Martha Nussbaum, "Personal Laws and Equality: The Case of India"
This talk was recorded on October 17, 2009 as part of the Conference Comparative Constitutional Design held at the Unversity of Chicago Law School. Martha Nussbaum is Ernst Freund Distinguished Service Professor at the University of Chicago Law School. Rajmohan Gandhi (University of Illinois) provides commentary.
Transcript
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Martha Nussbaum: So this is a problem that's going to become more and more common as new Muslim immigrants demand dispensations to be governed by their own laws in some matters in pluralistic democracies. So I think India is a very interesting case to examine because it's had a very well worked out system of personal laws in operation for 60 years now, and we can see what it leads to. Now, I began in the paper by noting that although the typical defense for systems of personal law is a kind of respectful deference to the customs of the minority, you can see already in Indians history under the Raj, some more sinister effects and perhaps also purposes, namely that it makes it easier for men to resist women's demands for equality. So just bear that in mind as we go on. Now I try to develop the strongest case I can think of in favor of these personal laws and I think it's possible to see them as an extension of the common practice which actually elsewhere I, I myself defend, of accommodation on grounds of religious conscience, dispensation from some laws of general applicability for reasons of religion.
Martha Nussbaum: Now the argument in favor of those accommodations, the one that I favor, is based on that idea of equal liberty and it goes like this: that majorities make laws reflecting their own customs and traditions, and those are likely even if they're not hostile to put on equal burdens on minorities. So Sunday will be the day off from work, and minorities whose holy day is Saturday will be unequally burden. So the idea is that even when individuals or groups are granted accommodations from laws of general applicability, it's kind of like say you may be governed by the laws of your own religion. If a Jew is released from having to testify in court on a Saturday, what in effect is being said is, "We're going to let you off from the law of the state in order that you may be governed by the laws of your own religion."
Martha Nussbaum: And so, so this is already a very well known practice and often has quite codified or sort of generalized forms. So the Quakers or Mennonites have traditionally been exempted from all military conscription, and that is just well understood that all of them are exempt. So I think that's a very interesting case that we could make in favor of these accommodations. So if you look at the case of India, it's pretty obvious that 85 percent Hindu majority and the majority, some of whose members are quite hostile to the Muslim and Christian minorities, there was a real danger that minorities would not just be heedlessly burdened but, but perhaps more deliberately burdened. And so to say you, in certain matters, may be governed by the laws of your own religion, was a way of guaranteeing them a kind of equal liberty under the new order. And that's certainly the way that a lot of people saw it at the time, and that was probably the best defense for it.
Martha Nussbaum: On the other hand, of course it's notorious in American constitutional law, that accommodation and establishment are in a great deal of tension, and if you grant accommodations on grounds of religious conscience, this risks a kind of favoring of religion that poses an establishment clause problem. So I try to use that framework to think about the difficulties of the Indian system. Now this is at this point, normative reasoning. It's not the Indian law because there is no establishment clause in the Indian constitution. And in fact India has always understood secularism to mean that not the complete separation of church and state, but rather a kind of neutrality among the major religions. Okay. So in general, I argue, establishments are bad for many reasons, but certainly inter alia, because they tend to create hierarchies. They make statements that one religion is the state religion and others are not.
Martha Nussbaum: Actually, although it's controversial, I've always said in what I've written about this favorite, the old Madisonian endorsement test. That is the thought that status in the community is the equality of citizen status in the community is jeopardized by any practice of establishment, even one that's quite benign. So if we think of that as the background idea, I think we see six difficulties with the Indian system that are warnings that anyone thinking of adopting such a system ought to bear in mind. First of all, the treatment of groups who were simply not included. So these four: the Hindus, Christians, Muslims, and Parsis get special privileges. Other groups do not. So for example, Jews just are in effect told by this, "Well, you're not one of the ones we're really paying attention to and you can get along because there are secular laws of property and marriage that you can use, but we're not going to bend over backwards to do things for you."
Martha Nussbaum: And so that's a kind of state that you are. You're an out group and not worrying about. Now that doesn't, it hasn't created the social unrest, but I think even when it doesn't create social unrest, it's still an issue. And I would also say that this problem is likely to be larger in countries in which do face demands for Muslim immigrants, that they should have these privileges because what are they going to do? I mean, to whom else are they going to give these privileges? If they don't give them to all the relevant groups, then they're really going to run into this problem. Second problem is what I would call denigration by some subsumption. In the Indian system, certain groups have just been lumped together with Hindus: the Sikhs, the Jains, the Buddhists are sort of de facto under Hindu law, and yet of course they're, what they are, because they broke away from traditional mainstream hinduism in certain respects.
