COVID-19 and the Necessity of Muslim Family Law Reform in the Arab World

Image provided by the author with permission from Musawah. Image provided by the author with permission from Musawah.

COVID-19 and the Necessity of Muslim Family Law Reform in the Arab World

By : Marwa Sharafeldin

['This article marks the launch of Musawah's campaign to reform Muslim family laws, and has been written by a Senior Expert in Musawah (Marwa Sharafeldin). We welcome contributions around this topic and engagement with this initiative.]

When Salma discovered that her mother had contracted COVID-19, she was already at breaking point. Salma was juggling her two boys' education from home along with her own piles of work as a short-contract academic, and was now threatened with a layoff. That, of course, was alongside the cleaning, cooking, and disinfecting of their home on a daily basis. Her husband worked in a government authority and returned home tired, barely offering assistance with the housework. Salma was now suddenly responsible for the management of two households, along with caring for her sick mother.

Salma’s mother is, thankfully, out of the woods now, but Salma has developed chronic headaches, a stomach ulcer, and debilitating insomnia affecting both herself and her entire family. Salma used to be a social butterfly, but has now shut down all contact with her circle of friends and family; she simply has no time or energy. 

This story took place in Egypt, and I am sure that it is happening all over the world today. It raises the important question: Is there a relationship between the effects of COVID-19 on women and families in the Arab and Muslim world on the one hand, and family laws[1] and practices on the other? I believe most women going through the experience today would ardently agree that there is.

COVID-19 Effects on Women: Domestic Violence, Unpaid Domestic Care and Labor, and Informal Sector Work


We know that women around the world are particularly affected by this pandemic. In the Arab world, we find that the lockdown came with an avalanche of additional unpaid domestic labor for women, which is affecting women's health and well-being. Salma is one of the lucky women who still has food and shelter. Other women are facing the spike in domestic labor in far worse circumstances.

There has also been an alarming rise in cases of domestic violence (DV) and suicide amongst women. More and more women are now reporting DV in the Arab world, some for the first time after suffering for as long as twenty years. In Lebanon, there has been a one hundred percent rise in calls to DV hotlines. In some areas of Palestine, women's rights organizations witnessed a twenty percent increase in calls. They later discovered that in fact, more women needed to call but could not, due to the sheer burden of the additional domestic labor they were now carrying. Ironically, women are too busy to call for help. 

Sixty-two percent of working women in the Arab world actually work in the informal sector. These include domestic workers, street vendors, cleaners, and beauticians, among others. Many of these women are either heads of households, or contribute a significant share to the livelihood of their families. The informal sector is one of the most precarious and fragile sectors that has been hard-hit by COVID-19. However, when governments in Egypt and Morocco started to roll out financial aid packages for suffering families, many of these women were not eligible to apply because they were neither recognized as heads of households, nor as workers in the informal economy.

In such a context, whose immunity is compromised with the stress of additional domestic labor and caring for the sick? Who is de-prioritized in testing, medical treatment, and access to nutritious food within families? Who is usually asked, if not forced, to leave their work and jeopardize their financial security to attend to the rising domestic labor burdens? And who is required to be quiet about the violence because there are other more pressing issues at stake now? It is usually women and girls. 

Relationship with Family Law


How is this related to family laws and practices in the Arab region? To answer this question, we should examine some of the background statistics and reports related to the family in the Arab world.

Mindful of critiques against international reports and how they are sometimes used for un-benign political reasons, I still use them when they are in congruence with stories and accounts of Muslim women written by Muslim women living in Muslim contexts. The potential misuse of this work globally should not silence us from engaging critically with our societies' issues, finding solutions in local resources while interacting with global ones. For better or worse, it is these reports rather than other forms of evidence that are usually used in policy circles to justify law and policy change.

I focus on the Arab region as an Arab national, with the awareness that many of the root causes of the problems presented below are also shared with other regions of the world, including supposedly more gender-egalitarian Western countries. We all suffer, even if in different ways, from patriarchy and gender injustices. This requires sharing in solidarity the common fight against them, each in their own locale.

The following will focus on three of the issues raised above, which COVID-19 has brought to the fore: domestic violence, women's labor participation, and unpaid domestic labor and care.

Violence against Women 

The Arab region has the highest rate of violence against women (VAW) worldwide, with violence committed by husbands being the most common regionally

We would err to assume that what happens inside the home does not reach outside its walls. The cost of domestic violence in social, psychological, and economic terms in some countries amounts to 3.7 percent of its GDP, more than double what most governments spend on education. In Egypt for example, the cost of domestic violence in 2015 was estimated to be a whopping two percent of its GDP. These are serious numbers, affecting not just women but the entire society.

By now we know from many studies that there is a clear link between gender inequality and domestic violence. Many Arab and Muslim family laws not only contain provisions that promote an unequal relationship between the spouses, but they also condone varying levels of violence. For example, some of these laws still allow: differing degrees of “wife disciplining”—also known as beating—by the husband, child marriage, and mitigation of penalties on so-called "honor" killings. None of these laws criminalize marital rape, while some still exonerate the rapist upon his marriage to the victim. Most of these laws consider the man to be the head of the family and main decision-maker in the household. Such laws do not give equal rights to spouses with regards to divorce, making it much easier for the man than the woman. In addition to all this, these laws require wives' obedience to their husbands, and gives husbands and male guardians the right to restrict the movement of women and girls and their ability to access education, work, legal services, and signing contracts.

The 1993 UN Declaration on the Elimination of Violence against Women defined violence as rooted in unequal relations between the sexes. It defines VAW as “any act of gender-based violence that results in, or is likely to result in, physical, [disciplining the wife] sexual [marital rape] or psychological [threats of polygamy, unilateral divorce, requiring women's obedience] harm or suffering of women, including threats of such acts, coercion or arbitrary deprivation of liberty, [the husband’s permission is required to work, go out, travel, and have equal guardianship over children], whether occurring in public or in private life.”

We can see from the above that there is a relationship between our current family laws and normalizing VAW during “ordinary” times. So, when crises like COVID-19 hit, there is fertile ground for an increase in VAW. This is then seen as socially acceptable collateral damage at best, or as men “letting off steam at worst. With court proceedings suspended in many Arab countries, the situation becomes even more complicated and we find increasing cases like this one in Egypt: “He has been humiliating me verbally and beating me constantly, [...] and now he is telling me to get out of the house and that he would divorce me. But I don’t know where to go, there are no courts currently operating to get me my right from him.”

There are also reports from activists across the region from Iraq to Palestine and Egypt revealing that child marriage is on the rise, as families try to alleviate their economic burdens during this crisis. In fact, some activists report anecdotal evidence that the only cases judges are now taking on are to conduct child marriages.

With the normalized level of violence against women and girls that family laws and practices contribute to, it is no wonder that in some Arab countries we are now also seeing reduced jail time for VAW offenders. These are now sent back home to the victims of their violence after spending only a few hours in the police station. What message is this really sending?

COVID-19 shows us that inequality in family law and practices are the starting point; beatings, killings, and suicide by women today are the end result. 

Labor Participation and the Economy

It comes as no surprise that family laws are considered one of the most serious impediments towards Arab women's labor participation in the region's economies. Family laws require the husband or male guardian’s permission for women to work, travel, and, sometimes, to borrow from banks and conduct other banking transactions. In fact, a recent comprehensive cross-country study drew the conclusion that “egalitarian reform of family law may be the most crucial precondition for empowering women economically.” 

These family law provisions are part of the reason that the rate of the female labor force participation in the Arab region is lower than in any other region in the world. This incurs losses not just for women and their families but also for nations as a whole. Studies show that if women's participation rates in the workforce increased to an equal level with males, it would lead to a significant increase in national GDP. For example, the United Arab Emirates’ GDP would increase by twelve percent, Egypt’s by thirty-four percent, and the whole Arab region’s by eighty-five percent. The extent of these numbers demonstrates that reform of such laws should be a collective priority for all, not just for feminist activists.

Men are also paying the price of these restrictions on women's labor, despite the power they give men over women's movement and financial well-being. Dependency ratios in the Arab world are, again, the highest in the world, with each worker, usually male, supporting more than two unemployed people. It is very difficult for a small number of workers to provide reasonable livelihoods for their families, not to mention the pressure this puts on the workers themselves.

Crises such as COVID-19 exacerbate the negative effects of these family-law-related barriers to women's labor participation. We can clearly see that, in the absence of adequate social safety nets, having only one spouse as the main breadwinner is nowadays proving to be too high a risk for the whole family, especially in cases of layoff or illness. This is also true for families that have experienced divorce. Due to the suspension of court proceedings across the region, women and their children who are dependent on their husband's maintenance for their survival are facing serious problems. In the case of Hagar, whose ex-husband refrained from paying maintenance and challenged her to go to the courts, she exclaimed “how can family courts shut down? This was the only way I could have gotten my right, but now I have no other way.”

In Palestine, a recent COVID-19-related policy has also been applied whereby unpaid debts are no longer punished by imprisonment. While this law aims to protect against contracting COVID-19, it has had the effect of passing on the suffering to more fragile sectors of society, such as divorced women and children who are solely dependent on men's maintenance payments. Today, ex-husbands are under no pressure to continue making such payments, while some women are unable to buy milk for their children, according to a Palestinian activist.

All of this is not to say that women should be forced to work to serve a neoliberal agenda rather than choose to take on domestic responsibilities, (which in unpaid form would still be subsidizing economies at the expense of women). Instead, it indicates that the family laws and practices in the region must change to provide women and their families with a truly free choice regarding women's labor. Impediments affecting this choice, such as male guardian control over women and the requirement of their permission should be addressed. The stereotypical expectations of domestic gender roles and labor upon which these laws and practices are premised must also be taken into consideration.

The Relation between Unpaid and Paid Labor

The abysmally low employment rate of women in the Arab world is not only related to male control, as shown above, but is also an inevitable consequence of the close association between a woman's ability to work for pay, and the unpaid domestic and care work she has to do.[2]Even when a woman works, either in the formal or informal sector, she usually bears the "double burden" of work inside and outside the home. This results in time poverty, stress, and ill health for women. Working women are also not exempt from any domestic responsibilities in the home, nor do they enjoy any additional rights there.

The International Labour Organization (ILO) estimates that unpaid care work performed by women amounts to around eleven trillion dollars, or nine percent, of global GDP. It is difficult to find accurate numbers for the Arab region as a whole. However, recent figures from Egypt are indicative of the enormity of women's unpaid national contribution, which ranges between twenty and thirty percent of the GDP. Women's “invisible work” contributes significantly to the economic worth of their families and societies, yet women are treated, in law and practice, as dependents and legal minors who must obey those who supposedly bring home the actual money in the family.

The time women spend in unpaid domestic and care work in the Arab region exceeds the time that men spend by about 4.7 fold. Again, the Arab region has the highest rate among all regions in the world. Moreover, in several Arab countries, women work more hours in the twenty-four-hour day than men, whether in paid work, unpaid work, or both.

Paradoxically, men are suffering from the privileges which family laws grant them. For example, we know from recent surveys that many Arab men feel pressure and stress about being the main breadwinner of the family. Oftentimes this leads to ill health, a rise in cases of depression, and little time spent with children, affecting the quality of that relationship. Nevertheless, men still expect to control women's movements and rights, be considered heads of households, and leave women to do the lion’s share of unpaid care and domestic work, even if women contribute financially to the household. If men want to relieve their stress, they may want to consider making different choices. 

Yet it is not only up to men. Many of the Arab region’s family laws and practices assume that it is the role of women to perform unpaid domestic and care work. Interestingly, this contradicts settled classical Islamic jurisprudence which does not obligate the wife with this kind of work, and requires compensating her if she does. Gender stereotypes make the situation worse at times of crisis, such as that of COVID-19, when unpaid domestic labor suddenly spikes. It becomes very difficult for women to object or ask others in the family for help despite the negative effect on women's health and the family's well-being. Domestic and care work become the woman’s problem, not the family's and not the state's. 

Unpaid care work has also been one of the main reasons why women in the Arab world have been prone to work in the informal sector. Despite this sector's precariousness and bad working conditions, it provides women with relative flexibility to juggle multiple roles within the family. The informal sector, however, has also been one of the most hard-hit sectors by COVID-19, greatly affecting women and their families. Activists in Morocco report that twenty percent of families are headed by women and seventy percent of these work in the informal sector. As expected, most of them are now without a job.

What this section shows in numbers is that all the issues discussed tie together. When family law treats women and men unequally it provides fertile ground for violence against women, harming them, their families, and societies as a whole. By granting men the power to control women's movement and labor, and assuming that it is the woman's responsibility to perform unpaid domestic work, it is both women and men that eventually suffer as a result. Everyone in the Arab region countries is affected, as economies keel as a result of these arrangements, and crises like COVID-19 come to wreak further havoc with all our lives. We cannot escape the fact that we are all tied together, as the numbers above have shown. However, this could yet be our biggest asset today.

Family Law Reform: Whither the Way Forward?


Family law is one of the most contentious laws to change in the Arab region and the Muslim world. One of the reasons given for this is its close association with religion.

We are told today that family law reform is not a priority, but COVID-19 has come to show us the high price of not paying attention to the inequality lurking in our family laws and practices.

However, it is important to first observe how family law is deeply implicated in distributing wealth and in allocating power and resources. Because of the way that family law is constructed in some countries in the Arab region, it is usually in men’s hands where power and wealth is concentrated. Such a phenomenon is expected when women need their husband's permission to go out to work, are tasked with unpaid domestic and care work, and men are considered the heads of household. As such, any family wealth or property is usually written in their name. To capture the nuances of such a topic would require another article, but for now, it is important to note that this is not just a fight over “modern” personal rights and freedoms. It is a fight over a much-coveted and guarded realm of wealth and power. We can see from some of the numbers above, however, what this family law arrangement means in terms of cost, not only for women, but for our societies, economies, and even men themselves. 

Returning to COVID-19, family law reform, and religion, there is a fundamental problem with the underlying philosophy of gender inequality found in family law practices, and the religious jurisprudence upon which they are based. But would we be tampering with religion if we call for the reform of Arab and Muslim family laws?

The answer is no. There is a difference between shari‘a and fiqh (jurisprudence). Shari‘a is what Muslims believe to be the eternal message of God: unchangeable, divine, and relevant for all times and places. It is full of all things good. Fiqh, on the other hand, is the human endeavor to uncover and understand this divine message. It is therefore changeable and subject to context. The Arab region’s family laws are not divine, because they are based on human fiqh. If such laws were divine, how is it that they are all different from one another, despite their being based on the one unchangeable shari‘a? If such family laws were divine, why then have they undergone a continuous process of change and reform since their inception, and will continue to do so in the near future and beyond? This is because such laws are based on different fiqh schools. Even within one school, there was, and is, a difference in opinion. It is a difference that was celebrated and embraced throughout Islamic legal history, and never claimed to be divine.

The good news is that today we find new jurisprudence, knowledge, and family law reforms which reflect a more gender-sensitive understanding of the divine shari‘a.[3] The bad news is that these reforms are slow and very hard to come by. Musawah (equality in Arabic), a global movement for equality and justice in the Muslim family, has published a table showing the positive developments in family laws across the Muslim world. We see here that where there is political will there is a way, and that religion per se is not the problem, rather “how” it is wielded by different political actors for “what” purposes.

We are told today that family law reform is not a priority. Yet COVID-19 has shown us the high price of ignoring the inequality lurking in our family laws and practices. Between the violence and the deaths, the exponentially increasing unpaid labor load, the breakage of livelihoods in informal sectors, and the threats to women's and families' health and well-being, what exactly are we waiting for?

That is why a movement such as Musawah is launching its global campaign to reform Muslim Family Laws. Musawah is a movement comprised of Muslim women and men worldwide. They are scholars, activists, and policymakers who believe that these are pressing issues and that gender equality and justice are at the core of the Islamic message. They realize that inequality in the family intersects with various other global/local inequalities, and root their scholarship and activism in local knowledge, lived realities and history of struggles for inclusive citizenship. Musawah's work pays particular attention to the creative dynamic interaction between the local and the global, including the power-related challenges and possibilities. They, therefore, make the case that change is necessary, change is possible, and the time for change is now.

For more on Musawah's work and resources please visit the website.

