralism of rights. Finally the disjunction between a public secular sphere and a private traditional one starched by the Personal Law is contested.