Martha Nussbaum: So their distinctive concerns are simply not attended to. Given their size, they're very unlikely to be able to influence the shape of Hindu law. So again, the system of personal law makes a statement: their distinctive concerns are not all that important. Third problem is discrimination on grounds of religion. The minute you get these plural systems operating, they're bound to be different one from another, and especially when exit from one to the other, it's very difficult. It's almost inevitable that individuals will get a different deal by the accident of being classified in this system rather than in that system. So in India, Christian women got the right to divorce on grounds of cruelty in the year 2001 much later than other Indian women, not to mention Christian women in other nations. So, so to Hindu women got a bad deal in shares ownership of agricultural land.
Martha Nussbaum: 2005, the reform finally gave them equal shares in agricultural land, which is something that other women in other religions had long had. And then the notorious case which I focus on the case of maintenance after divorce, in that one the Muslim women had unusual disadvantages and just by the accident of being born Muslim when you were in a vulnerable position. So that's pretty intolerable you would think in a constitutional regime where a non discrimination on grounds of religion is guaranteed under the fundamental rights. But of course, as I say, the personal laws were from the beginning or near the beginning, exempted from the scrutiny of fundamental rights. A fourth problem is just this sheer under democratic governance of the systems. What happens in India is that the law is always have to be passed by parliament, so at that point there's an element of democracy that enters in, although it's a funny kind of democracy because you will have a parliament that's 85 percent Hindu passing laws for Christians or whatever.
Martha Nussbaum: But then before that, it's all terribly undemocratic. In the Christian community, it's whoever the Catholic priests and bishops are getting together with them, whoever the leaders of the Protestant communities are. And all of that is, of course, they're chosen from the center of their church. They're not chosen by the members, certainly not the members who are in India. The Muslim Personal Law Board is an unelected self perpetuating body. It uses its new members and, uh, of course it's not responsive at all to the wishes of the majority of the Muslim community, and the Muslim community ff course, it's not in a way, it's not a faith based community, it's a classification based community. You're just declared Muslim when you're born into a certain family. So a lot of people are quite secular, have no connection to the Muslim Personal Law Board and their voices simply don't count.
Martha Nussbaum: Fifth problem, and this is one that since this is kind of the gender session, we might particularly focus on, is women and we might also say any other relevant minority groups within the systems are going to have difficulties because they can't avail themselves of normal constitutional protections for their equality. India's constitution, unlike the US Constitution, from the beginning in 1958 had a protection of non-discrimination on grounds of sex. Did these women no good. Most of the women in India, we're not benefited by that because they were in one or another system of personal law and those systems were exempted from the scrutiny of that article as well as other articles such as the equal protection of the laws and so on. And it's very interesting here to notice the difference between the way caste was treated at the founding and the way gender was treated.
Martha Nussbaum: Caste, they, they just had no hesitation and I think wisely. Gandhi and Nehru were determined and Ambedkar equally so to eradicate discrimination on grounds of caste. Now, of course, that was a cherished religious prerogative to do that, but they didn't exempt that from the scrutiny of fundamental rights. In fact, they went even further and there's an article which explicitly says untouchability shall be abolished. And then there's another one that says discrimination on grounds of caste is utterly forbidden. So there was no doubt, although 60 years later, I fear enforcement is still lacking and the discrimination does continue in many, many ways. There is no doubt nonetheless, that there was a constitutional commitment to eradicating discrimination on grounds of caste and also making it clear that affirmative action programs for the lower caste were constitutionally protected. But for women, none of that happened. Uh, and although Ambedkar was a very zealous defender of sex equality and he actually believed that the cause of gender and the cause of caste should go hand in hand.
Martha Nussbaum: And in fact, resigned his long ministry over that issue in the end because the personal laws were exempted from the scrutiny of fundamental rights, the cause of gender has really languished. And what's happened is what my story from the Raj might've led you to predict that is the different religions will compete with one another and show their strength by the extent to which they're able to resist the demands of women for equality. So the minute the Christians were told, oh, you can't do this unequal inheritance deal anymore, they didn't know our religion is gravely threatened. And of course it wasn't too surprising that they thought that because one share of the daughter's inheritance went to the Christian church. And that was the deal that was being upset. But in any case, there was always this sense that our strength is manifested by resistance to reform. Even when there was a desire for reform,
Martha Nussbaum: of course, it took a long time. And so that brings me to my sixth and my last objection, which is that the bureaucratization of religion and any nation contemplating this student should look at this. I think the bureaucratization of religion makes internal reform extremely difficult. The minute religion becomes mixed up in this way with politics. First of all, you've got years of delay before the religions get together, get their act together and get some reform proposal worked out, and that's particularly true in the case of the Christians because there are so many different types of them and they don't like each other and so it takes them a long time to get together. And and so this really does two things: it makes it very hard to get a an obviously good reform have passed and they would by the time you get to the law committee in parliament and all of that.
