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FOCUS March 2002 Volume 27

Colloquium on Gender Justice and Personal Laws

Research and Documentation Cell Lawyer's Collective Women's Rights Initiative

The second Lawyers Collective Women's Rights Initiative colloquium on Gender Justice and Personal Laws was held in New Delhi from 14-16 December 2001. Ms. Indira Jaising, Director, Lawyer's Collective Women's Rights Initiative welcomed the gathering. Mr. Arun Jaitley, Honorable Minister for Law, Justice and Company Affairs, Government of India, inaugurated the colloquium. Mr. Jaitley stressed the relevance of gender justice and pointed out the vital role played by NGOs such as the Lawyer's Collective in striving towards this goal. In her keynote address at the inaugural session, Prof. Savithri Goonesekera (vice-chancellor, University of Colombo) pointed out that equality in the mainstream, so to speak public law, is closely linked to equality in the private sphere. By referring to several examples such as the laws on guardianship and maintenance, she stressed the necessity to examine the colonial influence on South Asian family laws. Mr. S.K. Guha (Director, UNIFEM India office) spoke of the need to bring rights home to the women of South Asia.

The working sessions began with a keynote address on "Reconceptualizing Equality" by the eminent feminist thinker and activist, Prof. Catherine Mackinnon. Prof. Mackinnon drew a distinction between two models of equality: formal and substantive. While formal equality model is founded upon the necessity of treating equals equally, the substantive model goes a step further and tries to remedy the disadvantage suffered by people whom the formal equality model treats as simply different. In the context of the gender discrimination in family law, she suggested that a uniform, gender just civil code may be enacted whose use is optional at women's initiative.

The country papers on India, Pakistan, Sri Lanka, Nepal and Bangladesh highlighted both context specific issues pertaining to these jurisdictions such as Islamization, ethnic war and broad themes on the problem of gender discriminatory laws such as the well entrenched nature of patriarchy, the organs of the State competent to deal with this issue, the connection between minority identity and these laws. A lively discussion ensued on the meaning of choice, and the extent to which it is feasible for women in these jurisdictions with rampant poverty and illiteracy to make meaningful choice. Discussion on strategies adopted by the women's movement in South Asia followed these presentations.

In her keynote address on the second day of the colloquium, the celebrated philosopher, Prof. Martha Nussbaum argued that it would be unwise, both on the basis of strategy and principle to ignore the importance of religion in people's lives. In addressing gender discriminatory personal laws, she suggested that the following principles might be adopted: 1) equal respect for all persons, and 2) constraint by fundamental entitlements. She maintained that any solution to the conundrum of tension between religion and other fundamental entitlements would have to be context-sensitive taking into account the resources and the dangers in every political culture. In the Indian context, a combination of internal reform with facilitation of exit into another system seems to be needed.

Following this thought provoking lecture, two succeeding sessions were organized around the issue of implications of a plural legal system. The themes were "Plural legal systems and challenges before the judiciary" and the "Interface between equality and culture." The papers focused on the reluctance of the judiciary to deal with gender discriminatory personal laws, the territorial asymmetry with respect to women's rights to property, the relevance of parallel ヤlegal' systems on the rights of women, etc. The last session of the day dealt with the crucial issue of reform of personal laws. The presentations covered reform strategies adopted by women governed by Muslim family law across the world, the campaign for reform of the Christian law on marriage and divorce in India, the impact of identity politics on the reform of Hindu personal law in Bangladesh and the extent to which codification of Muslim personal law would be a viable solution to gender discrimination.

The concluding day began with a lecture by Prof. Savithri Goonesekera on the various concerns that had been addressed during the past two days. In the context of apathy towards women's rights in South Asia, she stressed the need to lobby for the adoption of the optional protocol to the CEDAW in all these countries. Prof. Nussbaum's capabilities approach is crucial in the era of globalization. It calls for integrating rights with development and this is something that NGOs, policy makers and lawyers need to ponder about deeply.

The special session on International Perspectives began with a keynote address "The identity within: Cultural relativism, minority rights and the empowerment of women" by Prof. Radhika Coomaraswamy (UN Special Rapporteur on Violence against Women). She pointed out that the legacy of colonial powers championing the cause of the third world women conditions the debate on women's equality in many parts of the world. She felt that violations of gender equality such as female genital mutilation, torture and honor killings most resemble torture and should not be condoned by any State. With respect to other kinds of violations, such as unequal shares of inheritance, arbitrary powers of divorce and polygamy, she suggested that the South African model offers new insights. This model seeks to protect women's equality and economic independence as well as freedom of choice. The other presentations highlighted the universality of women's oppression by drawing on examples from developed nations and the strategies that have been employed in dealing with it.

The concluding session of the colloquium "The transition from colonialism to constitutionalism, gender justice and governance" is of relevance to all five South Asian states, all of whom were colonies a little over fifty years ago. There was broad consensus that transition to democracy has only meant transition to political equality. In several respects, the so-called private domain continues to exist as an enclave, immuned from constitutional challenges.

This colloquium was the first occasion where the South Asia dimension of the issue of gender discriminatory personal laws was brought out. In all the five countries represented at the colloquium (India, Pakistan, Bangladesh, Sri Lanka and Nepal) women are largely governed by discriminatory family laws that are linked to religion. The legacy of colonialism, minority identity politics, and the threat of majoritarianism are some of the common features that bind these five jurisdictions in the realm of discriminatory personal laws. However, feminist and other progressive groups have rarely seen this as an issue of concern to all South Asian women and tend to look for both principles and strategies within the confines of their own jurisdictions. A South Asia perspective to this issue exposes the striking similarities across all these countries in this area and aids women's groups in their endeavor to deconstruct the given on themes such as cultural identity, group rights, etc. The colloquium provided the opportunity to lawyers, activists, academics, and students to ponder deeply on gender, culture and patriarchy. It affirmed the non-negotiability and universality of gender equality.

For more information, please contact: Research and Documentation Cell, Lawyers Collective - WRI, 63/1 Masjid Road, Jangpura Extension, New Delhi 110014 India, ph (9111) 432-1102, fax (9111) 432-1101, e-mail: