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ISBN: 81-904013-4-3

NEGOTIATING GENDER JUSTICE CONTESTING DISCRIMINATION

Partners for Law in Development


F-18, First Floor, Jangpura Extension
New Delhi- 110014
Tel. No.: 011- 24316832 / 33
Telefax: 011- 24316833
pldindia@gmail.com
www.pldindia.org

NEGOTIATING GENDER JUSTICE,


CONTESTING DISCRIMINATION
-APPINGSTRATEGIESTHATINTERSECTCULTURE
WOMENANDHUMANRIGHTS

Partners for Law in Development

NEGOTIATING GENDER JUSTICE,


CONTESTING DISCRIMINATION

MAPPING STRATEGIES THAT INTERSECT CULTURE, WOMEN


AND HUMAN RIGHTS

PARTNERS FOR LAW IN DEVELOPMENT

Partners for Law in Development (PLD) - is a legal resource group working in the elds of social
justice and womens rights in India. Founded in 1998, the organization locates womens rights
as integral to its work on social justice, engaging with it in contexts of family, sexuality, culture,
caste, conict and development. We believe that social justice goals are best shaped by human
rights and the Constitutional guarantees that establish the framework for realization of the
rights of the marginalized and the disadvantaged. We promote and facilitate application of
rights through capacity and perspective development programmes, production of knowledge
resources, and advocacy.

Publisher:
Partners for Law in Development
F-18, First Floor, Jangpura Extension
New Delhi- 110014
Tel. No.: 011- 24316832 / 33
Telefax: 011- 24316833
pldindia@gmail.com
www.pld-india.org
Copyright 2010
Partners for Law in Development (PLD), New Delhi
ISBN: 81-904013-4-3

Written by: Madhu Mehra and Gayatri Sharma


Layout and Design: Liza Cherian, Inkling
Cover photo courtesy: Mala, BODHI
Printed by: Multicolour Services
Supported by: Ford Foundation, New Delhi

Suggested Contribution:
Rs. 100/-, $ 5

Acknowledgements
This report is almost entirely based on interviews and discussions during eld
visits, presentations at conferences, and observation of activities. The number
of activists, organisations, lawyers, local leaders and community women who
extended their time, shared their work, goals, challenges and related concerns
are far too many for a paragraph to hold. The appendix contains the list of
names of people with location/country/organisation references and despite
endeavors at being comprehensive, it misses many who participated in small
group discussions. To each of these persons, mentioned and those inadvertently
missed out, we owe a debt of gratitude. Indeed, without their enthusiastic
engagement with the subject and the patience with our demands, travel delays,
last minute appointments, the eld work, and consequently this report, could
not have been possible. It would be terribly amiss to not mention that on one
occasion in Arunachal, local activists convened a meeting twice to make up for
the breakdown of phone network and delays of long road journeys. It would
also be partial to not mention the festivities in Arunachal, gifts of books and
quantities of written materials in Dhaka, home cooked meals everywhere, and in
Indonesia, a spread of specially prepared vegetarian food in most organisations
visited, that dened the generosity this project benetted from.
The logistics and coordination at the country level was vital to accomplishing
the eld work and meeting the large number of people we did in the limited
time available. For this invaluable assistance, our heartfelt gratitude to Kamala
Chandrakirana and the Komnas Perampuan team in Indonesia; to Sara Hossain
and the Ain O Salish team in Bangladesh; and Sapana Malla Pradhan in Nepal.
In India we are grateful to Sharifa Khannum and the STEPS team for their
hospitality and support in Puddukkottai; Jarjum Ete for amazing coordination
across districts in Arunachal. Thanks are due to ASHA, the organization in Ranchi
for providing local support to the one day consultation on tribal customary
law, to Hasina Khan of Awaz e Niswan and Noorjehan of WRAG in Mumbai, for
getting together their entire teams, coincidentally just when both organisations
were shifting ofce premises. Mention must also be made of Jaya Jha, the
3

programme ofcer who joined in a large part of the eld work, helped prepare
the minutes of the eld visits. For feedback on the relevant chapters of this report,
mention must be made of Jarjum Ete (Arunachal Pradesh), Faustina Pereira and
Sumaiya Islam (Bangladesh), Kamala Chandrakirana (Indonesia), Sachi Kumari
(Jharkhand), and V. Geetha (Muslim womens organisations). We are thankful
to them for taking time from their busy schedules, to send in comments and
corrections. Outside of the country specic inputs, this report has benetted
from discussions with Kamala Chandrakirana, Uma Chakravarti, and V. Geetha.
This report is part of a project, which has emerged from a larger process of
engagement and discussions and it would be incomplete to not mention the
insights gained from discussions that have been ongoing within Asia Pacic
Forum on Women, Law and Development (Chiangmai) on fundamentalisms and
the inaugural conference of Musawah in Kuala Lumpur, on this project; and last
but very importantly the work and contribution of the Yakin Erturk on culture
during her time as the Special Rapporteur on Violence Against Women, its Causes
and Consequences, that signicantly shifted the way culture and womens rights
came to be viewed within the human rights discourse.
As this report is largely based on discussions and eld observations, some errors
are very likely. We apologise in advance for the mistakes in the reporting of
events, details, and would welcome corrections and feedback from the readers.
Another inevitable outcome of a report based on discussions is the likelihood of
perspectives and understandings differing from those of the authors of the work
in the eld, or the communities they work with. The perspectives of this report
are PLDs alone, and may sometimes not correspond with the self description of
the respondents/source of information. These variations in understandings are
part of the diversity of our positions, and a reection of the partial nature of
this inquiry, that makes this documentation merely a work-in-progress.
Madhu Mehra
Executive Director

Abbreviations
ADR: Alternative Dispute Resolution
ANBTI: Aliansi Nasional Bhinneka Tunggal Ika, Indonesia
APWWS: Arunachal Pradesh Womens Welfare Society
ASHA: Association for Social and Human Awareness, Ranchi
ASK: Ain O Shalish Kendra, Bangladesh
BMMA: Bharatiya Muslim Mahila Andolan, India
BRAC: Bangladesh Rural Advancement Committee
CA: Constituent Assembly
CBO: Community Based Organisation
CEDAW: Convention on the Elimination of All Forms of Discrimination against
Women, 1979
CPN (M): Communist Party of Nepal (Maoist)
CSDS: Centre for the Study of Developing Societies, New Delhi
CSS: Chotanagpur Sanskritik Sangh, Ranchi
CWDS: Centre for Womens Development Studies, New Delhi
DC: District Collector
FWLD: Forum for Women, Law and Development, Nepal
HRLS: Human Rights and Legal Aid Services, Bangladesh
KP: Komnas Perampuan, Indonesia
LACC: Legal Aid and Consultancy Centre
LBH APIK: Lembaga Bantuan Hukum Asosiasi Perempuan Indonesia
MAP: Manavadhikar Aiyathi Porishad, Bangladesh
MNS: Mananvadhikar Nari Samaj, Bangladesh
MWRN: Muslim Womens Rights Network, India
MSP: Manav Adhikar Sangrashan Porishad, Bangladesh
NEFA: North East Frontier Agency
NGO: Non Government Organisation
NU: Nahdlatul Ulama, Indonesia
OBC: Other Backward Class
PBB: The Crescent Star Party, Indonesia
PKS: The Prosperous Justice Party, Indonesia
PPP: The United Development Party, Indonesia
5

ABBREVIATIONS

PLD: Partners for Law in Development, New Delhi


POTA: Prevention of Terrorist Activities Act 2002
PRIP: Private Rural Initiatives Program, Bangladesh
PW: Peoples War
PWDVA: Protection of Women from Domestic Violence Act 2005
RIB: Research Initiative Bangladesh
SARA: Social Association for Rural Advancement, Bangladesh
SC: Scheduled Caste
SHG: Self Help Group
ST: Scheduled Tribe
UCC: Uniform Civil Code
WHR: Women for Human Rights, Nepal
WOREC: Womens Rehabilitation Centre, Nepal

Contents
Acknowledgments
List of Abbreviations

Introduction

Bangladesh

3
5
9
12

Negotiating Gender Justice


through Community Interventions
and the Law

Indonesia

31

Religion as a Resource
for Promoting Gender Equality,
Plurality and Justice

Nepal

52

Integrating Womens Equality


into Nation Building Processes

India

s
s
s

Arunachal Pradesh:
Dening a Womens Agenda
in the Context of Tribal Patriarchy
Jharkhand: Exploring Linkages between
Governance, Customs, Land
and Womens Equality
Speaking up as Muslim Women:
Mobilisation and Network Building
Initiatives in India

Conclusion and Findings


Appendix
Glossary

72

72

95

114
133
144
151
7

Introduction
The last decade has witnessed the adoption of new strategies by womens groups
that expand the equality agenda into the domain of culture. Many of these
initiatives are not limited to secular constitutional challenges, but consciously
draw upon cultural identities, symbols and sometimes religion/cultural
terminology to contest socio-economic inequalities in the cultural domain. These
engagements seek to primarily voice concerns of constituencies that have been
marginalised and suppressed, in particular women. To understand how these
strategies, both secular and religious, relate to human rights, Partners for Law in
Development (PLD) undertook eld work in four countries in South/South East
Asia. This report documents initiatives that engage with culture, including those
that draw upon religion, to examine how these relate to and advance human
rights. This documentation assumes greater importance in light of the creation
of the new mandate of the Independent Expert in the eld of Cultural Rights in
2009 within the UN human rights system, which is in the process of dening the
scope of cultural rights. In light of the competing ways in which culture is used,
it is important to distinguish the emerging engagements that advance womens
rights from cultural discourses that invoke relativist or essentialist arguments and
limit womens equality agenda. Also there is a need to assess the relevance of the
latter to debates on and issues of human rights.
There is no xed denition of what 'culture' is, but for the purposes of this report
we refer to the General Comment 21 to the International Covenant on Economic,
Social, and Cultural Rights which observes that 'In the Committees view, culture is
a broad, inclusive concept encompassing all manifestations of human existence.
The expression cultural life is an explicit reference to culture as a living process,
historical, dynamic and evolving, with a past, a present and a future.' 1 The Special
Rapporteur on Violence Against Women, in her report on intersections between
culture and violence against women notes that 'Culture can be dened as the set of
shared spiritual, material, intellectual and emotional features of human experience

1 Committee on Economic, Social and Cultural Rights, General Comment 21, E/C.12/GC/21 (21st
December 2009)

INTRODUCTION

that is created and constructed within social praxis.' 2 In terms of the understanding
derived from our eld work, culture in diverse contexts appeared to be a composite
of various inuences, in which religion, ethnicity, and political environment,
economic conditions, livelihoods, social, and geographic inuences all play a role.

10

The eld work was carried out in four countries - Bangladesh, India, Indonesia and
Nepal to gain a comparative understanding of diverse strategies. The strategies are
presented country-wise in light of the political, demographic, and economic contexts,
to demonstrate the extent to which the external context determines the availability
and relevance of different strategies. For instance, the emergence of interventions and
approaches that draw upon cultural and religious resources owe their origin to the
increasing inuence of fundamentalism, cultural and identity politics in governance
and political agendas. These strategies operate at various levels not only do they
contest specic areas of discrimination, but more importantly, contest the knowledge
and authority of the religious/cultural orthodoxy over the cultural domain. The country
reports do not follow a uniform structure but they all set out the external political
context before proceeding to specic strategies and areas of concern. The discussion
on strategies tends to cluster together distinct types of interventions, integrating the
issues these interventions address. The country reports conclude with observations
on broad themes, ndings and challenges particular to the country context.
The reports bring out the gender justice and gender equality concerns for each country
highlighting the debates and the approaches undertaken to negotiate womens
rights, at the community and policy levels and contextualizes it within the external
political scenario. The Bangladesh report discusses two broad strategies related to
family law and women those that involve alternative community interventions
modeled on the shalish or traditional mediation bodies of local elite, and those
that engage with the formal law. The Indonesia report clusters the interventions
that use Islam as a resource for social transformation and gender justice under two
broad categories: those that are initiated by religious organisations and those that
are initiated by secular/non-religious organisations. The report on Nepal locates
the predominant reliance upon legislative reform and judicial review for correcting

2 Report of the Special Rapporteur on violence against women, its causes and consequences
'Intersections between Culture and Violence against Women' A/HRC/4/34 (17th January 2007)

The country reports are based on conversations, interviews conducted during eld
visits, and on presentations made at conferences and workshops attended on relevant
themes. The eld work was conducted between September 2008 and May 2010, and
were 4 to 10 days each for the countries covered outside of India. While the organisations
and individuals we met gave us rich accounts of their work and the context, the
number of interviews to be covered and the overall brevity of the eld visits did limit
a full understanding.3 The limitations of time and resources did not permit covering
all initiatives in the country or indeed all the organisations that have contributed to
this sector of work. Even though some secondary sources of information and NGO
documentation have supported the ndings, this report is partial, and must be viewed
as work in progress. Nonetheless, despite limitations, the report tries to do justice to the
area of work covered and in some cases, has benetted from feedback of the persons
interviewed. It is very likely that the perspectives and accounts documented in the
country reports do not correspond with that of the organisation or activist interviewed.
Given that this documentation is part of a longer engagement with the theme, feedback,
corrections, updating of information are actively sought and welcomed.

3 The details of field visits on the basis of which this report is developed, and the list of persons
interviewed, workshops/ conferences attended are provided in the Appendix

INTRODUCTION

gender discrimination in the context of nation building as a new secular democratic


republic. India is not presented as a country report but two contexts are covered
through three reports that examine womens issues in minority and marginalised
communities. The chapter on Muslim womens networks foregrounds the use of the
Muslim identity by activists to engage with the community, including on family law. It
covers three networks from the womens movements in India to bring out the diverse
political origins and contexts within which these networks emerged, and bring out their
distinctness and commonalities. All three locate womens rights within a larger social
justice goal for the Muslim community. The second context covered is that of tribal
(indigenous) women in Arunachal Pradesh in the north east of India, and Jharkhand,
in central-east. Both these states have a tribal majority and autonomy with respect to
operation of tribal customary law, and the common obstacles in both contexts relate
to womens title to land. The concluding chapter draws common themes from all the
country reports to develop a gendered understanding of cultural rights and cultural
diversity.

11

BANGLADESH

BANGLADESH

Negotiating Gender Justice


Through Community Interventions And The Law

12

Womens rights interventions at both policy and community levels in Bangladesh


are situated in the historical and political context that defined the birth of the
nation and its formative period. The presence of a large well developed NGO
sector and the liberatory values of the independence movement, have shaped
the scale of rights based community work and the language in which womens
rights interventions are predominantly articulated. This report focuses on the
interventions and advocacy related to religion based family law. Despite Islam
being the state religion, and increasing Islamic conservatism, the basis for
contesting, negotiating family law in the public domain remains rooted in the
language of womens experiences, needs, equality and justice. The assertions
of womens rights in the family are largely secular and dont rely on religious
textual references or their interpretations. While this explains a widespread
consensus amongst the womens rights movement for a uniform family code
(with differences over provisions and formulations), it has not created adequate
space for absorbing into the advocacy, the complex concerns of women from
minority communities, particularly the Hindus and the adibasis, whose status
and rights are enmeshed with contentious land issues. The negotiations of family
law for women in minority communities are contained, as a consequence, largely
within their respective communities. The first part of this report introduces the
political, constitutional/legal framework of Bangladesh, followed by a discussion
on the rights interventions. The interventions are categorised in two parts the
first examines the rights interventions at the community level, and the second
sets out the areas of policy level advocacy and engagement, largely pertaining
to family law. Some of the broad themes and areas of challenge are summarised
in the conclusion.

I. THE POLITICAL BACKGROUND


Prior to its independence in 1971, Bangladesh was part of Pakistan, under
political and military dominance of a geographically distant West Pakistan. The
imposition of Urdu as the sole national language crystallised other discontents,
leading to a violent conflict between the predominantly Bengali speaking East
and West Pakistan that eventually led to the war of independence. Bangladesh
emerged as an independent nation in 1971, governed by parliamentary
democracy.

BANGLADESH

The 1972 Constitution of Bangladesh ensured a secular nation but the Constitution
was amended in 1988 with a controversial 8th amendment which established
Islam as the state religion. The Constitution stipulates the principles of absolute
trust and faith in Almighty Allah as one of the fundamental principles of state
policy.1 However, the Constitution also ensures that religions other than Islam
may be practiced in peace and harmony in the Republic.2 The Constitution of
Bangladesh reiterates the principle of equality before law, equal treatment and
protection of law as well as non-discrimination irrespective of religion, race,
caste and gender.3 However, these guarantees operate in the public domain,
while the family law of each community is derived from religion. The private
arena of the family is plural and marked by codified religion based law for
Muslims and Christians and uncodified religious/customary laws for Hindus and
indigenous groups.
The influence of the military and Islamic conservative and fundamentalist
forces in the state has varied with Bangladeshs transitions from military to
democratically elected government. The growth of Islamic fundamentalism
and ideology in politics has come to play an influential role in not just the
political sphere and government policies, but has gradually become visible in
public life. The mainstream, centre-left, and secular Awami League is presently
in power in Bangladesh. In 2008, after a two year long state of emergency, the

1 Preamble of the Constitution of Bangladesh.


2 Article 41 of the Constitution of Bangladesh.
3 Articles 19, 28 and 29 of Constitution of Bangladesh.

13

Awami League led alliance was elected with a landslide victory. The present
government is one of the more progressive in recent times and most open to
social justice and reform within the plural family law.

BANGLADESH

Muslims are the majority in Bangladesh consisting of almost 90% of the population
and Hindus are less than 10% forming the largest minority, followed by Buddhists
and Christians. A large majority of the population is rural.4 Indigenous groups
constitute less than 1% of the total population. They live in the Chittagong Hills
and in the regions of Mymensingh, Sylhet, and Rajshahi. Hindus in Bangladesh
are almost evenly distributed in all regions, with concentrations in Khulna,
Jessore, Dinajpur, Faridpur, and Barisal.

14

II. ASSERTIONS OF WOMENS RIGHTS AT THE


COMMUNITY LEVEL
There are two elements that define rights work in the community in Bangladesh
the existence of large NGOs with a wide community outreach across the major
districts in the country, some of these being law organisations, and the adaptation
of the traditional shalish as a model for community based alternative dispute
resolution. Following the independence of Bangladesh, large mainstream NGOs
were set up to offer urgently needed relief and rehabilitation services. With the
changing needs and development of the nation, the NGOs moved on to offer
social services in health and education. NGO involvement in health, education
and legal initiatives ran parallel with government programmes. Over time,
with changes in the understanding of poverty, marginalisation and exclusion
the NGO approaches have shifted from relief and charity work to development.
Many adopt rights based approaches to development, through activities that
include rights awareness, legal aid, access to justice, micro credit and alternative
dispute resolution, along with research and advocacy. The role of NGOs in legal
education, legal aid and alternative dispute resolution is important in the area
of family laws. Womens rights approaches are reflected in the way mediations
4 The population figures by religion are reported as 89.52% Muslims, 9.58% Hindus, 0.46%
Buddhist, 0.27% Christians and 0.14% Others. Sample Vital Registration System (SVRS) 2004,
Bangladesh Bureau of Statistics (BBS)

are conducted and in the approach to resolutions, some of which have become
well defined and assumed a degree of authority. The application of these
approaches through the alternative model of shalish assumes significance as
an invention negotiating womens rights within the context of the family. This
section will introduce the model of the alternative shalish developed by the
NGOs, and compare the structure and functioning of the shalish initiated by two
different organisations to bring out the variations in functioning, perspectives
and capacities as well as the common challenges faced by them.

Mediation and Legal Aid - The Alternative Shalish

BANGLADESH

Shalish is a form of customary adjudication conducted by powerful male elders


at the local level and has held considerable authority since the pre-colonial
period.5 The community based informal justice mechanisms are more frequently
invoked than the formal legal system at the local level.6 The shalish commands
the respect of local people, and is socially acceptable. It exercises tremendous
influence besides being cost and time effective. Its decisions are observed and
it serves as an effective medium of sustaining community relations and status
quo.7 Although the relevance and influence of the traditional shalish continues,
its composition, functioning and approaches are problematic, particularly in
relation to the women and the marginalised. It is an elite patriarchal body,
constituted by the most powerful and influential persons, with the local Maulvi
playing an advisory role. Traditionally, the shalish arbitrates after hearing both
parties to a dispute in the presence of the village.
The NGOs working at the community level adapted locally constituted,
democratically composed, mediation groups modelled on the shalish, riding on
the relevance and need for alternative dispute resolution systems that are locally
accessible. However, the NGOs use the system to mediate and not adjudicate
with a panel of local people that command respect in the community. Such
panels include school teachers, social workers, religious leaders, elite from the
5 Based on discussions with Shahnaz Huda. See the Appendix for details
6 Sumaiya Khair, Legal Empowerment for the Poor and the Disadvantaged: Strategies,
Achievements and Challenges, 2008, Colorline, Dhaka, p.94
7 Sumaiya Khair, Alternaive Dispute Resolution: How it Works in Bangladesh, The Dhaka
University Studies, Part-F Vol.XV(1), June 2004, p.63,64.

15

BANGLADESH

community, local women with leadership and so on. The alternative model of
the shalish initiated by NGOs is not uniform, but varied. In some cases, it entails
a large community membership, in other cases there are fewer representatives,
and yet others may have a single adjudicator functioning under supervision
of the NGOs. Most of the alternative shalish are part of larger community
empowerment initiatives, with components such as awareness raising, rights
education, livelihood/micro credit built into the programme. The common
feature of the alternative shalish is however that the adjudicator/mediators are
affiliated to a supervising NGO. Given the outreach of many of the large well
established NGOs (originally set up for relief and rehabilitation), the alternative
model of the shalish functions across a large number of districts in the country.8
The shalish usually receive cases related to the family, pertaining to domestic
violence, polygamy, maintenance, alcohol addiction, dowry demands and
divorce. The shalish adjudications are available for all communities, irrespective
of religion, although the majority of the cases are from the Muslim community,
particularly in view of the reluctance of the Hindu community to use systems
outside of it, and the absence of articulation of rights for Hindu women within
the family.
Two models of alternative shalish based in Mymenshingh, a district 120 Km north
of Dhaka, are described. Both have been initiated and are under supervision
and support of NGOs the first, a local NGO called Social Association for Rural
Advancement (SARA) that is supported in its legal work by national law based
organisations, Bangladesh Legal Aid and Services Trust (BLAST) and the Ain O
Salish Kendra (ASK); the second is a district branch of the largest development
NGO in the country, Bangladesh Rural Advancement Committee (BRAC), that
carries out many progrmmes through its branch offices including community
mediation through shalish.
Social Action for Rural Advancement (SARA): SARA was established in 1983
to work on development and womens empowerment. It facilitates shalish

16

8 The Chittagong Hill Tracts rely primarily on traditional forms of adjudication. According to
preliminary studies by BRAC Research Division in 2009, the reasons given for not being able to
access the formal legal system included unfair treatment, lack of understanding of court procedure,
high costs of travel and litigation, and huge backlog of pending cases.

thorough the different community groups formed at the local level, that take
up cases in addition to participating in the larger programme of SARA. There
are three community level groups formed by the organisation to facilitate
community work including undertaking mediation or shalish, one that is for
general community issues, Manav Adhikar Sangrashan Porishad (MSP), the
second for womens issues, the Mananvadhikar Nari Samaj (MNS), and the third
comprises of a group of local lawyers, Manavadhikar Aiyathi Porishad (MAP)
who handle cases where mediation is not successful or cases that cannot be
addressed through mediation (such as rape, murder, trafficking). SARAs role is to
not mediate but to facilitate it through organising community groups, building
their capacities and mentoring them.

MNS is organised into various unions, and each union contains about 12 cluster
groups consisting of approximately fifteen members, between the ages of
eighteen to fifty years. It is therefore a federated body with a wide outreach.
The head of a cluster group is usually a highly respected woman of the locality,
such as, a school teacher. SARA builds the capacity of the MNS through monthly
meetings on issues such as dowry, domestic violence, early marriages, polygamy
and divorce. The MNS handles cases at their level, gathers facts, visits the house
of the parties to assess the situation, and hears both parties. From the cases
they handle, they decide which require mediation through the shalish and
communicate this to the general community body, the MSP then appoints a
shalish to carry out the mediation. The chairperson and a few select persons
are nominated to conduct the shalish. Their shalish has successfully resolved
issues particularly in relation to making the hilla or the requirement of
intermediary marriage for divorced couples to re-unite, and the triple talaq
socially unacceptable. In a case where the husband regretted pronouncing oral
talaq to his wife because she cooked rice late, he wanted to continue living
with her but was boycotted by the neighbours for failing to perform the hilla
(intermediary marriage) rites. The husband approached MNS and this case was

BANGLADESH

The MNS works solely on womens cases, comprising mostly of family law issues.
It provides the space for women to voice their concerns relating to their cases
more easily and is simultaneously a medium for women members of the MNS
to gain confidence and leadership.

17

BANGLADESH

sent to the shalish, which held his marriage to be valid without any need for an
intermediary marriage. In all their case work, a written consent is taken from
the woman to avoid community backlash at a later stage.
Bangladesh Rural Advancement Committee (BRAC): BRAC is one of the worlds
largest NGOs focusing on empowering people and communities in situations of
poverty, illiteracy, disease and social injustice. BRACs Human Rights and Legal
Aid Services (HRLS) program, established in 1986, is dedicated to protecting
and promoting human rights through legal empowerment especially for the
poor and marginalized. The HRLS program operates 537 legal aid clinics in
61 districts of Bangladesh and is the largest NGO led legal aid program in the
world. The programmes strategy includes legal and human rights education,
legal aid, rapid response to reported incidents of human rights violations
and capacity building of panel lawyers, community leaders and community
paralegals. HRLS also facilitates Alternative Dispute Resolution (ADR) by the
community programme organisers at the thana level or the sub district level.
The ADR takes place in a specially assigned room in the BRAC area office.
During the ADR, both parties are asked to bring with them two additional
members of their community (of their own preference). The HRLS Program
Organizer facilitates the ADR, often under the supervision of a staff lawyer.
HRLS also raises rights awareness where participating women attend a 22 day
training on human rights and legal entitlements. The trainer or shebika is
usually a local person selected by BRAC and trained over 7 days a month for
a period of 4 months to deliver the course and act as a focal person in the
community for HRLS.
According to BRAC, while social changes as a result of this work may be limited,
there is clear increase in awareness at the community level. Women know
they can claim mehr, even if they may choose to not do so as per the custom.
They receive about 50-60 new complaints every month per district, and of the
cases received, 90% of the cases involve womens issues such as dowry and
maintenance, domestic violence, rape, acid burn and land related disputes.

18

Religious Space for Empowerment


There is growing evidence of religious organisations attracting young women
who are looking to combine a strong religious identity with their aspirations for
employment and independence. The Pathways project9 is examining a trend
of growing religiosity amongst young Muslim women, to reaffirm and develop
their identity as Muslim, and using religion to negotiate rights, justify their
non-traditional choices and seek acceptance in society. More women, including
young students, have started attending talim, that is an informal group sittings
on religion, where women learn how to dress, act and negotiate through
situations in their day to day life. It includes reading of verses of Koran on
everyday life experiences. Religious identity here is being adopted as a means
of empowerment, even though there is no uniform understanding of religion.
For example, the research found that garment workers do not feel it necessary
to pray five times a day as they have to work.10

The use of religion as a source of womens empowerment and mobilisation is


not entirely an unproblematic re-inventing of religious identity that is tolerant
of womens independence. An identification of identity with symbols and rituals
is also part of this trend that has increasingly led to associating the bindi with
Hindus and India, when in fact it has traditionally been part of the Bengali
tradition. These developments eventually get played out as identity politics
defining not just the Muslims from Hindus within the country, but becoming
signifiers of nationalism or the lack of it, marking us from them.

9 Based on discussions with Firdaus Azim. See the Appendix for details
10 Interestingly, an increasing number of garment workers welfare committees are demanding
the allocation of separate space and time for prayers.

BANGLADESH

A similar trend is visible amongst Hindus with young women being drawn
to religious discourses that weave gender and justice issues within religious
learning. The Ramakrishna Mission, one of the liberal Hindu organisations,
holds study sessions on the Bhagwat Gita in Bangladesh, and includes reference
for gender justice.

19

BANGLADESH

Participatory Research to Mobilise Community Rights


An innovative initiative involving participatory research that the Research
Initiative Bangladesh (RIB) undertakes supports action for realisation and
empowerment of marginalised groups or women within such marginalised
groups.11 It involves collaboration between an animator and the marginalised
groups to jointly identify the socio-economic rights most vital to their livelihood
and survival leading to knowledge of the rights involved and action for their
reaslisation. At times the outcomes of research are unexpected. For instance,
the main concern of the pig rearing community was to find out if pig grazing
is legal in Bangladesh. In the case of Dalit sweepers, the women sweepers
prioritised the issue of violence, alcoholism, and dowry instead of the maternity
leave, while the men prioritised financial issues. This approach according to RIB
broadens the understanding and strategies addressing poverty to include social
and economic discrimination. Most of the initiatives covered for marginalised
groups have involved collective livelihood rights, and not gendered issues
pointing to the need for greater engagement with these communities.

III. ADDRESSING DISCRIMINATION IN THE FAMILY LAW


Bangladesh follows a plural family law system with an optional secular civil
marriage law. The Constitution of Bangladesh extends to minorities the right
to harmonious practise of religions other than Islam under Article 41. This has
been interpreted to accommodate religion based family laws and consign the
responsibility of addressing discrimination within the respective family laws
to the community. As a consequence, while there has been some progress
in relation to Muslim family law, those of the minority especially the Hindus
remain untouched. This section will explore ongoing strategies for reforms in
personal laws in Bangladesh.

Uniform Family Code


Womens groups have been demanding a uniform family code for years with the
objective of removing gender discrimination for all women in the family law.
However the uniform code is contested at several levels by several stakeholders
20

11 Based on discussions with Meghna Guhathakurta. See the Appendix for details

in relation to what the contents should be, fears about the undue influence
of Islamic laws over other personal laws, and fears about the secularization of
Bangladeshi laws in a manner unacceptable to Muslims. The Law Commission
of Bangladesh disapproved of a common family code in 2005 observing that
personal laws as practiced in Bangladesh have originated from different belief
system,12 that lead to treating marriage as a contract amongst Muslims and a
sacrament amongst Hindus. Many activists believe that greater work needs to
go into documenting the rights that such a law must protect, and feel that such
a law should be free of pre-conditions that require the couple to state that they
do not believe in religion in order to register their marriage under such law.
This is necessary to avoid the obstacles present in the existing Special Marriage
Act. 13

Muslim law

Triple/oral talaq: The law requires that as soon as the man pronounces talaq in
any form he must submit a written notice of the same to the Union Parsihad
Chairman and his wife.14 The talaq is effective, unless revoked expressly or
impliedly by an action, only after 90 days of from the date of intimation of its
notice.15 The law also prescribes for a compulsory arbitration within 30 days of
giving notice.16 These pre-conditions have in effect rendered an oral/triple talaq
without legal validity, even though its practice continues.

12 The Law Commission of Bangladesh Opinion on the Study Report for Marriage, Inheritance
and Family Laws in Bangladesh Towards a Common Family Code(2005)
13 For example, section 2 of the Special Marriage Act 1872 of Bangladesh compels a person to
denounce his/her religion. This has led to reluctance in using the law, especially in cases where
both the parties are from the same religion and in inter-religious marriage where the parties are
willing to convert.
14 Section7(1) of the Muslim Family Ordinance Act, 1961.
15 Section 7(3) of the Muslim Family Ordinance Act, 1961
16 Section 7(4) of the Muslim Family Ordinance Act, 1961

BANGLADESH

Significant achievements have been made in terms of addressing discrimination


under the Muslim family law through stipulating rigorous procedural conditions
in the law, for the exercise of substantive rights allowed under the traditional
Shariah law. The key areas of reform are briefly discussed here.

21

BANGLADESH

Hilla/Intermediate marriage: The requirement of an intermediary marriage of a


woman before she may re-marry the ex-husband has been done away with by
law. The law states that wife can remarry her husband without any intervening
marriage unless such termination of marriage between the woman and her
husband is for the third time.17 This move followed on the heels of strong
protests from womens groups as well as many sections of the community. In
2001, the Dhaka High Court took suo moto action based on a newspaper article
to ban hilla marriages in Bangladesh.18
Polygamy: Polygamy is not illegal, however, the pre-conditions in law require
a man to take the consent of the existing wife and the consent of the Union
Parishad Chairman before he remarries.19 The law prescribes punishment for
failure to comply with these pre-conditions and requires the husband to give
the mehr to the wife. Although the law regulates the practice of polygamy
stringently to protect the rights of the first wife, in reality, not many men
comply with the pre-conditions. The reasons for polygamy have changed with
the times. Traditionally, it was a symbol of social and economic wealth, and
in its contemporary practice, it is a medium of acquiring more dowry by poor
men. Another recent trend is that men who migrate to towns and cities, set up
home again without disclosing their marital status.
Banning of fatwas: The first case challenging the legality of fatwas was registered
by a member of Mahila Parishad in 1990, and involved a fatwa issued against a
woman for re-marrying her husband without undertaking hilla marriage.20 The
punishment of whipping resulted in her death. The court convicted those who
had issued the fatwa, with a lot of media coverage that treated it as an issue of
concern. Since then a series of cases have been initiated to take action against
fatwas that were issued against inter-religious marriages, hilla, and so on.

22

17 Section 7(6) of the Muslim Family Ordinance Act, 1961.


18 Bangla Bazar Patrika v. Deputy Commissioner, Nogaon (WP 9605897/2000). In this case
fatwas were held to be illegal.
19 Section 6 of Muslim Family Ordinance Act, 1961.
20 Bangla Bazar Patrika v. Deputy Commissioner, Nogaon (WP 9605897/2000).

Hindu Law

Registration of marriages: Hindu marriages are rarely registered. The absence


of documentary proof makes it very difficult for women to access the courts,
much less claim any rights in a court of law. While there have been cases where
marriage videos and photos were treated as evidence of marriage, these are no
longer considered to be conclusive evidence. Given the resistance to addressing
the severe discrimination against women under Hindu law, there are debates
about using registration of marriage as a step to allow Hindu women to interface
with the formal legal system. Currently registration is only undertaken by
those married under Hindu law as part of providing proof of marriage for visa
formalities for migration and overseas travel. Legally valid divorce is virtually
impossible for women. In one case, a woman was forced to use her influence
and resources to procure a back dated civil registration in order to obtain a
divorce. For most women, similar subversion of the law is beyond reach and
21 The Dayabhaga law treaties were followed by modern courts during British rule in Bengal in
India. While in India codification of the Hindu law in the mid 50s recognized rights that women
traditionally did not have under the Hindu law, Bangladesh has not codified its Hindu law or
recognized rights for women in the family.

