Gender and the State: A Beginner's Guide to the Personal Law Debate in India

Next week, Lehigh hosts an exciting conference called "Feminisms Beyond the Secular," with a number of prominent feminist academics coming into speak, from India, the U.S. and Ghana. 

I am not presenting at the conference, though I am moderating a panel. Nevertheless, I thought this might be a good moment to post something of my own related to this topic. I had tried to get it published earlier with a scholarly journal, without success. The second half of the essay, not included, deals with novels -- Taslima Nasreen's writings related to secularism and Muslim women's feminism, and Samina Ali's Madras on Rainy Days. 

This section contains an account of the Personal Law debate in Indian law, which affects Marriage Law, Divorce, custody of children, and property in marriage. It might serve as a beginner's introduction to that debate -- helpful to people who don't have much background in debates over feminism and secularism in India. 

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It is becoming increasingly clear that the often-presumed link between “secularization” and “modernization” does not quite hold, as certain regions of the developed world remain strongly religious in the cultural sphere, while the rapid progress of industrialization in the developing world has come with the growth, not the diminishment, of strong religious beliefs. Secularization, as a cultural, historical tendency, is therefore not an inevitable process, and in a surprisingly wide swath of nations around the world the question of what exactly constitutes “secularism” has become a hotly-contested issue. In these debates, women's rights are often—indeed, nearly always—the central material question under debate. Questions of women’s dress, access to education and employment, control over reproductive rights, the right to divorce, property rights, and child custody rights—these are variously contested by religious conservatives, from Saudi Arabia, to Europe, to India, to the United States. The diversity of different national histories and cultural contexts is so great that no simply universal, “secular feminist” response is readily available.

As critics such as Chandra Talpade Mohanty and others have pointed out, universalism has tended to lead to analytic errors, and is often premised on a kind of neo-colonial presumption of western feminist superiority. And yet, women’s struggles with repressive religious authorities in different parts of the world can be explored, and indeed, profitably understood, across cultural and political boundaries, as long as close attention to cultural and historical specificities is maintained. In the case of the concept of secularism in particular, a helpful corrective to a conventional universalist model might come from a political philosopher like Rajeev Bhargava, who has argued that western political secularism may be only one among many concepts of workable secularism. If in a country like the United States “secularism” seems to indicate a wall of separation between Church and State, in India secularism can refer to a state deeply involved with religion, but focused on using its power to adjudicate resources and rights equally amongst different religious communities (Bhargava 2005; Bhargava 2011). As Priya Kumar phrases it, this kind of secularism emphasizes “tolerance or freedom of all religions rather than as the exclusion of religion from state” (Kumar 2008: 15).

Gender and Secularism in India: a Brief Historical Overview

In the Indian case in particular, secularism in the contemporary moment seems to hinge on women's rights, sometimes with the same degree of complexity and even awkwardness of the recently enacted French laws regarding the Hijab, or headscarf. The current crisis in women's rights and religion has been directly debated in regard to two legal controversies in the 1980s, the Shah Bano case (Agnes 1999; Agnes 2007) and the Roop Kanwar Sati case (Mani 1998), though arguably it could be extended both backwards—to the debates over Sati in the colonial era and the centrality of rape in narratives of Partition—and forwards, to the violence against women in the riots that engulfed the Indian subcontinent in 1992 and 2002 (Baldwin 2002). 

The Killing of Sunando Sen Was Not a "Hate Crime"

The death of Sunando Sen was tragic. For people who ride the subway everyday in New York City or other cities, the second incident of a subway pushing in a month is also frightening -- an Erika Menendez could be anywhere. I have heard at least a few friends in New York mention to me that of late they have started standing further back on platforms for fear of being pushed. 

One thing the subway pushing is not is a hate crime. It is true that Ms. Menendez said some hateful things about Muslims after being picked up by police, but I would argue that because she is so evidently disturbed, her statement is immaterial.

People who defend the use of the hate crime label for this tragic death argue 1) that it matters from the point of view of potential victims of other hate crimes: we have to watch out in case someone else does the same thing. They also argue 2) that her particular fixation on Muslims (and Hindus) comes out of a climate of racial and religious intimidation. She may be mentally ill, but anti-Muslim sentiments are so readily available that there was, in effect, a "ready made" group for her to hate.