Martha Nussbaum: It may take 50 years and did in the case of Christian divorce reform, but it's also bad for religion. It's long been said by Adam Smith, Madison and many others that establishments are bad for religion because they do bureaucratize religion: they make people lazy, sluggish and you can certainly see that here. There's no sense of the internal dynamism of religion, which you can see in countries that don't establish religion. Where let's say somebody can go off and found a feminist sect and just pursue their religion in that way, that just doesn't exist here and it's brought all of religion into discredit and it's not uncommon that I will find if I'm lecturing on some related thing in India in a women's studies program, women are utterly disdainful of religion because they just feel nothing good could come of that for women. If you even mentioned to them that in the US, the civil rights movement before that the abolition movement have been religious sources of progressive reform.
Martha Nussbaum: They're absolutely astonished because for them religion is sluggish, reactionary and bureaucratic. So those are the problems, and I think they're pretty grave and I think any nation thinking about doing this should look at that. But how does strike the balance between the pro argument and the con arguments? I think US constitutional law has had it about right here and I look at these two cases, Kiryas Joel and the Oregon case of the Bhagwan Shree Rajneesh. The minute that the religions want to do more than exempt their members from some specific law, the minute they want to seize control of lawmaking themselves, whether it's running your own school district in the case of Kiryas Joel, or in the case of the Rajneeshees, running your own municipalities that you could make laws that favor your religious practices, that should not be allowed. That's too much entanglement. And, it, it's just going to lead to all the problems that I've mentioned. More generally,
Martha Nussbaum: I think the second principle that US law has developed a very vaguely is that some more general notion of compelling state interest should be developed such that those compelling state interests trump the claims of religious accommodation. And, uh, you know, in my view of my own stuff the Ten Capabilities will play that role, but, but let's just look at the Indian constitution. The list of fundamental rights is a list of entitlements that are taken to be central entitlements belonging to all citizens under basis of equality. So those, at the very least ought to trump the claims of accommodation. So I think a mistake was made in creating the systems in the first place, but certainly a bigger mistake was made in exempting them from the scrutiny of fundamental rights. Now, the last section deals with how do we get from where we are to the place where we might want to go In a situation where religious tensions are very grave, and in the case of India, in a situation where a particularly sinister bunch, the BJP and it's alive, social groups sees the cause of Uniform Civil Code as a code word for subordination of Muslims, basically.
Martha Nussbaum: So the idea was they even wanted a new constitutional convention, but short of that, uniform code would mean everyone would be under basically Hindu law, and of course that's tainted and sullied the cause of reform. And uniform code which had at one time been popular has become quite unpopular. Maybe now with the retreat of the BJP and its total disarray, it will revive again. But in the meantime, there's question of what to do. And certainly the tactic of internal reform has not proven all that promising. It certainly produced some major reforms such as the agriculture reform in 2005, but I like what the Supreme Court did in this case, Latifi v. Union of India where they were asked by the lawyers collective which is a gender based NGO in Delhi to declare that law unconstitutional, the Muslim Women's Act unconstitutional, on grounds of sex discrimination.
Martha Nussbaum: But in short of doing that, they did this very circuitous thing. They said, well, the statute surely would be unconstitutional if it means what most people think it means, namely that Muslim women get unequal shares. But if there's any way that we can interpret the statute so it is constitutional, well, it's well known principle of statutory interpretation that that interpretation should be chosen. Never mind that certain Muslim clerics from the personal law board say that it means the unconstitutional thing because we don't defer to specific religious actors, but we interpret statutes in the light of a notion of reasonableness. So the claim is that the reasonable Muslim would really understand that India is a nation in which sex discrimination is very deep and which therefore leaving a woman without adequate maintenance after divorce would leave her in a particularly vulnerable position. So, we would be too contemptuous of Muslims if we didn't ascribe to them an understanding of that and therefore search for an interpretation that actually did justice to those social facts.
Martha Nussbaum: And so then with a typically Indian style of verbal pyrotechnics of various meanings of the word "within" and various fine tunings of the distinction between "provision" and "maintenance." They come out with an interpretation that makes the statute mean just about the opposite of what it seems to mean on its face. And then they say, okay, this is what it means. And then it is constitutional. No, I, I actually liked that because it shows sensitivity and respect to the minority community while still digging in its heels so to speak, and saying, well, under any other construction, it would be unconstitutional on grounds of sex equality. So I think if a nation has gotten itself into this mess, the best way to get out is an incremental one involving delicacy and involving the practices of interpretation that show respect for the minority communities.