BANGLADESH

The uncodified Hindu family law in Bangladesh is based on the Dayabhaga


school.21 There has been no reform in the law as a result of which women neither
have the right to divorce nor have equal rights to succession of immovable
property in their natal home. Male polygamy is permitted. The law does not
require registration of marriage either which makes it extremely difficult for
Hindu women to demand maintenance and assert other matrimonial remedies
in court. Women who have sought change, claimed rights in the public domain
and advocated reform have faced strong backlash from the community. The
male leadership of the community is resistant to reform or codification of the
family law, and have come to view the autonomy of regulating family matters
an assertion of their religious identity. This stand also stems from a mistrust of
the state that has vested in itself the properties of the Hindus following partition
of erstwhile East Pakistan from India in 1947, an issue that continues to be
unresolved in Bangladesh, as well as the conditions of poverty that broadly
defines the communities socio-economic status. The areas of negotiations and
debates for womens rights are discussed here.

23

BANGLADESH

registration is therefore seen as the path of least resistance for Hindu women to
get space to negotiate rights minimally through the legal system.

24

Inheritance rights and the vested property:22 Hindu women have a tenuous
and limited right to inherit property from either the father or the husband. 23
Hindu women are also entitled to 3TRIDHAN, which is property over which
they generally have absolute control. Dominant sections within the Hindu
community oppose giving inheritance rights to women as it is argued that
could lead to a situation where Muslim men will marry Hindu women in
order to take their land. This insecurity and fear within the Hindus arises
from the experience of having had most of their land taken away under the
Vested Property Act 1974. The law on vested property (previously known as
the Enemy Property Act), allowed the government to confiscate the property
of emigrating Hindus deemed to be enemies of Pakistan, during the 1965 war
between India and Pakistan. The Act was used to confiscate the properties
of Hindus, the majority of acquisitions under it took place after 1965 until
recent times, which has led to a great deal of resentment and suspicion
against the state. The law was used to acquire not just vacant property, but
also occupied properties with documents in place, and the acquisitions
continued to take place after the independence of Bangladesh. A total of 1.2
million households or 6 million Hindus were affected from 1965 to 2006, and
the community has lost at least 2.6 million acres of land. 24 Consequently,
property within the Hindu community has become an insecure resource.
This insecurity has been used to clamp down on womens right to inherit.

22 The law on vested property is not a personal law of the Hindus in Bangladesh but it has had
an effect on the rights of Hindu woman. This section draws upon interviews with Aroma Dutta
and Sultana Kamal. See the Appendix for details
23 Hindu religious law prescribes five classes of female heirs: the widow, the daughter, the
mother, the mothers mother and the fathers mother. Within the daughters class, inheritances
go first to unmarried daughters, then to daughters who have a son. Childless daughters or those
without any sons are excluded from the succession right. Widows only inherit a limited title of life
estate in the property so they may not dispose it. (Bangladesh Women Lawyers Association, Hindu
Family Law: An Action Study on Proposed Reform of Hindu Family Law, BNWLA)
24 See Abdul Barkat and others, Deprivation of Hindu Minority in Bangladesh-Living with
Vested Property Pathak Shamabesh, Dhaka, 2008, p.121.

Human rights groups took up this Act and have pressed the government of
Bangladesh to revoke this law and return properties to Hindus.25 The Vested
Property (Return) Act was promulgated in 2001. The 2001 Act has been criticised
for being a half hearted measure of tokenism.26 The specific loopholes in the
2001 Act are:
r If there is no male heir then the property stays with the government
r Only those properties would be returned that were declared vested by
1969. (A large part of the properties were acquired after 1969).
r The Act does not provide compensation or return of those properties
that were permanently transferred or leased to statutory organisations or
individuals.

Christian Personal Laws

BANGLADESH

Under the initial Act, a time limit of 180 days was provided to publish the list
of properties to be returned. In 2002, the government allowed for an unlimited
time period within which the list was to be published and property returned.
Negotiations on amending the Act are currently taking place with the present
government. Human rights groups have suggested that in families that have
no male heirs, the women should be allowed to inherit only for the purposes of
returning the vested properties. This suggestion of women inheriting only for the
limited purposes of this Act has however not found favour with the community.

The personal laws applicable to Christians in Bangladesh are those which were
implemented by the British during British rule.27 However, local customs have
taken precedence over legal codes.28 The limited rights that are available in statutes
for Christian women are not utilised as customs hold precedence. For example,
Christian women can inherit property under the law but customs disallow them from
using this right. There is no provision for divorce. Judicial separation is permissible
amongst Christians only on two grounds adultery and conversion.

25 This section is based on an interview with Shamsul Huda. See the Appendix for details
26 See for example Abdul Barkat and others, Deprivation of Hindu Minority in BangladeshLiving with Vested Property Pathak Shamabesh, Dhaka, 2008, p.56-58.
27 The Divorce Act of 1869 applies in Bangladesh
28 This section is based on an interview with Faustina Periera, Advocate, Bangladesh Supreme
Court and BRAC. See the Appendix for further details.

25

The Catholic Church is cognisant of the amendments made in the Indian Divorce
Act in 2001 but it discourages changes on similar lines in Bangladesh. Previous
attempts to reform law were unsuccessful. Protestants have become an active
party in demanding reform. The Law Commission drafted a reformed Bill on
Christian marriages but it has not been enacted.29

BANGLADESH

Laws Governing Indigenous Groups


In Bangladesh the term adivasi or indigenous groups is used in place of the
term tribals so as to reinforce the understanding that members of the group
are the original dwellers of that particular area. There are two main ethnic
minorities in Bangladesh; the Biharis (Urdu speaking community), and the
Indigenous groups, who largely live in the hill tracts. Greater activism has
taken place to mobilise awareness among the indigenous groups than among
the Bihari community. The indigenous groups seek to maintain their distinct
identity by regulating issues through its own customary laws not only in
personal matters but also in civil and criminal matters. The Chittagong Hill
Tracts are densely occupied by indigenous groups, where they have their
own legal system. This was recognised in law by the signing of The Chittagong
Hill Tracts Peace Accord of 1997. As per this accord, the region has its own
district and regional council for governance. The council has representation
from various indigenous groups as well as women of the community.
Presently the customary practices (including in relation to the family) are
not codified with the exception of the Chittagong Hill Tracts Act (CTA) 1900,
which was codified by the British. The debate began as some groups feel that
the law needs to be written down so the community will know its practises
and not depend on the headsmen.30 Secondly, by means of codification it is
hoped that discriminatory practices will be omitted. However, other groups
feel that laws should be written but not codified for the sake of maintaining
flexibility. There is a consensus that some practises, as for example male

26

29 Law Commission of Bangladesh Report on Proposed Amendment of the Divorce Act (2006)
30 ALRD has started editing, adding and deleting the existing CHT Act to get the present practice
incorporated in it. They want to have as an outcome a document that can be published so that
people will at least be aware of their laws and rights. A large section of the act is on land-its use,
rent collection, etc and the other section is on social life.

polygamy, fall short of international human rights standards, and customs


need to be reformed so as to comply with human rights standards. 31 Leading
voices in the community however feel that justice rather than uniformity
must influence any process of codification. The question of who will codify
also remains unclear. In general, womens issues in relation to customary
law have taken a back seat in debates surrounding indigenous groups.

IV. CHALLENGES & CONCLUSION


Community Interventions

Some of the challenges common to the legal aid and mediation is the threat of a
backlash. There are reports of threats and attacks on the NGO staff by conservative
forces and local interest groups, and SARA tries to protect its intervention
through written consent forms to justify taking up cases. Both SARA and BRAC
have received threats, had its offices attacked and staff assaulted.32 A concern
related to all mediations arises from the perspective of the mediator, as this
influences the options made available to women and the outcomes in terms of
justice for women. For example, in cases of domestic violence, or a matrimonial
breakup the shalish can negotiate an alternative for women, opening options
that may not be traditionally available, or it may encourage women to stay
within the marriage because they are economically dependent. Such challenges
involve improving the conceptual understanding of the shalish on patriarchy,
justice and going beyond knowledge of legal rights. A related concern is that of
the approach adopted by the shalish to what extent does the shalish listen to

31 This section draws upon discussions with Raja Devasish Roy. See the Appendix for details
32 Furthermore the ADR and legal aid facilitated by the NGO sector threatens the customary
hierarchy in these villages. Recourse to a formal system is thus perceived by some local leaders as
undermining their authority.

BANGLADESH

The strength and outreach of mediation as a form of community intervention


in Bangladesh must be attributed to the traditional relevance of the shalish.
Despite the widespread acceptance of the alternative shalish, they face
common challenges as reflected by the experiences of SARA and BRAC in
Mymensingh.

27

BANGLADESH
28

what women want, and negotiate solutions towards that. The shalish very often
tends to present options to the woman on the basis of what the negotiators seek
rather than what the woman wants. BRAC is in the process of restructuring its
programme to address the needs of its beneficiaries, so that legal aid is a means
of empowerment and behavioural change. The programme seeks to develop
the role of female barefoot lawyers/shebikas within the community so that they
combine advocacy and problem solving with preventive action. This involves
revising the capacity building to include concepts of gender equality and gender
justice in addition to information on rights. Another challenge of community
based work on law is that of corrupt local lawyers charging a fee from clients,
and exploiting the legal aid programme. BRACs selection procedures of panel
lawyers are rigorous to ensure they weed out corrupt/ malintentioned lawyers,
but these are admittedly not fool proof. As far as possible, they rely upon the
services of programme organisers and staff lawyers rather than lawyers for legal
aid, select lawyers who have substantial experience with a record of doing probono work.
Both SARA and BRAC district centres hardly receive cases from the Hindu
community although the shalish is open to members of all religions.33 There
is an apprehension of backlash in taking up cases of women from the Hindu
community, so innovative approaches are found to work around the problem.
BRAC reports a case of a Hindu woman who wanted divorce in order to remarry, a remedy that is not available under the Hindu law. BRAC helped her in
preparing an affidavit stating that she was of sound mind and had decided to
leave her husband, had the affidavit notarised. Although this was not a legal
document, it legal trappings lent a degree of formality to allow the woman to
separate from her husband and cease relations with him. SARAs community
group for women, the MNS, state that one of the reasons for not getting cases of
Hindu women is that womens rights in the family are not stated under Hindu
law so there is no social or legal space to argue in her support. They report
having received only one case of a Hindu woman since 2004. The case involved
the claim of a widow to sell property to maintain her children. Talks with her
family failed as they refused to agree, but the community agreed with her since
33 A large number of Hindu women attend the rights awareness course conducted by HRLS.

the MNS focussed on the angle of childrens welfare, rather than her right. She
gained some support only because her claim was not of a personal nature but
for the benefit of the children. As the matter could not be resolved informally,
a legal case was filed through BLAST.

Formal Law

The relationship of minorities with the state, like in most other places, is
manifested in socio-economic under-development, unresolved political
tensions that have served to justify autonomy with respect to their family
law, and stifle discussions for womens rights within the family. The degree
of autonomy for minorities even within the framework of plural family
law is more heightened than that for majority community, given the
states reluctance to recognise womens voices seeking change, as validly
representative of the needs of the community. The state continues as in
other similar contexts, to view male leaders, particularly religious and
conservative leaders as representing the community. This status quo accounts
for a severely under-developed interface between womens rights in Hindu
families and the legal system.
The advances made in relation to Muslim family law have successfully
contained patriarchal rights though development of procedural conditions.
Even as this strategy has avoided a substantive challenge to the rights at the
normative level, they have, through the device of procedural conditions,

BANGLADESH

One of the striking aspects that come across during rights interventions in
Bangladesh is that the debates addressing religious based plural laws are
couched in the secular language of rights without much reference to Islam, and
they do not resort to religious interpretations or the projection of a religious
identity, or indeed demonstration of engagement with religion. Even so, these
debates are keenly aware of the place Islam occupies in the Constitutional and
political context, and reflect an avoidance of formulations and terminology
that would be counter productive. The liberatory ideals of the independence
movement and the fundamental rights remain tangible resources that activists
and organisations draw upon to negotiate challenges in the area of family law
and elsewhere.

29

BANGLADESH

diluted the legality of customary practices relating to triple talaq, the hilla
and the mehr. The discussions on registration of marriage by Hindu women,
reflects a similar approach of creating an entry point for rights interventions
through an administrative procedure. The debates on law reform in terms of
minorities are more optimistic in the current political environment; and the
strategic focus on registration over codification of the law, seems to reflect the
larger trend of family law engagement in Bangladesh, in making headway by
addressing the substantive inequalities through procedural and administrative
interventions.

30

INDONESIA
Religion As A Resource For Promoting Gender Equality,
Plurality And Justice

The study looked at different facets that cultural rights acquire while asserting
human rights and womens equality, and probed the relationship of the strategies
employed to the political history and context in which they are implemented.
These interventions in the arena of culture in Indonesia include but are not
confined to progressive interpretations of religious texts, and identifying aspects
supporting womens rights within Islam. They also encompass the use of Islam
as a social movement to complement secular Constitutional principles, in the
construction of a plural, tolerant and liberal national identity. Notably, some
religious organisations have made gender justice a component of their work
in the community, reflecting the autonomy enjoyed by religious formations
at the local levels. Many of these developments have been facilitated and
strengthened in collaboration with NGOs, both secular and Muslim womens
groups. The secular womens groups on their part, view their engagements

INDONESIA

The field study in Indonesia offered a unique opportunity to examine alliances


between womens groups and Islamic groups on concerns about womens
equality, justice and pluralism. Even as these collaborations serve a common
goal of resisting fundamentalism, they seek to monitor and engage the state in
defining the nation, through affirming its obligations to uphold plurality, justice
and democracy. Religion based and secular social movements in Indonesia have
made womens rights, cultural plurality, equitable development, democracy
and justice issues integral to with the future of the nation and its idea of
nationhood. PLDs field studies in Indonesia, was limited to interviews with
community leaders, activists, academics and organisations in Jakarta, Cirebon
and Indramayu, from both religious and secular fields. Indonesia being a large
archipelago nation that is multi-religious and multi-ethnic, the coverage of a
few centres in Java is by no means comprehensive. We relied therefore on a
strategic selection of experts who provided an overview to help draw basic yet
critical insights for the purpose of this study. The findings are therefore more
descriptive than conclusive and remain limited in scope.

31

INDONESIA

within culture as being necessary for expanding the arena within which social
justice is asserted (without having to abdicate their secular moorings). This
report situates these engagements and strategies in the context of the political
and cultural background of Indonesia, where alliance building between the
secular and the religious is necessary for outreach to the community and for
resisting fundamentalism. It categories the engagements with womens rights,
in two parts - those that are initiated by Islamic formations, and those that
are led by secular organisations and movements. Even as these two categories
are anchored in different philosophical traditions, their work reflects interface
and intersections to serve the dual purpose of affirming womens rights and
resisting fundamentalism. Both these broad streams, engage actively with
culture, contesting injustice, supporting plurality and difference to enhance
avenues for justice.

32

I. THE POLITICAL CONTEXT


Indonesia won independence from the Dutch in 1945 and the socialist leader,
Sukarno was appointed as President. Sukarnos system of governance is known
as the old order and the Indonesian Communist Party (PKI) supported his
socialist stance. Sukarno criticised parliamentary democracy and after declaring
martial law, in 1959 with the support of the armed forces he issued a decree
re-introducing the Constitution with strong powers for the President. A period
known as guided democracy began where traditional methods of decision
making were prioritised over parliamentary democracy. On September 30th
1965, an internal coup within the Indonesian army took place and a group
within the armed forces, alleged to be the communists, executed six senior
military officers in the army. Major General Suharto mobilised forces and came
to power, unleashing a violent anti-communist purge that left half a million
dead, and the PKI was banned. Suhartos pro-Western new order lasted until
the Asian financial crisis of 1997-98. Dissatisfaction with authoritarian rule and
economic instability from the crisis led to riots targeting mainly ethnic Chinese
Indonesians. Since then, Indonesia under the Presidencies of Habibie (19981999), Abdurrahman Wahid (1999-2001), Megawati (2001-2004) and Yudhoyono
(2004-present) has been underREFORMASIor reform.

INDONESIA

Following the financial crisis of 1997-98 and the fall of Suharto, Indonesia has
been in a transition phase moving away from authoritarian rule towards greater
democracy. TheREFORMASI(reform) period is characterised by neo liberalism, as
well as greater political and social openness. It has also been accompanied by
growing Islamisation. The Asian financial crisis fuelled a political transition, but
also changed power equations and gave democratic space for political Islam
and fundamentalisms to reconfigure authoritarianism at the local level. This
space has also been used by progressive voices to resist fundamentalism and
seek justice and accountability for past violations. As part of this expression,
social movements and womens groups have brought into public domain, the
record of violence in Aceh, West Papua, the 1965 purge, the May 1998 riots
pressing the state to pay attention to issues of environment, natural resources,
ethnic conflicts and violence against women. In fact, theREFORMASIera began
with demands for accountability for the violence directed at the ChineseIndonesian minority community, in particular, the brutal sexual assault against
ethnic Chinese women. In response to these demands, the Komnas Perempuan
(KP) was established as demonstration of the States commitment to combat
violence against women. The engagements on gender justice and protection of
womens rights are clustered under two distinct heads those by the religious
formations and those by the secular ones. The discussions under each category,
brings out the way in which the two intersect and complement the goals of
gender justice.

II. RELIGIOUS ORGANISATIONS ENGAGING WITH GENDER


JUSTICE, SOCIO ECONOMIC INEQUALITIES
AND PLURALISM
This section will introduce the Nahdlatul Ulama (NU) before mapping its initiatives
in support of womens rights at the national and the local levels, as well as
those of other religion based/ affiliated organisations. In addition to interviews

33

INDONESIA

Following the financial crisis of 1997-98 and the fall of Suharto, Indonesia has
been in a transition phase moving away from authoritarian rule towards greater
democracy. TheREFORMASI(reform) period is characterised by neo liberalism, as
well as greater political and social openness. It has also been accompanied by
growing Islamisation. The Asian financial crisis fuelled a political transition, but
also changed power equations and gave democratic space for political Islam
and fundamentalisms to reconfigure authoritarianism at the local level. This
space has also been used by progressive voices to resist fundamentalism and
seek justice and accountability for past violations. As part of this expression,
social movements and womens groups have brought into public domain, the
record of violence in Aceh, West Papua, the 1965 purge, the May 1998 riots
pressing the state to pay attention to issues of environment, natural resources,
ethnic conflicts and violence against women. In fact, theREFORMASIera began
with demands for accountability for the violence directed at the ChineseIndonesian minority community, in particular, the brutal sexual assault against
ethnic Chinese women. In response to these demands, the Komnas Perempuan
(KP) was established as demonstration of the States commitment to combat
violence against women. The engagements on gender justice and protection of
womens rights are clustered under two distinct heads those by the religious
formations and those by the secular ones. The discussions under each category,
brings out the way in which the two intersect and complement the goals of
gender justice.

II. RELIGIOUS ORGANISATIONS ENGAGING WITH GENDER


JUSTICE, SOCIO ECONOMIC INEQUALITIES
AND PLURALISM
This section will introduce the Nahdlatul Ulama (NU) before mapping its initiatives
in support of womens rights at the national and the local levels, as well as
those of other religion based/ affiliated organisations. In addition to interviews

33

with two women members of the NU at the national level34, discussions and
field visits were made to three PESANTRENS known for their progressive social
justice work, to hold discussions with the +YAYIS(male religious teacher at the
PEASANTEN), one .YAYI(female teacher at the PESANTREN), two of which housed
womens crisis centres in their premises.35

INDONESIA

Defining a Social Role for Islam in Indonesia - The Nahdlatul


Ulama

34

The Nahdlatul Ulama (NU) is a traditional, Sunni Islam organisation founded in


the 1920s during the national movement in Indonesia. The NU is one of the largest
independent Islamic organisations in the world with a large rural membership.
It played a role during the independence movement and was influenced and
shaped by the liberation values of the times. The 1935 conference of the
NU called for a free Indonesia and for $ARUL)SLAM or peaceful co-existence,
affirming Indonesias multicultural heritage. Following independence, the NU
has dabbled in politics directly and sometimes indirectly,36 occasionally changing
its ideological positions, supporting Islamic positions initially but in 1984 it
adopted a secular approach based on the principles of PANCASILA.37 The NU is
presently a counter to Wahabbism (a conservative Islamic sect derived from Saudi
Arabia), as it believes that Islam must assimilate with local traditional values to
be contextually relevant. The NU is therefore known as traditionalist.38 It is
the strongest counter to the then dominant Islamic organisation in Indonesia,
the Muhammadiyah, (also formed in the early twentieth century), that is non-

34 Sinta Nuriah Wahid, the wife of the ex-President, Late, Abdurrahaman Wahid (popularly
known as Gus Dur) and Neng Dara. See the Appendix for further details
35 The three pesentren are, Mawar Balquis, womens crisis centre, Pesantren Babakan Ciwaringin
and Puspita Amal Hayati. See the Appendix for further details.
36 It contested elections in 1955 and emerged as the 3rd largest party. After the 1955 elections the
NU decided to remain a social movement and that it would not participate in politics. However,
in 1984 the NU returned to politics and in 1997 it merged with the United Development Party
(PPP).
37 In 1945, Sukarno proclaimed the The Pancasila Principles as the philosophical foundation of
Indonesia. The principles are: (1) Belief in the one and only God; (2) Just and civilized humanity;
(3) The unity of Indonesia; (4) Democracy guided by the inner wisdom in the unanimity arising
out of deliberations amongst representatives; and (5) Social justice for the whole of the people of
Indonesia.
38 The NU also came to be known as neo modern under the leadership of Gus Dur

political, conservative and strongly opposes syncretism.39 Philosophically, the


NU recognizes that Islam must be shaped by the cultural context to become
locally relevant and serve the objectives of the faith. This philosophy is inspired
by the origins of Islam in Indonesia. For example, according to Javanese culture,
people gather for 7 days at funerals to recite the Koran, blending Islamic burial
ceremonies with the customary Hindu mourning period. The Muhammadiyahs
in contrast, condemn this as a false practice or BIDAH, advocating instead Arabic
customs, viewing them as pure. As a consequence of this belief, they seek to
cleanse Islamic tenets of local culture.

While the structural level contributes significantly to policy discussions and


social reform, the cultural level shapes and grounds the understanding of
contextually relevant Islam locally. The local formations allow for a diversity
of perspectives that explain the co-existence of both conservative and modern
strands of thought within the NU. The cultural level of the NU enjoys a relative
degree of autonomy and freedom of thought, as they are supported by the local
community and command considerable respect within the community. It is at
this level where the NUs understanding of womens rights are merged with
Islamic studies. Lifestyle education and gender perspectives are woven into the
understanding of Islam, to create resources and spaces for practicing Muslims
to challenge gender discrimination and patriarchy.

INDONESIA

The NU is a membership-based assembly of Islamic clerics, and not a sect. It


operates at two levels: (a) at the institutional or the structural level, it functions
as an organisation holding conferences, engages in politics and has structures
to implement its activities. It has two womens formations, the Muslimaat for
senior women and the Fatayaat, for the younger women. (b) At the cultural
level there are locally-based religious teachers, the KYAI [male] and the NYAI
[female], who teach and run locally supported centres of Islamic studies, called
the pesantrens.

At the structural level too, NUs leadership has liberal leanings, supporting
39 The Muhammadiyah is split into two ideological groups; one sect is modernized, while the
other believes in Wahabbism. The Muhammadiyah is more conservative than the NU, but it is
more modern in terms of adopting western education.

35

INDONESIA

plurality, multiculturalism, tolerance and democracy in Indonesia. The late


Abdurrahman Wahid (commonly known as Gus Dur, and former President
of Indonesia), was the descendant of the founder of the NU, and viewed as
a defender of human rights within Islam. He spoke out against under-age
marriages and against the banning of Ahmadiyas, an Islamic sect. His wife, Sinta
Nuriah Wahid, a member of the Muslimaat (the older womens wing of the
NU), has played an active role in initiating the establishment of womens crisis
centres at pesantrens. This creates space for social justice work within the fold
of religious education, and ensures that community support extends to women
survivors of violence. She has spoken out against the Anti-Pornography Bill,
for undermining cultural diversity and ethos of Indonesia through its stringent
moral undertones, and for undermining womens rights.
The creation of the Fatayaat is symbolic of NUs liberalism. It was established in
response to gaps within the NU, in terms of membership of younger women. The
Fatayaat has critiqued the limitations of the pesantrens for women students, in
terms of the exclusion of women from learning Arabic, as well as methodologies
for interpretations of text and undertakes programmes of health, education
and economic development and empowerment for women. Structurally, even
as the Fatayaat is under the NU, they have the autonomy to adopt independent
positions. For example, even as some of the political leadership of the NU
supported the anti-pornography Bill, the Fatayaat opposed it.

Education for Girls at the Community Level the Pesantrens

36

The pesantrens are residential schools of religious learning at the local level,
supported wholly by local communities, and are largely rural. The pesantren
tradition goes back to the 15th century when Islam was introduced to Indonesia.
It is here that Islam assimilated with local traditions and culture rather than
seeking to replace the local culture. The pesantrens provide only religious
education, but the students combine this with modern education received in
madrasas on payment of additional fee. The madrasas are generally situated in
separate premises, close to the pesantren or sometimes, in the same premises.
The daily schedule at the pesantren intersperses religious studies with modern
education at the madrasa (languages, maths, science, history etc). The pesantrens
are co-educational, although the living arrangements and educational spaces for

boys and girls are separate. The madrasas may have co-educational classrooms
where typically, a curtain or some form of partition separates the boys from
the girls. The schedule in the pesantren is rigorous, but the size and facilities
vary with the wealth of the pesantren. What is important however is that at the
local level even in rural areas, religious schools are open to girls on payment
of an affordable fee. At the minimum girls can avail of religious education and
boarding facilities outside the home, even if their fee is not enough to cover
their attendance at the madrasas.

Dwi Rubiyanti from an organisation, AMAN Indonesia, conducted research on


how young female students in contemporary pesantrens negotiate between
modern aspirations, their context and traditional Islamic values. Her study
examines how young women in pesantrens negotiate attractions of fashion,
independence and dating with Islamic values. Her findings show that rather
than shunning modernity, female students chose attractive well-fitted hijab,
especially during their time-out when they go in groups to the malls or the
cinema. Some students are known to remove their hijab, but if found out, they
are taken to task by their teachers at the pesantren. With regard to relationships,
girls balance modern pressures of dating and pre-marital sex with traditional
values of arranged marriage by opting for marriage by choice. They prefer a
platonic friendship prior to marriage over pre-marital sex.

INDONESIA

The education allows the girls the option to pursue higher education, religious
or otherwise - and subsequently, a career. Although pesantrens provide religious
education they do not cut their students off from exposure to the world. The
Pesantren Babakan Ciwaringin, at Cirebon, run by Nyai Masriyah Amva takes
the girls out for picnics once a year, and holds a film screening for them twice a
week. According to Nyai Masriyah, the boarding school provides education for
moral and social development, and an environment for lasting friendships. She
sees education for girls as necessary step towards making them not just good
mothers, but also agents of social transformation in society.

37

INDONESIA

Pesantren based Crisis Intervention Centres Addressing


Violence Against Women

38

Sinta Nuria Wahid has played an active role in initiating the establishment
of womens crisis centres at pesantrens. According to her, the womens crisis
centres in pesantrens provide religious and legal responses to combat violence
against women. This is symbolic as well as strategic - it sends out a message that
religion condemns violence against women, and by attaching the crisis centre
to the pesantren, ensures society takes responsibility to address violence against
women through the resources it contributes to sustaining the pesantren. It also
fulfills an important legal obligation to implement the Domestic Violence Act,
2004. They have founded a few crisis centers in pesantrens, only after ensuring
that the pesantren qualifies the criteria that there are no cases of harassment or
polygamy reported from the pesantren. The criterion is stringent as polygamy
is legal and common amongstKYAIS The two pesantrens visited and their case
work, describe the broad approaches to violence against women.
The Womens Crisis Centre Mawar Balquis in Arjawinangun, Cirebon, primarily
receives cases of domestic violence and of abused children. They primarily
provide counselling, which they describe as combining of religious, social and
legal advice. The procedure for mediation involves calling the opposite party to
their office by a notice for discussion. Where the man feels that the Centre is
partisan towards the woman, the Centres staff meets the man outside their office
or even in his house. The victims are from diverse backgrounds, including women
with formal education as well as those lacking education, it also includes wives of
+YAIS and government officials. The most common cases taken up by the Centre
pertain to domestic violence and matrimonial issues. Where a case is grave, and
requires legal intervention, the Centre takes the assistance of the Cirebon lawyers
association. Similarly, they use the services of a psychologist if required. One of
the biggest problems they face is the lack of shelter facilities for victims, and have
approached the local government for setting up a shelter home.
In domestic violence cases, the Centre obtains a signed agreement/ undertaking
by the perpetrator that he will stop violence. If such an agreement is broken,
they file a police report and it becomes a criminal case. Most domestic violence
cases peter out as the legal system brings with it financial and social pressures,

the stigma of imprisonment for her husband and custody battles over children.
In cases where women receive threats from their husbands family, divorce is
pursued. For women employed gainfully, child custody can be at the expense of
child support, as the husbands do not want to share the financial responsibility
for children. With regard to pre-marital pregnancies of minors arising out of
rape, the Centre negotiates with the school to not expel the girl and works with
her peers to ensure no stigma is attached to the girl. In rape cases the Centre
works with local hospitals for acquiring an abortion for the girl. The Centre also
pursues criminal action and most cases have been successful.

Even though in principle they do not provide mediation in cases of rape and
trafficking, exceptions are made. For instance in a case of a 17 year old girl who
was 7 month pregnant as a result of being abducted and raped, the 27 year old
accused was arrested under charges of kidnapping. They mediated to explore
marriage between the two, and when he refused they filed a case against him. They
continued mediation with the families later, and he finally agreed so the marriage
was conducted in prison. Even as such approaches are socially conservative
and not women centred, the motive behind such mediation is often to obtain
paternity papers necessary to secure child support. Despite being located inside
the pesantren, the work of the crisis intervention centres is not easily accepted,
but seen as interference within the family and a Western concept.

INDONESIA

In the neighbouring town of Indramayu, Puspita, a womens crisis centre under


foundation Pvan Amal Hayati As-Sakineah, address violence against migrant
and trafficked women, especially of minor girls who are sent by their parents
to work in the town, and victims of domestic violence. In addressing cases of
migrant women, they work in collaboration with International Organization of
Migrants (IOM). They took on domestic violence when the Domestic Violence
Bill was passed in 2004, and also disseminate information on the law. Puspita
provides counselling, and have a rehabilitation programme that offers small
capital to women to set up business or livelihood options. They run a shelter that
provides an average of 10 days stay, except in rare cases where circumstances
demand longer stay. For instance, a girl who escaped after being sold by her
father stayed beyond 3 years and was studying at the pesantren; in another case
a pregnant girl was given shelter until she gave birth there.

39

INDONESIA

Resources on Womens Rights in Islam


Publications as well as initiatives that promote independent expressions on Islam
reflect an environment of tolerance, intellectual freedom and radical thought.
Notably, this genre of writing is produced by Islamic clerics, teachers and the
membership of the NU, many of whose educational roots lie in the pesantrens.
One of the most progressive and renowned interpretations of Islam in this genre
is Kyai Hussains noted work called &IQIE0ERAMPUAN on womens rights, published
in 2001, that was considered too controversial in Malaysia and banned there.
This book uses Islam to argue for equal rights to men and women in the spiritual
domain, in the family, and in the public domain. It goes to the extent of stating
that women can and should become Imams. Amongst other influential writings
are those by Sinta Nuriah Wahid that review the Yellow Books. The Yellow
Books are ancient classical texts by acclaimed religious teachers in 3 volumes
that are basic texts for students in the pesantrens to learn about the Koran.
Sinta Nuriah Wahids writings reviewed these texts to show that they are context
specific themselves, and their positions are contingent on the male perspectives
of the scholars. Although these texts are considered as sacred, they are not about
religion. Applying the same technique of inquiry taught in the pesantrens, that
argues that what is often passed off as religious teachings are in fact, not about
religion at all but are mens interpretation of the religious teachings, over-layered
by patriarchal, colonial and cultural traditions that deemed women fit only for the
private arena. These positions are not legitimate or just for women, or compatible
with the times and must be challenged.
Evidence of personal expression of faith, and relationship with God can be seen
in the poetry of Nyai Masriyah Amva, the first woman to head a pesantren
(the Pesantren Babakan Ciwaringin, Cirebon). She claims that relating to God or
the metaphysical as her life partner helped her regain strength following her
husbands death - feelings that she has given free expression to in published
verses. Muslim womens organisations like Rahima together with the Ministry of
Womens Empowerment and the Directorate of Islamic Education and Religious
Affairs, encourages essay and song writing as well as debating competitions
for madrasa teachers and students on critical analysis on gender and multiculturalism. These have been quite popular and resulted in publications.
40

Religion as a medium to address and mobilise against socioeconomic inequalities - Fahmina

INDONESIA

Fahmina was founded in 2000 in response to changes in society, particularly


religious and other forms of conservatism. They wanted to go beyond viewing
religion as a set or morals for regulating personal conduct. Instead, they
feel the potential of religion lies in facilitating thinking and action on socioeconomic inequalities so as to promote freedom and equality for those on the
margins. They focus as a consequence on using religion and religious references
to challenge socio-economic inequalities in society. They use references from
classical texts to trigger critical thinking on socio-economic issues, and find
responses to them. They feel its important to use religious resources to mobilize
more widely through the pesantrens +YAIS and.YAIS given the considerable
influence they command over the local communities. They believe in the power
of social change through education, and undertake both non-formal as well as
formal education interventions. They have established a university with courses
on Islamic perspectives on democracy, gender, pluralism, and human rights.
Where the texts are clear on human rights, they rely upon textual references,
but where they are not clear, they promote use of epistemology of the core
principles of Islam faith, life, freedom to think, reproductive health. These
principles they argue support non-discrimination for Lesbians, Gays. Bisexuals,
Transgenders and Intersex (LGBTI) and they prefer to emphasize the core values
of Islam, over explicit issue specific advocacy to avoid backlash to the larger
body of their work on socio-economic justice.
Fahminas direct action includes community work on socio-economic justice
with marginalized populations such as hawkers and buskers on the streets.
They facilitate communication between them and the civic authorities so as to
negotiate solutions that enable these groups to pursue their livelihood. They
are also engaged with civic and environmental issues. Their programmes are
as follows Islam and Gender; Islam and Democracy; Islam and Community
Empowerment; Media Development. As part of creating a voice for community
and encouraging their engagement with local issues, they help marginalized
communities to run community radio stations.

41

INDONESIA

III. SECULAR ORGANISATIONS AND THEIR ENGAGEMENTS


WITH GENDER, JUSTICE, CULTURE AND RELIGION

42

The engagements of secular womens groups with religion and culture in


Indonesia must be viewed in light of Islams place in peoples lives and the
influence of the pesantrens at the local level, in addition to the existence of an
established syncretic legacy of Islam in the country. For many womens groups,
the adoption of Islamic interpretations and cultural medium is necessary for
maximising their outreach in the community. For other groups however, secular
concepts and frameworks of democracy, pluralism and justice are the medium
through which they engage with the religious sections, the community and the
state. The two broad streams are not parallel, but often intersect, collaborate,
and adopt each others language, to enhance leverage with the target group or
a certain context. The understanding of cultural rights must necessarily allow
space for both streams and for fluidity and shifts as demonstrated by the
Indonesian example.

Gender and Reproductive Rights Education within the


Pesantrens40
The beginnings of gender and reproductive rights trainings can be traced
to the mid 1980s to a small secular feminist study group, the Kalyanamita,
much before the Cairo Conference on Population and Development in 1994
and the World Conference on Women in Beijing 1995. The context was one
of competing forces the authoritarian states coercive population policies,
and the religious leadership forbidding contraception, over layering patriarchy
within the family. The state, the family and religion joined forces in controlling
womens reproduction and sexuality, in equally oppressive ways. Reproductive
rights were therefore central to any work on gender equality. To reach out to
the womens groups, most of which were Islamic,41 as well as the pesantrens
required adapting the training to Islam, using religious references and sources.
40 Based on interview with Lies Marcoes. See the Appendix for details
41 The Asiyah (womens wing of the Mohamadiya), the Muslimaat and the Fatayaat (the older
and the younger womens wings of the NU) have a large membership and command considerable
outreach and influence.

Reproductive health education included sexuality, contraception, health


and clandestine marriage (prohibited and stigmatized). Reproductive rights
and sexuality remain relevant today as they were under the Suharto regime.
Following decentralisation in 2001, family planning programmes were merged
into the programmes of the local government, resulting in a reduction in their
budgetary allocation. The coercively promoted contraceptives that were free
in Suhartos period, are now available for a price. The rhetoric of free choice in
family planning and reproductive matters is high despite conditions of poverty,
lack of information, lack of legally protected right to abortion. The recent
amendments make abortion illegal except where the mothers life is in danger
or the foetus is damaged and the conditional legal status42 compels women
to resort to unsafe abortions that account for 11% of the maternal mortality
rate. To be relevant, the programme eventually needed to grow to holistically
address womens rights and status more broadly, with reproductive rights as
one of the components.

42 See for example, Independent Report of NGOs concerning Implementation of CEDAW (2007)

INDONESIA

Lies Marcoes, who played a key role in initiating and developing work on
reproductive rights and gender trainings in the context of Islam, came from an
academic background in Islamic studies, but worked in secular feminist groups
as a gender trainer. To connect with Islamic womens groups and the pesantrens
she located herself within the P3M, the Indonesian Society for Pesantren and
Community Development, a national organisation in Jakarta, working on land
reforms and democracy. Here she developed the gender programme under the
project, Fiqh An-Nisa, with a small group of both Islamic and secular feminists,
beginning with curriculum development of a gender and reproductive rights
training course. To make the training compatible to groups working within
religion required a few changes. For instance, instead of beginning with gender
concepts, they began with Ayat, or verses from the Koran, touched upon Islam
before moving to discuss gender relations. Through this programme with the
pesantrens, they were able to jointly examine the curriculum of the pesantrens
for its students, to critique the inequality between curriculum for male and
female students within the pesantrens.

43

Rahima: Centre for Education and Information on Islam and


Womens Rights Issues

INDONEESIA

Rahima, (meaning from the womb in Arabic), was founded in 1995 to develop
the work started by the initiative, Fiqh An-Nisa, within P3P.43 The gender and
reproductive rights trainings initiated through the P3P, opened up immense
possibilities of work on gender equality within the framework of religion that
required dedicated organizational capacities on the subject. Fiqh An-Nisa thus
evolved into Rahima, an independent womens organization. It was founded
by women leaders from secular and religious backgrounds who shared the goal
of expanding gender equality within the domain of religion and culture, to
influence and collaborate with institutions that have the widest outreach and
influence over the society, including the rural population.

44

The work on reproductive rights evolved into a larger programme on rights of


women from Islamic perspective. Using the Shariah as a resource in developing
perspectives on womens rights, they began with district level trainings for
the .YAI and the +YAI, the female and male pesantren teachers respectively,
as well as the government schools that are secular, but have Islam as one
subject. Given that religious education is so well organised, widespread and
institutionalised, this intervention was strategic and fundamental for influencing
the perspectives with which Islam was taught, understood and practiced. Given
the hold of religion and religious institutions, and growing fundamentalism in
Indonesia, the need to use religion to facilitate rather than obstruct gender
equality, assumed political importance. Their training programmes have since
expanded to include differentiated interventions ranging from rigorous training
programmes, seminars, newsletters, publications, radio shows, festivals and essay
competitions that contribute to and generate public debate. They undertake
research to create new resources and strengthen knowledge base, and take part
in campaigns. Its main target constituency is that of Islamic scholars, school
teachers, university students from key universities that influence public debate,
politics and madrasa teachers. Rahima is also part of the womens movement
and work closely with womens organisations that use secular approaches to

43 Based on discussions with Dani, Nining and Ciciek at the Rahima office in Jakarta. See the
Appendix for details.

promote gender equality, as well as with non-Muslim organisations. One of the


intensive training programmes for female Ulemas involves five trainings over a
year with homework in the intervening periods, has a selection criteria for its
trainees that reflects the organisations perspective on Islam. The selection of
female ulemas was based on their role as preachers in addition to demonstrated
engagement in social and community work. The trainings combine courses
on gender perspectives, social analysis, Islamic discourses with fund raising,
blending the ideological with the practical needs of the Ulamas, theKYAIand
the NYAI

INDONEESIA

In the context of fundamentalism, they find the use of core values and principles
more effective in embracing equality across marginalised and stigmatised
groups, over explicit issue specific articulations. For instance, Rahima adapted
the lyrics of an old spiritual song to include womens rights, changing the title
and lyrics to match the context when its sung. In the context of fundamentalism,
they call it song of justice or equality rather than gender song, salawat of
musawah. Similarly, they lay emphasis on individual choice and independence
to secure womens right to decision making, to support choices of single and
lesbian women, and sexuality rights more broadly. Their strategy is to assert
core principles of life, equality, using prophets stories and verses to support
this, before examining if a given context or situation upholds these principles.
Likewise, they allow their alumni and students to choose the term that works
best in their context, so long as the idea of equality is not compromised. They
provide access to their participants to participate in talk shows on radio, print
leaflets of their writings on themes such as Islamic discourses on abortion,
female witnesses, and distribute it to their alumni.

Asserting State Accountability for Violence against Women the Komnas Perampuan
The womens movement in Indonesia gathered momentum, rallying for
justice and accountability for sexual violence against ethnic Chinese women
in the May 1998 riots, seeking commitment from the REFORMASI government

45

INDONEESIA
46

to act against violence against women.44 The Komnas Perempuan (KP), or the
National Commission on Violence Against Women, was established through a
presidential decree as a demonstration of this state commitment, with leading
members from the womens movement appointed to create an environment
for the elimination of all types of violence against women, and to promote the
enforcement of womens human rights in Indonesia45. It works with a team of
Commissioners or experts from diverse streams, with a staff under the leadership
of a Chairperson, and collaborates with several agencies, NGOs, community
groups and state bodies to initiate activities and implement progammes. The 13
Commissioners are drawn from former judges, police women, religious leaders,
including a member of the Fatayaat and +YAIS. Its work on violence against
women spans private and public forms of violence as one continuum, covering
domestic violence against women family members and domestic workers, as
well as violence in areas of conflict whether perpetrated or non state actors.
Its multiple interventions on these issues are mutually reinforcing, so its
training programmes, law reform, advocacy and policy initiatives necessarily
complement case work and monitoring. The most notable feature of the KP
as a state created institution is perhaps its victim centred approach to justice
and the understanding it brings to violence against women. In its coverage of
violence against women from private and public violence, historic and ongoing
violence the KP has established itself as a wholly non-partisan institution
with the capacity to take on state perpetrated and condoned violence against
women, as emphatically as it does violence by private actors in the home
and the community. That in all these processes, the victim is at the centre,
defining justice and participating in the interwoven processes of truth telling,
recovery, and accountability makes the KPs work very unique. It serves as
44 The Volunteers for Humanity, a community-based organization that assisted victims of the
May Tragedy, recorded about 152 cases of rape, including 20 resulting in deaths. The Fact
Finding Team, established in the same year by the Habibie government, to investigate the May
Tragedy, verified that there were at least 76 cases of rape and 14 cases of other forms of sexual
abuse.
45 The KP was created in 1998 under Presidential Decree Number 181/1998, and was subsequently
superseded by Presidential Decree Number 65/2005 to respond to institutional growth. After 10
years of existence, they are looking to overcome the institutional limitations by getting their
powers and funding aligned with the National Human Rights Commission, through which they
currently receive funding. It took 10 years for KP to be recognized as a State body rather than an
NGO, and it is looking to be legally re-constituted to bring it on par with other State bodies.

a bridge between different agencies, actors and organisations, to steer these


processes, and is guided to a large extent in cases of group violence, by what the
women collectively need. The processes of recovery of victim survivors of sexual
violence of the 1965 communist purge and the May 1998 riots are examples.
The processes have sought to restore to public and historical memory the wrong
by its people and the state to women, naming the wrong doers, while keeping
the main focus on individual and collective recovery of the survivors. The focus
on marginalised groups, such as migrants, domestic workers, women headed
households and conflict areas reflect KPs approach to violence against women
VAW, as one that prioritises the most marginalised groups of women, recognising
the higher risks and gravity of violations.

While the KP is governed by the human rights framework and is committed to


monitoring government compliance with its human rights obligations, in its
engagement with religious institutions and communities, it prefers to use the
term justice or cultural symbols/ imagery rather than human rights. In their
functioning and spirit, they are a secular organisation, and a large part of their
work involves collaborations with religious organisations and scholars within
the framework of secular discourse. They assert that the engagement with
culture should not entail abdication of the secular, and that cultural discourses
are varied not singular. They oppose single truth approach, because their work
with accounts of women as victim survivors as well as the interpretations of
religion from womens perspectives demonstrates, that context and location
determines the version. They feel therefore that the state and society needs to
protect the space for multiple versions and truth, and not foist upon the nation,
any singular truth.

INDONEESIA

Many of its activities complement each other. The KP has partnered with womens
groups as well as research, academic and professional associations (e.g. lawyers)
to resist fundamentalism through its support to the work on womens rights and
social justice perspectives of Islam, the Constitutional commitment to equality,
plurality and multiculturalism, and to community groups negotiating womens
rights in conflict areas, in particular Aceh.

47

INDONEESIA

Truth telling Recovery for Women Survivors of the 1965


Communist Purge

48

The purge of 1965 was a brutal crackdown on communists by the military


government. The government incited the Nahdlatul Ulama (NU) youth to kill
communists projecting the communists as being against religion and Islam. In
the course of this political purge, several women suspected or perceived as
communists or its supporters were arrested and imprisoned for nearly over
ten years and had to face arbitrary arrest, imprisonment torture and rape
during and before detention. Maligned by state propaganda as immoral and
savage, the womens lives were devastated until the fall of the Suharto regime
when the women could present their stories.46 The 1965 purge destroyed the
largest womens organisation, Gerwani ('ERAKAN7ANITA)NDONESIA, Indonesian
Womens Movement) as Suharto alleged that Gerwani was conspiring with the
communists (the PKI) to overthrow Sukarno. State propaganda spread fabricated
stories about how Gerwani women had killed six abducted army generals by
castrating them, gouging out their eyes, slicing their bodies with razors, all the
while dancing naked. With the demonization of Gerwani and the mass violence
of 1965-66, the long struggle for womens equality in social and political arena
that had begun in the early 20th century was halted in Indonesia.47
The KP together with other womens organisations and researchers initiated a
process to allow the women survivors to tell their stories, facilitate peer healing
and recovery, and most importantly tell their truth in the public domain for
acknowledgement of the wrong, to correct public and historical memory of the
purge. They also worked with the youth members in the NU (from the current
generation) who felt the need to know about the role of the NU in the carnage,
and to acknowledge the wrong as a step towards reconciliation and justice. The
purpose was to correct the historical memory of what happened to these women,
and acknowledge the wrongful role of NU in this purge as part of truth telling
to achieve reconciliation and justice. Even as the NU leaderships support to this
process has shifted over time, and the acknowledgement of their role remains

46 See for example Ratih Ayu Where Their Stories Become Our History (Copy available with
PLD)
47 As above

contested within NU, the process of truth telling has been powerful in that it has
created the space for women to tell their stories, as well as to re-connect with
other survivors, forging a community for individual and collective recovery. The
process of truth telling highlighted the need to re-write text books to correct the
representation of these women, and led to organising of workshops with the
descendents of the women to restore their dignity through acknowledgment of
the violence that was perpetrated on them.

Affirming Plurality and Diversity Resistance to the AntiPornography Law

The Prosperous Justice Party (PKS), the United Development Party (PPP) and the
Crescent Star Party (PBB) are the 3 major Islamic political parties that supported

INDONEESIA

The debates over the anti-pornography law reflect the inroads by fundamentalists
into law and public life. The law overtly supports regulation of pornography,
but covertly introduced regulation of womens dress, expression and freedoms,
homogenised a plural culture and put in place civilian surveillance through
the regulation of women bodies, dress and conduct. The Anti-Pornography Bill
was initially introduced in 1999 but rejected by the then president, Habibi,
and was re-introduced in the Parliament on a few occasions for debate. When
the Bill was placed in Parliament in 2006 a coalition of many organisations,
religious leaders, ethnic groups and civil society members came out in strong
opposition to its enactment, as it sought to erase a plural culture and impose
a version of Islamic fundamentalism in an under-handed manner. The law has
particularly drawn protests from Bali where art work has sexual overtones. The
resistance to the bill saw many diverse groups join forces womens groups, the
Fatayaat, individual members of the NU including Sinta Nuriah Wahid, artists
and performers, LGBTI and indigenous groups. The two main groups leading the
resistance at the centre reflected diverse strategies of resistance these were
the Aliansi Nasional Bhinneka Tunggal Ika (ANBTI) and the Lembaga Bantuan
Hukum Asosiasi Perempuan Indonesia (LBH APIK). While the ANBTI rejected the
Bill, the LBH APIK felt it would be more fruitful to negotiate changes within it.
They provided various suggestions including covering the abuse of children in
the sex industry (Article 11) and to narrow the definition of trafficking (Article
8).

49

INDONEESIA

the law and were able to influence national parties. Despite the protests, the
law was passed on October 30, 2009 and while the present law is watered down,
the text remains controversial. Bali, Yogjakarta, Papua and North Sulawasi have
rejected this law.
The law bans images, gestures, or speech deemed to be pornographic,
and punishable with imprisonment upto 10 years with hefty fines. For
instance, downloading pornography from the internet draws upto four years
imprisonment, and it criminalises public performances that incite sexual desire.
Its sweeping terminology allows for discretionary and wide interpretation, with
the potential to criminalise traditional dances and cultural forms of expression,
art and undermine multiculturalism in Indonesia. It also allows civil society to
help prevent pornographic acts and thereby permits surveillance of people by
citizens. In enacting one moral standard for all, the law is said to have eroded
thePANCHSHILA (Pancasila) with the Shariah (Sharia). Arrests under this law have
so far been reported on four erotic dancers48 and a popular rock star.49 The
Act is viewed by a cross section of society as the beginning of a process leading
to disintegration of the country and erosion of diversity. The resistance to it
continues, with monitoring of the law with an objective of exploring a judicial
challenge to its Constitutional validity eventually.50

IV. CHALLENGES
Despite a wide rural base available for mobilising liberal and gender just
principles within Islam, and the intersections between the religious and secular
emancipatory forces, the threat of fundamentalism and its influence over
public policy, law and eventually the state continues to grow. As observed by
Kyai Hussain of Fahimina, the engagement of the NU in politics will undermine
its role as a progressive, liberal, Islamic social movement. The imperative of
electoral gain has and will continue to compel NU leadership to adopt populist

50

48 Indonesias New Anti Porn Agenda TIME Magazine November 6, 2008


49 Video Scandal tests Jakarta Anti Porn Law Asiaone News June 23, 2010
50 Based on interview with Daniel Awigra and Kristina Uiri from ANBTI, and Estu Fanani from
LBH APIK. See the Appendix for details.

and fundamentalist positions. Religious fundamentalism is a convenient ploy


to regain moral stature by politicians in face of corruptions and other failings
within party politics. Fundamentalism, as explained by members of Rahima, is
an import from outside of Indonesia, and different from conservatism, which
they define as narrow mindedness within society. That conservative space
however, allowed for reliance upon core values of Islam in support of sexual
choice and freedoms for women, as it does for differences in perspectives that
are supported by Islamic references.

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Fundamentalism in contrast, is not concerned about religion in spirit or its core


values, but about authoritarianism built upon negation of debate and difference
of opinion. While it may seem to use religion in the short term, it is not just
about religion. The economic and political policies at the central level coupled
with initiatives help expand the scope of Shariah law, and erode womens rights,
as in the case of Aceh and minority rights, and the case of resource rich West
Papua. Recent inroads of fundamentalism include the anti-pornography law
and the blasphemy law. In April 2010, Indonesias constitutional court upheld a
controversial blasphemy law that allows the government to ban groups that distort
or misrepresent the official religions. The law recognises six official religions;
Islam, Protestantism, Catholicism, Buddhism, Hinduism and Confucianism. In
2008, the government had used this law to ban the Ahmadiyahs, a minority sect
who do not believe that Muhammad was the last Prophet. It is rightly feared,
that this law will threaten the tradition of independence of perspectives within
Islam, the debates and differences of interpretations. These developments
disregard the Constitutional guarantee to protect the rights of minorities under
Chapter XA (Human Rights), and viewed by the human rights activists as a major
setback for Indonesian democracy and diversity.

51

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INTEGRATING WOMENS EQUALITY INTO


NATION BUILDING PROCESSES
This report maps the various initiatives and challenges in relation to womens
equality in the new political context of Nepal. It focuses on the steps being
taken to realise rights for women and other marginalised groups, and facilitate
involvement of women in the political processes, public sphere and the
Constitution writing process. Women actively participated in the revolution that
saw the end of monarchy and declaration of Nepal as a federal democratic
republic governed by a new Constitution, and have ensured a presence and
recognition of their concerns in the legal reforms underway. The assertions
of womens equality and rights assume particular significance in view of the
transition Nepal represents of a state defined by religion, having been a Hindu
kingdom for centuries, reinventing itself as a secular democratic republic. The
report begins with the political context and the steps taken towards re-defining
the nation to set out the context in which the strategies and advocacy assertions
of womens rights are situated. The context is relevant in bringing out the linkages
between the opportunities available in the political transition with the choice
of strategies adopted for assertions of womens rights, and the advancements
made. In conclusion, the report discusses the future challenges confronting the
womens rights activism.

I. POLITICAL HISTORY
Nepal has historically been politically, economically and culturally dominated
by a Hindu PAHADI(hill) group referred to as the Caste Hill Hindu Elite. Nepal
was governed by a monarchy until the final monarch, Gyanendra Shah Dev, was
forced to relinquish his powers in 2008. The Maoist movement was instrumental
in transforming Nepal into a federal democratic republic.
Nepals consolidation as a nation is attributed to Prithvi Narayan Shah, a Gorkha
king who unified three smaller kingdoms into present day Nepal in 1768.
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The Shah dynasty retained control over Nepal until it was taken over by the
British in 1816, followed by a period of political strife that eventually found
resolution through peace agreements with the British in 1847. As a result of
these agreements, the Ranas were rewarded with a hereditary title and the
office of the Prime Minister in recognition of their support to the British rule,
with the emperor reduced to a figurehead. Following independence, popular
dissatisfaction against the Ranas grew, and by the 1950s the Shah family
returned to power. Tensions against feudalisms began to brew in the western
region which gradually manifested itself as armed struggles. Some political
commentators view these tensions as the beginnings of the armed struggle
against the monarchy in Nepal. According to one view, the armed struggle of the
Nepalese people is as old as the monarchy itself.51 Other ethnic groups and nonruling minorities across Nepal experienced frustration and neglect, particularly
with regard to access to political participation. The frustrations with feudalism,
political monopoly and aspirations for a participatory people orientated state,
led to the pro-democracy peoples movement (Jana Andolan) that forced King
Birendra to give way to the first elected government in 1990, with the monarchy
as the Constitutional Head. However, the changes brought about as a result
of the Jana Andolan and the Constitution adopted in 1990 left the countys
minorities disappointed. Article 4(1) of the Constitution of 1990 declared Nepal to
be a Hindu and Constitutional Monarchical Kingdom, reaffirming the Hindu
superiority over other ethnic and religious groups. Tensions at multiple levels,
including the failure of the transfer of power in 1990 to end feudal landlordism,
the financial crisis of 1994-1995, the frustrations with Nepals dependence on
India and denial of democratic values such as the right to equality and freedom
of speech, combined with the aspirations of ethnic groups gave the Maoists
legitimacy. The Communist Party of Nepal (Maoist), CPN(M) was able to harness
the disappointments of the minority groups, amongst others, and use it to gain
support and strengthen the Peoples War (PW).
The royal massacre of 2001 became symbolic of the dysfunctional, self-serving
nature of the monarchy and its historic failures to deliver to the nation. The

51 Anand Swarup Verma and Gautam Navlakha Peoples War in Nepal: Genesis and Development
Economic and Political Weekly, May 19, 2007 at pp. 1839.

53

Peoples War gathered momentum, as did popular dissatisfaction and protests.


In 2005, King Gyanendra declared a state of emergency and dismissed the entire
government. Strikes and protests forced the King to reinstate parliament in 2006,
and in 2007 the Nepalese Constituent Assembly announced that the monarchy
would be abolished. An Interim Constitution was drafted in 2007.52 On April 11,
2008 the CPN(M) was democratically elected. At present the elected Constituent
Assembly is in the process of drafting a new Constitution.53 The present system in
Nepal is a consensus of various alliances, although tensions between the various
alliances remain unresolved. The CPN(M) has adopted the parliamentary system
and is working within the politics of multi-party competition.

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II. REDEFINING THE NATION

54

The womens movement was part of and drew upon the rising levels of
consciousness of minorities and growing expressions of equality, to carve
an agenda for womens equality in the Constitutional process. The debates
on recognition of disadvantage based on ethnicity, religion, sex and gender
brought diverse groups to engage with the Constitution drafting process to
carve an inclusive Constitutional framework that acknowledges the historic
disadvantages of specific groups through provisioning of political representation
and affirmative action. The main debates and gains in terms of inclusion,
equality and multiculturalism are summarised below.

52 Nepal has a history of enforcing a new Constitution with every change in its political system.
The first constitution of 1948 was never implemented and since then a new Constitution has been
enacted and implemented in 1951(interim), 1959, 1962, and 1990.
53 The Constituent Assembly has been divided into four committees and each committee is
responsible for a particular aspect of formulating the Constitution. The committees are:
1) Legislature-Parliament Committee
2) Thematic Committee-It has been divided into 10 sub-committees based on the 10 themes to
be covered in the constitution: fundamental rights and directive principles, restructuring States
and districts, determining the form of governance of the State, distribution of natural resources
and public revenue, form of legislative body, structure of constitutional bodies, judicial system,
protection fund for minorities, national interest preservation, and, cultural and social solidarity.
3) Procedural Committee- This includes committee on citizens to inform them of the progress,
committee on data collection of public opinion on the Constitution, and the committee on capacity
building and source management of the Assembly.
4) The Constitutional Committee is responsible for the actual drafting of the Constitution.

Representation in the Constitution Drafting Process


The drafting of the Constitution is seen as the key pillar in establishment of an
egalitarian, inclusive and just society. Article 63 of the Interim Constitution of
2007 provides for a Constituent Assembly to formulate the new Constitution.
The Interim Constitution stated that the Constituent Assembly should include
representation of marginalised groups including women, and that at least onethird of Assembly should be represented by women.54

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Womens representation has been consciously ensured in the Constituent


Assembly (CA) to achieve one third representation. The 601 members Assembly
has as a result, 191 women members.55 With the CA, there was a debate on
whether a separate womens committee was the best approach to engendering
the drafting process or whether each of the various Committees constituted by
the CA should have a 33% representation of women. The latter approach was
adopted, as a result of which womens participation is not limited to specific
issues or area, but cuts across all areas of the Constitutional drafting process.
The percentage of womens representation in each of the Committees is below
the target of 33%, as they constitute about 25% of the membership of the
Committees.

Recognising Cultural Diversity and Disadvantage


The dominant role of the Left as well as the Maoist movement in the transition
period, has led to the adoption of secularism that recognises cultural diversity
and the historic disadvantage of minorities, with a commitment to correcting
that disadvantage through affirmative action. The word Hindu no longer appears
in the Constitution. Part 1 of the Interim Constitution declares Nepal to be an

54 Article 63(4) of Interim Constitution: The principle of inclusiveness shall be taken into
consideration while selecting the candidates by the political parties..the political parties shall
have to ensure proportional representation of women, Dalit, oppressed tribes/indigenous tribes,
backwards, Madhesi and other groups, as provided for in the law.
Notwithstanding anything contained in this clause, in case of women there should be at least one
third of total representation obtained
55 The Constituent Assembly is a Unicameral Parliament, consisting of 601 members; 240 members
were elected through a direct electoral process representing single-member constituencies across
the country; 335 members were nominated from party lists through a proportional representation
system; and 26 are nominated by the cabinet.

55

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independent, indivisible, sovereign, secular, inclusive and fully democratic


state and both freedom of religion and secularism are guaranteed in the draft
Constitution. Exactly how secularism and multiculturalism are concretised in
political and policy frameworks remains contested. Minority groups continue to
face discrimination and the anxieties are not just in relation to recognition but
more importantly in relation to the quotas, and the percentage of reservation/
representation available to each. The manifestation of recognition in numbers
through allocation of quotas has led to contentious debates, disagreements and
violent protests.

56

The historically excluded groups comprising of the lower castes, the ethnic
groups (Janajatis), religious minorities (Buddhists, Muslims, and Christians),
and by people of Indian ethnicity (Madhesis) living in the economically crucial
Tarai region in the south of the country, have contested the frameworks
for recognition and representation. There were debates on the creation of
Constitutional Commissions for each marginalised group including Janjatis,
Madhesi, and Muslims. However, this proposal has not found favour with
CA members primarily for pragmatic reasons related to the difficulties of
monitoring multiple commissions. In respect of the CA, there are anxieties
and dissatisfaction in relation to represetentation of minority groups as well
as the proportion of representation. For instance, the Christians have not been
accorded any representation. A major bone of contention for the Madheshi is
they are under-represented in Parliament, and they demand an increase in the
seats allocated to them in proportion to their population.
The Madhesis is a large ethnic group that has gained specific recognition and
representation in the interim Constitution. It is a loose term used for persons
who are ethnically from Indias Bihar and East Uttar Pradesh regions, residing
in the southern plain region called Terai, in Nepal, comprising of sub groups
that are neither culturally nor religiously homogenous. Despite this diversity,
their shared experience of discrimination in terms of citizenship, language and
lack of representation in the police, armed forces and the bureaucracy has
unified the group for the demand for autonomy within Nepal, to fully address
the historic exclusion. They feel let down by the Interim Constitutions failure to
include a provision recognising the Terai region as an autonomous province in

a federal Nepal, with devolution of powers to regions, zones and districts. This
grievance fuelled violent riots by the Madhesis following the adoption of the
Interim Constitution from late 2006 leading to eruption of large scale violence
in March 2007. As a result, the government renewed its talks with Madhesi
groups in April 2007, despite which tensions between the state and the Madhesi
groups remain.
Muslims are a small minority, less than 5% of the total population. Prior to 1992,
they were not allowed to build mosques in Nepal. A six point compromise had
been reached between the previous government and Muslims, comprising of (i) recognition as a separate group, (ii) setting up a permanent Haj Committee,
(iii) securing Madrasas and building mosques, (iv) protection of religious places,
(v) forming a Commission for Muslims and (vi) quotas for education.

Protection to Gender Equality and Non-discrimination

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This principle is manifested as a Constitutional guarantee as well as through


the provision of reserved seats for women. Article 13 of the draft Constitution
includes equality for women as well as the third gender, and states that There
shall be no discrimination against any citizen in the application of general laws
on grounds of religion, race, gender, caste, tribe, origin, language or ideological
conviction or any of these. Sexual minorities have as a consequence, also been
included within the scope of non-discrimination clause.
The CA and prominent womens groups have demanded secular laws and a
uniform family law. The womens movement has used the political momentum of
the revolution and the ideological Left to use the Constitution making process to
release the civil, criminal and family laws from the discriminatory customary and
religious norms. Along with the guarantee of non-discrimination they have secured
a Constitutional caveat that deems all discriminatory forms of culture/ tradition/
religion as exploitation. At the normative level, this is a significant achievement.
In addition to the Constitutional provisions in relation to equality, nondiscrimination in all fields, including in respect of culture and religion there
is a uniform civil family law that applies to all groups. Although it has seen
legal challenges and modifications resulting from judicial review, the family

57

law is strongly shaped by Hindu religious norms and discriminatory provisions


persist. These have been discussed in the section below. While the womens
movement is engaged with family law reform, it is clear that a uniform common
law must remain for all, across religions. However, this issue is not resolved for
Muslim women, who seek plural rather than a secular law code for the family,
to initiate reforms in the plural normative systems that operate at the de facto
level in the community, and are adjudicated by local religious authorities. The
Muslim womens rights activists stress the importance of gaining recognition as
a separate minority group as a first step, that paves the way for them to work
towards a codified Islamic personal law to be able to transform the lives of
Muslim women at the community level, who have neither access nor a precedent
of using the legal system, or the secular civil law.

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III. STEPS TOWARDS GENDER EQUALITY


This section will focus on the areas where the major initiatives and debates
within the womens movement are located. Most of the initiatives in the last
decade have used the Constitutional non-discrimination guarantee, to challenge
legal provisions that are discriminatory towards women. The focus therefore has
been to apply the Constitutional achievement, to change the de jure status of
women in different laws, mostly through judicial review process. The use of test
case and public interest litigations has been a popular strategy in the struggle
towards equality. Community level mobilising is most evident in combatting
stigma against Hindu widows, mediation in relation to Muslim communities,
and crisis intervention for domestic violence.

Succession to Daughters and Wives under the Family Law


Despite the promise of gender equality in the Constitution, in addition to a
specific articulation of equal succession rights to ancestral property by sons and
daughters under Article 20(4) of the interim Constitution gender discrimination
in the succession law in Nepal persists. Nonetheless, the succession law has
undergone several changes, with successive challenges that have gradually

58

The amendment has introduced womens right to inherit property from birth,
removing the condition for daughters to attain 35 years. It also recognises a
wifes equal right to her husbands property immediately after marriage, and a
widows right to claim her share of property from the joint family after the death
of her husband, that remains hers upon re-marriage. It similarly, recognises the
right of the divorced woman to retain her share of the husbands property even
if she remarries. Despite these reforms, the law retains a discriminatory clause
that requires inherited property to be returned by a daughter upon marriage.
The present law delineates different sources of inheritance for married and
unmarried women with married womens share restricted to the husbands
property and unmarried womens share to the fathers property. A daughter
however, can ask for partition at any time before her marriage but cannot claim
her share after getting married. At present, married daughters do not have
inheritance rights on ancestral property. FWLD is in the process of challenging
56 The present law, Country Civil Code of 1963, applies to all communities regardless of religion.
Although there is no explicit reference to religion it is considerably influenced by Hindu law.
57 The petition was filed in 1993 by Meera Dhungana, who is associated with FWLD

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reduced the extent of discrimination in the last few years.56 Prior to these
legislative amendments, daughters could not inherit property, except if they
remained unmarried upon reaching the age of 35 years. This right was strictly
conditional upon her age and unmarried status and accordingly required the
daughter to return the property if she got married. Married women got a share
in the husbands property only after they either attained the age of 35 years or
after 15 years of marriage. These conditions were challenged in the Supreme
Court as being discriminatory of the equality guarantee in the Constitution.57 As
a result of this challenge, the Supreme Court issued directives in 1995 to amend
the discrimination in the law. In accordance with these directions, the Legal Aid
and Consultancy Centre (LACC) and the Forum for Women, Law and Development
(FWLD) along with other groups drafted the 11th Amendment to the Country
Code on womens inheritance rights. The Bill faced enormous resistance from
many sections of the society, even some womens groups who viewed daughters
right to succession as destructive of the familial ties that culturally defined the
brother-sister relationship. Eventually, in 2002 after a long struggle, the Bill
popularly referred to as the Womens Right Bill, was finally passed.

59

this restriction as amounting to discrimination on the basis of marital status.

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In reality however, women, much less unmarried women are not likely to ask for
division of property. Most wives do not claim their share of the property except
upon divorce or separation. It is rare for unmarried daughters to exercise such
right as the majority are likely to be too young to comprehend rights, and that
such an assertion will strain their family relations. FWLD has thus far received
only two such cases. These are s 4HECASEOFAYEAROLDSINGLEWOMANWHOASSERTEDHERCLAIMAFTERSHEWAS
THROWNOUTOFTHEFAMILYHOMEBYHERBROTHERS3HEASKEDFORHERSHAREOF
THEPROPERTYBUTTHEYREFUSED3HETHENAPPROACHED&7,$TOCLAIMHERSHAREOF
THEPROPERTY
s )NTHESECONDCASE AMARTYRSWIDOWREMARRIED5PONHERRE MARRIAGE HERSONS
TOOKOVERTHEENTIREPROPERTYWITHOUTGIVINGANYTHINGTOTHEIRSISTER4HEYEAR
OLDGIRLFILEDACASEWITHTHEHELPOF&7,$

60

Civil and Political Rights


Transmission of citizenship by mother to child: Prior to the Nepal Citizenship Act
2006, Nepali citizenship was regulated by descent or bloodline. The 2006 law
however, expanded the scope of the terms birth and decent for the purposes
of acquiring citizenship. Citizenship by birth was expanded to persons born in
Nepal before mid-April 1990 that have continuously resided in Nepal. The term
descent has been expanded to allow transmission of citizenship by a Nepali
mother to her child.58 A Nepali woman married to a non-Nepali must fulfil the
condition of being domiciled in Nepal to be able to transmit her citizenship to
the child. This child must also be domiciled in Nepal and must not be a citizen
of the country of his/her fathers nationality.59 However, no such restriction or
condition applies to non-domicile Nepali men who are married to non-Nepali
women, leaving an element of gender discrimination uncorrected in the law.
58 Prior to the 2006 Act, citizenship in Nepal could be transmitted only through the father.
Section 3(1) of the Nepal Citizenship Act, 2006 states Any person whose father or mother is a
citizen of Nepal time of his/her birth, shall be a citizen of Nepal by descent.
59 Section 5(2) of the Nepal Citizenship Act, 2006 states A son(s) or daughter(s) born to a
Nepalese woman who is married to a foreign citizen may be granted naturalized citizenship in the
manner as prescribed if he/she is born in Nepal and has permanent domicile in Nepal and has not
acquired the citizenship of foreign country on the basis of the citizenship of his/her father.