Let us deal with point (1) first. To me, what's clear from this killing is that the issue should be the way the U.S. handles severely mental ill people in general. There is no evidence that Ms. Menendez had a history of racial or religious animus (and as anyone who has ever followed a case related to hate crimes surely knows, this matters). Meanwhile, there is ample evidence that she was a violent and severely disturbed person, and she might well have targeted anybody at all; her targeting of Mr. Sen might well have been arbitrary. It's also probably worth mentioning at this point that her comments were actually pretty incoherent: was she targeting Mr. Sen because she thought he was a Muslim? Why then did she later say she hated both Hindus and Muslims? This is a very unusual pairing to pick as targets. (While one can easily imagine hatred of either religious group individually, it's unusual to have both without the additional presence of generalized xenophobia. And yet in her statement to police, Menendez didn't mention anything about immigrants, dark-skinned immigrants, etc.)

Along those lines, here are a few paragraphs from the New York Times article dealing with Ms. Menendez's mental history:

There were ample warnings over the years concerning Ms. Menendez. 

In 2003, according to the police, she attacked another stranger, Daniel Conlisk, a retired firefighter, as he took out his garbage in Queens. 

“I was covered with blood,” Mr. Conlisk recalled on Sunday. “She was screaming the whole time.” 

Just two months earlier, Ms. Menendez was accused of hitting and scratching another man in Queens. She was also arrested on cocaine possession charges the same year. 

Since then, according to friends and people familiar with her record, she has been cared for at mental health facilities in Manhattan and Queens as her problems worsened. 

Between 2005 and February this year, the police responded five times to calls from relatives reporting difficulties in dealing with Ms. Menendez, reportedly stemming from her failure to take certain medication, according to a law enforcement official who was not authorized to speak publicly about her medical history. In one of these instances, in 2010, she threw a radio at one of the responding officers, the official said.

 “She has been in and out of institutions,” another law enforcement official said, speaking on the condition of anonymity.

Within the past year, she was discharged from Bellevue, according to a person with knowledge of her medical history. (link)

Note the random nature of her targets, particularly the guy (who I'm presuming is Caucasian) who was violently attacked while just taking out his trash.

People more experienced with this subject than I am have also pointed in this direction following other attacks by mentally ill people where a "hate" dimension was involved. In June, 2011, Eugene O'Donnell of the John Jay College of Law, published the following comments in the New York Times:

It is impossible to ignore the mental health dimension in the Holocaust Museum attack and an earlier assault at the Federal Reserve headquarters by James von Brunn. There may also be serious mental health issues with Scott Roeder, the killer of Dr. Tiller.  

There is a gaping hole in our mental health infrastructure which will not be easy to fill, but needs urgent examination and action. Far too many potentially dangerous people are left to fend for themselves. Even when there are concerned family members or friends in their lives, these guardians are often worn out from trying to help, or do not know where to get dependable care.

We continue to leap at the chance to declare actions criminal despite the fact that attacks like this museum shooting are rooted in an extremely irrational and bizarre world view, and are thus outside the scope of traditional criminal notions of “punishment” and “correction.” And of course, even where the criminal justice system is utilized, extended post-release mental health supervision needs to explored, in some cases for the whole life of the ex-convict. (link)

In short, what Sunando Sen's death reminds us is that we need to be focused on the American mental health system, particularly the metrics and regulations governing how potentially violent individuals can be involuntarily committed to mental health institutions. (This was also apparently an issue in the truly horrible shootings in Newtown Connecticut a few weeks ago.) This is not a matter of simple criminality because people this disturbed are not committing "crimes" based on rational motives -- which are the basis of any theory of criminal law. As Professor O'Donnell points out here, the concepts of "punishment" and "correction" are also inapplicable in such cases.

Attempts to label the killing of Sunando Sen a hate crime imbue a sense of rationality and motive to Ms. Menendez that does not exist, if her prior history is any indication. The labeling of Sunando Sen's death as a hate crime also weakens and cheapens the real problem of violence motivated by hatred of religious and racial minorities.  It gives the appearance that community advocates may be overplaying their hand, which, just a few months after the ghastly shooting at the Gurdwara in Oak Creek Wisconsin, they surely do not need to do.

There is a legitimate question about whether the general cultural climate in the United States at present makes it easy for mentally deranged individuals to pick up on it and deploy anti-Islamic or anti-immigrant sentiments and use them as channels for violent and anti-social behavior (see point 2 above). However, if this is a cultural problem, it likely needs a cultural, rather than a legal, solution.

Americans might be justified in feeling a bit afraid riding the subway after events such as the killing of Sunando Sen. But South Asians in particular are mistaken if they feel this attack is directed at them. It really affects all Americans, and will continue to do so as long as the American mental health system remains broken.