Martha Nussbaum: Thank you.
Host: That was wonderful. We are going to ask one of Nussbaum's colleagues and a South Asian expert, Rajmohan Gandhi, to respond.
Rajmohan Gandhi: When we've had these wonderful presentations and discussions about constitutions, constitutional theory, political theory. So I'm very glad to be able to provide you with a diversion, a change -- very little in terms of theories of either politics or constitutions, just some information about a particular part of the world. It's very likely that much of this information is already available for you maybe but I have a suspicion that some of it will be new enough to some so that makes me bold enough to make my contribution. This wonderful paper, stimulating paper and the presentation provides an overview of the question of India's personal laws which vary significantly between religious groups and religious subgroups and also an analysis of Indian attempts to reconcile these different laws with the fundamental rights of equality.
Rajmohan Gandhi: I take away, underlining the last point she made of the 2001 verdict of the Indian Supreme Court on this law that was seen and rightly seen as hugely retrogressive that Muslim women's Act of 1986. She has shown how from sentences of this act, the Supreme Court of India ingeniously extracted a right from Muslim women equal to the right of non-Muslim women in that particular case. Maintenance after divorce. When at first sight, the law seems to deny such a right. There is little in a paper that I'm inclined to dissent from or to indeed directly comment upon. On the historical background of India's long established personal laws, which of course existed even during the British time, one should I think observed that it was the 1857 revolt, the so called Sepoy mutiny that made the British extremely reluctant to tamper with Muslim personal laws. This was similar to the influence of three India's lawmakers that you note, the tragic 1947 killings and they influence.
Rajmohan Gandhi: So you know, the mess that you speak of, it is a mess. But there are these powerful historical reasons for this mess. I think I can best contribute not by dissenting from it. I don't wish to. I don't, I don't. I don't dissent from her presentation, but I can maybe introduce two or three additional angles, mostly kind of providing some information that would enlarge the picture. Lastly, I think it's useful to absorb the fact that between the individual on the one hand and the state and nation on the other, the Indian constitution recognizes an intermediate category: a community.
Rajmohan Gandhi: That's one clause in Article 14, which is the clause that assures the right of equality that makes the states to make special provision, and Martha has mentioned this, that is a provision that may go against equality for the advancement of any socially and educationally backward classes of citizens all for the scheduled caste and scheduled tribes. So these are actually three or four categories already here. Scheduled tribes, scheduled castes is another. Socially and educationally backward class of citizens may be these scheduled castes, former untouchables, scheduled tribes, former aboriginals. But they may be within these groups, but there may also be other groups that are not untouchables or tribals. Another clause in this article shall prevent the state from making any special provision for women and children, so along with caste, even women and children were at least verbally assured some provision when the constitution was framed. Now Article Twenty-Nine which speaks of cultural and educational rights, cultural and educational rights states that any section of the citizens residing in any part of India having distinct language, script, or culture of its own shall have the right to conserve the same. And now the article that follows 13 says, "all minorities whether based on religion or language shall have the right to establish and administer educational institutions off their choice. The right seems to belong not to individuals and minority groups, but to a minority as a class or community.
Rajmohan Gandhi: Thus, women, one community, children, another community, religious minorities, numerous communities, linguistic minorities, culturally distinct sections, socially and economically deprived classes, the former untouchables, and the tribal communities are all recognized as different groups with each of which the state may deal in a special and possibly unequally, favorably unequal way. All of this is explicitly stated, let us remember in the chapter in the constitution on fundamental rights. So that, that's my first point. I approached my second point by first noting that one group or section or community or sub-nationality, not explicitly referred to in this article is the religious majority, the Hindus. Let me repeat Article 30. Minorities, whether based on religion or language, shall have the right to establish and administer educational institutions by benchmarks. So many from the Hindu right have said about what the Hindus and their right? So this has allowed the Hindu right to suggest that the constitution ignores Hindus or discriminates against them; however, this suggestion runs into with terrific reality check in Article 25 of the Constitution, which is the right to freedom of religion article.