Citizenship to Badi children:The children of Badi women, a nomadic tribe in


Nepal, traditionally associated with sex work, have been historically denied
Nepali citizenship on the ground that the father was unknown. In 2003, a case
was filed on the discrimination resulting from such policy by Pro-Public with the
help of the Ministry of Women.60 In response, the Supreme Court constituted
a Committee with representatives of Badi women on it to understand their
perspective and consult with them. While ruling that children must be granted
citizenship even where the fathers are unknown, it observed that no community
or person, in particular the Badi women, should be forced into sex work.
Restrictions on Womens Travel: Women under the age of 35 years could not
get a passport without the written consent of a male guardian as per a circular
of the Home Ministry. Pro-Public filed a case to strike down this restriction as
it amounted to an infringement of the freedom to travel. The policy was struck
down by the Supreme Court, as a consequence of which women now no longer
require a male guardians consent in order to apply for a passport.

At the normative level, the draft Constitution provides for freedom of religion
with a proviso that if any tradition/culture/religion discriminates against
women then it would be considered as exploitation. Muslim women activists
claim that in the absence of a codified Shariat based family law, it is hard to
regulate severely discriminatory practices operating in Muslim communities.61
The Kazis implement an uninformed patriarchal version of Islamic law at the
community level without legal sanction as a result of which Muslim women
suffer enormous amounts of oppression in their family lives. The civil code
regulating the family does not touch the Muslim family as the community views
adherence to Shariat law as part of religious practice and faith. Codification is
therefore the only approach to regulate discrimination and strike down severely
oppressive practices ignorantly passed off in the name of Islam. Nonetheless,
the Muslim women activists feel that this debate is best postponed. Strategically
60 Tek Tamrakar et al for Pro Public Vs Office of Prime Minister and Council of Ministers at al
filed on 22nd April 2003
61 Based on conversations with Mohammadi Siddiqui and Seema Khan. See the Appendix for
details

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Muslim Family Law and Women

61

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the issue of plural family laws is best avoided because it will hinder the writing
of a secular Constitution, and equally importantly, open the doors for assertions
of identity politics including the demands of the Hindu Right that will stall the
gains of a secular republic. Postponing such discussions to a later stage will also
allow time for minorities to critically reflect on their own religion and customs.
It allows the community to consolidate and codify the Muslim law based on the
Koran, rather than its misinterpretations, and be submitted at a later stage to
the government for formal recognition.

62

Muslim womens groups have been working with the community, taking up cases
and disseminating information on womens rights under the Koran to address
prevalent forms of discrimination against Muslim women. Fatima Foundation
in Nepalgunj has prepared a manual on rights of Muslim women under Islam,
with chapters that also discuss Islams approach to human rights, womens
rights, child rights, labour rights, etc. Initially, the group faced a lot of resistance
and hostility on their assertions of womens rights, and were discredited as
being a western agency. With time, the community has become supportive of
their work. They even work with some local kazis and maulanas for promoting
rights of women. Some of the areas that they feel require codification to address
malpractices in the name of Islam are as follows:
s -EHRSHOULDBEBASEDONTHESTATUSOFTHEHUSBAND ANDGIVENTOTHEWIFE
Currently, women only get a token amount as mehr, that may be as little as
Rs.5,000 or 1 Asherfi in Kathmandu. Even though the mehr amount,
however token, is acknowledged, it is rarely given to the wife. The brides
side often does not ask for it because of the fear that it will upset the
husband; and if the husband were to offer it, the brides family fears
that he seeks a divorce.
s $AUGHTERSSHAREINHERFATHERSPROPERTY!TPRESENT AWOMANCANGET
property from her husband only upon his death and not upon divorce.
s #USTODYOFCHILDRENANDCHILDSUPPORTFROMHUSBANDFORCHILDREN
s #OMPULSORYREGISTRATIONOFMARRIAGEUNDER-USLIMLAW WITHTHECHOICE
of opting for civil marriage.
s %LIMINATIONOF(ILLAORINTERMEDIARYMARRIAGESCOMPLETELY)TSHOULD

not be deemed necessary to enter into an intermediary marriage in the

event of an inadvertent divorce, if the couple desires to reunite.


s %LIMINATIONOFTHEPRACTICEOFTRIPLETALAQBYRELYINGUPON+ORANIC
references that recommend there should always be duration between
each pronouncement of talaq.
s 4HERIGHTOFWIFETODIVORCEHERHUSBANDTHROUGHA-UFTI AWOMAN
cannot give oral talaq but now she can obtain a divorce through
a designated Mufti. The Mufti gives her husband 2 notices
and if he does not respond, then ex parte divorce is given by the Mufti
and the husband must pay mehr to the wife. In one case a first
wife, approached the Mufti as her husband, upon contracting a
second marriage, refused to give her a divorce until she gave him 2
lakhs. The Mufti relied on the wifes statement that she was unable to
live with the husband and granted her an ex-parte divorce.

Addressing Oppressive Customs Affecting Hindu Women

Widows: The stigma arising from widowhood for Hindu Brahmin women
continues to justify the stringent taboos, hardships and exclusion in family and
the community, historically without any intervention by the state. Widowhood
for women, even educated urban women in Nepal, spells not just social death,
but complete negation of selfhood. A Brahmin widow may not wear colour
on her person, may not participate in any social ceremony and must never
remarry, and bear taunts for being a bearer of bad luck. It is common to refer to

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Nepal has been strongly under the influence of local customs, rituals and
superstitions for centuries that were reinforced by virtue of it being a Hindu
kingdom. Religion dominated public policy, law and the state governance, and it
was celebrated through state ceremonies organised by leaders and the royal family.
Despite the Maoist movement and the transformation of Nepal into a secular
nation, Hinduism and its rituals continue to be a very visible part of everyday life
of the people. The interventions by womens groups have therefore adopted socioeconomic rights approaches to address discrimination and oppression arising from
customary practices and traditions. This they feel helps minimise resistance. This
approach has circumvented debates around power and privileges embedded in
the survival, continuation and celebration of some cultural practices over others.
The work on the following areas has been most noteworthy.

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widows as husband-eaters, a term that blames her husbands death upon her.
The moment of widowhood marks the demonization of women, allowing her
no time to grieve, or receive condolences.
Lily Thapa began the work of addressing stigma and taboos in 1992 through
mobilising widows, in her endeavour to fight the hardships she experienced and
ensure that these are collectively addressed and erased from society. Starting
with a small collective called Bedhan Sangathan, a space was created for widows
to bond, share their experiences and gradually mobilise into action to empower
themselves and extend support to other similarly situated women. Despite
initial resistance from the community and even abuse, the group persisted. This
collective grew into a movement of Women for Human Rights of Single Women
(WHR) that focuses primarily on the rights of widows.62 The WHR calls itself a
single womens group, and use the term single women over widows. The choice
of terminology according to them identifies widows as one other category
of single women, who may choose the colour of her clothes or choose to get
married. Another view in the womens movement is that the term single women
makes invisible the specific condition of the widows, and evades confronting
the stigma attached to the word head-on. This view feels that the use of the
term widow in the public domain is necessary to de-stigmatize the term and
appropriate it instead as a symbol of power and self esteem. Even as the central
thrust of the campaign is to address the stigma around widow hood, there is no
debate on the privileges attached to marriage, and the necessity of marriage for
social recognition of women a necessary dimension of questioning the stigma
to the single and the widowed. The work of the WHR is at multiple levels
0UBLIC%DUCATIONat the community level (and indeed in the families of widows)
to clarify that old scriptures (the Garun Puran) do not sanction stigma or
discrimination against widows. They have translated the verses from Sanskrit to
spread the awareness that prevalent stigma is the result of misinterpretation by
the priests but not in the Puranas.

64

62 Initially WHR faced a lot of difficulties, including in constituting a board to register the
organisation, as people did not want to become board members. They still receive threats, and face
violence from family members of widows.

%MPOWERMENTOFWIDOWSReclaiming self esteem and selfhood is the first step


toward empowerment. This initiative focussed on challenging the custom that
consigns widows to white, and shuns them from wearing colours. They run a
red campaign where they encourage widows to wear red, and use red ribbons
with their name tags at conferences. The WHR has a membership of 44, 000
widowed women out of whom 66% are illiterate and almost all have children. To
address immediate economic needs, the women receive skill building trainings
in sewing, knitting, cycle and motorcycle repair, etc.
!FFIRMATIVE ACTION AND POLICY MEASURES Through advocacy, public interest
actions and law reform the following measures have been achieved.
!BSOLUTERIGHTOFWIDOWSTOTRANSACTINPROPERTY!CASEWASFILEDBY,ILY4HAPA
ONTHERIGHTSOFAWIDOWTOENTERINTOTRANSACTIONSTOSELLBUYPROPERTY4HE
LAWDIDNOTALLOWWIDOWSTOSELLTHEIRIMMOVABLEPROPERTYWITHOUTTHEWRITTEN
CONSENTOFHERCHILDREN4HECOURTSTRUCKDOWNTHELIMITATIONONTHEWIDOWS
RIGHTTOTRANSACTINIMMOVABLEPROPERTYANDREMOVEDTHECONDITIONTHAT

REQUIREDHERCHILDRENSWRITTENCONSENTPERMISSIONFORSALEOFPROPERTY
7IDOWSALLOWANCECASE4HEREISALEGALCHALLENGEBY0RO 0UBLICQUESTIONINGTHE
POLICYOFTHEGOVERNMENTTOGIVEALLOWANCEOF2SPERMONTHTO

WIDOWSABOVETHEAGEOFYEARS"YEXCLUDINGYOUNGERWIDOWSFROM

THISWELFAREMEASURE THISPOLICY DISCRIMINATESAMONGSTWIDOWSANDEXCLUDESA
VASTMAJORITYOFWIDOWSFROMTHISSUPPORT
"AHAKALIYA63ISAPRACTICEDEPRIVINGCHILDWIDOWSOFFOODANDNUTRITIONIN
THE4ERAIREGIONOF.EPAL!SCHILDMARRIAGEISCOMMONHERE ITHASRESULTEDIN
WIDOWHOODATAVERYEARLYAGE4HEYOUNGWIDOWSAREDEPRIVEDOFNUTRITIONAL
FOOD COLOURFULCLOTHINGANDSOCIALACTIVITIESFORTHERESTOFTHEIRLIVES0RO 0UBLIC
ISGOINGTOCHALLENGETHISPRACTICEASAVIOLATIONOFRIGHTSOFTHECHILD
4HESUCCESSIONLAWWASAMENDEDSUCCESSFULLYTOGIVESWIDOWSTHERIGHTTOCLAIM
HERSHAREOFPROPERTYFROMTHEJOINTFAMILYAFTERTHEDEATHOFHERHUSBAND AND
TORETAINTHISPROPERTYUPONRE MARRIAGE
!RECENTGOVERNMENTPOLICYANNOUNCINGASUMOF2S TOBEAWARDEDTO

63 In the Terai region girls are married young and some of them become widows at a very young
age, even before their gauna-that is before she even goes to live with her husband.

NEPAL

s





s




r




r


r

65

NEPAL








COUPLESFORWIDOWREMARRIAGEHASSTIRREDCONSIDERABLEDEBATEANDADDEDTOTHE
ONGOINGCONCERNSABOUTMISUSEOFCOMPENSATIONFORWIDOWSINTHE0AHAD
REGION647(2FEELSTHATINASOCIETYWHEREWOMENAREALREADYVIEWEDAS
COMMODITIES WIDOWRE MARRIAGEWILLBECOMEADEVICEFORSALEANDTRAFFICKINGOF
WIDOWS)NSTEAD THEYPREFERIFTHEGOVERNMENTPROVIDESASOCIALSECURITY
SCHEME'IVENTHEDIFFICULTIESOFMONITORINGCASES ANDTHEIMPOSSIBILITYOF
PROVIDINGFORALLWIDOWSWHOCANPOTENTIALLYREMARRY THEOPPOSITIONTOTHE
POLICYREMAINSSTRONG

0ARA LEGAL SUPPORT TO CASE WORK WHR also has a para-legal group to help in
legal matters. There are 225 groups in total across 52 districts called Ekal Mahila
Samudaya (Single Women Group). Other than that they also have counsellors
for widow, her family and in-laws and social mobilisers who take weekly classes
on rights of widows. WHR also have para-legal volunteers, trained by FWLD and
Pro-Public. The para-legal volunteers are mostly from the single women group
or their daughters or daughter-in-laws, if no one else is qualified enough (at
least middle school) in that area.
Witchcraft: Cases of labelling women as witches are increasing not only in rural
areas but also in urban centres of Nepal. It has become a concern given the
stigma and social exclusion that gets attached to women suspected of having
powers of witchcraft. Womens Rehabilitation Centre (WOREC) is in the process of
documenting cases of witchcraft from an economic perspective so as to uncover
the root causes of belief in witchcraft.
Kumari The Living Goddess: The institution of Kumari - where a young girl
child is selected as a symbolic goddess, was greatly patronised by the King. It
was customary for the King to take blessings from the Kumari. The girl child
appointed as the Kumari is denied education or a social life, and remains a
decorative and symbolic ceremonial figure until she attains puberty, after which

66

64 In the post insurgency period the widows as well the wives of missing security forces (army
and police) in the Pahad region received some compensation, but the widows and wives of the
missing civilians did not receive state compensation. Reportedly, in many cases, the in-laws ask
for sexual favours from the woman in return for taking responsibility of her children. There are
also reports of in-laws contesting the widows claim to the compensation.

she is replaced. Despite the end of the monarchy, belief in the institution of
Kumari remains strong and ironically, the President of the secular republic
seeks blessings from the Kumari now. A PIL was filed to secure recognition for
the rights to education for the girls appointed as Kumaris. In 2008, the Supreme
Court ordered the government to safeguard the Kumaris rights, including health
care and education. The Kumari can now go to school and get married. But the
tradition of the Kumari has not been challenged. The argument in support of
the system is that progressive change is not about eradicating cultural aspects,
like that of the Kumari, but ensuring that no human rights are violated in the
name of culture.

NEPAL

Chaupadi Pratha: Girls in western and mid-western parts of Nepal are made
to stay in a cow shed during menstruation and post-delivery. They are treated
as untouchables in this period, removed from the main residential space, and
not provided with nutritious food. Typically, they must fetch water from afar.
A PIL was filed against this system by Pro-Public. In 2005, the Supreme Court
stated that such cultural practices violate womens human rights and ordered
an end to this practise. With the support of the Court order, Pro-Public is now
conducting awareness programmes by means of advertisements, pamphlets,
posters, etc to explain that chaupadi pratha undermines the rights and dignity
of girls/women.

Violence Against Women (VAW)


Domestic Violence: Challenging the culture of violence in the home has been a
long one in Nepal as in most other countries, and has finally achieved legislative
commitment from the state to fight domestic violence. The Nepal Domestic
Violence (Crime and Punishment) Act came to be enforced in 2009. Despite
being a welcome step that law has many limitations, leading some groups to
call for a review of the Act. The limitations they identify as most problematic
are that it promotes mediation under the control of officers, rather than
designating trained women personnel or counsellors. The groups fear that the
mediation will become a means of reinforcing patriarchal norms. Without any
prior sensitisation, the male officers are likely to reprimand wives who do not
cook properly or satisfy their husbands sexually. Another grave limitation of the

67

NEPAL

law is in not provisioning for shelter homes. This the activists feel, is fundamental
to addressing domestic violence. Even as it is important to make the residential
homes safe for women, by directing the removal of the abuser, where possible
this is not either a solution or possible in all cases. Safe shelters for victims
of domestic abuse are critically needed, and the government needs to make
provisions for such homes. At present womens organizations like WOREC run
shelter homes for victims of domestic violence.
The Act is also flawed in placing the entire responsibility of compensation and
expenditure for medical treatment upon the perpetrator of violence. Not all
perpetrators have the means to compensate, and even where they have the means
to do so, the process of claiming the compensation places additional hardship on
women. Besides, domestic violence needs to be viewed as a public health issue, given
how entrenched and systemic it is and the government bears the responsibility
for allocation of funds for the treatment and counselling of victims. WOREC feel
that the government needs to allocate funds for medical treatment, and provide
compensation for injuries to the woman. The state can claim such funds from the
perpetrator in due course. The treatment of women should not be delayed on
account of claim procedures, prosecutions, or proof of conviction. The government
even needs to raise awareness about the law amongst the law enforcement that is
designated to implement the law, and amongst the public.
Sexual Harassment, Acid Attacks and Protection to Women Human Rights
Defenders: There are two other areas where guidelines have been sought from
the Supreme Court to address the culture of violence against women at the
workplace and in the community. Pro-Public field a public interest law against
sexual harassment of women in the entertainment sector such as hotels, bars,
parlours. They feel this judgement covers a limited sector, and a case needs to
be filed to address sexual harassment in the workplace more broadly.

68

WOREC sought judicial guidelines on commonly used retribution against women


carried out through acid attacks on their person. The Supreme Court has issued
directives to formulate a law on acid attacks. Consultation between womens
groups need to be organised to outline the necessary elements they seek in
the law. They want the law to focus on victim recovery through medical care,

economic security and counselling rather than make penalties and punishments
the central goal. WOREC had also filed a PIL on human rights defenders and the
Supreme Court directed that it should be a policy of the government to protect
human rights defenders. This policy has yet to be drafted. WOREC and other
groups undertake public education to counter the culture of violence, to raise
awareness on the harm done, the wrong and the laws against it.

Abortion
Abortion was a criminal offence punishable with imprisonment until 2002,
when the parliament passed a liberal abortion law. Women sought unsafe
abortion services resulting in one of the highest maternal mortality rates in
Nepal - estimated to range from 539 to 1100 deaths per 100,000 live births.
Unsafe abortions accounted for at least half of all pregnancy related deaths.65

65 CRLP and FWLD Abortion in Nepal, Women Imprisoned 2002


66 Pregnant woman has the right to abortion of up to 12 weeks pregnancy with the exception of
18 weeks in case of pregnancy due to rape or incest. Along with this right, the Bill envisages that a
pregnant woman has the right to abortion at any time of her pregnancy, if such pregnancy poses
danger to her life or to her physical and mental health or if it will lead to the birth of a disabled child.
However, such abortion must be performed with the advice of medical practitioners.
67 WOREC has given shelter to 12 children born out of incestuous relationship. The incest victims
discovered they were pregnant or decided to abort after 18 weeks. As the government doctor did not
perform abortions out of fear of being jailed and the victims had no money to go to private places,
there was no option but to give birth.

NEPAL

WOREC along with other groups lobbied for inclusion of abortion rights in the
11th Amendment to the Country Code Bill. Reproductive health professionals,
NGOs, lawyers and activists worked with the government to pass a law in 2002
legalising abortions. An Abortion Task Force was formed by the Ministry of Health
to implement the new law. The government opened the first state abortion clinic
in Kathmandu in 2004. The law provides for abortion, however, on fulfilment
of certain conditions that include the requirement of a letter from a medical
practitioner in certain cases.66 In such scenarios the decision making power is
with the medical practitioner and not the woman, that create conditions for the
doctors and abortion clinics to take advantage of the law.67

69

IV. CHALLENGES
The transition period in Nepal is marked by several achievements, including
remarkable changes in law through judicial and legislative advocacy. However,
the growth of identity politics impacts the realisation of womens rights at the de
facto level, and undermines the environment that is necessary for advancement
of human rights.

NEPAL

Beyond Norm Setting and Formal Law: Implementation and


Access to the Law
This period has seen considerable use of the law in complementing and in
some cases, leading social change. These have been strategic interventions, in
view of the larger political momentum for equality and democracy that have
made the state partner in social change. In light of the promising provisions in
the new Constitution, the focus of legal activism has been towards making law
consistent with the Constitutional standards. A large part of the legal activism
has been directed towards use of judicial review to strike off the discriminatory
provisions. The challenges lies now in promoting the implementation of the
new standards to change practice at all levels beyond the urban centres
through ensuring establishment of appropriate state structures, allocation of
resources and carving out complementary roles for NGOs to strengthen and
monitor the implementation.
The difficulties in access to the legal system or the reliance on plural customary
systems of adjudication at the local levels are not unique to Nepal. Interventions
in the plural arena in the form of alternative and parallel systems of mediation
and crisis support are opportunities to be explored much more, in combination
with legal aid services.

Multiculturalism and Identity


Nepal has been a Hindu Kingdom for centuries with cultural/religious practices
deeply integrated in the lives of the majority of citizens including those involved
with social reform. Currently, there is a fear of how secularism will be played out
in laws and policies in relation to group rights.
70

Ethnic assertions are on the rise, which create aspirations for greater rights and
recognition. According to one view, Nepal faces the danger of an all-out ethnic
war breaking out in the Tarai between Madhesis and Parbatiyas. While in most
of the country there are so many complex and cross-cutting ethnic allegiances
which make a Sri Lankan-type polarisation unlikely, in the eastern Tarai with its
30% population of Parbatiyas (upper castes), there is a very real possibility that
two majorities with minority complexes could confront each other in bloody
vendettas.68 There is a need to recognize marginalised groups but without
invoking a political agenda. A major challenge is to not exclude anyone in the
democratisation process, and to identify and prioritise the most marginalised.
Another challenge is to ensure de facto representation of all groups in decision
making and to guarantee the involvement of all groups in the constitution
drafting process as well as in the larger context of nation building.

NEPAL

Competing interests have led to conflicts both with the state and inter-ethnic
tensions. For instance, the withdrawal of state funds for cultural activities in
2008, specifically animal sacrifice, led to riots and the government was forced to
retract its decision. The state has not encouraged public debates on pluralism and
secularism. There is a fear that identity politics will divide not only ordinary citizens
but also feminists, which will have a negative impact on the womans movement.
Activists report that they find it difficult to address and negotiate cultural rights,
or challenge culture directly, and therefore concentrate on addressing social and
economic issues to address existing discriminations in culture.
The transition to a secular state and the growth in identity politics has led to a
resurgence of Hindu fundamentalism in the country. Hinduism has been more
than a religion in Nepal, tied up as it was as a symbol of Nepali nationalism
since the unification of Nepal in 1768, and for legitimising the ruling monarchy.
Against the backdrop Hindu Right is gaining force with allies from India, seeking
to restore Nepal as a Hindu state. It remains to be seen how the complex web of
identity politics plays out on womens movement and the political commitment
to social change.

68 Gellner, N David Caste, Ethnicity and Inequality in Nepal Economic and Political Weekly May
19, 2007 at pp. 1823.

71

INDIA

ARUNACHAL PRADESH

ARUNACHAL PRADESH

DEFINING A WOMENS AGENDA IN THE CONTEXT


OF TRIBAL PATRIARCHY
Research conducted in Arunachal offered an understanding of womens issues
in a context that is culturally different from the major institutionalised religions
in India in terms of the freedoms women have traditionally exercised in public
mobility, economic life and from rigid sexual taboos. It is also a geographically
contained area that exercises autonomy with respect to regulating matters of
land ownership, conjugal and social relations as well as penal offences all of
which are governed by customary laws, adjudicated by each tribe separately. The
freedom from militarisation and political conflict, unlike the rest of the North
East, has given more space to the women in Arunachal to contest discrimination
within customary laws more easily. The debates, womens rights initiatives and
contestations by womens groups in Arunachal are woven in with questions
of identity as much as they are with development in Arunachal, migration,
livelihoods and political decision making.
This study is limited to the Tani groups of tribes (Adi/Galo, Apatani, Nyishi and
Tagin), residing in the districts covered during the field trip. These districts were
Itanagar (capital), Pasighat, Aalo, Daporijo, and Ziro. Individuals and groups
representing Adi and Galo tribes in Itanagar and Pasighat, Nyishi and Tagin
tribes in Daporijo, and Apatani tribe in Ziro were interviewed. A great deal of
diversity exists between the different tribes of Arunachal in their customs and
practices; however, this report draws some broad generalisations from interviews
conducted across all the tribes met.

I. THE CONTEXT
Geo political Context
Arunachal Pradesh is situated in the North Eastern most corner of India, and
shares the border with Tibet, Bhutan and Myanmar. As a border area, it is of
great geo political and military importance to India. The northern border is
72

an outcome agreement, between the British Indian government in 1914, with


China and Tibet, delineated the McMahon line as the national boundary. The
agreement following the discussions called the Shimla Accord, was not accepted
by China, but signed by the British and Tibetan representatives, in acceptance
of the McMahon line, which continues to serve as national boundary. Arunachal
came to be organised under the North East Frontier Agency (NEFA), in 1954,
and subsequent to the Chinese invasion and the Indo China war in 1962, its
administration was brought under central supervision.69 On January 20, 1972
Arunachal was given a Union Territory status and named as Arunachal Pradesh
(the land of the rising sun).

Demography
Arunachal Pradesh has 26 major recognised tribes and many sub tribes. Broadly,
Arunachal Pradesh is divided into three religious groups: The tribes in Tawang
and West Kameng district follow Mahayana Buddhism while the Khambas and
Singphos follow Hinayana Buddhism. Most of the Adis, Galos, Apatanis, Mishimis,
Mishings, Nyishis, Sajolongs, Tagins and Tangsas are animists and many have
come to worship the sun and moon (Donyi Polo). The Noctes and Wanchus
follow an elementary form of Vaishnavism. The geography of the region has
significantly influenced the cultural tradition of Arunachal Pradesh the

69 In the 1960s, India adopted a Forward Policy that entailed a military presence to keep a
close watch on the border. On September 8, 1962, a Chinese unit attacked an Indian post at Dhola,
north of the McMahon line. Leading to the Sino Indian war. During the war, China captured most
of NEFA. However, after declaring victory, China voluntarily withdrew back to the McMahon line.
For details see Michael C. van Walt van Praag The Status of Tibet Wisdom Press (1987), London
and Lego, N Modern History of Arunachal Pradesh Peregrine Graphics (2006) Itanagar.

ARUNACHAL PRADESH

Although the contested boundary issues are still the foremost in the national
medias representation of Arunachal Pradesh, the concerns over Chinese
aggression are minimal in the day to day lives of the people. Dominant sources
of tension in Arunachal Pradesh presently arise from the influx of migrant
workers, the Chakma refugees from Bangladesh and the demands for Greater
Nagaland by Naga groups that includes parts of Arunachal. The porous border
shared with Assam and Nagaland has led to continued influx of migrants and
refugees that is a cause of resentment with the local population.

73

ARUNACHAL PRADESH

northern region had little contact with the southern region and was influenced
by Tibet, while the southern region was influenced by contact with Assam.

74

The general sex ratio in Arunachal Pradesh stood at 893 according to the 2001
census, which is lower than the national average. The low sex ratio is explained
by inter-state migration and survival disadvantages for women in the 60 plus
age group, but not son preference at birth.70 The tribe sex ratio in the 0-6 age
group is 976, which is higher than the national average.71 In most of Arunachal,
women are highly visible in public spaces and are engaged in productive labour.
For example, in Ziro, the women pointed out that they were engaged in most
aspects of cultivation while the men are involved in making mud embankments
or harvesting only. Men do non-manual work, but it is the women who are
involved in economically productive work. The premium placed on womens
work is one reason why there are no instances of sex selection.
In the context of uneven and corrupt development, the Church has assumed
significant influence in peoples lives. Even senior administrative officials are
in admiration of the contribution of the Church towards education and health
care. In Ziro, a woman, like a few others, converted as the Church paid for
her medical treatment, while the rituals of the traditional healers had involved
payment of considerable money.72 The majority of the population in the districts
visited are animists and worship the sun (Donyi) and the moon (Polo) as the
female and the male principle respectively. With greater influence and contact
with institutionalised religions, and changes resulting from globalisation in
tribal social relations, there has been a growing anxiety amongst a few sections
about the need to institutionalise their belief system as a formal religion. The
conversions to Christianity have triggered unease about loss of identity, that
are reinforced by Hindu right wing organisations, which are also making their
presence felt in Arunachal. The last 15 years have seen Donyi Polo evolving from
an unorganised belief system into an institutionalised religion. Prayer halls
70 See for example Prabir C. Bhattacharya On Adverse Sex Ratios in Some Indian States: A Note
http://www.sire.ac.uk/documents/dp0901.pdf (last visited 31/3/2010)
71 Data Highlights The Scheduled Tribes, Census of India 2001 available at http://censusindia.
gov.in/Tables_Published/SCST/dh_st_arunachal.pdf (last visited 31/3/2010)
72 Based on an interview in Ziro. The identity of the person has been kept anonymous.

known as Ganggi have been set up and Saturdays have been fixed as the day
for worship. Saturday is known as Gamruk; the one day after a festival, when
one washes away ones sins. Fire, traditionally used for prayers is now substituted
by incense and candles. In Ziro, devotional songs are sung in the Mij Migun
language that is not easily understood. The founders of the institutionalisation
process claim that a formal compilation of the prayers is necessary for survival
of faith. For many others, this process is one that narrows the belief system to
a few symbols, and will gradually absorb them within Hinduism.73 Debates on
the need for women to wear symbols indicating their marital status in Itanagar
and benefits of vegetarianism are indicative of the brahmanical influences in
Arunachal.

Arunachal is primarily an agriculture dependant economy. In terms of


employment, the state government is the primary job provider. Success in
competitive exams determines selection for jobs in administration and civil
services at the state level. Those who cannot make it through these exams, seek
work contracted by the government as the next best option. Entrepreneurship
has not taken off in a substantial manner in Arunachal. As a result, there is
a tendency among contractors to develop relationships based on favours and
patronage with those in government.
Corruption is said to be endemic in most government departments and 20%
of project funds are supposedly siphoned off by government departments no
matter how important the project may be.74 Much of the funds given by the
central government to the Social Welfare Department are returned unspent
each year. In Daporijo the Annual Operative Plans are neither being made nor
are they implemented.75 While an individual may choose to not participate
in corruption, he or she cannot choose to object to it for fear of severe social

73 Hindu organisations are seen as non-proselytising and philosophically closer to Donyi Polo.
The Arun Jyoti project (partially funded by the RSS) has been working in collaboration with the
Vivekananda Kendra in promoting literacy, health care facilities, anganwadis, adventure camps
and padyatras.
74 Based on interviews in Itanangar and Daporijo. See the Appendix for further details.
75 Based on interviews in Daporijo. See the Appendix for further details.

ARUNACHAL PRADESH

Economy, Development and Livelihoods

75

ARUNACHAL PRADESH

and economic boycott. Given the strong tribal social ties and limited economic
sources, objectors are known to either relent or perish.

76

The high costs of acquiring an education coupled with low chances of gainful
employment have heightened frustrations amongst the young population. This
explains an increase in sex work in towns, and reportedly, demands for sexual favours
in exchange for jobs and employment for younger women. The reliance upon
government jobs and contract work has re-defined sexual division of labour in rural
areas. Amongst the Apatanis, a tribe known for its high rate of government employment,
there is an under-valuing of manual work, and jobs that were traditionally shared by
men are now delegated to women. In Ziro, the men seeking non-manual salary jobs,
although unemployed, rarely help women in manual or traditional work leading to
a situation where women are economically more productive than men.
The two areas that the central government plans to promote to usher in sweeping
changes in Arunachal are the tourism industry and hydro power projects. The
central governments enormous budget allocation (Rs. 125 billion) towards the
construction of highways and roads is expected to benefit the hydro power
projects in the state.76 134 Memorandum of Understandings (MOU) have been
signed in Arunachal on hydro power with no consultations or involvement of the
local people.77 These projects are large scale and go above 200 MGW, and studies
on their ecological impact are neither available nor known. 78 The hydro power
companies apparently offer money directly to the affected individuals, while they
bypass consultations with socially concerned organisation/individuals, public
discussion and debate. The central government has also recently promised a rail
link and an airport to help exploit the potential for tourism.79 Not all regions
have witnessed similar levels of development. For instance, while Pasighat was
developed by the British prior to independence, Daporijo has been slow to
develop. East Kameng (where predominantly Nyishis reside) is inaccessible by
road, and can only be reached by helicopter.
76 Nod for 2 Arunachal Projects The Hindu Business Line August 1, 2009
77 Based on interviews in Itanangar. See the Appendix for further details
78 The list of existing hydel stations and their installed capacity is available at http://www.
arunachalhydro.org.in/pdf/exisiting_hydels.pdf (last visited April 30, 2010).
79 An interview with Jarpum Gamlin clarified this point. See the Appendix for further details

Social Relations
Traditionally, tribal and communal affinities were primary and held precedence
over familial or individual interests. Clan loyalties were strengthened by
communitarian living and the social performance of jobs. The dormitory system
of the Adis was an extension of the process of cementing clan loyalties. It was
an arrangement that ensured the youth learnt and contributed towards socially
productive skills, and communal living. The dormitory system, (RASENG, ie, girls
dormitory; andRITEKor REYUP ie, the boys dormitory for the Adis) encouraged
responsibility and discipline amongst the youth and also allowed for sexual
freedom before marriage, and choice of partner.

Women as a result have enjoyed sexual freedom prior to marriage to some


extent, although men have always exercised greater sexual freedom. Marriage
customs vary from tribe to tribe. For instance, amongst the Apatanis, if a couple
wish to live in together, they can do so, and it is not necessary to get married as
their relationship will be considered to be equivalent to marriage. Amongst the
Galos, the boy and the girl can see each other for a probation period approved
by the elders in the family while they decide whether they formally wish to get
married or not. After marriage, the sexual freedom of women is significantly
curtailed. They may not enter into polygamous relations of their choice but must
be sexually available to their husbands male siblings and paternal cousins. The
men are allowed polygamous marriage or relationships but the women may
not do so openly, and are subject to social censure if they are found to do so.
As women face loss of financial and material support from their husband as

ARUNACHAL PRADESH

However, the dormitory system no longer exists in Arunachal Pradesh. Although


identification with a tribe is still important for ones characterisation, the notion
of the other tribe as a source of opposition or conflict has died down. While
marriages tend to be within the tribe (but outside the clan) inter-tribe marriages
have started taking place. Over the years changing economic and social patterns
have strengthened the institution of the family and to a lesser extent, the
individual over and above the tribe. The introduction of private property and
economic development coupled with growing class divisions lessened feelings
of communal belonging and strengthened smaller social units as bases for
identification.

77

ARUNACHAL PRADESH

well as the right to residence, the option of divorce is severely limited for them.
Apparently forced marriages were practiced in the past, by shackling LEPIYA
women who refused to marry a chosen man.80 Instances of forced marriages
are rare, limited to the Niyshi tribe now, and no longer a concern for activists.
Although instances of child/ forced marriage occur amongst the Nyishis, the
official version denies the prevalence of this practice entirely. A case of forced
marriage in the 1980s was reported from Aalo where the woman eventually
murdered her husband and surrendered at the police station.
The caste system does not exist in Arunachal Pradesh. Historically, most of
the tribes used to have slaves who were released by the government of India
after independence. 81 However, a growing class divide brought upon by rapid
modernisation has increased divisions between the rich and poor.
Each tribe has an overarching body, referred to as society which looks into
issues pertaining to that particular tribe. The societies organize festivals, provide
information about the tribe, render welfare services and are non-political. While
the president of the Galo Welfare Society is a woman, there are very few women
in either of the societies. Typically, the women tend to be in the cultural wing
of the societies. Each tribe also has its own three tired traditional courts, known
by different names (discussed below). There are no women members on any of
the tribal courts.