 



[1] By family law, I refer to what is commonly known as Muslim family or personal status laws. I also sometimes address provisions in the penal, civil, labor and other laws that deal with family issues. These may or may not have a secular basis, but still reflect varying levels of gender discrimination.

[2] The focus here is on “unpaid” domestic and care work provided by the majority of women for their families. There are exceptions to this in parts of the Arab region, such as the Gulf states, where families increasingly resort to hiring “paid” foreign domestic labor to carry out these duties.

[3] Such as the work of Musawah, Amina Wadud, Ziba Mir-Hosseini, Khaled Aboul Fadl, Abdullahi al-Naim, Kecia Ali, Omaima Abu Bakr, Fazlur Rahman, Mulki al-Shurmani, Asma Lamrabet, and many others.

The Violence on Kashmir Is Epistemological as It Is Physical

On 5 August 2019, the Indian government unilaterally changed the legal status of the state of Jammu and Kashmir. This measure not only undermined India’s own constitutional process, but also effectively annexed a territory that remains disputed in the international arena. Since then, the government has placed Indian-occupied Kashmir on lockdown, restricting the movement of reporters and human rights observers as well as a clamping down on communication infrastructure (including the internet and phone services). There have also been reports of widespread human rights abuses: extrajudicial detentions (including of minors); torture; sexual violence; and lack of access to basic medical and healthcare services.

The media establishment in India has overwhelmingly adopted both the historic discourse of the Indian state as well as that of its ruling BJP government. Yet, there has been an unprecedented international outcry over the government’s recent actions. This is largely due to fears of an impending settler-colonial project, as the revocation of Kashmir’s special status now enables people from India to buy land and property in Kashmir, and change the demographics of the Muslim-majority region. 

Despite the striking clarity that India’s effective annexation of Kashmir provides relative to its longstanding colonial occupation, there still remain blind spots in academic and public discourses on Kashmir—especially within Indian liberal and leftist spaces. In what follows, I offer a critique of the dominant frames through which many self-identified liberal and leftist South Asian, and primarily Indian, academics have and continue to see Kashmir. It is imperative to change the basic frameworks and categories that have set up the debate on Kashmir thus far.

On Kashmir Being Complicated


Before 5 August, it was rare to find many institutions of higher education, including South Asian studies centers and departments, that held panels or discussions on Kashmir. Those that did usually featured statist perspectives or non-Kashmir experts. As a Kashmir scholar, it is frustrating to see the ways in which honest and empirically-grounded conversations on Kashmir rarely make it into our academic spaces. Particularly in short supply have been conversations that move beyond the India-Pakistan framework and center Kashmiri voices, perspectives, and aspirations. 

Indeed, the violence on Kashmir is epistemological as it is physical, and there is a reinforcing relationship between the two. There is a complicity, largely on the part of many liberal and leftist Indian academics (and some of their Pakistani counterparts) in their invocations of the “complexity” or the “complicated” nature of Kashmir. On a personal level, I cannot begin to count the number of times I have asked senior academics why they do not engage with the question of Kashmir in their work on the Indian state, subaltern studies, postcolonial studies, partition studies, feminist studies, and so on.

I recall the Jawaharlal Nehru University (JNU) row some years ago, when academics around the globe mobilized and expressed their solidarity with the JNU students who were being charged with sedition. In a moment that perfectly captured the contradictions inherent in the Indian liberal project, the only voices apparently worth standing in solidarity with were those of the JNU students. Forgotten were the millions in Kashmir whose voices and aspirations have been muzzled for seventy-two years, and who were the main reason why the JNU row began in the first place. 

This blindspot is simultaneously rooted in both a deep-seated allegiance to the “idea” of an Indian nation as well as a more sophisticated form of Islamophobia.

This blindspot is simultaneously rooted in both a deep-seated allegiance to the “idea” of an Indian nation as well as a more sophisticated form of Islamophobia. The latter not only continuously constructs the bogey of Pakistan, erasing any form of Kashmiri agency, but also engages in a majoritarian impulse of being completely unable to apprehend, and thereby dismiss, Muslim political aspirations. Let us be frank: Kashmir is “complicated” because it is a Muslim-majority space, and many liberals and leftists alike cannot bear to contend with that reality.