Rajmohan Gandhi: The promise in this article that quote, "All persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion." This is in the Constitution. This right is immediately qualified as follows. This right is immediately qualified as follows, "Nothing," and I'm quoting now, "Nothing in this article shall affect the operation of any existing law, prevent the state from making any law, providing false social welfare and reform, or the throwing open up Hindu religious institutions for the public character to all classes and sections of Hindus." So this is one of the few places where the word Hindu finds a place in the constitution. Nothing in the article operation of any existing law ought to create a safe for making any new law, providing for social welfare and reform, applicable to all classes and sections of Hindus. An explanation that follows immediately clarifies, as Martha has pointed out, that the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain, or Buddhist religion. As she points out, this is a subsumption of Sikhs, Jains, and Buddhists among Hindus. From that angle, a Sikh or Buddhist or a Jain might feel unhappy and indeed many of them have been very unhappy and have expressed their unhappiness.
Rajmohan Gandhi: But there's another point here. The fact is this clause of Article 25 has so far been interpreted by Indian courts to mean that affirmative or favorably unequal action by the state can be extended to socially backward or untouchable groups provided that Hindu or Buddhist or Jain or Sikh but not if they are Christian or Muslim or so it would appear Zoroastrian or Jewish. This clause in Article 25 and its interpretation over the years by the courts, have thus produced, and this is my second point, a tacit notion of some religions that are national or natural to India and of other religions that are foreign or less natural. Not only does the Indian constitution recognize and name Hindus; the constitution's interpretation by the courts has almost regularly can find certain affirmative action benefits to classes of Hindus and others of those supposedly national religions, though that phrase is nowhere used, while precluding others, notably Muslims and Christians, from receiving those benefits.
Rajmohan Gandhi: My third point is regarding a personal law that relates to property and inheritance that impinges on taxes. The law that entitles a class of Hindus and Buddhists, Sikhs, and Jains to obtain a valuable tax advantage under the provision of the so-called Hindu undivided family. A Hindu, or a Sikh, Jain, or Buddhist male, who heads a Hindu undivided family, HUF, this is a legal category in India, can separate inherited wealth and income from such well
Rajmohan Gandhi: from his other wealth and income and pay his income tax as two entities or persons. So let's assume that his individual annual income is 100,000 dollars. He's HUF income is also 100,000 dollars. His taxes on the two separate incomes would total less given India's progressive tax code than a tax on an income of $200,000. A Hindu undivided family has to come down from a common male ancestor and consists of his descendants in the male line, their spouses, and their unmarried daughters. Every male Hindu can form a joint or undivided family with his own descendants. The head of an HUF has to be a Hindu male. A Hindu woman cannot be one. Although an existing issue HUF can continue even after it's last male member has died. So if some Hindu males feel that a Muslim male has a unique advantage over him because thanks to Muslim personal law, he can, in theory, take four or five wives; some Muslim males can complain that their Hindu counterparts are taxed less by the state, and Muslim males and Hindu females can complain that HUF favors Hindu males.
Rajmohan Gandhi: Martha has rightly told us that this surge of compassion that some males profess for the women of the other community often conceals the desire for control over females of their own community in order to paint the other community in an ugly light. She has argued convincingly for a movement in India toward equal rights, equal rights for women, that simultaneously respects anxious or at times frightened communities. Now the India whose laws we wish to understand is more than a state or nation of individuals. It is also more than the union of states in addition, India is, I think, perhaps even from a constitutional viewpoint, and whether we like it or not, India is an association of communities.
Rajmohan Gandhi: In practice, India is an unorganized and at times unruly association of communities where in some areas the Hindu community seems to be more equal than the others. This being the case, one must hold that the movement for women's rights within India as minority and majority communities, sometimes aided by creative judges as Martha's pointed out, that's such a movement will be accompanied by a movement for equality between the different communities which will be interesting to see where the Indian judges employ their ingenuity toward such a goal or away from it. So just to end I would say that gender inequality, caste inequality, class inequality, religious inequality, these are all real inequalities, and in some cases you might say inequalities allowed, permitted by the constitution. Although other fundamental laws in the constitution go very strongly against these inequalities, and so that's where we are. Thank you so much.
Host: We already have a long queue. So I will take questions in three and then just catch my eye if you'd like to be added to it. So John, Adrian, and Eric are first up.