II. JUSTICE SYSTEM AND CUSTOMARY LAW


Legal Status of Customary Law
In 1994 the Arunachal Pradesh Protection of Customary Laws and Social
Practices Bill was legislated. It offered a blanket protection to all customary
laws, including polygamy, child marriage and limitations in inheritance rights
for women. Womens groups protested and appealed for the insertion of an

78

80 Based on PLDs interview with Mamang Dai. See the Appendix for further details
81 The Sulung tribe is historically a slave tribe which worked as bonded labour. The degree of
oppression in the slave system was minimal as the slaves were permitted to eat/drink and live with
their masters. Restrictions were imposed mainly on marriage.

The Apatani Cultural and Literary Society have compiled Apatani customary
laws.83 Although this is a very recent development, and amongst a tribe known
for its achievements in education and high rank jobs, no woman was part of
the drafting team involved in the codification process. During the compilation
process, all physical punishments (including imprisonment) were excluded.
Compensation is the means whereby justice is restored. Even in case of serious
offences such as forced marriages or rape, there is no physical punishment
meted out to the perpetrator. Compensation by means of one female fully grown
mithun84 (in case of forced marriages), and ten full grown female mithuns, and
one full grown mithun to the village council (in case of rape) is the norm for
crimes and offences. In case of domestic violence or cruelty to the wife, the
solution is to be sought within the family. The Nikung Dapo (compiled law)
has been submitted to the government, and the Apatani Cultural Society would
like them to be officially recognised. However, it is highly unlikely that the
government will do so.85
82 Arunachal is governed by tribal customary law under a special statute and not by virtue of the
Sixth Schedule of the Constitution that pertains to the administration of tribal areas in the North
Eastern states of Assam, Meghalaya, Tripura and Mizoram.
83 A copy of the First Edition is available with PLD
84 A large mammal, similar to a buffalo, found in Arunachal Pradesh. It has religious significance
and is a traditional unit of wealth. We were informed that the value of a Mithun is approximately
Rs. 30,000/85 Based on PLDs interview with Sadhana Deori, see the Appendix for details

ARUNACHAL PRADESH

additional clause in the Bill that qualifies legal protection to customary law
only if it upholds the interests of women and children. Despite the advocacy
of womens groups, the Bill was passed by the State Assembly and sent to the
President of India for his assent. In face of an unresponsive state government,
the Arunachal Pradesh Womens Welfare Society (APWWS) brought their concerns
to Delhi with the support of other civil society organisations from Arunachal.
National organisations such as the Centre for Womens Development Studies
(CWDS) and the Centre for the Study of Developing Societies (CSDS) extended
support and strengthened the advocacy against enactment of this law. Finally,
the Bill was reverted to the State Assembly in 1997, not as a result of womens
demands but as the political focus of the state leadership shifted towards
securing Sixth Schedule status for Arunachal Pradesh.82

79

ARUNACHAL PRADESH

Administration of Justice

80

The mandate to handle development and administrative issues in Arunachal is


assigned to the Panchayat while the authority to adjudicate over civil and criminal
matters, including in relation to the family, are vested under the law in the traditional
courts. 86 The Assam Frontier (Administration of Justice) Regulation was introduced
in 1945 by the British so as to vest the adjudication of civil and criminal conflicts in
certain tribal areas with the village authorities and the political officer, who is now
known as the District Collector (DC).87 It was amended in 2005 in its application to
the state of Arunachal Pradesh. Under this Regulation, the village authorities and the
political officer/DC shall administer criminal justice (section 15). The village authorities
may try criminal cases involving theft, mischief, simple hurt, criminal trespass, house
trespass or assault of using criminal force in which the accused is a resident of their
jurisdiction (section 19). With regard to civil cases, the village authorities shall try
all suits without limits of the value (section 40). Appeals from the village councils in
both criminal and civil cases lie with the DC.88 In criminal cases, sentences of over 3
years imprisonment upwards, death or transportation may be appealed to the High
Court. In other cases, there shall be no right to appeal, although the High Court may
entertain an appeal by special leave (section 26). Cases of civil appeal may be taken
to the High Court only if the value of the subject matter of the case is not less than
Rs. 500, if it involves a question of tribal rights and customs, or the right to possession
of immoveable property (section 48). Therefore, the use of regular courts and secular
law is applicable in Arunachal Pradesh at the stage of appeal and not in all cases.

86 Part IX of the Constitution (The Panchayats) applies to Arunachal Pradesh. Prior to the 73rd
and 74th Constitutional amendments, local governance was regulated by the North East Frontier
Agency Panchayat Raj Regulation, 1967, under which a four tiered structure was created at the
apex, district level, block and village levels. This Act was dissolved subsequent to the enactment
of the above Constitutional Amendments in 1997, and substituted by a new law, the Arunachal
Pradesh Panchayat Raj Act, 1997. This Act came into force in 2001. Under this law, the Gram
Sabhas have only two functions rendering assistance in the implementation of development
schemes in the village and identification of beneficiaries for the implementation of development
schemes [(section 6 (a) and 6 (b)]. Gram Panchayats are similarly restricted to sanitation and
development work.
87 There is no division of power between the judiciary and the executive in Arunachal Pradesh.
Apart from adjudicating disputes, the office of the DC appoints political interpreters (or the Gaon
Buda) to note down the proceedings of the Kebang.
88 In Aalo, the DC informed PLD that in most cases appeals from the Kebang go to the High Court
directly and not to the DC.

Customary Systems of Adjudication


The norms and laws governing civil and criminal issues vary from tribe to tribe.
Personal law matters and criminal matters are almost entirely adjudicated
by the traditional courts respective to each tribe. These courts are inter alia
referred to as the Keba/Kebang, the Buliang or the Nyel/Mel depending on the
respective tribe. The Kebang, which is the customary court of the Adis and
Tagins is divided into three tiers: The Dulung Kebang (village level), Banggo
Kebang (block level) and Bogum Bokan Kebang (entire tribe).

The Apatanis have a traditional village council known as the Buliang. The Akha
Buliang is the principal and permanent Buliang, and the post is hereditary. The
Yappa Buliang consists of village elders who are well versed in customary laws
and traditions. There are no women present in the Buliang, and women do not
speak either. Women are only present as spectators to the deliberations. The
Bang Nyele or Mela of the Nyishis is a less well organised village council. This
also lacks representation of women.

89 Based on PLDs interview with Oyin Moying, see the Appendix for details
90 The Apatanis are known to be high achievers in relation to formal education and high ranked
jobs inside and outside the state. This has caused them to embrace formal legal system rather than
adhere to the customary.

ARUNACHAL PRADESH

The Kebang is a council of village elders, known as Gaon Budas, who have
traditionally been appointed on a hereditary basis and who exercise social and
political control over the village. Every person in the Kebang has a right to speak
and be heard. This makes the process slow, but democratic. Traditionally, women
did not form part of the Kebang, and continue to be absent from the body of
elders who adjudicate in the Kebang. However, in the course of case hearings,
women may testify and speak. The quality of membership has changed in light
of appointments made on the basis of political considerations.89 The Kebang of
the Adis is very powerful, unlike the Buliang of the Apatanis, which is losing its
power to the formal courts.90

81

ARUNACHAL PRADESH

III. CUSTOMARY LAW IN RELATION TO THE FAMILY

82

Polygamy is very common and is practiced among all the tribes interviewed,
although it is said to be on the decline amongst Apatani men in Ziro.91 Polyandry
is less common and is practiced amongst the yak herders. Bride price is common
to all tribes. Originally, amongst the Adis, rice wine and two dead squirrels
would be gifted by the boys side to the girl. If the rice wine was accepted and
consumed it signified that the marriage proposal was accepted. Mithuns began
to be gifted to the brides family more recently. Gifts consisting primarily of
jewellery and expensive bead necklaces are traditionally given to a daughter at
the time of her marriage. However, now there is a slow shift towards the brides
family paying for the reception, and giving gifts to the groom, marking the start
of a trend towards dowry as against bride price, with greater financial burdens
of the marriage such as gifts and celebrations on the brides family. Some of the
areas of gender discrimination are discussed here.

Child Marriage and Return of Bride Price


Child marriage is not common but it does take place amongst the more
impoverished sections primarily due to the bride price offered to the parents of
the girl. While there is official denial of child marriage, there are child marriage
survivors from the Nyishi tribe who had been married to much older men, but
managed to escape. In Yachuli village, a 14 year old girl was tortured by her
husband. The APWWS members intervened in the case to negotiate the return of
bride price to her husband to rescue the girl. As the parents were not interested
in helping, the burden of re-payment of the bride price fell on the girl alone.
APWWS paid Rs 10,000, and the girl took a loan to pay the balance. In another
case, a 3 year old girl was rescued. In yet another case, the Mela (traditional
court) sat four times on a case, and finally told the girl to return to her husband.
They also asked for a Mithun (part of the bride price) to be returned to her
husbands family. The Mecha Welfare Society argued that the economic value
of the housework performed by the girl during her time at the husbands house
should be calculated on the basis of monthly wages multiplied by the number
of years she stayed. They argued that the total value of her house work was
91 Based on our interviews in Ziro. See the Appendix for further details

enough to offset the bride price received by her family. The Mela did not accept
this argument and the case is now with the DC, Hapoli/Ziro.

Succession in Natal Family

The severance of a woman from her natal land and residence is so complete,
that she is not expected to return or be sheltered in her natal home upon divorce
or desertion. The lack of property rights for women ensures that women cannot
easily walk out of a marriage, even a bad marriage. After divorce, widowhood
or desertion by the husband, women do not go back to their natal family home
but are expected to live with their cousins. As divorce makes women poorer and
makes it more likely for them to lose custody over their children, women prefer
to remain in a bad marriage. This reflects how as long as a woman puts up with
abusive or neglectful relationships, customary law recognises her shelter and
residential needs, but when relationships formally break down, customary laws
offer the woman no entitlement to shelter.

ARUNACHAL PRADESH

Across all tribes, women cannot inherit immoveable property. While women
are traditionally given expensive jewellery by way of bead necklaces at the time
of their marriage, they may not inherit immoveable property. Amongst the
Galos, the son who takes care of the old parents usually inherits the ancestral
homestead and a larger share of the familys land holdings. The youngest son
is usually entrusted with the task of looking after his parents until their death,
and therefore he receives the largest share of the family property. The middle
son receives the least amount of property.

More recently distinctions are made between self acquired property and ancestral
property.92 Although daughters cannot get ancestral property, they could be
willed/ gifted self-acquired property with family consensus. This is mostly true
for a small population of urbanised educated families that have enough wealth
to acquire land. This development is reflected in the drafts of the codification of
the Apatani law. While the first draft states that women could not inherit landed
property, noting specifically that ancestral property cannot be gifted away so as
to bypass the rule of primogeniture, the second draft clarifies that women can

92 Based on our interviews in Itanagar, Pasighat and Ziro, see the Appendix for further details

83

be gifted immoveable property by their parents, but this requires the consent of
all the family members. The position in relation to ancestral property remains
unchanged, in that it cannot be inherited by women.93

ARUNACHAL PRADESH

No Right in Matrimonial Home

84

The tenuous nature of womens relationship to land and immovable property


is not limited to their natal homes. They are also denied a right to a share in
matrimonial property in the case of the husbands death or divorce. They may,
of course, continue to reside in the matrimonial property as widows, but often
pay a heavy price for that. A wife must customarily be sexually available to her
husbands brothers, and this is a likely price of widowhood. In any case she is
perceived as a problem, her right to residence in the matrimonial home can be
contested by the deceased husbands brothers, or where he has no immediate
brothers, by his cousins.
The denial of property rights for women forces women to stay in a bad marriage,
or put up with desertion to retain the right to residence. For example, in Aalo a
woman community leader had been deserted by her husband.94 Her husband has
married another woman, shifted residence to another town and does not maintain
any relations with her. Despite desertion, she cannot file for a divorce as this would
result in her eviction from her matrimonial home where she currently resides with
her children. Under customary law, so long as a woman enjoys residence and
financial support from her matrimonial home, she cannot claim to be deserted. The
narrow definition of desertion, forces her to continue in a dead loveless marriage,
and holds her back from forging a new relationship even though she may desire
one. Any move on her part to either establish an intimate relationship or initiate
divorce will have adverse consequences on her right to reside in the matrimonial
home. The right to initiate divorce is therefore an empty right for the wife, for the
price of divorce is borne almost entirely by the woman.

93 The Arunachal Pradesh Land Records and Management Act 2001 was challenged by the
APWWS who contested that if the state can allow non-Arunachali investors and corporate
organisations to appropriate land in Arunachal, women should be allowed to own land as well.
This challenge struck a strong chord with the women, but tribal customs continue to exclude
women from land ownership.
94 Based on an interview in Aalo. The identity of the person has been kept anonymous

Citizenship
Women who marry non-Arunachali men loose their de facto status as Arunachali,
even if they are domiciled in Arunachal. The children born to such an Arunachali
woman are not considered to be Arunachali, but belong to the state their father
hails from. The official reason for denying Arunachali women who marry outside
the right to claim state citizenship, is the fear that such women will purchase
land in Arunachal and transfer it to their non-local or non-tribal husbands.

ARUNACHAL PRADESH

In the case of a professionally well placed woman from Pasighat; she was
considered non resident, as her father was non Arunachali and non tribal.95
Athough her mother was Arunachali, and the woman concerned grew up in
Arunachal, she could not claim the full status of being Arunachali. Despite being
a resident and a successful professional, she is considered to be non-Arunachali
and cannot buy land in her name. She does not have the status of a tribal. She
married an Arunachali man and gave birth to two girls. Upon her husbands
death, the customary laws allowed her to continue residence in her matrimonial
home only so long as she remains unmarried. She expressed the unfairness of
this condition, as this has compelled her to remain unattached while she is still
young and keen to enter into another relationship. Despite having two daughters
from her husband, the girls are not able to inherit the property, as succession is
by male heirs. In the absence of immediate male heirs, her husbands cousins
can claim the property and they have already asserted their right to his property,
which she contested. Even though the local kebangs decision has supported her
possession, her status remains unclear as the deceased husbands cousins have
appealed against the decision, presently pending in the Magistrates court.
Therefore, for women categorised as non-Arunachali (despite their mothers
being Arunachali, as in this case); neither residence nor financial capability can
give them the right to acquire land in Arunachal Pradesh. Resentment towards
such discrimination was clear amongst the women we met particularly in their
awareness that the law forced their dependence upon their matrimonial family
for housing/ shelter, and through stringent material penalties, controlled their
freedom to enter into another relationship.

95 Based on an interview in Pasighat. The identity of the person has been kept anonymous

85

Maintenance

ARUNACHAL PRADESH

Women rarely get maintenance upon divorce. The Kebang often agrees to a
one time payment upto a maximum of one hundred thousand rupees but not
more than that. Although vagrancy is uncommon in Arunachal Pradesh once
the marriage fails women find that their situation has deteriorated.

86

APWWS took up a case where a young wife was being abused by her husband.
The DC ordered that the victim had a right to reside in the same house as her
husband. This order upset the entire village and the villagers destroyed the
house. The husband had also failed to pay back many loans, and the order
provided another pretext for destroying the house. To side step public anger
against her claim for support, activists helping her strategically re-submitted the
claim as maintenance claim on behalf of her children who were due to sit for
exams. The victim was thus able to secure maintenance of Rs. 2000 per month
for her two minor children, and is now living separately from her husband
in rented premises. She does not want to get divorced lest she lose custody
over the children. Although a case under section 498A has been registered, it
is difficult to pursue this case or have the husband arrested as he has political
connections.96 The woman sustains and supports the children and herself with
her small earnings from weaving.

Differential Rights for Wives in Polygamous Relationships


In polygamous marriages the first wife receives far more social acceptance than
the second or subsequent wives do, although customary law sanctions male
polygamy. The children of the first wife are entitled to greater privileges than
the children of subsequent wives. There are no clear rights for the second and
subsequent wives, and there is no social pressure on the husband to maintain
the relationship with his subsequent wives. Their situation is fragile and entirely
dependent on the husband. The second wife may be socially stigmatised for a
year or so, but not more than that.97 In Itanagar, women complained that as jobs
are scarce women agreed to become the second or third wife of powerful and

96 Section 498A of the Indian Penal Code allows a wife to prosecute her husband for inflicting
cruelty in marriage.
97 Based on our interviews in Daporijo. See the Appendix for further details.

influential men. APWWS started an initiative to prevent men who had multiple
wives from securing tickets to contest elections, but this did not work as all
political parties are headed and controlled by men. In fact, one of the APWWS
leaders who publicly denounced polygamy had to face social backlash.
In a case from Aalo, the first wife together with some women activists approached
the Kebang to prevent her husband from taking on a second younger wife. The
Kebang told her to accept the situation. The first wife finally murdered the other
woman (who was pregnant) by pouring boiling water on her as she slept. She
approached APWWS for assistance but APWWS refused to touch this case, as they
had forewarned the second wifes family from contracting the marriage.

The Protection of Women from Domestic Violence Act (PWDVA) 2005 is largely
unoperational in Arunachal Pradesh. Protection Officers have been notified in
Arunachal from amongst the CDPOs (Child Development Protection Officers)/Deputy
Directors, SW/ICDS (Integrated Child Development Scheme) on dual charge. But we
were informed that the Kebang or the family resolve most domestic violence cases.
We were informed that only 2-3 cases of domestic violence were registered with the
protection officers in Aalo. The DC is empowered to deal with domestic violence
cases. However the DC has de facto less power than the Kebang as customary laws
are expansive. Nonetheless, the DC can exercise persuasive powers in enmeshing
secular laws with the customary in an advisory capacity, by communicating with
the Kebang. This advisory influence, or indeed the application of secular laws to
handle domestic violence cases is dependent on the individual DC. In Aalo, the DC
shared several cases where he proactively influenced the Kebangs decision, or even
takes up some cases directly if approached; but in Ziro, the DC informed us that she
receives a large number of cases of domestic violence but reverts all of them to the
Buliang.
The lack of secular law to protect women from domestic violence does not
imply a corresponding lack of instances of domestic violence, or a satisfactory
resolution mechanism in the form of the traditional courts and the family. We
came across one instance of shackling in Yajuli village. Shackling or LEPIYAis
an old custom which rarely occurs any longer except in some interior parts

ARUNACHAL PRADESH

Domestic Violence

87

ARUNACHAL PRADESH

of central Arunachal. Women who are disobedient in any way are punished
by attaching a heavy wooden structure on their legs thereby making mobility
difficult. On January 18th 2010 a girl came to the Mecha Welfare Society. She had
been sold to an old man by her father. After her husband died, she was sold
again. She tried to escape but was shackled by her new in-laws. After the shackle
was removed, she was raped and treated very badly. Ultimately she managed to
run away and came to the Mecha Welface Society.
In another case of domestic violence in Yachuli village, a Zila Parishad Member
beat his wife up badly. The wife approached APWWS, Yachuli branch, and they
helped register her case, in which they successfully received an order allowing
the wife to reside in the house. Once the husband learnt of the case, he accosted
the APWWS members with his supporters and assaulted and sexually harassed
them. The car of the APWWS member was completely broken, her clothes were
torn off and she with the other members were subjected to public humiliation.
When this assault was reported to the Kebang, they ordered the car to be replaced,
but the abusive husband was not asked to render an apology or compensate the
APWWS members for the physical injuries or public humiliation. However, the
husband has been prevented from contesting elections again. These cases reflect
the failure of traditional mechanisms to provide complete relief to victims of
domestic violence, and contrasts this against the fragile but valuable support
offered by a very small and insufficiently resourced women organisations, and
the risks they work under.

Womens Participation in Adjudication

88

There are no women members in any of the traditional courts that adjudicate.
During the hearing of a case, women usually do not participate except in special
circumstances. Women may present their side of the story and be called as
witnesses, but do not argue or pass judgments in the Kebang. The head of the
Banggo Committee in Pasighat observed that women could speak in the Kebang
if they had expertise on the issue as witness or informant; however, this is not a
right. The role of the traditional courts is very important in adjudicating criminal
and family law matters, including rapes, divorce, maintenance, domestic
violence etc. The complete absence of women adjudicating on womens issues
is a major concern in the application of customary laws.

Sexual norms and controls


Sexual relations between men and women are relatively free of taboo, and there
is acceptance of choice in marriage. Following marriage however, womens
sexuality is totally controlled by her husband and the matrimonial family. Men
continue to enjoy sexual freedom without responsibility even after marriage.

After marriage, the sexual autonomy of a woman is regulated. Amongst the


Galos women are expected to give sexual access to the male siblings and
paternal cousins of her husband. Therefore the child she gives birth to may not
be the biological child of her husband. In contrast their husbands are free to
marry again/ engage in sexual relation freely. Even in the context of enforced
polyandry, women lack the space to get attached to any of the brothers of the
husband with whom she has been forced into sexual relations. For instance,
in one case, a woman was raped by her brother-in-law with the permission
of her father-in-law, when she refused to be sexually available to the family.
Despite knowing of these events, the husband did not intervene and over time
however, she developed a relationship with the brother-in-law. Meanwhile,
the husband who worked in the army was posted out of town, and formalised
his relationship with another woman by contracting a civil marriage in a court
(despite the fact that the rule of a government job forbid him from contracting a
bigamous marriage). On his return to his hometown, when the first wife sought
to file a case of domestic violence and sought compensation as he was abusive
to her, her husband rejected her claim arguing that she was of bad character

ARUNACHAL PRADESH

Pre-marital pregnancies are not looked down upon, although seeking child
support from the concerned man is difficult. In a case where a school girl in Aalo
became pregnant, the young man, who was the father, refused to marry her.
The young mans father, who was the principal of a school, rejected the girls
story saying she was a prostitute. Later, with continued efforts of a womens
group, the young man was coaxed into visiting the baby, and which led to his
acceptance of the baby in writing. He however refused to get married to the girl,
and after much negotiation was made to pay for the delivery. Once the baby
was born, the young man, along with his family, accepted he was the father of
the child.

89

as she slept with his brother. Therefore the sexual norms are selectively loaded
against women, and there is a lack of consistency in the application of customs
when confronted with secular laws.

ARUNACHAL PRADESH

IV. CURRENT CHALLENGES AND CONCERNS

90

The economic, political and cultural developments in Arunachal are ushering


in changes that complicate the situation for women. It is feared that the
gendered impact of identity politics, increasing class disparities, lack of
alternative livelihood options, increasing financial burden on brides parents
during marriage and changing sexual norms resulting from the influence of
institutionalised religions, will undermine womens status in the family and
the society. These changes may even eat into the communitarian spirit leaving
behind the customary laws and its gender discrimination as vestiges of culture.
The legal system is already challenged by the interface between customary and
secular systems, which makes womens rights advocacy more contentious. Some
of the difficult areas of negotiation and advocacy are highlighted below.

Sexual Controls over Women


One of the most discriminatory aspects of the customary law is the stringent
controls exercised over womens freedom and sexuality through excluding them
from share in land and property, in the natal and the matrimonial homes. The
exclusion from land and property is designed to completely undermine the
exercise of freedoms, including sexual freedom that is relatively free of taboos
under customary law. Once married, a woman forgoes her sexual autonomy not
just to her husband, but in many tribes to his brothers and in-laws. Redress for
desertion under customary law is conditional upon loss of financial support. As the
cases discussed above show, that even women who are gainfully employed and
educated, spend years in a lonely, loveless marriages under customary law, forced
unwillingly into celibacy, and held back from entering into another relationship,
only to retain residential and economic support from the matrimonial home for
themselves and their children. In contrast, the husband is free to move on to
new wives and relationships, without any accountability or responsibility. This
makes for a structurally unjust institution of polygamy. The tenuous rights of the

subsequent wife/wives and the reduced rights of their children, also demonstrates
the discriminatory nature of customary polygamy. Thus the customary law
controls womens exercise of sexual choice and freedom not through physical
punishments or taboos, but by simply cutting off her support from the matrimonial
home her means of subsistence, security, residence and shelter. This situation is
compounded by the absence of rights to succession in the natal home, as well as
the censure from her parents or her brothers upon breakdown of her marriage.
She is instead expected to approach her cousins for shelter, symbolic of her
complete severance from her natal home.

Limited Strategies to Contest Womens Rights

Further, in view of the unsuccessful attempts at legislative advocacy by women


in making customary law subject to the overriding principle of safeguarding
interests of women and children, the most viable strategy available to womens
groups is a case by case approach. APWWS activists narrated several cases where
they struggled to find an approach that finally worked as for example, when
faced with a community backlash against an order granting maintenance to
a victim of domestic violence, they were able to substitute it with an order of
support for the two school going children (case discussed above). Similarly, in
other cases of domestic violence, an order affirming the wifes right to residence
have resulted in backlash on the social workers, who fought for the order at
great personal cost and risk, for which there is no redress. The blanket legal

ARUNACHAL PRADESH

The space to change customary laws from within through modification is


currently very limited. None of the customary adjudicating bodies have women
members and it is not suggested that this could be a possibility. Neither is there
evidence of women members in the codification process the only process that
has taken steps is the Apatani tribe known for its high professional achievements.
This process too lacks the presence of any woman member, and the absence is
not locally viewed as a cause of concern. While the codified draft is promising
in its provision that recognises need for periodic reviews and changes, it has
not changed nor modified the exclusion of women from succession of natal
or matrimonial property. The only step forward has been to recognise gifts of
immovable property to daughters with family consensus keeping intact the
prohibition against gifting ancestral property to daughters.

91

protection to customary law, coupled with the exclusion of women from law
interpretation and customary adjudication makes it even more difficult to
change laws from within. The case by case approach is the only effective tool
to negotiate a measure of equality at the moment, and reduces support to the
work of the limited number of social workers/ activists and their outreach.

ARUNACHAL PRADESH

Identity Politics and Institutionalised Religions

92

The growing support to institutionalising the animist traditions into a formal


religion, Donyi Polo, with a written (rigid) reinterpretation of tribal customs and
rituals, is not without gendered impact. The formalisation and documentation
of hymns, structured weekly worship in congregation as a process of restoring
their identity and gaining recognition as a religion has seen women in
greater numbers fill the ranks of the congregation and participate in rituals.
There is a fear that this trend will eventually absorb them into Hindu ideology
and structures, that will bring with it brahmanical controls over women. The
debates in Itanagar over the need for women to wear symbols such as necklace
with locket to signify marital status are already an evidence of this trend. The
influence of Christian morality similarly, will usher in sexual taboos and stigma
in relation to women that have not traditionally held sway.

Political Contestations on Gender Issues


The increasing awareness of the political capital of mobilising womens
voices, and the political space for womens agenda is reflected in emergence
of different players and perspectives that seek to represent women. There are
womens wings of national parties that seek replication of the national agenda
locally, often without regard to the local realities and context. In addition, there
are autonomous voices across tribal groups that are critiquing tribal patriarchy,
seeking to debate customary laws and the exclusion of women from property
and political decision making. Tribal groups tend to label feminist voices as
individualistic to marginalise the autonomous cross tribal voices critiquing
tribal patriarchy, in addition to promoting authentic tribal womens voices
rooted within the community based organisations (CBOs). These CBOs focus
on community issues and social malpractices, such as introduction of dowry
and marriage expenses, while maintaining silence on succession, political
participation and other structural barriers to womens equality.

There is a network of activists across tribal groups that have mobilized over the
last 20 years to carve a gender equality agenda for Arunachal essentially to
seek greater space for womens participation in decision making and for gender
equality under customary law. The APWWS represents the widest such network
that has linkages with grassroots activists across tribes, crisis centres, women
panchayat leaders, and citizens to mobilize on diverse issues particularly
relating to discrimination and violence against women (VAW) justified by
custom. Their engagement with the state, statutory bodies the State Womens
Commission and political parties is that of a watchdog, open to critical as well as
constructive engagement. However, many view cross tribal alliance building and
articulation of state level womens agenda as a transgression of tribal affiliations,
and view debate on customary laws by women as subversive of tribal ethos.
It is not uncommon for intellectuals to undermine such voices as feminist,
individualistic, politically motivated and disruptive of tribal communitarian
spirit. The community orientated focus of the CBOs established by the tribal

ARUNACHAL PRADESH

The competing ideological positions of these voices have yet to manifest


themselves fully, and there seems to be not enough debate between these
parallel and sometimes intersecting steams of womens activism. For instance,
the adoption of national womens agenda in Arunachal has been undertaken
without much debate on its relevance in the context of legalised polygamy
and customary systems of adjudication. For instance, an Arunachal Pradesh
Marriage Records Act 2008 has been passed following the enactment of the
Compulsory Registration of Marriages Bill, and the Supreme Courts order seeking
compliance with such a law 3EEMAV!SHWANI+UMARat 2008(1) SCC 180). The
demand for this law did not come from the local population. Under this Act all
marriages (solemnised under personal law or custom) have to be registered.
Exactly how this will be enforced, and more importantly what purpose such
registration will serve within the framework of customary laws that recognise
pre-nuptial relationships, live-in relationships, as well as polygamy are not clear.
Another demand symbolic of this trend is raised by the Arunachal Pradesh
Mahila Congress Committee (APMCC) to have segregated schools for girls. This
demand has not gone through any consultations or debates locally, but persists
as an agenda of the Mahila Congress Committee.

93

leadership, stands in contrast for they do not disaggregate their concerns on the
basis of gender and instead, address collective community issues such as lavish
expenditure at weddings, excessive sacrifice of mithuns and similar community
concerns.

ARUNACHAL PRADESH

Customary Adjudication versus State Systems

94

The division of forums for legal adjudication of disputes is not as clear cut as
it seems to be. While the Kebangs or the customary bodies handle almost all
of the matters, including family and criminal law related emerging economic
developments create new challenges, as do issues that have been invisible or
socially sanctioned in the past. Domestic violence is one such matter. While
this opens spaces to women for forum shopping enabling them to choose the
system of adjudication that will best provide redress and justice, certain concerns
remain. Much of such forum shopping occurs if the DC is inclined to take up
matters. Where the DC is not inclined to be proactive, the matter is referred
to the traditional court that holds jurisdiction over matrimonial and family
matters. While some DCs may interfere in decisions of the Kebang, through
the political interpreters appointed as a bridge to communicate and have
consensus on customary matters, it is not always so. The DC in Aalo mentioned
advising the Kebang through the political interpreters on the PWDVA 2005
regarding the relief available to the woman, to ensure that their decisions were
in harmony with the law on domestic violence. However, other DCs may choose
to not interfere unless the matter comes before them subsequently in appeal,
which is a longer and unlikely process for the woman to follow. Apart from the
availability or lack thereof of forums for adjudication, the concern of making
available to women in Arunachal, the benefits of the long law reform process
that resulted in the PWDVA remains a challenge. Not only is it a question of the
appointment of protection officers, who are sensitised and have the time to fulfil
their responsibility under the Act, it is also a question of resolving the jurisdiction
conflicts in relation to the new areas of legislation and the customary law, and
simultaneously of sensitising the Kebangs to legal developments on VAW.

INDIA

JHARKHAND
EXPLORING LINKAGES BETWEEN GOVERNANCE, CUSTOMS,
LAND AND WOMENS EQUALITY
Tribal identity is closely tied to land; however, the relationship of the tribal
community with land is changing in the face of rapid modernisation leading
to changes in tribal society, culture and laws. Traditionally, the community
owned the land and land alienation was not permissible. However, both at
the individual and the systemic level land is now an alienable commodity and
this commoditisation of land has had considerable ramifications on gender
equations and womens rights.

JHARKHAND

The significance of land in tribal communities and the contentious nature of


disputes over land contribute to most of the discrimination women experience,
including violence against them. The contestations of tribal women, whose
relationship with land is transforming and complex, has posed additional
challenges to understanding who land should belong to and the resistance to
accepting women as holders of titles of land. The bogey of fragmentation of
land is used as the major argument to deny women land rights.
Three contentious issues in Jharkhand, namely, governance, land, and womens
equality in tribal communities intersect and impact each other. The first two
issues, although seemingly neutral, impact on womens equality struggles as
acutely as customary law does. These issues have become justifications for
postponing womens concerns in the larger movement for tribal autonomy and
leadership in the state. Further, tribal communities in Jharkhand have had a
difficult relationship with the Indian state as a consequence of land acquisition,
thereby leading to a situation where womens particular concerns are suppressed
over the collective demand for land reforms.

95

I. THE POLITICAL CONTEXT


Jharkhand is a mineral rich region dominated by tribal communities and was
carved out as an independent state from Bihar in 2000. The creation of a
separate state was part of the process of gaining explicit recognition, citizenship
and autonomy within the federal system on the basis of tribal identity.98

JHARKHAND

Women in tribal communities have been traditionally valued in recognition of


their economic contribution to households and consequently there is respect
for the girl child.99

96

There are special protections in law and policies for tribal communities in
terms of the application of customary law in family and succession matters;
protection against transference of tribal lands and affirmative action through
reservation policies.100 However, in practice, all special protection to prevent
transference of tribal land and affirmative action policies have been frustrated.
Despite legal safeguards to protect tribal land, huge tracts of land have been
alienated illegally at the individual level, and by the state through its powers of
eminent domain to facilitate rapid development.
The tribal assertions for reservation and customary forms of local governance are
countered by demands by other backward castes (OBCs) for reservations. Intra98 The population consists of 26.3% Scheduled Tribes (STs) and 11.8% Scheduled Castes (SCs).
Census of India (2001)
99 The overall sex ratio of the ST population in Jharkhand is 987 females per 1000 males, which
is higher than the national average. The literacy rate is 59.6% with a male literacy rate of 69.74%
and female literacy rate of 39.38%. Census of India (2001)
100 The Fifth Schedule of the Indian Constitution applies to Scheduled Areas of Jharkhand.
It gives the governor power to determine which laws shall apply to the scheduled areas.
However, in practice, the Fifth Schedule has not been operative and the governors have rarely
exercised their powers. Further, customary structures in Jharkhand have been recognised in the
Chhotanagpur Tenancy Act 1908 (CNTA) and the Santhal Parganas Tenancy Act 1949 (SPTA). In
1996, the Panchayats (Extension to Scheduled Areas) Act (PESA) was passed by Parliament, which
emphasises the traditional nature of gram sabhas. Section 4 (i) of PESA requires that the Gram
Sabha or Panchayat be consulted before any land acquisition takes place and before rehabilitating
or resettling persons affected by development projects. However, the provisions of PESA have
not been implemented by government officials in Jharkhand who are unwilling to share their
powers.

tribal tensions dominate reservation policies and control over who will benefit
from reservations has led to a growth in identity politics. In the meanwhile
tribal communities also allege deliberate moves to change the demographic
majority of the tribals and under-count their numbers.101 As a consequence,
in Jharkhand, the priority for the community and its political leadership is to
ensure affirmative action for the tribal community and reinforcement of the
tribal culture to mark its distinctiveness. Gender issues have been sidelined and
are marginal for communities in Jharkhand.

II. ISSUES INFLUENCING WOMENS STRUGGLES


Customary Laws on Land

JHARKHAND

While this report refers to the tribal community/ communities interchangeably,


it must be noted that there are many tribal communities for instance, the
Oraons, the Mundas, the Santhal, Hos, Kharias, and primitive tribes like Birhor
etc. All together there are approximately 30 different tribes in Jharkhand. It must
also be noted that the customary governance structures of these communities
vary, that the customs of these communities also vary and that both the
governance structures and the customs have evolved over time, shaped by
colonial interventions and modern economic and cultural trends.

Tribal customs and culture grant tribal women rights and freedom such as public
visibility and mobility, which are less available to women from other major
communities in India. Nonetheless, there are certain areas of tribal culture and
law that impact negatively on womens rights and equality. The status that tribal
women used to enjoy historically changed with colonial influence and in the
post independence period, and has transformed rapidly over the years with
growing insecurity about land, in the face of development projects and influx
of non-tribals.
Under traditional tribal customary law, the community is the owner of the land.
But individual ownership of land was introduced with the growing spread of
101 For a detailed discussion see, Nandini Sundar, Custom and Democracy in Jharkhand,
Economic and Political Weekly (8 October, 2005), p. 4430.

97

JHARKHAND

capitalism in the post independence period. Alienation of land now occurs, and
the traditional tribal understanding of land as a common resource has been
diluted. However, the tribal leaders, who are men, use the above mentioned laws
to deny land rights to women by claiming that land belongs to the community
and individual ownership cannot arise.
Land entitlement issues are a primary site of discrimination for women.
Discrimination primarily arises from the fact that the succession of the tenancy
right over land is along the male line of the family as per the Chota Nagpur
Tenancy Act, 1908, which is applicable in the state of Jharkhand. Even though
tribal women cultivate the land along with male members of the family they
have no claim over the land. On the death of the landholder, the tenancy is
transferred to the next male in line.102 The Supreme Court was approached
on the question of the provisions of Chota Nagpur Act in the case of -ADHU
+ISHWARV3TATEOF"IHAR(1996) 5 SCC 125, wherein it was contended that the Act
is ultra vires Articles 14, 15 and 21 of the Constitution of India.103 In this case,
the judges recognized that the law is discriminatory but the majority still held
that it would not be desirable to declare it as unconstitutional stating that some
rules provide for differential treatment to serve a larger purpose, which in this
case was for the land to remain with the tribals. This reasoning was based on the
view of the Tribal Advisory Board, which stated that giving tribal women rights

98

102 Sections 7 and 8 of Chota Nagpur Tenancy Act, 1908.


*Section 7. (1) Raiyat having kunt katti rights means a raiyat in occupation of, or having any
subsisting title to land reclaimed from jungle by the original founders of the village or their
descendants in the male line, when such raiyat is a member of the family which founded the
village or a descendant in the male line of any member of such family (emphasis
added).
*Section 8. Mundari khunt-kattidar means a Mundari who has acquired a right to hold jungle
land for the purpose of bringing suitable portions thereof under cultivation by himself or by
male members of his family, and includes- (a) the heirs male in the line of any such Mundari,
when they are in possession of such land or have any subsisting title thereto; and (b) as regards
any portions of such land which have remained continuously in the possession of any such
Mundari and his descendants in the male line, such descendants (emphasis added).
103 It was contended that the Act discriminates on the basis of sex and therefore is not in
conformity with Article 14 (Equality before law) and 15 (Prohibition of discrimination on grounds
of religion, race, caste, sex or place of birth) of the Constitution. Further, as tribal women rely
on land for their means of livelihood, denying them land is not in conformity with Article 21
(Protection of life and personal liberty).

in ancestral property will enlarge the threat of alienation of tribal land into the
hands of the non-tribal population.

The Madhu Kishwar judgment had one positive aspect; it re-emphasized the
usufructory right of women to use land. The case ruled that the tenancy of the
land will not be passed on to the next male in line during the lifetime of the
female relatives of the deceased who are dependant on that land. However,
while this proviso is positive theoretically, in practise partial ownership does not
benefit women much.

JHARKHAND

Protests and rallies took place following this judgment but these protests failed
to develop into a movement. The right of women to own land is a hugely
subversive issue and many individuals and groups hesitate to address it. The
protests highlighted the claim that women fragment land by marrying outsiders
but this is only an excuse to deny land rights to women. Two proposals were
put forward by womens rights groups to secure land rights without the risk of
fragmentation; firstly, it was proposed that womens succession to land title be
accompanied by a caveat forbidding her from transferring land to a non-tribal
person, or secondly, if she intends to transfer land the first offer must be made
to a tribal. However these suggestions were not accepted nor considered valid
as the underlying intention is to deny women equality and the risk of land
fragmentation is a false fear.

Firstly, the usufructory right to use land is not available to many women in the
state. Various means such as declaring women to be witches, torturing women
or forbidding women from ploughing the land, are used to force women to
abandon their rights. The most violent means to deny a woman the right to
use land is to label her a witch and thereafter out-caste or kill her. The above
situation has left many single and widowed tribal women without any means
of livelihood. There is no support from the paternal family either. Traditionally,
the system of TABENJOM was practiced, i.e. women were given land by their
brothers to ensure that she had some form of livelihood. However, it is no longer
practiced.
Secondly, while a widow, unmarried, divorced, or other single woman may have

99

JHARKHAND

acquired the right to utilize land for her livelihood, she does not have the right
to sell the land. Women cannot mortgage the land, or use it as security when
required Dearth of total ownership of the land is a major disincentive for women
to develop the land by digging wells or undertaking other major investments.
This adversely affects the productivity of the land and ultimately it adversely
affects womens livelihoods. Another major drawback of this partial right is
that women are not considered to be farmers. For example, in Bero district,
the death of a single woman was not considered as the death of the earning
member of the family and her family was denied the Rs. 10,000 they expected
under the central government sponsored Parivarik Labh Yojna scheme.
The land pattas (title deeds) are distributed in the name of the man of the
household and women do not have entitlement over these pattas. Demand
for joint pattas was raised and the Forest Act, as a result of the demand, has
a provision for joint pattas.104 The problem with seeking joint pattas is that for
the land to be jointly owned between husband and wife, the marriage has to
be registered. However, many tribal marriages and cohabitation arrangements
are unregistered.
An important aspect linked to land pattas is the issue of domicile. Reservations
in educational institutions and government posts are available for Scheduled
Tribes but one has to prove ones domicile to avail of reservation schemes.
Proving domicile requires possession of documents showing land entitlements
in the state. Therefore, it is difficult for women, especially single women to
prove domicile and benefit from reservation schemes.

Displacement and its Impact on Women


Development projects coupled with land acquisition has increased landlessness
amongst the tribal population in Jharkhand. Various large scale industrial,

100

104 The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006, Section 4(6) states, Where the forest rights recognized and vested by sub-section (1) are
in respect of land mentioned in clause (a) of subsection (1) of section 3 such land shall be under
the occupation of an individual or family or community on the date of commencement of this
Act and shall be restricted to the area under actual occupation and shall in no case exceed an area
of four hectares. (emphasis added)

mining, irrigation and power projects have been launched in the state such as
the Tata Iron and Steel Company, Heavy Engineering Corporation Ltd., SuberNarekha (Suvarn Rekha) Dam Project, and Chandil Power Project, Bokaro Steel
Plant (SAIL). The centre, through its powers of eminent domain, has taken over
the land of the tribals.

In this context, women as the more marginalised group, suffer more. For
instance, during floods, pregnant women did not have a safe place for child
birth and many gave birth in the water itself with no means to protect their new
born from the cold. Women are at a disadvantage when it comes to resettlement
or compensation by government or private companies. Compensation is usually
given to the man of the household and women are left out. Human rights
groups are embroiled in ensuring compensation is provided, though presently it
is difficult to raise womens demands. For instance, the representatives of Heavy
Engineering Corporation claimed they gave compensations to families although
many families were not provided with any compensation. In this context, it
is difficult to claim compensation separately for women and therefore single
women are not compensated at all.

JHARKHAND

Displacement involves not only the loss of land but also the loss of identity
associated with livelihood. A tribal, relying on forests and land is forced to find
some other means of livelihood mostly as a laborer in the same developmental
project or migrate to other states in search of opportunities. Further, tribals from
Jharkhand who have migrated to Assam, Silliguri or Jalpaiguri of West Bengal in
search of employment are not considered tribals in those states and therefore
lose their ST status. Displacement in the Scheduled Areas has an effect not just
on land ownership, but also on other resources which the forests provide. As a
result the standard of living of the people deteriorates massively.

Growing Religion Based Identity Politics and Women


Hinduism, Islam and Christianity have had a strong influence on tribal traditions.
The impact of upper caste Hindu traditions on tribal traditions has been
conscious and undertaken with the intention of distinguishing Christian tribals
from non-Christian tribals. This can be seen in the acceptance of customs such
as abstaining from alcohol and eating meat on certain days.

101

JHARKHAND
102

New rituals and practices that target women and are discriminatory include the
giving of dowry. Feasts during the marriage are now sponsored by the brides
family, whereas earlier, the entire community used to contribute towards the
feast. Tribal customs traditionally did not have elaborate rituals regarding
marriage. The women of the community would take the bride and groom in
one room, apply oil on their bodies, decorate them, do the ritual of application
of sindoor (vermillion) and declare them a married couple. But the effect of
various religions, especially Hindu practices have now forced parents to take
loans, sell land to give dowry and host elaborate functions. Another new custom
is one where a woman is made to climb a tree and fast for twenty-one days to
seek the blessings of Saran Mai. By doing so she attains the status of a devi or
goddess. Only women are made to climb the tree as part of symbolic religiosity
while the villagers sit in vigil at the bottom of the tree, and worship her if she
succeeds.
The process of sanskritisation is slowly reducing tribal womens earlier freedoms.
For example, traditionally if a woman/girl became pregnant the gram panch
would ask her who the father of the child was and if she wanted to marry him.
The girl could (and sometime would) refuse without having to think about social
stigma. But now the option is given to the young man. Social stigmatisation of
the woman/girl occurs if the young man refuses to marry her. Moreover, certain
practices, not recognized in law, like the Dhun Priya, Dhumkuria or Yuva Grih
systems, where a man and woman live together and decide if they get along
and wish to marry, are being misused by men to take advantage of women.
Conflict between Christian tribals and non-Christian tribals is one of the reasons
why Sarna was developed as a religious cultural counter to the growing impact
of Christianity in the state. Conflicts between tribal groups and Christian tribal
groups occur as the tribals see the Christians benefiting from reservation policies
and additional benefits from the Church. The Sarna Samiti claims to be the
representative of the genuine tribal people thereby creating greater tensions
between the Christians and the Sarnas. Further, the Sarna Committee has lobbied
for inclusion of Sarna as a religion separate from that of Hindus in the Indian
census. The distinction of Sarna from Hinduism is important as it allows for the

formation of a separate political identity without disturbing the entitlement to


reservations amongst the STs.

Rituals and Customs Justifying Discrimination Against Women


Along with all the recent changes in customs that discriminate against women,
certain traditional discriminatory practices have remained intact; such as
not allowing women to participate in the hen sacrifice, and not allowing
widows to touch objects related to marriage or other objects during marriage
ceremonies.

JHARKHAND

An important discriminatory practice is that of forbidding women from touching


the plough, and working on or repairing the roof. Women transgressing these
injunctions are punished severely. While women do work in the fields, they
cannot plough the land or mend the roofs of their houses. Therefore, women
are dependent on men to carry out these activities. In one case, a woman who
had ploughed her land was paraded in the village with her face blackened with
ink and was socially boycotted by the village. The mob tried to register a case
against her for ploughing the land. Following this incident, no man was willing
to plough her land for her, including her son, and she herself could not plough it
in the fear of further severe action. In other cases punishments such as treating
women like cattle for 2-3 days by tying them to a tree and giving them fodder
to eat have been witnessed.
One of the most severe forms of social discrimination, which has customary
acceptance, is that of Dain-Pratha or labelling someone as a witch and then
socially boycotting her or in extreme cases, killing the witch. The Association
for Social and Human Activities a non-profit organization - has reported that
between 2001 and 2008, 452 women were killed in Jharkhand.105 Police in
Jharkand receive at least 5 reports a month of women denounced as witches.106

105 Findings referred to in Raj Kumar Makkad, When Women Become Witches, 7 February
2010, available at http://www.lawyersclubindia.com/articles/When-women-become-witches/2519/, (last visited 8 February 2010)
106 Indias Witch Hunt Leaves Children Orphaned , 21 March 2007, available at http://www.
theasiannews.co.uk/community/heritage/s/524/524855_indias_witch_hunt_leaves_children_
orphaned.html, (last visited 8 February 2010)

103

A survey conducted in 2006 has revealed that out of 32,615 villages in Jharkand,
20,000 women were reportedly branded as witches and thousands of families
were affected.107

JHARKHAND

This practise continues despite the Jharkhand governments enactment of


The Witch Hunting Prohibition Act, 2001, which not only expressly prohibits
torturing or harming someone believed to be a witch, but has made the very
act of identifying and labelling someone as a witch punishable. The Act has not
been implemented in letter and spirit and the police records show that around
975 women have been persecuted following the inception of the Act came in
2001.108 Around 434 women have so far been killed after being branded as
witches.109 Some causes for the failure of the law to work against witch hunting
are the lack of information about the law and the unwillingness of the police to
register cases.110

104

The pretext for witch-hunting could be anything ranging from a bad crop, death/
illness in the family, loss of a child, infertility, childlessness, deformities in newborn children, persistent illness, drying up of wells to death of an animal. In
areas that face acute poverty and poor healthcare facilities, people turn to faithhealing and superstition. The local witch doctor/quack, often called the ojha
or baiga, plays a major role, by branding a woman as a witch and shifting the
responsibility on her, for unexplained/incurable illnesses confronting the local
people. According to media reports, police investigations have revealed that in
many cases, the ojha accepts bribes to brand a particular woman as a witch.111
However, research studies highlight the fact that land-grabbing, property disputes
107 Adivasis and Harijan Worst Victims of Witch-Hunting: Survey, 29 October 2006, available
at
http://news.oneindia.in/2006/10/29/adivasis-and-harijans-worst-victim-of-witchhuntingsurvey-1162125890.html (last visited 8 February 2010)
108 Santosh K. Kiro, Legal eagles join government fight against witchcraft, The Telegraph,19
April, 2008 available at http://www.telegraphindia.com/1080419/jsp/jharkhand/story_9157967.
jsp (last visited 8 February 2010)
109 Ibid.
110 Police pulled up for denying FIR in witch-hunt case, The Telegraph, 15 September, 2008
available at http://www.telegraphindia.com/1080915/jsp/jharkhand/story_9835418.jsp. (last
visited 8 February 2010)
111 Swati Saxena, Recourse Rare for Witch Hunt Victims in India, 16 July 2007, available at
http://www.womensenews.org/article.cfm?aid=3241, accessed last on 8 February 2010

and revenge are other major causes behind the crime. Branding a woman as a
witch is also used as a weapon of control in situations where she refuses sexual
advances, attempts to climb the social ladder or to assert her rights as she is
seen as a threat to maintaining maintain caste, class and gender hierarchies
or local power equations. Dalit and adivasi women who have dared to contest
elections, thereby directly challenging the political power of the landed casteHindus, have been branded as witches and attacked. Witch-hunting is therefore
another form of gender-based violence aimed at maintaining the status quo.

The state law is disengaged from the social and economic causes of witch
hunting and is focused on penal responses. A national law on witch hunting has
been proposed on similar lines as the State laws. This is unlikely to have any
substantial impact, given the dismal performance of the state law and the focus
on penal aspects alone.

JHARKHAND

It is believed that the witch has a capacity to harm others. Hence women
branded as witches are subjected to atrocities of a barbaric nature. They are
stripped naked, paraded around the villages, their hair is burnt off or their
heads tonsured, their faces blackened, their noses cut off, their teeth pulled out
(in order to defang them), eyes gouged out, whipped, branded, gang-raped,
forced to eat human faeces or cow dung and finally, they are killed by hanging,
hacking, lynching or burying alive. Such a crime takes place in the open space
in the village, in full public view, often with a cheering crowd that physically /
mentally participates in or abets the violence.

III. LACK OF WOMENS LEADERSHIP


The Constitution of India assures womens equality and cultural freedom
as fundamental rights. Yet laws regulating the family and marriage, based
on religion and custom, discriminate against women. The state justifies this
discrimination on the ground that it believes in non-interference in the
personal laws of the minority communities unless the initiatives come from

105

the community.112 The Indian state has not interfered in tribal customary laws
regulating family law issues.

Institutional Responses to Womens Concerns

JHARKHAND

At a deeper level, there is no dialogue between the state and tribal women.
PLD was informed that very few tribal women are in leadership positions, and
therefore cannot initiate dialogues or raise issues in state forums. When non-tribal
women raise issues pertaining to tribal customary laws, the tribal community
becomes defensive and accuses them of not having enough knowledge about
tribal culture. Further, womens voices are not heard by the state as issues of
domicile, reservations and displacements dominate debates. While gender
dimensions within these issues exist, these are not discussed. Womens issues are
seen as neither representing the communitys interests, nor as being important
in the face of the current challenges.
When grave instances of womens rights violations occur, women are mobilised
to some extent and public discourse on the status of women take place. However,
this is ad hoc and soon forgotten as the event recedes in public memory. There
has been no focussed intervention on any womens issue in Jharkhand and
project based interventions of NGOs do not have the potential to bring about
major changes. The burden of responding to violations is not shared by the State
through a womens machinery. The State Womens Commission was established
in Bihar in 1995. Following the creation of the state of Jharkhand in 2000, the
Womens Commission was not established until pragmatic political reasons led
to its establishment in 2006. The Commission is criticized as non-functional and
its members complain of lack of resources.
Jharkhand has not formulated a womens policy since its formation in 2000,
despite the myriad issues facing tribal women. A policy has been recently
proposed but the only meeting called by the state government on this policy
was attended mostly by men. The draft policy, which was made public at this
meeting, is a thick document in English, which is difficult for many to understand.

106

112 Government of Indias Statement of Ratification and Declaration to CEDAW dated 9 July
1993.

The consultation process is consequently both male dominated and lacking


in integrity as no assurance for incorporating the recommendations made by
participants was given by the government.

Participation of Women in Local Politics


The participation of women in political and decision making in Jharkhand is
negligible. The traditional structures bar women from leadership positions.113
Further, women are not represented in panchayat bodies as panchayat elections
have not been held in Jharkhand.114

JHARKHAND

In 1996, The Provisions of the Panchayats (Extension to the Scheduled Areas) Act
(PESA) was passed, which is applicable to the scheduled areas in Jharkhand. PESA
empowers the Gram Sabhas and panchayats to make decisions on ownership
of minor forest produce and to prevent land alienation and restore land to STs
[section 4(m)]. However, PESA has not been implemented in Jharkhand. Therefore
the compulsory one third representation of women in panchayats has not been
implemented in Jharkhand. The Gram Sabhas are functional; however, women
are rarely selected to be the Gram Pradhan and their participation in the Gram
Sabhas is low. While, in some areas, the number of women in the Gram Sabhas
is encouraging, their participation is not taken seriously and their voices are
not heard. For example, in one case, there were 13 women represented in a 21
member Gram Sabha but the men still took all the decisions without consulting
the women members. The women members had to protest and called for the
meetings to be held again. The decisions of the Gram Sabhas are crucial as villages
respect and uphold them. The lack of womens involvement in the Sabhas has
resulted in gender biased decisions, particularly in relation to single women.
In 2001, the government of Jharkhand enacted the Jharkhand Panchayati Raj
Act. This Act reserves a high percentage of seats for backward castes and STs in
Gram Sabhas and panchayats. Further, the Act reserves one-third seats for SC, ST
and OBC women in panchayat bodies, and one third seats for women in Gram
113 See for example Nandini Sundar, Custom and Democracy in Jharkhand, Economic and
Political Weekly (8 October, 2005), p. 4430
114 The Supreme Court ordered the state of Jharkhand to hold panchayt election in Union of
India vs. Rakesh Kumar and Others (C.A 484-491/2006).

107

Sabhas. But the Act simultaneously reduces the powers of the Gram Sabhas
to make them dependent on the state government.115 It is reported that an
amendment to the Act is proposed which will reserve 50% of seats for women.116
However, while the Act is potentially empowering for women, it lacks the teeth
PESA has to support the adivasi community from land encroachments and
regulate development initiatives at the grassroot level.

IV. CHALLENGES AND SOLUTIONS FOR


WOMENS EQUALITY

JHARKHAND

Challenges for Advancing Womens Rights


The competing interests within the tribal community and the external power
relations are the main obstacles in struggles for womens rights. Since the
creation of Jharkhand, the tribal leadership has prioritised the communitys
interests as entitlements to reservation policies. This has led to contentious
debates over who is a tribal and who is a Jharkandhi to ascertain domicile and
entitlement to reservations. Debates over reservations have led to conflicts and
polarisations between Jharkhandi vs. non-Jharkhandi, tribal vs. non-tribal, and
Sarnas vs. Christain tribals. Further, the issue of displacements is major and has
been prioritised over womens rights. Progressive male voices in the community
feel that as compensation is hard to obtain, increasing the number of recipients
by adding women to the list is not a good strategy.
Womens groups and activists contend reservations and displacements should
not be prioritised and womens rights concerns relegated. Further, it is possible
to bring about reform in both spheres simultaneously as the issues are not
separate but intersect with each other. For instance, gender friendly rehabilitation
schemes must be part of any demand in relation to displacement or as a prerequisite to land acquisition. Similarly, large scale migration and trafficking of
women are linked to gender blind rehabilitation and compensation schemes, as

108

115 Section 2 (9) of the Jharkhand Panchayat Raj Act 2001 states, The State Government may,
by general or special order increase the functions and duties delegated to the Gram Sabha or may
withdraw the same.
116 Indian Express Jharkhand revises Panchayat Raj Act, gears up for polls Feb 1, 2010.

much as they are linked to displacements.


Another challenge for women in Jharkhand is the non-implementation of PESA
by the Jharkhand government.117 The Jharkhand Panchayati Raj Act 2001 gives
powers to the village councils and enables them to have direct links to the centre,
but does not support the customary system of governance for the adivasis in the
Scheduled Areas of the state. Gram Sabhas are left unempowered. The adivasis are
not in favour of the 2001 Act as their customary systems and customary leaders
(MUNDA MANKIS MANJHI PARGANAITS) are unsecured.118 The tussle between adivasi
demands for implementation of traditional laws and structures versus OBC/non
tribal demands to de-schedule certain areas has complicated womens demands.
While on one hand, customary laws can reinforce aspects of patriarchy, (such
as restricting women from holding political power) on the other hand, blatant
opposition to customary practices reinforces suppression of the adivasis.

117 PESA along with the Jharkhand Panchayat Raj Act were challenged in the case of Union of
India vs. Rakesh Kumar and Others (C.A 484-491/2006) for reserving all seats of Chairpersons
of Panchayats for Scheduled Tribes. The High Court of Jharkhand held these provisions to be
unconstitutional, but the Supreme Court (Balakrishnan, CJI) reversed the judgment and held that
In the Panchayati Raj system contemplated by Part IX, the Scheduled Tribes should have an
effective say in the administration. That is why the Bhuria Committee recommended that all
Chairperson positions should be reserved in favour of Scheduled Tribes. The Supreme Court,
by citing grounds of substantive equality, also upheld reservation of seats in Gram Sabhas and
Panchayati Raj Institutions for OBCs, SCs and STs upto 80%.
118 Nandini Sundar, Custom and Democracy in Jharkhand, Economic and Political Weekly (8
October, 2005), p.4430.
119 Jharkhand Government clears 73% job reservation, The Times of India, 21 September
2001 available at http://timesofindia.indiatimes.com/articleshow/1861752098.cms (last visited 8
February 2010).

JHARKHAND

Another major disadvantage of the internal conflict is that it has made the
reservation policies almost dysfunctional. Internal conflict has exacerbated the
conflicts between tribals and non-tribals thereby making reservation policies
fraught with tension and difficult to implement. On September 22, 2001, the
Marandi government issued two notifications. One was for 73% reservation in
government jobs, with 32% reservations for tribals and 14% reservations for OBCs.
The second notification gave priority to local inhabitants in class III and class
IV categories of district level government jobs and technical institutions.119 The

109

JHARKHAND

shortcoming of the policy was that it deemed only those persons as domicile or
local inhabitants of Jharkhand, whose names or forefathers names appeared
in the 1932 survey settlement of land records. The definition evoked a heated
debate as not many tribals were listed in 1932 and it excluded everyone who
settled after that year. It also excluded the landless and the poorer sections. In
addition, the preferential treatment and the percentage of reservation were
also questioned by many.
The local inhabitant definition was struck down by the Jharkhand High Court as
unconstitutional, which directed that a new definition be formulated as per the
guidelines of the Court.120 Further, in ,AXMI.ARAYANVS3TATEOF*HARKHAND (AIR
2002 Jharkhand 104), the Court ruled that 95% reservations for local residents in
medical institutes was unreasonable and clarified that state can give preferential
treatment to its residents as a necessary step to uplift them but it should be
done in reasonable measure.
Proving domicile remains a difficult task and tribals with no land are unable
to benefit from reservation policies. Apart from the present animosity between
pro- and anti- domicile policy groups, groups are fighting to benefit more
from reservation policies. The Scheduled Castes and Other Backward Classes
(OBCs) are fighting for enhanced reservation for their respective communities
in government and educational institutions. The SCs and the STs, who once
fought unitedly for the realization of the Jharkhand State, are now divided on
the issue of quotas. Their claims and counter-claims, which have been violent,
have made it difficult for the government to reach decisions.
Favouring local residents in reservations for educational institution and
employment in Jharkhand is contentious. Some womens activists are of the
opinion that the domicile movement will benefit tribal women and help them
claim job reservations. Others criticize the domicile movement as a purely political
issue promoted for political gain. It is argued that if the domicile movement
succeeds; educated tribals, who are mostly Christians, will benefit from it, while
the larger community that is still illiterate will not avail its benefits.
110

120 PIL-4050 of 2002

Working Towards Solutions


The first wave in the tribal womens movement utilised the language of human
rights to demand rights for tribal women. The second wave relied upon the
language of violations rather than rights and used examples of violations to
establish that womens status had deteriorated in the family and within the
community. This approach sought to mobilise support to stop violence against
women and revive womens status in tribal communities. The present third
wave focuses on specific issues, such as trafficking and migration, which affect
tribal women severely and draws attention to the gravity and scale of violations
experienced by tribal women.

An argument from the secular perspective is that the Panchayti Raj Act and
Marriage Registration Act should be enforced in Jharkhand. PESA should be
enforced so as to ensure participation of women at the community level. This
would make women a part of the decision making process and also make
the panchayats gender sensitive. Compulsory marriage registration could
help in obtaining recognition of womens tribal status, her entitlements to
benefits and claims for joint pattas in land with the husband. However, it is an

JHARKHAND

With respect to rights of women within tribal cultures, two approaches have been
taken one, to uphold tribal culture and introduce changes within that to make
it less discriminatory to women, and the other is more radical based on human
rights. To enable reform within culture, the codification of customs is sought.
There is a need to study various customary values/norms before selecting the
ones that benefit women for codification. Once customary practises are clearly
set out, women can seek to enforce them. For example, customs like 4ABEN*OM,
which are increasingly not observed, can be enforced to demand some property
from the brother. This would ensure that good customary practices are enforced.
However, the codification proposition is based on the incorrect assumption that
all tribal communities have the same customs which is not the case. There are
many tribal communities and their customs vary. Other questions are who will
decide which custom is fit to be codified and which ones must be left out, and
what criteria will such a selection process be based on. Customs can evolve
to become more progressive, but codifying the past/or existing practises may
hinder this progress.

111

administrative procedure with the potential to exclude many couples thereby


creating greater frictions.

JHARKHAND

Displacement affects women more severely than men, and needs to be


followed with adequate rehabilitation and resettlement. While the more radical
groups are entirely against displacements in the name of development, other
groups have adopted a pragmatic approach and seek better compensation and
resettlement schemes. There have been movements to protest against large
scale displacements but these have not yielded any fruitful outcomes in terms
of protection of rights of tribal women. Equally, the more pragmatic approach
to seek effective rehabilitation has also not yielded much.
The Sarna Samiti claims they try to eradicate myths and taboos that prevent
womens participation in customs and rituals. It is claimed that women are
now allowed to enter the sacrifice site/bali site and participate in the rituals.
The earlier practice of sacrificing hens has now given way to offer of cereals
as sacrifice, a change that eliminates blood in rituals and allows women to
participate. On the other hand, women activists feel that inclusion in rituals
does not signify any advancement of womens status and diverted focus from
the demand for equality. They also argue that inclusion of women in rituals
reflects a conscious use of women as bearers and custodians of tribal culture
to develop a distinctive community identity, competing with that of the nontribals and the Christian tribals, rather than as a step towards equality.
Sensitive and politically mobilised men have observed that the root cause of
inequality is lack of awareness and knowledge amongst tribal women. The best
approach to address this gap is through the promotion of literacy and access to
education among tribal community, and women in particular. This in the long
term would improve the situation of the tribal women. Therefore the burden
of acquiring an education and subsequent liberation is placed on women
themselves. Such men are unanimous in opposing violence against women,
including witch hunting.

112

While progressive women agree education is a necessary means of advancement,


womens activists also feel that it should be coupled with empowerment to

result in equality claims. It is felt that tribal women should be mobilised actively
to ensure that it is not just the non-tribals who are seen as raising the womens
right issues. In this context it is observed that this may help combat the charge
against womens rights claimants that they are outsiders, not familiar with
tribal norms or that they are diminishing tribal culture. Women have a sharper
understanding of the systemic nature of discrimination they experience. More
than education, equal rights and equal access to resources are required to end
discrimination, including violence against women. Men remain resistant to
addressing discrimination against women and inequality in relation to resources
and decision making.

JHARKHAND

The difference in perspectives on gender justice and womens equality is evident


from the various approaches towards addressing customary injunctions against
women ploughing the field and repairing the roof. For example, a group of
young male volunteers called Madai, which means cooperation, have been
formed in some villages to help women. These male volunteers help plough the
field for single women or women who do not have a male family member to
plough their field. While such an approach may help in the short term, it does
not address the prohibition against women to plough, and further leaves women
dependent on male support.121 Further, enlisting help from the Madai may not
work in all circumstances, given the volunteers may have other priorities that
come in the way of rendering timely help.
Such protectionist approaches do not disturb the unequal status between men
and women, even as they seek to provide relief to single women. Substantive
or corrective approaches provide support and protection for women along with
eliminating discrimination in rights to resources, opportunities and benefits.
For example, in Bhojpur, when all the men were arrested, the women of the
village collectively ploughed their own fields. Substantive approaches remove
the stigma on women who plough land. As of now stigma, prohibition and
retribution continue to bar women from ploughing and inheriting land.
121 Similar Short term solutions have been put forward by the judiciary as well. In Narayan
Soren vs. Ranjan Murmu the High Court of Jharkhand in 2008 upheld the right of a Santhal
widow to adopt a son such that inheritance would pass onto her adopted child.

113

INDIA

SPEAKING UP AS MUSLIM WOMEN

JHARKHAND

MOBILISATION AND NETWORK BUILDING


INITIATIVES IN INDIA

114

Although the womens movement has had substantial participation by Muslim


women, their religious identity was never fore-grounded. Indeed, religious
identities were perceived as divisive. Emphasis on religion was seen as diluting
the feminist agenda, and its decidedly secular spirit. These values defined the
early engagements of the movement with fundamentalism and communalism
during the Shah Bano judgment and its aftermath.122 The demolition of the Babri
Masjid in 1992, and the riots that followed, were a watershed that made Hindu
communalism a central concern for social movements, especially the womens
movement.123 This saw much of the activism directed towards combating the
communal demonization of Muslims by the Hindu Right, in media, in relation
to debates on the Muslim women, family law and the Uniform Civil Code
(UCC).124 These engagements from within the womens movement were firmly
positioned as secular and feminist. The late 1990s saw conversations exploring
a change in this self definition, and the use of the term Muslim to describe not
just the communities womens groups work with, but in the self identification of
feminist activists as Muslim. By mid 2000, in the wake of global focus on Islam,
there were clear assertions of identity by women activists as Muslim womens
rights activists, accompanied by mobilisation and network building of Muslim
women. This report looks at the formative phases of three prominent Muslim
122 In Mohd. Ahmed Khan vs. Shah Bano and Ors (1985) AIR 945, the Supreme Court held that
a Muslim woman could seek maintenance under section 125 Cr.P.C. As a result of protest amongst
orthodox Muslims, the Congress government passed the Muslim Women (Protection of Rights on
Divorce) Act, 1986, which nullified the Supreme Court judgment.
123 The Babri Masjid, a mosque over 400 years old, was destroyed by mobs of the Hindu right
in a political rally that turned violent in 1992. Following the destruction of the mosque, HinduMuslim communal riots in Bombay and other parts of the country in the same year led to the
death of over two thousand people.
124 The Constitution of India, under Article 44 of the Directive Principles sets out the UCC as a
goal. However, the debates over the UCC were largely about uniformity of personal law, and in
the early 1990s were revived by the Hindu religious right wing with the view to abolish Muslim
personal laws. Neither streams of debate were concerned with gender justice. Consequently secular
spaces for discussions on the UCC have shrunk.

womens networks to contextualise their positioning in relation to Islam, their


approaches and their interventions. The three networks, Tamil Nadu Muslim
Womens Jamaat, Muslim Womens Rights Network and the Bharatiya Muslim
Mahila Andolan, are from the womens movements as opposed to Muslim
womens organisations within the fields of education, philanthropy or faith who
contribute broadly towards womens leadership and development.

125 Muslims in India constitute 13.4% of the population. Muslims are in majority in Lakshadweep
and Jammu & Kashmir. The percentage of Muslims is sizeable in Assam (30.9%), West Bengal
(25.2%), Kerala (24.7%), Uttar Pradesh (18.5%) and Bihar (16.5%). Census of India, Distribution
of Population by Religion 2001

JHARKHAND

The three networks share some commonalities. They have their origins in the
womens movements, and have made a political choice to foreground their
religious identity to use their voice within and outside of the community to
de-center the dominant Muslim voice in the public domain. Their focus in the
debate on Indian Muslims is about social exclusion, economic marginalisation
and discrimination with womens concerns in relation to the family, the
community and the state placed at the centre of all of these. This has introduced
new elements to the discourse on Indian Muslims, in terms of providing a
gendered perspective on marginalisation and the role of the family, community
and the state in this marginalisation. This added to the diversity of voices that
are challenging the rhetorical focus of the elite Muslim orthodoxy on protection
of religion, its symbols and the Shariah law as primary for Indian Muslims.125 The
shift from religion to socio-economic and political justice for the community,
and women in the community are important starting points for engaging with
class, caste and gender inequalities within Muslims, and for interrogating the
political equations between the majority and the minority communities that have
helped sustain internal inequalities, especially in relation to women. These are
important challenges to Hindu communalism, Islamic fundamentalism as well
as electorally expedient versions of liberal secularism that have helped sustain
the power of the elite Muslim orthodoxy all these years. For addressing issues
of socio-economic justice for Muslim women, Muslim womens activists have
drawn upon concepts of justice, constitutional and legal rights in combination
with Islamic religious resources. The mapping of the three networks brings
out the diverse positioning of Muslim womens formations reflecting the

115

diversity of approaches that have been adopted, and the relationship of these
approaches to the political origins of the individual or the organisation, as well
as the local contexts. The mapping looks at the formative concerns, the goals,
the interventions, the membership and challenges faced by these networks,
concluding with a few broad points about the similarities and the differences
between these networks.

SPEAKING UP AS MUSLIM WOMEN

I. MUSLIM WOMENS RIGHTS NETWORK (MWRN)


Structure and Formative Concerns
The MWRN was formed in 1999 as a platform to raise issues and concerns of Muslim
women, including the family law, at the local as well as the national levels. The
network was formed in response to the need for more focussed, sustained and
a national engagement on Muslim womens issues by the womens movement
and to strongly counter regressive voices of Muslim leadership on Muslim law and
women, as well as the communalised discourses of Muslim women as helpless
victims. To advance this goal effectively, it was politically necessary to use the
Muslim identity, mobilise Muslim women and use the language of religion to
position equality and justice as legitimate claims of women within the religion and
the law. This positioning was politically necessary to mobilise for change within the
community and debunk the Islamic rhetoric that justified oppression of women.
The feminist moorings of the founding members have shaped the mandate to go
beyond discussion of rights to include discussions that make linkages between
the personal and the external systems of power. As a consequence, the politics of
patriarchy, sexuality, caste, class and culture are part of raising consciousness at
the community level, to unpack linkages of norms emanating from these systems
with womens oppression at the individual level.
At its first meeting in Mumbai in 1999 when MWRN was formed, four main
issues were prioritised in relation to Muslim family law - the right to divorce,
registration of marriages, custody of children, and property rights. It was
decided that the network would not seek independent funding for itself, but
its members should meet nationally at intervals of every six months (initially)
and thereafter annually. Their national meetings are hosted by the members in
116

rotation, and the members support their travel independently, as the network
abstains from raising funds in its name. The Network comprises of 40 members,
both organisations and individuals, many of whom are autonomous womens
organisations. Its membership is open to both Muslim and non-Muslim womens
groups, but not to donor, religious and faith-based organizations.

Interventions and Engagements

126 The All India Muslim Personal Law Board. a non governmental body, was set up in 1973,
purports to protect the implementation of Shariah law in India, and watch against its dilution by
reform or parallel legislation. It was instrumental in reversing the Supreme Court judgment in the
Shah Bano case.

SPEAKING UP AS MUSLIM WOMEN

In relation to the Muslim personal law, some network members participated in a


meeting on personal laws organised by the All India Muslim Personal Law Board
in 2000 to discuss its impact on women and find solutions for reform.126 On
the subject of the triple talaq, the Board was of the view that it was legitimate
although it should be avoided. Nonetheless, if is pronounced, the Board felt
the divorce would be valid. The meeting made it clear that the Board was not
interested in issues of gender justice or in responding to violations perpetrated
in the name of Islam. The network emphasized the importance of an alternative
Muslim voice that could reflect the concerns within the Muslim community for
violations perpetrated on Muslim women in the name of religion and challenge
the discourses that justified the violations, as well as the complicity of electorally
expedient pro-Muslim politics. It was also felt that further engagement with the
Board would serve no purpose other than add to its importance. This view was
reconfirmed in 2001 when the Muslim Personal Law Board came up with a
model nikahnama which was widely discussed, and rejected by womens groups
and the network as being highly discriminatory towards women. The Boards
nikahnama did not give women the right to seek divorce, and instead had
provisions allowing the husband to slap the wife in reprimand, and prohibiting
the wife from going to her natal house without the husbands permission.
This led MWRN to join with other rights activists in Mumbai to draft a model

117

SPEAKING UP AS MUSLIM WOMEN

nikahnama with provisions to secure equal rights and dignity for women.127
Awaz e Niswan, a member of MWRN says that they promote this nikahnama
amongst Kazis, encouraging them to offer it to couples getting married as an
option to choose from. In addition, they disseminate it to groups, to individuals
upon request, but do not facilitate marriages to promote it.

118

The MWRN strongly condemned the fatwa in Imranas case, calling for a
prohibition against issue of such extra-legal fatwas by the Jamaats and Ulamas128.
With an eye on its electoral vote bank, the government did not condemn the
fatwas issued on Imrana, and it was clear that women across the country need
to join voices and strongly protest such developments, for unanimous feminist
positions on Muslim womens rights to emerge. At the local level, the MWRN
raises issues relating to education, health, livelihoods, displacement, citizenship
alongside violence against women and the concerns relating to personal laws.
In its national meetings held annually or once in two years in different states,
MWRN debates issues of national concern as well as issues specific to Muslim
women in the state that hosts the meeting. The meeting organised in Calcutta
on December 18-20, 2008, was attended by eighty-two participants, the majority
of whom were Muslim women from various districts of West Bengal. Their local
concerns reflected developmental neglect of Muslim communities, and these
were consolidated to present to the state government. The implementation of
the Sachar committee recommendations in relation to education of girls is vital

127 The key provisions that ensure protections to women in this nikahnama are: the khula or
women have the right to divorce (delegated by the groom), prohibition of one sided divorce
by man, clarification if the man is entering into the first, second or third marriage, provision
for maintenance in case of separation or divorce with husbands identification and proof of
employment if any, a high mehr with interest to be charged on it for late payment, and a stipulation
that in case of polygamy, the wives will have separate properties.
128 The Imrana case involved the rape of a Muslim woman by her father-in-law in a village in
Uttar Pradesh. The local Islamic body issued a fatwa or an Islamic legal opinion that Imranas
relationship with her husband could only be that of a mother and son because she had sex with her
father-in-law. They relied upon an injunction in the Shariah against incestuous sexual relations
with the wife of the father, equating Imranas rape with consensual sexual relations. Accordingly,
fatwas were issued ordering Imrana to leave her husband and to start treating him as her son.

to their national and local level priorities. 129

Challenges

Consensus building is a challenge in any large network and not unique to MWRN.
They have over the years not been able to develop a unified position on Muslim
personal laws. As with all networks, its activities, mobilisation and strength is
determined by the time members invest in it. This has been varying with some
meetings better attended and planned than the others. In addition, it is felt
129 The Sachar Committee, appointed by the Prime Minister was a high level committee for
preparation of a report on the social, economic and educational status of the Muslim community
of India. The report was tabled in parliament in 2006 and its main findings highlight the social,
educational and economic backwardness of the Muslim community.

SPEAKING UP AS MUSLIM WOMEN

The ideological position of the MWRN has refined through its engagements with
issues and dialogues within its network. Not all conversations with network
members are easily resolved, given the varied positions from which individuals
and groups approach issues. One area of unresolved difference that MWRN
confronted was in respect to the place occupied by religion and religious texts in
their rights advocacy. The founding members view Muslim identity and language
of Islam as politically strategic to contest inequalities that are justified and
continue to be sustained in the name of religion. As Hasina, a founding member
explains positive interpretations of Islam that realize equality for women are
an important strategy for case work and advocacy, but they cannot substitute
discussions on analysis of power, inequality and justice. Womens equality must
be asserted even where no positive interpretation is available, or indeed where
an explicit textual limitation exists. She explains that religion is a medium for
advancing equality goals but is not the only or the primary source. The MWRNs
position is framed by the context in India where the Constitutional framework
and religion both determines the horizons and aspirations of Muslim women.
Accordingly, giving disproportionate importance to religion would marginalise
an important source of equality for all women. They feel that engagement with
religion is dynamic and not limited to positive re-interpretations, but includes
critiques of it as well. The disagreement on the primacy of religion to equality
assertions led a few members to form a separate network, the Bharatiya Muslim
Mahila Andolan.

119

SPEAKING UP AS MUSLIM WOMEN


120

that there is an unspoken Muslim womens stereotype within the movement


that is used to undervalue those who do not conform. Women who chose to
not conform to the heterosexuality or depart from the heteronormative choices
are not easily accepted as Muslim women activists although they may be well
regarded as secular feminists. Similar stereotyping is evident in relation to
selectivity of issues deemed relevant for Muslim women. The consensus issues
for Muslim women are limited to family law and development, and issues such
as sexuality are viewed as irrelevant to them. These boundaries and questions
of legitimacies need to be discussed and addressed more openly to find a
resolution.

II. BHARATIYA MUSLIM MAHILA ANDOLAN (BMMA)


(The Indian Muslim Womens Movement)
The BMMA was formed in 2006 to offer an understanding of what it means to
be simultaneously religious and secular.130 In recognition of the influence of
religion on the lives of Muslim women, they chose to approach equality through
religion, while keeping secular options open. They felt this captured the spirit of
Indian secularism that accommodates respect for the role of religion in peoples
lives, as opposed to a western approach to secularism that divides religion from
human rights. The founding members assert that it is possible to be entirely
secular while being religious, and this is how they define themselves and their
engagements as Muslim women. Each word in BMMA was chosen carefully
by the founder members to reflect this sentiment. The word Bharatiya was
chosen to re-claim the word from the Hindu Right, to covey that there is no
contradiction between being a Bharatiya (Indian) and a Muslim. The word
Muslim signifies pride and the potential in the religious identity, to challenge
the stigma of backward, violent, dirty that have come to be associated with it.
The word Mahila (woman) ensures that womens voices are an important part
of being Indian and Muslim. The term Andolan (movement) clarifies that it is
not an NGO.

130 Naish Hasan, Noorjehan Khatoon and Zakia Sonam are the founder members of BMMA with
whom PLD held discussions and meetings on the formation and role of BMMA.

Formative Phase

SPEAKING UP AS MUSLIM WOMEN

Conversations within the womens movement on Muslim women, as well as


within the MWRN helped crystallise and shape their engagement on womens
rights. They were concerned about the way Muslims had come to be treated
by the state, the orthodox religious leadership and the communal forces.
The abuse of Prevention of Terrorist Activities Act (POTA) 2002131 by the state
to persecute Muslims, the promotion of conservative elite Muslims over the
democratic section by the Indian state, the socio-economic neglect of Muslims
by the secular and the right wing political parties, pointed to a need for a Muslim
voice that was religious and secular. The misuse of Islam to oppress women and
obstruct all opportunities for justice, empowerment and progress of women
were particularly alarming two events had a strong impact on them. Following
each of the communal riots, many Muslim women had suffered on account of
loss of livelihood and sexual violence. Neither of these were issues that received
any attention from the so called Muslim leadership, including progressive male
organisations. Following the Gujarat carnage, the state government deliberate
failed to provide relief and rehabilitation forcing religious organisations and NGOs
to respond. Working closely with Muslim religious and charitable organisations
confirmed that even in a context of extreme distress, such organisations would
exploit women and misappropriate funds. Orthodox approaches to rehabilitation
came in the way of allocating joint ownership of property to men and women,
allocation of housing to widows and single women. Examples such as refusal to
allow young girls to get bicycles to ride to school, and the disparity in funds for
housing in comparison to reconstruction of the mosque confirmed the need for
an alternative voice that would speak for the Muslim community and Muslim
women in particular, as it became apparent that the state and the orthodox
leadership did not care about them.
The relief and rehabilitation in Gujarat drew contributions from Muslim women
from different parts of the country. Working together to respond to the grave

131 POTA was an anti-terror legislation enacted by the National Democratic Alliance in 2002,
headed by the centre-right Bharatiya Janata Party (BJP). It was criticised for wrongfully detaining
Muslim men under the wide powers given to the police. POTA was repealed in 2004 by the
UPA government. It was replaced by the Unlawful Activities (Prevention) Act 2008 following the
November terrorist attacks in Bombay.

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injustice bonded these women in their desire to act for Muslim women and
for the community from the standpoint of justice. Even as the conversations
within the MWRN in this period were formative for them, the BMMA members
felt that annual meetings were insufficient to bolster their collective purpose
and desire to initiate change. The political environment of communalism and
fundamentalism required stronger unified activism, and it was in this context
that the idea of establishing a separate network developed.

122

In 2006, Naish Hasan, called a meeting of Muslim women in Lucknow that


drew approximately 300 women. The energy and enthusiasm of the women,
their questions and concerns gave them the confidence that their desire for
change was shared by hundreds of ordinary Muslim women, and it was timely
to moblise for change. BMMA thus came to be established in January 2007.

Membership and Programme


BMMA now has more than twenty thousand members, across fifteen states.132
It is open to individual members (not organisations), who are not opposed to
secularism, on payment of a membership fee of Rs.5 for all. As the Andolan
seeks to empower Muslim women, 70% of the membership is for Muslim women
while the remaining 30% is open to men and women from all communities.
They have prioritised five core issues - education, livelihood, health, security
(anti-terror measures) and law (Muslim personal law). The area of focus may
vary from member to member, but cover interventions such as mediation,
formation of self-help groups in slums, and cooperative schemes for women
in urban slums, education of children, facilitating enrolment in government
schools. 250 girls have been sent to school by BMMA. They generate funds from
the community to support their activities. One of the major engagements have
been on reform of the Muslim family law. They have prepared a version of
codified Muslim personal laws that has been circulated to womens groups across
the nation for their inputs. BMMA is still in the process of debating whether

132 The states where the Andolan has a strong presence are Tamil Nadu, Karnataka, Maharashtra,
Uttar Pradesh, Gujarat, Madhya Pradesh, Chhattisgarh, West Bengal, Orissa, and Rajasthan. The
presence of the Andolan is weak in Kerala, Andhra Pradesh and Kashmir.

the approach to codification should aim for an ideal or a pragmatic law. For
example, it is argued that polygamy should ideally be banned; however since
this is unlikely to be accepted, a more practical approach would be to secure
rights for the various wives concerned.

Challenges
As most of the BMMA members are from small NGOs and collectives they
are still in the process of learning how to run a national level organisation,
and need to gain more experience to make a stronger impact nationally. The
challenges that need to be addressed collectively lie both within the Muslim
community and outside of the community. Within the Muslim community,
there has been no space for addressing violations against women. In normal
times there is little attention paid to womens needs even outside of family
law issues, for instance in relation to livelihood and employment. In the post
disaster/riot situation, the relief and rehabilitation carried out by the Muslim
community, even by progressive sections, have neglected gender specific needs
that compound their vulnerability in times of distress. In this regard, they feel
that the Sachar Committee report is a valuable recognition of Muslim womens
needs. In respect of challenges from outside the Muslim community, they
feel that neither communalism nor electorally expedient secularism has been
useful for Muslim women. While the communal elements have capitalised their
stereotype of the Muslim based on the worst practices within the community,

133 The model nikahnama states that mehr is a right, and that a woman must receive it before
marriage. In one marriage, a bride took Rs 1 lakh as her mehr. The nikahnama serves as a legal
document as well.
134 BMMA supported campaigns on the Womens Reservation Bill. BMMA has also campaigned
for the release of political prisoners, and took a stand on the release of Binayak Sen.

SPEAKING UP AS MUSLIM WOMEN

BMMA has advertised its model nikahnama,133 inviting couples who wish to marry
to adopt it in mass marriages events, held thus far in Ahmedabad, Mumbai and
Lucknow. They do not promote marriage or arrange matches, but limit their
intervention to organising mass marriage events for couples planning to marry.
BMMA has advocated for the implementation of the Sachar Committee report.
BMMA work is not limited to the Muslim community but includes solidarity
formation and support for excluded groups and other marginalised people.134

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the electorally expedient secularists have maintained silence or promoted


Muslim orthodoxy against women. In relation to the womens movement, they
feel there is a growing attention towards the Muslim womens socio-economic
marginalisation, which has balanced its previous near-exclusive focus on
communalism. However, there is a need for greater recognition of the potential
of using religion in addressing womens issues and concerns.

124

III. TAMIL NADU MUSLIM WOMENS JAMAAT


(STEPS, Pudukkottai, Tamil Nadu)
STEPS, was founded as a womens organisation in 1989 in Pudukkottai, Tamil
Nadu, to work on womens empowerment, non-formal education and violence
against women. They viewed all these interventions as constituting steps towards
empowerment, Women started approaching STEPS with their problems and the
group started to handle cases through counselling and mediation, gradually
moving on to establishing a short stay home for women. Following the demolition
of the Babri Masjid in 1992 and the riots that followed, Sharifa Khannum, the
founder of STEPS, felt there was greater need to work with Muslim women. The
communal environment made the state unreliable due to its persecution of
Muslim men, and apathetic in terms of its responses to Muslim women. Within
the community, spaces for women having shrunk in the context of communalism
and rising fundamentalism, Sharifa began to network with other Muslim women
active in the public sphere in the late 1990s leading to first, the formation of
an informal network called Saaya, that limited itself to discussing the misuse of
religion, misinterpretations of the Koran, demanding changes, and second, to
the formation of the Tamil Nadu Muslim Womens Jamaat, an action oriented,
crisis intervention network of women working at the district levels. For Sharifa,
the strength of the network they mobilised was in responding to their context
locally and transforming the lives of women who came to them. The strength of
the network of women they mobilised was their grounding in community work.
This grounding determined that they limit themselves to Tamil Nadu as their
interventions in the community and in womens lives locally positioned them
well to contest the monopoly of local religious orthodoxy.

Formative Phase

The need for a network of Muslim women activists was clear to Sharifa and she
travelled to connect with other Muslim women in Tamil Nadu who were active to
form an informal network called Saaya. They held state-level meetings to discuss
ways of challenging the misinterpretations of the Koran that are used to justify
the practices of triple talaq, dowry and domestic violence through discussion,
debate and demands in the public domain. However, this did not yield much.
She then toured the Muslim majority districts from 2000-01 to mobilise women,
to understand local concerns, interventions and possible collective action.
The discussions between these women though a series of meetings led to the
spontaneous formation of the Womens Jamaat. Sharifas decision to mobilise
Muslim women widely around action in the community was on account of the
modest limits of discussion and debate, and petitioning that Saaya had set for
itself. The Tamil Nadu Muslim Women Jamaat, formed subsequently focussed on
action and community interventions. It is a network of Muslim women activists

135 Fundamentalists have enforced a dress code in some parts and also issued fatwas and
regulations, stating that women should not go out with men or girls cannot use cell phones or
women are prohibited from talking to unknown men like courier and cable boys and more. For
more details, see for example V.Geetha, Justice in the name of God: Organizing Muslim women in
Tamil Nadu, paper for Negotiating Gender Justices conference organized by Centre for Global
Feminist Studies, Gotenberg University, Sweden, March 1-3, 2005, (copy available with PLD).

SPEAKING UP AS MUSLIM WOMEN

As a womens organisation providing crisis intervention to women, STEPS was


aware of the difficulties to ensure the law is enforced for women. Despite this
awareness, she learnt how much more difficult it was to get assistance and
protection for Muslim women. After the 1992 riots, in the context of growing
Hindu-Muslim divide and the rise in fundamentalism, Sharifa realized that
the already oppressed Muslim women had become more vulnerable, and
experienced problems that were distinct from other women.135 The police
would routinely direct Muslim womens cases taken by STEPS, to the jamaat,
traditionally a gathering of learned men who adjudicate on the basis of Islamic
law, constituting a community justice system for the Muslims. When STEPS
approached the all male jamaat, they were told that women may not be present,
or represent their cases or defend themselves against allegations. Male relatives
could do so on their behalf, or else an ex parte decision would be taken.

125

SPEAKING UP AS MUSLIM WOMEN


126

that provides crisis intervention, support and mediation to women at the


district level. Alongside their community intervention, they have campaigned
for womens participation in the jamaats, abolition of dowry and triple talaq.
STEPS demanded that two women representatives be present in the jamaat when
cases involving women were heard. They sent a letter signed by 10,000 women
demanding representations in jamaats to the government, the Wakf Board and
the various jamaats.136 None of these efforts yielded an acknowledgement,
much less a response. The movement of Muslim women was mobilised by the
apathy of the state and the religious leadership towards routine injustices and
exclusion of women in Tamil Nadu, disturbed by their lack of knowledge of the
Koran and the law and their refusal to allow women to participate in traditional
mechanisms of justice. The resistance of the male religious leadership seemed
to them an assertion of power rather than religion or tradition. These amongst
other events convinced them that the Muslim male leadership were not going
to support women in disaster rehabilitation, domestic violence or any other
form of exploitation and oppression.137

Structure and Initiatives


In 2009, there were 15,000 jamaat members. Local women activists, women
who gained empowerment through the jamaats intervention, as well as their
families joined as members to widen the membership base over time.138
Some of the men who saw the work of the women jamaats closely, have
also become members. There is a membership fee of Rs. 25/-. The goal of

136 The various Wakf Boards in India are set up under the central Wakf Act 1995. The Wakf
Boards monitor and administer moveable and immoveable property dedicated by a person for any
reason recognised under Muslim law as auspicious.
137 Another catalyst was the post-tsunami rehabilitation process. While various communities
including Christians, dalits, and fisherworkers organised to help each other, the Muslims in the
tsunami affected regions did not organise and the consequent lack of support impacted Muslim
women more than men. For instance, women could no longer go to the toilet behind bushes as
all vegetation was washed off. They were forced to use their huts and then throw the excreta in
the sea.
138 The sixth Tamil Nadu state level conference was held on March 7, 2009 in Pudukkottai, with
participation from about 500 persons including jamaat members and leaders of various districts.
The objective of the meeting was to share the work and increase membership of the jamaat, and
discuss strategies to advance rights of Muslim women, provide information about micro-credit
programme, distribute loans and discuss ways of empowering women.

Mediation and Adjudication: The jamaat is an all womens body of women


activists, who have knowledge of the Koran in addition to the laws. They are
locally accessible and respected by the community. There are women jamaats
in 10 districts that take up case work within their district, and sometimes from
beyond their district. The district level jamaat meets once a month, or more
frequently if a case requires emergency action, to hear all the parties to a case
to resolve it. Most of the cases pertain to family law. If cases are unresolved at
the district level jamaat, they are sent to the state level All Womens Jamaat, a
bigger body, with members from the district jamaats that meet once in every
three months. In the last 5 years they resolved 320 Muslim womens cases at
the state level, and receive about 5 cases every month at the district level. They
have received cases from overseas Tamil Muslim women as well, including a
case of a domestic worker from Singapore and a case of domestic violence from
Switzerland. Even though the main focus of the jamaat is mediation and case
work, it serves as a public forum where issues are debated and approaches
to rights are used. The jamaats follow a common sense approach to cases
focussing on the injustice or problem rather than religious positions on it. They

SPEAKING UP AS MUSLIM WOMEN

STEPS and of the womens jamaat is to empower women and fight injustice
against women in the family and the community. Given the misuse of Islam
against women by the religious orthodoxy by obstructing law reform, justifying
patriarchal oppression, and excluding women from participating in religious
matters, it was decided that the women would use religious terminology to
describe the forums and initiatives contesting monopoly and re-claiming
religion for empowerment. The women acquired knowledge of the Koran, and
made available copies in Tamil for learning. They are clear however, that the
normative framework of justice in case work requires a combination of law
and religion, and draw upon the source that provides redress best on a case to
case basis. Their interventions comprise of mediation and dispute resolution
through the all women jamaats that operate in 10 districts of Tamil Nadu,
for livelihood and economic empowerment and generating public awareness
and consciousness to act against oppression and injustice against women,
including through an understanding of womens rights in the law and in Islam.
They refrain from debating personal law per se, but focus on areas of injustice
and concrete action to redress such injustice.

127

SPEAKING UP AS MUSLIM WOMEN


128

apply logic, law and religion in the combination that works best in a given case,
rather than ideology or even religion per se. Where the man does not agree to a
resolution, they put pressure of legal action to get him to negotiate. Depending
on the gravity of the violation, they go public or file a police complaint. In cases
involving polygamy, the jamaat is likely to negotiate terms beneficial for the
concerned wife. However, in cases involving violence against women, the jamaat
does not usually enter into negotiations with the perpetrators of violence. The
womens jamaats have become popular enough for local religious jamaats to
sometime refer women specific matters to them.
Capacity building: Jamaat members are provided with trainings and workshops
on Muslim personal laws to enable them to have a better understanding of
various issues. The focus of trainings is to understand legal issues including the
knowledge of the Koran. The knowledge of Islam is strategically used, not so
much to explain all the positions taken by the jamaat, for their solutions are
not confined to religious positions. Rather they view the knowledge of Islam
as a counter argument in a debate, to challenge the Islamic interpretations by
the other party, and for questioning the selective use of Islam to react against
some practices and not others. For example, if a woman is challenged for not
wearing purdah, then they would ask whether the person concerned about the
purdah has taken any steps to addressing the practice of dowry which is also
against Islam. This approach unmasks the instrumental use of Islam by men
in oppressing women, and in these situations, it is necessary to point out their
selective use of Islamic practices.
Womens mosque: STEPS views the establishment of a mosque for women as
transforming the relationship between women and religion and challenging the
patriarchal hold of the orthodoxy on Islam. They visualise the space as being a
community space for women to congregate and discuss issues, rather than be
limited to prayers and religion. In providing an alternative space for women
within religion, the mosque would be symbolic of the women friendly nature
of Islam and challenge male exclusivity in religious spaces and control over
religion. This they felt would strengthen the local womens jamaat, by bringing
them on par with the religious jamaats and lend greater leverage in talks
with the government and other religious institutions. This has been a largely

symbolic move as they lack the funds to build beyond the foundation, nor the
intention of promoting womens mosques either as part of religious belief or
womens empowerment. Even in its symbolism, the mosque has disturbed the
religious status quo enough for Sharifa to have received death threats. This has
not stopped their efforts to fund raise and of holding jumma (Friday) prayers on
the road to make womens presence visible in conducting and officiating over
religion and prayers.

Challenges
The challenges they face are both external and internal to the womens
movement. The external challenges predictably include death threats
from fundamentalists, hostility from the Islamic religious orthodoxy and
conservative Muslims who dismiss them as being un-Islamic. They were advised
by conservatives to use the term community centre instead of mosque, and
likewise not use the term jamaat. The womens jamaat has refrained from
responding to fundamentalist assertions of dress code and injunctions on
womens movement. They feel entering into discussions with fundamentalists
on any issue is counter-productive. That apart, they feel the purdah is used
by women for various reasons that are individual specific and a generalised
opinion cannot be made. They also feel that such debates detract from proactive interventions on poverty, education or social participation, which
empower women to make and negotiate their choices better. The attitude of
the state and its machinery are also part of the external challenges they face.

SPEAKING UP AS MUSLIM WOMEN

Micro Credit: The micro credit schemes are designed to provide Muslim women
with small loans without collateral, to start small businesses. The micro credit
programme has enabled many women to start their own small businesses
like fish drying, small shops, eatery (dosai) places, while some women sought
trainings in stitching in dressmaking and then started their own businesses.
Micro credit is made available to Self Help Groups (SHGs) which have a minimum
of twelve members, and an amount of Rs.5,000 is given per member. So far two
hundred SHGs have availed of micro credit facilities, and as a result of which
they have also become members of the womens jamaat. STEPS is planning to
start a womens jamaat bank in the future, which will provide savings as well as
loan facilities at low interest.

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SPEAKING UP AS MUSLIM WOMEN

The state government has abdicated its responsibilities towards Muslim women,
visible in the lack of implemented of the Sachar Committee recommendations.
Sharifa would like to see the state establish womens colleges and hostels
for Muslim women, and ensure representation of women in the local jamaat
and Wakf boards. Despite the sustained work of STEPS, the police still advice
Muslim women to go to the jamaats, and they register cases only after being
pressurised to do so.
In relation to the national womens movement, they feel that it has not
sufficiently engaged with the concerns of Muslim women. Most of the debates
and work on Muslim women are limited to issues of communalism, neglecting
issues of democracy, gender equality and injustice within the community.
STEPS struggled to navigate through communalism and fundamentalism, but
some have misunderstood their interventions and branded them as turning
religious. While the womens movement has broken boundaries in addressing
issues of dalit women, sex workers, and sexuality, Sharifa feels the same nuanced
understanding is not visible in its engagement with Muslim women. In asking
for a womens mosque, STEPS attempted to use religion to empower women
and transform its understanding from an exclusive male bastion to a women
friendly space. Nonetheless, this move has been wrongly perceived by many in
the womens movement. Another limitation they have felt with respect to the
national womens movement is in falling short in conforming to the stereotype
of the national activist, including a Muslim woman activist. Women activists
who are non-English speaking and come from rural backgrounds find it difficult
to engage at the national level and this limits their opportunities to articulate
their concerns. Stereotypes notwithstanding, STEPS prefers action over debate,
and local over national so they have chosen to work locally and at the state
level, rather than align actively with national networks.

IV. COMMON THEMES


All three networks consciously adopted the Muslim identity to disrupt the
Muslim stereotype, and the monopoly of the Muslim religious orthodoxy and
fundamentalists to speak for the community. Their engagements, public debate
130

Even as the stereotypes in the external world are breached by these developments,
the women within the movement feel judged and measured by unspoken
labels and standards that are deemed becoming or not becoming of a Muslim
woman activist or indeed a national activist. The three networks and indeed
their own approaches to working represent how the political origins of the
initiator/s and the external forces that frame their field of action, shape the type
of initiative or strategy adopted. It would be amiss therefore to grade or create
hierarchies within these strategies. The grading of initiatives and their areas
of priority are not relevant in a context of diverse political standpoints from

139 Alam Anwar Democratisation of Indian Muslims Economic and Political Weekly November
15, 2003, at p 4881

SPEAKING UP AS MUSLIM WOMEN

and mobilising are assertions of leadership within the community. Even as this
leadership and mobilising has had transformative impact on the lives of Muslim
women they work with, or whose cases they take up, the networks have had
little success in engaging the Muslim community, its leadership or the state. In
the work beyond the community interventions the assertion of leadership
as network is about contesting patriarchal power of the community and the
religion that is reinforced and protected by the state. The Tamil Nadu network
is decidedly rural and localised in their contestations, having found that the
category of Muslim community is local, shaped by language, region, rural, class
and caste backgrounds amongst others, and therefore within their grasp. In
contrast, the others have adopted the term national to refer to a cluster of local
organisations across different states that work with largely urban but distinct
contexts. They use the national formation for pulling together common local
concerns, use their collective strength to debate policies, protest injustice and
add a different perspective to the debates on Muslim women. These networks,
along with similar assertions by Muslim liberals in the public domain, are in
fact assertions of the need for internal democratisation of the largest minority
that is imperative in face of not just fundamentalism but also in the context
of aggressive majoritarian communalism.139 The women in all three networks
have moved beyond the initial attempts to dialogue with the orthodoxy, to
carve out their own spheres of influence as Muslim leaders, spokespersons and
activists in their own voices varied though they may be.

131

SPEAKING UP AS MUSLIM WOMEN

which justice is approached, and the diversity of contexts. What is of relevance


in assessing this diversity is whether it seeks to contest entrenched systems of
power to create spaces for concerns of the marginalised, and indeed empower
and mobilise those who are not heard. From this standpoint, the three networks
are contesting, engaging and subverting multiple patriarchies of state, religion
and culture through their initiatives.

132

CONCLUSION AND FINDINGS

I. THE SCOPE OF CULTURAL DIVERSITY


Cultural Diversity Includes Diversity within Religions
There is no pre-determined Islamic, Hindu or any other culture, that is derived
from religion. Religion and ethnicity are only one source, but never the only
component that shapes culture. Cultures are composite wholes derived from
religion, ethnicity, language, development standards, and influences from other
proximate cultures, caste, class and political contexts. This explains the differences
between various Islams, in terms of its practice and its readings, and understandings
within and across nation states. In Indonesia, the Nahdlatul Ulama (NU) derives its
understandings from its origins in a Javanese Hindu and animist traditions, that
is manifested for instance in a long mourning period for the dead. This is counter
to Wahabbism, which is a conservative version of Islam derived from Saudi Arabia
that is averse to syncretism of Islam with local traditions. Likewise, the Islam in
Bangladesh and India are different in terms of being a majority religion in the
former and a minority in the latter. This difference is reflected in the strength of
womens rights activism and the advances made in relation to Muslim women in
respect of the Shariah family law in both countries. The category of the Indian
Muslim and Indian Islam are also flawed, as evident from the contexts and the
priorities set out by three Muslim womens networks in India.

CONCLUSION & FINDINGS

The country reports provide a bottom up approach to understanding engagements


that seek to advance gender justice and gender equality concerns within the
cultural domain. This section discusses how these initiatives relate to human
rights, to distinguish these assertions from a vast array of engagements within
culture. The findings seek to explore the linkages of interventions documented
with human rights standards, to contribute towards policy changes that protect
democratisation processes within cultures, lending recognition to emerging
leaderships and expressions of heterogeneous interests, differences and dissent
within communities. The findings discussed below, are illustrated by examples
from the country reports, and reference to the country report is necessary for a
fuller understanding.

133

This holds true of Hinduisms as well. For instance, the domination of ritualistic
Hinduism in Nepal, even in state functions, is a reflection of the patronage of
the former Hindu kingdom. The contrast between the status of women in Hindu
family laws in India, Nepal and Bangladesh is a reflection of the demographic
strength, economic status and democratic spaces available in the countries
rather than a reflection of religion alone.

CONCLUSION & FINDINGS

Cultural Diversity Comprises of Differences in Perspectives


Cultural diversity encompasses within its scope the diverse practices and ways
in which an individual or a sub-group chooses to relate to God/faith and the
community. Feminist engagement with re-interpretation of religion, critiques,
and contestations of dominant understandings of religion are manifestations
of cultural diversity being exercised by individuals and sub-groups. The work
of STEPS, BMMA (in India), WHR (in Nepal), and the NU (in Indonesia) are
examples of this. It would include engagements that go beyond religion, such
as discussions on patriarchy, sexuality, class and caste, to involve the community
in understanding how their marginalisation and subordination is constituted
through these social and legal structures of power. The work of Awaz e Niswan
and the MWRN (in India) capture this. Similarly, discussions on multiculturalism,
expressions of art, and cultural coexistence by the anti-pornography movement
in Indonesia are also encompassed within this. However, it would be partial to
limit this diversity to alternative interpretations and debates on perspective in
respect of culture. It would include dissent and rejection by individuals or subgroups as well. The tensions between expressions of cultural diversity at the
individual and the collective expressions and understandings of culture need to
be carefully addressed within the parameters of human rights, so as to not stifle
or threaten the flourishing of such diversity, and processes of democratisation
within cultures.

Culture and Identity Politics

134

Fundamentalist identity projects however seek to put a closure to the way an


individual or sub-group relates to faith, community, food or dress and infringes
the right to cultural diversity. They do so not as expression of religion or
culture, but with the objective of making political gain from representations of
the community as one homogenous with singular interests. These puritanical

II. CONTEXTUALISING STRATEGIES TO NEGOTIATE


WOMENS RIGHTS WITHIN CULTURE

CONCLUSION & FINDINGS

versions of culture create obstacles in navigating womens rights. The growth of


fundamentalism and cultural identity politics in the last twenty years is linked to
conservative state policies, both political and economic. Any cultural assertion
that seeks to stifle and regulate other expressions within or outside its culture
is inconsistent with and beyond the parameters of human rights. The AntiPornography Law 2008 in Indonesia bans images, gestures, or speech deemed
to be pornographic, and has the potential to criminalise traditional dances
and other art forms. Indonesias constitutional court upheld a controversial
blasphemy law in April 2010, which maintains that banning religious blasphemy
is constitutional. It allows the government to ban groups that distort or
misrepresent official religions and in 2008, the government had used this law
to ban the Ahmadiyahs, a minority sect who do not believe that Muhammad
was the last Prophet. Human rights activists view these laws as a major setback
for Indonesian democracy and diversity. In India, representations of Muslims
that highlight a single collective with a common interest in not reforming the
practice of Shariah laws, despite Muslim womens sustained advocacy for the
same, is an example of how a cultural identity is used to deny space to women
to engage with their faith proactively, participate in community decision making
and address gender justice concerns within the community. Likewise, the
construction of Hindutva is the agenda of the Hindu Right to communalise the
population to garner votes of a dominant Hindu electorate for political gain.140

The diversity of strategies are situated in particular contexts, often very local and
individual/group specific. The strategies adopted are different across contexts
and often within the same context. This diversity is not anarchic but contingent
on the actualities of the context and the initiating group. Further, the strategies
ranging from secular to religious as borne out by the documentation, are fluid,
140 Hindutva is a political term and agenda that seeks to mobilize Hindus to protect their
common way of life through the political power. The concept ignores the caste, regional, gender
and class differentiations amongst Hindus and ignores as well, the various traditional and reformist
strains that comprise Hinduisms.

135

overlapping and inter-changeable depending on what most effectively advances


the goals of gender justice in the given context. Contextualising strategies helps
situate their relevance in the local context, promotes a guided and considered
replication, and avoids grading or hierarchy of strategies.

CONCLUSION & FINDINGS

Relationship with the External Political and Economic


Environment

136

Each of the reports examine the political context from which strategies have
emerged. The use of legislative advocacy as well as legislative achievements
has to be situated and gauged within the political environment of a state. For
instance, norm setting through law is available in Nepal as it is a newly created
secular democratic republic intent on nation building. The opportunities
available are dynamic for a variety of marginalised groups, including the womens
movement. This also explains the predominant reliance on law to lead social
change. The predominant use of secular vocabulary of constitutional rights in
India and Bangladesh, particularly for the majority communities, is an outcome
of the availability of secular resources within the constitutional and national
frameworks, as well as from the nation building processes of the two countries.
In Indonesia, democracy in combination with devolution of powers has allowed
fundamentalism to reconfigure authoritarianism at the local level. This in a large
part has led secular organisations to strategically draw upon syncretic Islamic
vocabulary, and use interpretative approaches that are traditional to NU, to
challenge fundamentalism, and negotiate gender justice at the local levels.
Equally, economic considerations determine the nature of strategies for any given
community. The identity and livelihood of indigenous groups is strongly tied to land,
and increasing alienation and displacement from land as a result of development
projects have made it more difficult for women to claim succession rights. Formal
legal strategies to counter displacement are hardly available in India, thereby
limiting spaces for internal debates for women. Discussions and strategies therefore
remain limited to customary practices that constitute violence against women. The
root cause of many violent practices, such as witch hunting in Jharkhand, lie in the
absence of land rights for women, a subject that is becoming harder to address in
the wake of large scale acquisition of land and displacements.

Relationship with the Political Origins

Strategies Span Secular to Religious


Strategies span from secular to religious, as fluid, overlapping and interchangeable
interventions. While justice and equality are the clear goals, the vocabulary of
engaging with the culture may vary based on strategic and ideological factors.
While categorising a strategy closer to one end of the spectrum is possible, but
to assume a binary between secular and religious is both unproductive and
difficult to achieve at the community level. In this context, Rahima, a womens
organisation in Indonesia that works with religion, lays emphasis on values that
support individual choice and independence within Islam, to extend support
to promote respect for individual freedoms for single and lesbian women. The
reliance on core values that accommodate respect for individual choice and

CONCLUSION & FINDINGS

Strategies are also contingent on the political origins of the group initiating
the change. The political and philosophical origins of the initiator will
determine the nature of strategy adopted. For instance, the Nahdlatul Ulama
(NU) is a traditional, Sunni Islamic organisation in Indonesia, which merges its
understandings of womens rights with Islam. The pesantrens (locally supported
boarding schools for religious education) and the NU in Indonesia are faith based
structures and their interventions draw upon religious vocabulary. In contrast,
the Muslim Womens Rights Network in India is a secular feminist group. It
works towards advancing their feminist agenda vis a vis their community, as an
expression of their multiple identities that combine religion, nationality, class,
gender and sexual orientation. They rely upon the Koran to protect womens
rights as a strategy, but do not limit their discussions to religion and family
law. They feel that engagement with the Muslim women cannot be limited
to Islamic family law but includes consciousness raising on all structures of
gender oppression, including the family, sexuality, heteropatriachy. Similarly,
the main interventions of STEPS, in Puddukkottai, Tamil Nadu and the legal
aid organisations in Bangladesh at the community level have been to provide
mediation services. Accordingly they have adopted the nomenclature of
traditional adjudication systems respective to the two cultures the jamaat in
Tamil Nadu and the shalish in Bangladesh. However, they use the terminology
of the traditional systems of justice without working within the traditional limits
of religious norms, patriarchy, and elite interests.

137

CONCLUSION & FINDINGS

dignity is more effective than an explicit articulation for sexual rights. Explicit
references to womens sexuality would be counter-productive in their context,
and invoking textual references are also not helpful. Therefore core values of
religion and the PANCHSCILA rather than text based references are invoked. Similarly,
the faith based pesantren have established womens crisis centres, which are
instrumental in implementing the secular Domestic Violence Act, 2004. The crisscross between using religious texts and secular laws is common in Indonesia. The
womens jamaats established by STEPS in Tamil Nadu, have adopted a religion
based identity for their mediation groups, but rely on logic to resolve disputes,
invoking religion and the law only when required. The BMMA too requires that
membership to respect both religion and secularism, believing that the two are not
antithetical in realising the goals of gender equality. In Nepal, the maltreatment
of widows is the issue organisations have mobilised upon actively. While Women
for Human Rights (WHR) has highlighted that the Puranas did not seek to ill treat
widows, they also go beyond religious texts by advocating remarriage for Brahmin
widows. Therefore, engagement within the domain of culture, is not limited to
faith based organisations, but equally by groups who seek effective solutions. As
cultures are not shaped by religion alone, strategies in cultural contexts cannot
be limited to religion but use all other elements that shape the context and the
identities of the constituency they work with.

III. THE ROLE OF THE STATE


The complicity of the state in selectively codifying conservative and patriarchal
versions of religion within the family law, allowing customary practices that
inflict harm, violence and torture on women, or indeed in non-recognition of
womens voices claiming gender justice within the cultural domain, needs to be
recognised and addressed. The state bears complete responsibility for its acts of
commission and its acts of omission. Some of the areas that surface are the role
and complicity of the state in allowing non-state actors to perpetuate gender
inequality in the name of culture are as below.

Family Law
Family laws are central to the discussions on women and cultural rights, and
138

141 Article 5 (a) of CEDAW states States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which are based on
the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men
and women;
Article 16 (1) of CEDAW States Parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations and in particular shall
ensure, on a basis of equality of men and women
142 Article 16 (1) (c) The same rights and responsibilities during marriage and at its
dissolution;
Article 16 (1) (f) The same rights and responsibilities with regard to guardianship, wardship,
trusteeship and adoption of children, or similar institutions where these concepts exist in national
legislation; in all cases the interests of the children shall be paramount.

CONCLUSION & FINDINGS

remains one of the most common areas where de jure discrimination against
women persists. The Constitution of India assures womens equality and
cultural freedom as fundamental rights. Yet, the Government of India has
issued reservations on Article 5 (a) and 16 (1) of CEDAW on the ground that it
believes in non-interference in the personal laws of the minority communities
unless the initiatives come from the community.141 Similarly, the Government
of Bangladesh has issued reservations on Article 16 (1)(c)and (f) as they conflict
with Shariahlaw based on Holy Quran and Sunna.142 Such declarations exempt
compliance of family law with constitutional promise of non-discrimination on
grounds of sex, as well as human rights standards ratified by the state. Where
family law has been reformed considerably, as in the case of the Muslim law
in Bangladesh or the family code in Nepal, the de facto reality is one of noncompliance, for various reasons including inaccessibility of the law and apathy
of the state. This documentation revealed the additional difficulties of reforming
family laws of minority communities, as evident in respect of Hindus in
Bangladesh and Muslims in India. The state often seeks to appease conservative
elite voices within minority groups by trading womens rights in exchange for
political support, or as demonstration of its commitment to multiculturalism. In
2002, Shariah law was enforced by the Aceh Legislative Council under a peace
agreement with the national government that ended insurgency in the region.
Since the introduction of the Shariah law, the local vigilante groups as well as the
Shariah police have taken to policing women by punishing them for not wearing
headscarves, even in private spaces, or for venturing out at night without a male
escort, prohibition of alcohol and enforcing compulsory prayers.

139

CONCLUSION & FINDINGS

Economic Resources and Women

140

State laws and policy build on cultural stereotypes about women, in idealizing
their caring and child rearing roles, and in attaching no or little economic value
to their labour. The rhetoric of exalting women as selfless and assigned to sexual
division of labour, has consequences not just in succession and inheritance rights
in the family, but also in respect of compensation and rehabilitation policies that
do not recognise single women or women headed households as beneficiaries.
This cultural value system has also been a barrier to the allocation of joint
title to women along with their husbands in rehabilitation plans. The denial of
succession rights to women is more evident in indigenous communities such as
in Arunachal Pradesh and Jharkhand, with adverse consequences for women,
since control over land in tribal communities is part of cultural identity and
livelihood. The absence of this recognition impacts rehabilitation plans, leading
to displacement of women.

Customary Practices that Amount to Violence


Customary practices that amount to blatant violations of womens life and
selfhood in this study are dowry in South Asia, the chaupadi pratha in Nepal,
maltreatment of widows in Nepal, witch hunting in Jharkhand, the stigma of
witch craft in Nepal and shackling in Arunachal Pradesh. Domestic violence is
universal and exists in all communities and groups. The state condones and
perpetuates violence against women in these instances by non-recognition of
the violation, enacting token penal laws that are not implemented, and most
often, in neglecting to take preventive steps that address the root causes of
violence against women. Laws against witch hunting have been enacted at
the state level in India, but they remain ineffective with negligible number of
prosecutions and even less convictions. More importantly, the state response
does not go beyond the penal law to address the root cause of witch hunting land grabbing, property disputes, and other forms of vendetta on single women,
which stem from the limited right single women have over land in terms of its
usage but not its title. The practice of witch hunting easily wards off this usage.
The inaction by the state at all these levels, demonstrate its failure to meet due
diligence standards to address violence against women.

Non-recognition of Womens Leadership


The state, like the religious and cultural orthodoxy, views women only as
custodians and bearers of a culture, but not as its leaders, representatives or
sources of religious authority. Although womens leadership is well developed
at the community level, their voices as representatives of culture and as active
citizens and agents within the community, are not recognised by the state at the
de jure level. In Arunachal, children born to an Arunchali woman and a nonArunachali father, are not considered to be Arunachali even if they are domiciled
in Arunachal, and therefore cannot buy land in the state. Such children are
deemed to belong to the state their father hails from.

CONCLUSION & FINDINGS

The declaration of the Government of India to CEDAW, states that it will usher
changes in the personal law of the community only if the initiative comes
from that community (see above). Yet, the government did not pay heed to the
protests or proposals by womens groups from Arunachal to stop the passage of
the Arunachal Pradesh Protection of Customary Laws and Social Practices Bill,
1994 that was sent to the President of India for assent. The Bill subsequently
died owing to a change of political focus of the male leadership in Arunachal,
but not as result of the protests from the womens groups. Similarly, while the
Indian state consults the Muslim Personal Law Board on issues pertaining to
Muslim women, it does not interact with Muslim womens organisations seeking
gender justice. In respect of family law based on religion and customs, the state
may encourage women to form crisis intervention centres to address violence
and mediate gender justice at the community level, but it does not take womens
representations to reform family laws relating to minorities and tribals. This
lack of recognition and response by the state and the religious leadership is
manifested through the petitions by Tamil Nadu Muslim womens network to
demand that two women be allowed to sit in the traditional jamaats when
hearing a case involving a woman. It was the lack of response from both parties
that in part, triggered the establishment of the all womens jamaats. Womens
roles as representatives, equal citizens and leaders is an independent area of
recognition and protection as part of the individual right to express ones
culture freely, and to dissent as manifestation of cultural diversity.

141

CONCLUSION & FINDINGS

IV. LEGAL PLURALITY


Legal plurality is reality in all the contexts covered in this documentation. They
are central to debates on culture and human rights, mostly with polarised
views on its impact and consequences for womens human rights. Although
plural legal systems is used with reference to traditional/customary systems
of adjudication (as opposed to mediation), womens groups and legal aid
organisations have also modelled community mediation services on lines of
the traditional bodies. Drawing upon the limitations of the family law, and
the inaccessibility of the legal system, womens groups and progressive legal
aid organisations have developed on the plural systems at the local level to
provide mediation, combined often with support services and empowerment
programmes. The alternative shalish, that operates as an adjunct to other
empowerment programmes of NGOs in Bangladesh is an example. Here the
shalish has been reshaped to provide mediation (not adjudication) and allow
women to play central roles in mediation. The womens jamaats established by
STEPS are approached by a large number of people, as these are modelled on a
traditionally recognised system, and their decisions are respected.
Transformative interventions in plural legal systems are not limited to setting
up alternative structures modelled on the traditional. Womens groups have
also known to work with traditional plural legal systems, as in Arunachal to help
women articulate their concerns and negotiate rights from a position of strength.
They often calculate the benefits of each system, and criss-cross between the
two. Women in Arunachal approach the kebang for cases of domestic violence
but since the enactment of the domestic violence law, the activists have helped
women approach the formal system, and in some cases, get the formal system
to influence the decision of the kebang. Through forum shopping, women have
been able to obtain more leverage in securing justice than they would from a
single gender blind/biased formal legal system.
Even as traditional plural legal systems pose challenges for womens human
rights (more in some contexts than others), it offers openings in terms of
establishing alternative systems that are women centred, or opportunities to
142

CONCLUSION
The human rights paradigm needs to be explored and developed more fully
with regard to culture, to go beyond addressing substantive areas of inequality,
discrimination, and violence against women. There is a need for recognition
and protection of womens participation, decision making, representation
and leadership within the domain of culture. The womens rights activism
and interventions at the local levels within the domain of culture, need to be
explored more closely to identify the various obstacles and risks that impede
their debates, perspectives, dissent in respect of culture to develop explicit
human rights protections. There is a pressing need for the state to recognise
womens voices and leadership as manifestations of cultural diversity and not
just womens equality assertions. The state bears responsibility to democratise
the domain of culture, create an environment conducive to the flourishing of
womens leadership from secular as well as cultural standpoints, without
conditions or hierarchies that result in de-legitimising dissent.

CONCLUSION & FINDINGS

engage with the traditional system with support from activists. A more nuanced
approach needs to be explored to distinguish between traditional systems that
offer potential for transformation and those that do not. In contexts where the
formal law is gender blind, or embodies discrimination against women, plural
systems expand avenues and increase the odds for justice. For example, the
right to divorce is unavailable to Hindu women in Bangladesh. Yet, at least
in one case, a rural Hindu woman is reported to have secured a divorce by
affidavit through the intervention of the alternative shalish, aided by the local
lawyer supporting the shalish. Her affidavit affirmed that she was of sound mind
and wished to leave her husband. While this was not legally valid, the legal
trappings of an affidavit lent the pronouncement a degree of formality, to allow
the woman to separate from and cease relations with her husband. Traditional
systems tend to exclude women entirely from the bodies that adjudicate. For
instance, the kebang in Arunachal Pradesh does not constitute of women, and
women only present their cases before it if their case requires it. The village
headman in Jharkhand is always male. In respect of indigenous communities,
there is a preference for inclusion of women in adjudication bodies, and reform
of customary law rather than a shift to the formal legal system.

143

APPENDIX
DETAILS OF FIELD VISITS
BANGLADESH
5th to 9th July 2009

143

DHAKA
Name

Organisation/Profession

Sumaiya Khair

Head Department of Law, Dhaka


University
Research Initiative Bangladesh

Meghna Guhathakurta

APPENDIX

Aroma Dutta
Sultana Kamal

Private Rural Initiatives Program (PRIP


Trust)
Executive Director, Ain-O-Shalish
Kendra, Adviser to the former caretaker
Government of Bangladesh (GOB)

Sanaiyya Ansari

Training Coordinator, Ain O Shalish Kendra

Shale Ahmed

Bandhu Social Welfare Society, Dhaka

Hameeda Hossain
Sara Hossain

Founding member, Ain O Salish Kendra


Barrister, Supreme Court and High Court of
Bangladesh
Professor of Law, Dhaka University
Association for Land Reform Development
(ALRD)
Former journalist and member,
Bangladesh Mahila Parishad

Shahnaz Huda
Shamsul Huda
Nibedita Daspurkayastha
Raja Devashish Roy

Sumaiya Islam
Faustina Pereira
Firdaus Azim
Samia Huq
144

Barrister, Member Advisory Committee,


Chakma Chief, Ministry of Chittagong Hill
Tracts Affairs, GOB
HRLS, Bangladesh Rural Advancement
Committee (BRAC)
BRAC, Director, Human Rights and Legal
Services (Advocate, Supreme Court)
Professor/ Chairperson, Dept of English and
Humanities, BRAC University
Researcher, BRAC University

143 The field visit was facilitated by Sara Hossain and the Ain O Shalish Kendra.

MYMENSINGH
Name

Organisation/Profession

BRAC district office

Discussion with the programme


coordinators and lawyers

Tushar and Firoz

Social Association for Rural Advancement


(SARA)
BRAC organised the training on family
law for 29 women from its micro credit
programme in Mymensingh

Training programme on family law


for 29 women. After class, discussions
with the group were held
Hasina and the 14 member
Mananvadhikar Nari Samaj (MNS)
team

(MNS) comprising 14 community women


mobilised by SARA. We organised a
group discussion on their approaches,
achievements, and obstacles in relation
too their work

2 to 5 November, 9 to 16 November 2008 and 29th to 30th November 2009144


th

th

th

JAKARTA
Name

Organisation/Profession

Kamala Chandrakirana

Chairperson, Komnas Perempuan

Lies Marcoes

Asia Foundation

Farha Ciciek

Founder, Rahima

Dani and Nining

Rahima

Conference on The Future of Asian


Feminisms: Confronting Fundamentalisms,
Conflict and Neoliberalism

Kartini Network
(2nd to 5th November 2008), Bali

144 The field report on Indonesia is based on two conferences and field visit. The field visit
from 9th to 16th November 2008 was facilitated by Kamala Chandrakirana. The participation at
the Kartini conference was supported by Asia Pacific Forum on Women, Law and Development
(APWLD), Chiangmai; the participation at the conference on Four Decades of VAW in Indonesia
was supported by the Komnas Perampuan.

APPENDIX

INDONESIA
nd

145

APPENDIX

Name

Organisation/Profession

The 10th anniversary of Komnas


Perampuan entitled Four Decades of
Violence Against Women in Indonesia:
Building Public Knowledge and a Collective
Responsibility to End Impunity and Rebuild
a Just Nation

Komnas Perampuan (November 29th


to 30th 2009), Jakarta

Neng Dara

Fatayat Member, Lecturer in Islamic


University, and Commissioner at
Komnas Perampuan

Estu Fanani

Lembaga Bantuan Hukum Assosiasi


Perempuan Indonesia
(LBH APIK)

Daniel Awigra, Kristina Uiri


Sinta Nuriyah Wahid

Aliansi Nasional Bhinneka Tunggal


Ika (ANBTI)
Member Muslimaat, and prominent
womens rights activist and public
figure

Agung Ayu

Historian

Maria Ulfah Anshor

Member, Fatayat, NU

Andy Yentriyani and group discussion with


all Commissioners and Programme Staff of
Komnas Perampuan

Komnas Perampuan

CIREBON
Kyai Hussein Muhammad and team
members

Fahmina

Team members

Mawar Balquis, womens crisis centre

Nyai Masriyah Amva

Pesantren Babakan Ciwaringin

INDRAMAYU
Team members

146

Puspita Amal Hayati, A womens


crisis centre

NEPAL
29 to 31st August 2009145
th

Organisation/Profession

Sapana Pradhan Malla

Lawyer, Supreme Court, founder of Forum


for Women Law and Development (FWLD)
and Constituent Assembly Member

FWLDs Legal Aid Team

FWLD

Renu Rajbhandari

Chairperson, Women Rehabilitation Centre


(WOREC)

Jyotsna Maskay

WOREC

Kabita Pandey

Lawyer, Pro-Public

Prakash Mani Sharma

Lawyer Pro Public

Seema Khan

Nepal Muslim Womens Society

Mohammadi Siddiqui

Constituent Assembly Member and founder


of Fatima Foundation

Durga Ghimire

ABC, Nepal

Lily Thapa

Women for Human Rights (WHR)

145 The field visit was facilitated by Sapana Pradhan Malla, founding member FWLD

APPENDIX

Name

147

INDIA
ARUNACHAL PRADESH

APPENDIX

3rd to 10th April 2010

146

Name

ITANAGAR
Organisation/Profession

Mamang Dai
Gumri
Tongam Rina

Writer
Adviser, APWWS (CEC)
Asst Editor, Arunachal Times

Radhe Amung
Jaya Joram

Student
WPC and ex-Womens Commission, Coordinator

Ribbi Riba
Jarjum Ete
Jarpum Gamlin

Arunachal Citizens Rights


APWWS, Former Chairperson & A.P State Commission for
Women, President, Galo Welfare Society
CEO, 4HE3ENTINEL

Ayus
Animay Tayi
Yakim Taga Burang
Yade Tamuk
Vijay Tazam
Oshong Ering
Otel Tayeng
Oyin Moying
Igul Padung

General Secretary, District Mahila Congress, East Siang


A.P Rural Bank
Teacher, Kebang member
Panchayat member
Lawyer and Panchayat leader
Retired civil servant
East Siang District Mahila Congress
General Secretary, Banggo Kebang
Principal, Doying Gumin College

Kaling Borang

Donyi Polo Yelam Kebang

PASIGHAT

AALO

148

Horbin Pakam

Local Women Marketers Welfare Society

Ligam Lollem

Local Women Marketers Welfare Society

Kijum Sora

District Health Officer and former APWWS member

Geddam Lollen
Hoksum Ori

Former President, APWWS West Siang Branch


Zila Parishad Member, Editor, 9OUNG#ALLING

Amjad Tak

District Collector, Aalo

Tumpak Ete

Donyi Polo Trust Founding Member

146 The field visit was facilitated by Jarjum Ete.

DAPORIJO
Talum Babla
Deyam Gapak
Duma Yekar
Tadu Bayor
Yakab Lote
Tatum Jeke

Senior citizen (Nyishi)


Panchayat leader
Zila Parishad member
Lawyer (Tagin)
Zila Parishad (Tagin)
Panchayat member

ZIRO
Reena Punyo
Tilling Yam
Punyo Yaro
Hibu Dhomi
Bullo Rinyo
Sadhana Deori
Hage Tarun
Joram Yajum

Future Generation
Gram Panchayat
SHG member
Hong Village, Home Society member
Supervisor, ICDS, Ziro
DC, Ziro
Gen Sec, ACLS and Protocol Officer
MECHA Welfare Society, Yachuli village
September 15th 2008147

Anup Kumar
Punam Toppo, Ajay Kumar
Dr. Anil Thakur
Mahabir Nayak
Awdesh Kumar Prasad
Rambrit Naik
Jharia Orarn
Sukhmani Lakda
Shrawani
Shashi Barla
Ranju Verma
Rahul Mehta
Dr. Kalyani K. Meena
Sanjeet Singh
Priyasheela Besra
Priyambada
Damodhar Das
Manohar Kumar
R.K.Jaiswal
Malancha Ghosh
Rashmi Kachhap
Mukund Nayak

Lok Deep
ASHA
Professor, Dept. of Hindi
Lok Kala Manch
Sahbhagi Vikas
Sarna Samiti leader
Sarna Samiti leader
Society for Employment of Rural Women
Judav
Samvad
RUPAYANI
Chhotanagpur Sanskritik Sangh (CSS)
Prerana Bharti
Support for Sustainable Society
Saheli Adhyayan Kendra
Advocate, Ranchi Civil Court
Sahbhagi Vikas
Jan Sarokar
VIJAN
Mahila Utpidan Virodhi and Vikas Samiti
ASHA
KUNJBAN

147 The report is based primarily on one day consultation organized by PLD in Ranchi with local support
from Association for Social and Human Awareness (ASHA), Jharkhand. Some insights into Jharkhand
were also drawn from the capacity building programme of PLD on CEDAW in Jharkhand from 2008-09.

APPENDIX

JHARKHAND

149

MUSLIM WOMENS GROUPS


a. Bharatiya Muslim Mahila Andolan (BMMA)
Organisation/Profession

Name

Naish Hasan148
Naz Raza
Zakia Sonam149
Noorjehan Khatoon150

Khatoon Sheikh
Surraiya Razzak, Salma Gulab Sheikh,
Sanah, Mumtaz, Meera, Akhtari Sheikh

Founder Member, BMMA, Lucknow


BMMA, Member
Founder Member, BMMA, Delhi
Founder Member BMMA, and former
Director Womens Research Action
Group (WRAG)
Hakook-E-Niswan and member, BMMA
Hakook-E-Niswan

APPENDIX

b. Muslim Womens Rights Network (MWRN)

150

Meeting in Calcutta attended by 82


participants151

MWRN annual meeting

Hasina Khan152

Founder MWRN and senior member


Awaz-E-Niswan
Awaz-E-Niswan

Akila, Reena, Tabassum, Naseem, Razia,


Farhad, Saira, Hasina, Hina
Young women members

Rehnuma (Reading club & library centre


for young women in Mumbra, Mumbai)

c. STEPS
153

Sharifa Khanam and team members


Mumtaz
Rajatiamma
Janarkam
Ayesha
Fatima Sultana
State level Muslim womens
conference attended by 500 participants
including jamaat members154
State jamaat meeting where 5 cases were
heard155

Founder, STEPS
Jamaat member
Jamaat member
Jamaat member
Jamaat member
Lawyer, Chennai High Court & STEPS team
6th Tamil Nadu state level meeting

Tamil Nadu Womens Jamaat

148 The meeting with Naish Hasan and Naiz took place on 29th January 2010 in New Delhi
149 The meeting with Zakia Sonam took place on 20th July 2010 in New Delhi
150 The meeting with Noorjehan Khatoon and Hakook-E-Niswan members took place on 22nd
December 2008 in Mumbai.
151 The annual meeting of MWRN was held in Calcutta from December 18th to 20th 2008
152 The meeting with Awaz-E-Niswan at the Rehnuma centre in Mumbai took place on 23rd
December 2008
153 The discussions with STEPS were conducted on 6th March 2009
154 7th March 2009
155 8th March 2009

GLOSSARY
A
!DIVASI
Adivasi is a term used for indigenous groups in South Asia. In Bangladesh the
term Adibasi is preferred over the term tribal as it reinforces the understanding
that members of the group are the original dwellers of that particular area.
!SHRAFIOR!SHERFI
Persian term for gold coin.

B
"ULIANG
The Buliang is the customary dispute resolution mechanism of the Apatani tribe
in Arunachal Pradesh.

APPENDIX

"ABRI-ASJID
The Babri Masjid (or Mosque of Babur) was constructed in 1527 during the reign
of Babur, the first Mughal Emperor in India. It was constructed in Ayodhya,
which is the birthplace of the Hindu God, Rama. During the mid 1980s Hindu
right wing groups initiated a movement to claim the site upon which the Babri
Masjid was situated as a site for constructing a temple dedicated to Rama. The
Babri Masjid was destroyed by mobs of the Hindu right in a political rally that
turned violent in 1992.

C
#OMMUNALISM
Communalism in South Asia is commonly used to describe theories and
movements that promote religious based sectarianism and exacerbate divisions
in society based on religion.

D
$ALIT
The term dalit refers to the Scheduled Caste population and those traditionally
regarded as untouchables in South Asia. Dalit implies suppression to emphasise
the exploitation and oppression experienced historically and in contemporary

151

society on account of birth and descent. The word dalit is not used officially but
has been re-claimed by activists as an assertion of pride in their identity, and
their struggle against oppression.
$AYABHAGA
The Dayabhaga school of legal thought was the strongest source for inheritance
laws in East India during British rule. While the enactment of the Hindu
Succession Act in India in mid 1950s it ceased to be apply in India, but continues
to be operational in Bangladesh.

GLOSSARY

$ONYI0OLO
Donyi Polo is a religious belief system followed by many tribes in Arunachal
Pradesh. Donyi means sun while Polo means moon, and together they dignify
an internal light that watches over human beings.

F
&ATWA
A fatwa is an opinion about Islamic law issued by an Islamic scholar. The weight
a fatwa carries as legal pronouncement is disputed.

G
'RAM3ABHA
The Gram Sabha is a body of adults registered in the electoral roll, in areas
covered by a Panchayat at the village level.

H
(ETERONORMATIVE
This refers to norms relating to gender and sexuality that seek to reinforce
patriarchal power structures and ideologies. It is so integral to patriarchy that
it is also referred to as heteropatriarchy. Heterosexuality is not just privileged,
but is also compulsory for sustaining patriarchy, which it does by securing male
control over womens reproduction and sexuality.

152

(IJAB
Hijab, in this report, refers to a veil covering the head worn by Muslim women.

(ILLA
Hilla marriage is an intermediary marriage, which is a pre-condition under
Muslim law, for divorced couples to re-unite.

J
*AMAAT
Jamaat refers to an assembly in Arabic, and is traditionally a community of
elderly men who adjudicate disputes on family matters.
*ANAJATI
Janajatis in this report refers to the indigenous groups in Nepal, who have
collectivised and become politically vocal. The Dalit Janajati Party won one seat
through the proportional representation vote in the 2008 Constituent Assembly
elections.

*UMMAH
Jummah (or Jumuah) is the congregational prayer Muslims hold every Friday
just before noon.

GLOSSARY

*AN!NDOLAN
Hindi term for peoples movement.

K
+AZI
Kazi (or Qazi) is an Islamic legal scholar and judge.
+EBANG
The Kebang is the customary court of the Adi and Tagin tribes in Arunachal
Pradesh.
+ORAN
Koran (or Quran) is the central religious text of Muslims. The Koran is believed
to have been sent by Allah to the Prophet Muhammad and is consequently a
series of divine messages. The Koran is open to wide interpretations.
153

+YAI
Kyai (or Kiai) is an expert on Islam and is the male head of the pesantren.

L
,EPIYA
Lepiya is a customary practice in Arunachal Pradesh where a disobedient woman
is shackled by a wooden structure, thereby making movement for her difficult.
While instances of lepiya are very rare, it is still practiced in interior parts of
Arunachal Pradesh.

GLOSSARY

-ADRASA
Madrasa (or Madrasah) is an educational institution which commonly refers to
Islamic institutions where religious teachings are taught and secular courses
may also be offered.
-EHR
Mehr (or Meher or Mehar or Mahr) is a mandatory gift in Islam, which is given
to the bride by the groom. Mehr acts as a form of protection for the wife in case
of divorce.
-EL
The Mel (or Mela or Bang Nyele) of the Nyishis is the traditional village council
which resolves disputes.
-ITHUN
A large buffalo like mammal found in Arunachal Pradesh. It has religious
significance and is a traditional unit of wealth.
-UFTI
Muftis are Sunni Islamic scholars who interpret Shariah law.

N
154

.IKAHNAMA
Nikahnama is the marriage contract between the bride and bridegroom within

Islamic marriages. The nikahnama can include various clauses such as how
much mehr will be given to the bride and her right to divorce.
.YAI
The Nyai is the female head of the pesantren

O
/THER"ACKWARD#LASS/"#
The other backward classes of citizens have been identified based on social,
educational and economic factors and they are constitutionally entitled to
welfare measures from the government. The lieu of reservations has been the
identification of OBCs a politically contentious exercise.

0ESANTREN
Pesantren are Islamic boarding schools in Indonesia which provide religious
instruction and boarding facilities for students.

GLOSSARY

0ANCHAYAT
Panchayats are local level government institutions at the village or small town
level in India. State governments are obliged to establish panchayats at the
village, intermediate and district levels under Part IX of the Constitution.

0URDAH
Purdah literally means curtain and in this report, refers to the practice of women
covering their faces so as to prevent being seen by men. It is practiced by both
Hindu and Muslim women.

R
2EFORMASI
The reformasi period in this report, refers to the post Suharto regime in
Indonesia. It is characterised by neo liberalism, as well as greater political and
social openness.
155

S
3ARNA
Sarna is a religion followed by many tribes in Jharkhand, Chattisgarh and Orissa.
The religion was developed as a counter to the growing influence of Christianity
in these regions. While it is animistic and distinct from Hinduism, there is
growing influence of upper caste Hindu practices on Sarna.

GLOSSARY

3CHEDULED#ASTE
Scheduled Caste is a Constitutionally recognised term for the identified former
untouchables or dalits in India. Post independence, reservation policies have
been implemented for those identified as scheduled castes in the public sector.
3CHEDULED4RIBE
Scheduled Tribe is a Constitutionally recognised term for the identified indigenous
people in India. A total of 645 tribes have been recognised as Scheduled Tribes
and reservation policies have been implemented for these tribes in the public
sector.
3HALISH
The traditional alternative dispute resolution mechanism in Bangladesh is
known as Shalish. Many of the decisions of the Shalish rely on Islamic Shariah
law and customary practices.
3HARIAH
Shariah (or Shariat or Sharia) is the sacred law of Islam. It is derived from
the Koran and the saying of the Prophet Mohammad. Shariah law has been
interpreted differently by different groups and individuals, and there are
conflicting opinions on many of the topics it covers.
3TREEDHAN
Streedhan (or Stridhan) is the property given to a Hindu bride over which she
has absolute control

156

T
4ALAQ
A talaq is the Islamic term for divorce. The rules for obtaining talaq vary, and
triple talaq unilateral divorce by the husband saying talaq three times is
prohibited in many Muslim nations including Indonesia and Bangladesh.
4ABEN*OM
Taben Jom is a custom among tribals in Jharkhand whereby women were given
land by their brothers to ensure the sister had some form of livelihood. It is no
longer practiced.
4ALIM
Informal group sittings on religious education

5LAMA
Ulama (or Ulema) are the religious Islamic scholars engaged with dispensing
Shariah law.
5NION0ARISHAD
The Union Parishad (or Union Council) in Bangladesh is the lowest administrative
unit. It operates at the rural level.

GLOSSARY

W
7AKF"OARD
A wakf is an inalienable religious endowment under Islamic law. Wakf Boards
have been established in India to monitor and administer moveable and
immoveable property dedicated by a person for any reason recognised under
Muslim law as auspicious.

157

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