First Question: I have three points of contention. The first has to do with why restrictions on this are always so difficult and contentious? I think you could easily tip your thumb on the scale a little bit more in favor of establishment without coming to a different conclusion. What I would make is the state and all its other functions embody this sense of unity, and to the extent that religious communities have to sacrifice their sense of community in order to be neutral. It's a, it's a problem for them. The second point has to do with history. I think you were underestimating the extent to which the British actually did meddle in Muslim in affairs. Let, let it, let the record show that an Indian statue from 1939 is about to be cited, it's the Indian Marriage and Divorce, Muslim Marriage and Divorce Act, which at the instance of Muslim reformers borrowed from the tradition to provide, if I remember right, the additional grounds for divorce not available in the tradition
First Question: that's the principal position that Indian Muslims adhere to. The Indian reform, reforms were in favor of the established Muslim authorities were shocked, but more than that, the British, British also we're deciding cases of Islamic law according to common law principles. They developed what was called Anglo-Muhammadean law. This is not exactly a light touch. The extent to which the British were involved in these issues. I fixed it without damage to your paper. The third thing has to do with the case: It's not cost free for the courts to lie. When the court says that the statute means exactly the opposite of what everybody understands the statute to mean In the service in service of avoiding a constitutional question. This is a very dubious kind of decision. I'm not a great fan of constitutional questions anyway because sometimes court do so much better off facing constitutional questions; they may come to a different result.
First Question: Maybe the Constitution doesn't forbid that which a lot of courts are fearful of. So they don't have to twist and contort themselves to risk their reputation as honest brokers in societal conflicts that are reflected in litigation by engaging in the process that you do admire and describe.
Second Question: Thanks, I think it was really interesting and also Professor Gandhi's presentation as well. Martha, I was wondering if that might be useful to disentangle a bit your objections to a single establishment, a monopolistic establishment from your objections to a system of plural or multiple establishments. So these are very, very different things. You know, Madison has this idea of cure for factions is having multiple factions. Right? And Hume also has the cure for establishment might be to have multiple establishments. Some of your objections seem to me to go not to India's system of plural establishment but, but to single establishment. And in fact it seems to be some of your reactions could be by cured by having a more consistent and even more thoroughgoing system of multiple establishments than India actually has. So in the case of some of the smaller religious groups you mentioned being subsumed more, and it seems to get more thoroughgoing established that gave them systems might cure some of your objections. So I just thought that that list of objections was internally heterogeneous, some of them pitched to monopolistic establishments, some pitched to plural establishments.
Third Question: I had a related question. If Hume made this famous argument, maybe Smith did also that establishments, because they are monopolies, fall apart. Everybody's lazy. I think he referred to this. When we look at Europe today, it seems like this, this, this cynical insight has been vindicated. But that's not my impression of India. Maybe I'm wrong about this: religious activities are flourishing even though these different religions compete. It's not that they can compete much with each other because of the difficulty so they seem to be doing okay. So, so I just found that puzzling. Was Hume wrong about this? And was Smith? But Hume said this was wrong. Hume citing Smith. I have just two more quick questions. And this gets back to what Adrian was saying is that you can imagine modifying the system of personal law. And then I think at the beginning you were, you were, you were referring to the fact that maybe some European countries would be attracted to this, but they don't have to import the Indian system exactly the way it is.
Third Question: One could imagine a system which is much more, which exists, but it has much stronger gender equality constraints. And maybe that would be more appealing because it would preserve some of the other aspects of the system which may work better than the US system. And one and then just finally, you were unhappy about the lack of democracy in these systems, but in a way they are a little bit democratic because parliament gets a say which, which seems same sounds a little odd to American ears. And um, and maybe the fact is, is that a lot of religious communities are completely undemocratic like the Catholic system and people seem to like it even when they have a choice between diverting, they like it. So, so maybe the lack of democracy is simply inevitable or, or even desirable for certain types of social organizations.
Martha Nussbaum: Okay. First I want to thank Professor Grandhi very warmly for his fascinating comments. And I guess just on the issue of affirmative action, just to say that we've had this collaboration in Delhi and we had a joint conference which will become a book on affirmative action that compares the Indian, the US, and the South African experience. And one of the things that emerged there was that I think the resistance to extending the reservations to Muslims and Christians comes in some part from within those communities themselves because it harks back to the practice of separate electorates under the Raj. And so zealous advocates have some remedy for the exclusion of Muslims and Christians from the systems don't exactly propose that. What they tend to propose is an economic test for affirmative action in universities rather than the religion based test.
Martha Nussbaum: And then another proposal they sometimes like is that you remember the history of how you became a Muslim. So there would be a category called Dalit Muslim or Dalit Christian, which would then come in for the same protection as the dalits who didn't convert out of Hinduism. So I mean, just to say that I've been surprised to find, I mean, I expected to find support for just adding Muslims to the list of the categories that receive affirmative action. And I didn't find that. Um, okay. Now to these wonderful questions, thank you very much for your suggestions. And I really, I, I will certainly revise in, in accordance with those, just to say the, I think the issue of community that you've mentioned is really a very fundamental one, and I think it is certainly part of the strong case for respect and some degree of protection. Then the question is how far does it extend. To extend it to property and inheritance seems to me a huge error because it just ends up for running into all these messes that I've mentioned.
Martha Nussbaum: And so, so maybe one could press that in the areas like family law, marriage and divorce. But, but I think to extend to say that your sense of community is jeopardized by uniform set of laws relating to property and inheritance seems to me implausible. Adrienne's points I think actually some of these, a lot of these objections applied just as much and in some sense, even worse to the system of floral establishment. When you make the list longer, the fact that certain groups get omitted is all the more striking and you're not going to ever include them all. And so there's, that problem gets in a way worse, whereas if it was just one, well then the others would be understood to be lots of people are omitted. And so there's nothing denigrating to you about being omitted.
Martha Nussbaum: The bureaucratization does, it has become worse I think because what happens is that they look over their shoulder to see what the others are doing and if the others are not reforming in some area relating to it, but they don't want to do it either. Whereas left to their own devices. I mean look at countries where the Christian church is a single establishment. They reformed divorce law long, long before. Why did the Christians in India not do that? Not because they're benighted. And in fact the Christian communities are very progressive in matters of sex equality, they have the highest literacy rate for women in the country and so on. But it's just because the others aren't doing it and they don't want to be ahead of the others in ceding any privilege. So I actually think that it can get a, the consequences for the slowness of reform could get worse.
Martha Nussbaum: Yeah, I mean, so this goes to Eric's point as well. I think these, the religious activity is really in a bad way. Now, of course the appearance that the, this quasi-religious party has played a big role in, in Hinduism might seem to belie that, but actually we find that that's really a political group that's seizing hold of religious language and religious imagery for their own ends. And when I studied the leaders and interview them and so on, I found most of them are quite unreligious. Even their chief architects, Savarkar, Savarkar in particular didn't, it was a cultural movement, not a religious movement. And what's happened is that that activity has tainted Hinduism in many people's eyes. So that might have all the people I know very, very few would say we should study our own traditions and in fact if you do say that the typical reaction is, oh, what's wrong with you?
Martha Nussbaum: Are you becoming a BJP supporter? So I think this, this situation has, has actually tainted religious activity in the Muslim community a little less so. I think people are less embarrassed to say that they are Muslim, but on the other hand, the, the, the activities, the undemocratic and nonsex equal practices in the Muslim Personal Law Board have certainly made a progressive people in the Muslim tradition unwilling to say that their religious Muslims. So there are these organizations like Muslims for secularism and so on, which are where these, these people go to do their political activity. The Christians, I think it's actually that's the best case where there is serious religious activity in that community and it's mixed up often with very effective progressive causes such as taking in the rape victims from Hindu-Muslim violence and so on. So, um, I, I think in that case it is a little less tainted by the bureaucratization.
Martha Nussbaum: But look, I mean in Kerala not so, so much because the minute you have a system where you see that these clerics are just sitting on reform because they get a share of each daughter's property, that does bring religion into discredit. And it certainly, certainly very clear that there's no, no one is innovating in matters of religion. It's just stopped cold. The kind of innovation that Hinduism always had throughout most of its history as being a very undogmatic and pluralistic religion. You don't see feminist sects of Hinduism; all the women's organizations, they're basically anti religious with very few exceptions. I think I'll stop.
Host: Five more questions and then you can respond accordingly.
Question Four: I wanted to explore some of interactions between religion and gender discrimination. I think it's really interesting to think about trying to reform in terms of gender equality through the religious lens, which is what you're suggesting. I think the problem is not so much the marginalization of non-natural religion. So I'm further in the conversation with Adrian. I think it would be easy to just add all of the religions and just not discriminate in any way and multiply, but I think what you're really trying to get at is more of a gender, gender issues and so there are two pieces to it. Your two theoretical assumptions. One has to do with the interaction between gender and religion. So I think that religion is serving as a perfect proxy in your analysis for discrimination against women.
Question Four: So, so one piece would be, you know, to what extent is it a perfect proxy because I mean, as it becomes less of a perfect proxy, there might be more room within religion to have kind of internal critiques that would further gender equality from within rather than kind of eliminating the role of religion. And then, and then secondly, and relatedly, there seems to be a kind of theoretical assumption that secularism somehow or, or the absence of the religious domination would in some sense lead to greater equality. Right? So it's as if you could take something off and then you'd find the equality there when in fact the same problems may be infusing, what may be infusing the religious dimension, may be problems that were infused along the secular dimension. So how exactly do we think that that would be the most productive way of achieving the goals of equality?
Question Five: Just a small technical point on the paper, not the presentation. We're not going to know which of the two Savar thesis. I think you endorsed two theses, the weak thesis and the strong thesis. The weak thesis is on page four of the paper: the control of women. The strong thesis is on page two. That's a very strong thesis. Why is it plausible and why would evidence be hard to find? What about the archives?
Question Six: Two comments. I just want to talk about the intersectionality of women in the context of nation building or community building in this point where inevitably the trade off seem to be. There's some dynamic around community. Again, see that whoa. I was thrown from an internal communities articulating their own demands. How that plays out in the Indian context. And the second question was really just. It seemed to me that the paper was fundamentally optimistic on some level that there are roots around these kind of set the gender inequities that Bernard has talked to, and I guess my question is really is that so? That fundamentally isn't there a point of impasse where you would just get absolute contradiction if there is a fundamental piece of self identity in many traditions that are simply incompatible with any notion of liberal equality for women? And what do you do at that point at impasse?
Question Seven: I would like to know more about the role of the Supreme Court concerning its religious question.
Question Eight: In designing features, authoritarian features may be required. To what extent does the framing of the Indian constitution, what was the damage the framers did and the damage the framers didn't.
Martha Nussbaum: How many minutes? Well I can't deal with all of them and thank you. And I'll hope to talk to. Maybe I'll just hope to talk to you later since you're here. I guess. I think the weak thesis is very plausible. Now, the stronger thesis. Basically her argument is this was a time when Indians, she focused on west Bengal, were beginning to demand much larger role in the polity and there was agitation. And then these gender anti-reforms were introduced and somehow things calmed down. So it's like we can't be sure that that was the reason they died down. But then she speculates that what was happening was they were buying off these men and in fact they were saying you have now a fear of rule cannot rule out here, but you can rule in here. So it's the, the inference from simultaneity to causality that's hard to. Yeah, exactly. Yeah. I guess I think one of the community issues are really interesting because women are balkanized by the system and there would be put into a community that's not their own. And one dramatic moment after the passage of the Muslim women's bill, one activist on the steps of parliament said, you know, what you're telling us is that we had better go off and create our own, meaning women's land.
Martha Nussbaum: And, and, and in a way women have tried to do that and all the women's groups without exception that I'm familiar with, insist on being interviewed receptive of all religions. And it's the one place you can go in India where you see Hindus and Muslims working together side by side without any tension and they are proud of that. Uh, so, so I think there is a new sense of community, but of course it's at the level of NGO organizing with poor women and it is essentially broken up when you get to the middle classes in the middle classes who want to hold onto property and so on. So, so that's a real, real problem. Are the religions fundamentally incompatible with sex equality? Well, I mean what's striking is that the, that they've all reformed in this or that way whenever they're not in a position of establishment.
Martha Nussbaum: I mean certainly the Christian church has resisted many kinds of reforms, but then it's been pushed and product into granting these demands and about Islam. I, I simply don't accept the claim that in some deep essentializing way it's anti-equality. And Noah Feldman wrote quite a good article on this in Philosophical Topics and I'm not a scholar of Islamic texts, but I think certainly in its historical time, Islam was progressive in matters of sex equality. And what's happened is that interpretive practices and control over interpretation by male leaders has, has stalled that in its tracks. So. So one needs to try to see what, what, what, what one could do. The role of the Supreme Court. One, just one thing I'll say, which is that the role is very large because they have a practice of direct petitioning. So a case can reach the supreme court without going through the lower courts.
Martha Nussbaum: Citizens could any group that the doctrine of standing is very capacious. So I didn't use it as a group, couldn't bring a case to the supreme court to know, of course they take a tiny fraction of the cases that come that way, but it gives them great political power so that if they want to take a case relating to sex equality, they, they, they can do that.
Host: You should advertise your own chapter in the book by advancing through the Indian Supreme Court in relation to gender.
Martha Nussbaum: Well you just did. Well, I mean you can see what they did and they tried to put in these fundamental rights. Now, as I said yesterday, that in the first instance, nothing was counter majority hereon in the sense that every, any article of the constitution could be amended by majority vote of parliament, and it was only later after the emergency that after a lot of jockeying back and forth between the court and the parliament, that they evolved this doctrine of the so called basic features which are still given by example rather than by a complete theory which do appear to include all the fundamental rights which cannot be amended now at all.
Martha Nussbaum: Even by a super majority. You have to have a new constitutional convention. So that appears to be the status with not only the fundamental rights, but certain other things like the basic electoral structure. And so.
Host: Well, thank you so much, Martha.
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