Consequently, the differentiation between many of the Indian secular/liberal intelligentsia and proponents of Hindu nationalism—especially on the question of Islam or Kashmir—is not so variegated. It relies on the same tropes, the same processes of othering, and the same inability to see beyond a nationalist impulse. As the scholar Nosheen Ali argues, “The racist, castiest, and irredentist fabric of Indian society is invisible in a secular-on-top-savarna-underneath national discourse in which Muslims are the problem populace, and Kashmir, to be subdued at all cost.” 

On Indian Democracy


While things may be starting to change, especially given the challenges that the Hindutva project poses to this idea of India as a pluralistic, democratic space, there remains a romanticism about India before Modi—or even before Hindutva began to gain traction in the past few decades. Fundamentally, the Kashmir question today, and the revocation of Article 370, is not about India’s democratic or legal institutions being undermined or under threat. It is, however, a culmination of India’s long-standing colonial occupation of Kashmir, one that has taken various forms over the past seventy-two years. As Kashmir studies scholar Goldi Osuri argues, “the first phase of this occupation was the contested accession to India, the second phase was the immense militarization of the region—which remains the most militarized in the world—and bringing in laws that give the Indian army complete impunity for their actions in Kashmir, then the third phase will be marked by a full-on settler colonial project.”

Aside from the families associated with the client regimes of the Indian government, Kashmir’s Muslim-majority did not maintain any allegiance to or nostalgia surrounding Article 370. Kashmir’s “special status,” enshrined in the article, was built on the understanding between the Indian leadership and its client state in Kashmir that integration to India would be a hard sell for the vast majority of Kashmiris after partition. Over time, the article remained one on paper. Kashmiris—and here I use Kashmiri as a political identity, not solely an ethnic one—knew that the autonomy that had been promised to them had eroded over time, as the Indian state entered into all aspects of political, economic, legal, and civic life in Kashmir—well beyond the officially-sanctioned domains of communications, foreign affairs, and defense.

The legality or illegality of the revocation then is not the primary framework from which most Kashmiris see these developments. They know all too well how the law in Kashmir has served as a critical component of the military occupation through acts like the Armed Forces Special Powers Act (which provides complete impunity to the armed forces in Kashmir) and the Public Safety Act (what Amnesty International has referred to as a “lawless law,” as it allows the preventive detention of people, including children, against whom there is no criminal offense).   

Why there is rage, however, is related to another article of the Indian constitution: Article 35A. This article gave the local Kashmiri state the right to define requirements for permanent residency in the state. Permanent residents were exclusively able to own property or buy land in Kashmir. This was a condition that the pro-accession local leadership insisted upon to protect Kashmir’s Muslim-majority status, and was the last thing Kashmiris were holding onto to preserve some semblance of their nationhood. But the 5 August revocation has now changed this. Indians can now buy property and land in Kashmir, and drive out the indigenous population. Thus, what is at stake in this move is the beginnings of a settler-colonial project in Kashmir. 

To be sure, the over seven-hundred-thousand-strong deployment of the Indian military already populated the land. This apparatus had taken over huge swaths of land with their cantonments, camps, and bunkers. But now the ruling BJP can set in motion its long-term plan to populate the region with enough Hindu settlements to make obsolete the current Muslim majority’s political aspirations for freedom. Indeed, while the Indian government maintains that the article was revoked to further integrate Kashmir into India, enable development, and curb “terrorism,” a recent clip of the Indian consul-general in New York City exemplifies the settler-colonial logic at play. In the clip, the consul-general calls for the implementation of the Israeli model in Kashmir. The intent here is to change the demographics of Kashmir from a Muslim-majority state to one that has a Hindu majority. This process could entail ethnic cleansing. This is why, for Kashmiris, this is an existential moment—one of life and death.

One also cannot help but wonder why fear of undermining democratic institutions has been a rallying cry for those who protest the abrogation. For Kashmiris, India has never been a democracy. It was not a democracy when the early Indian leadership, including its first post-independence Prime Minister Jawaharlar Nehru, suppressed the demand for a UN-backed plebiscite, installing a series of client regimes that were tasked with securing the contested accession for India. It was certainly not a democracy when during the 1950s and through the 1970s, these client regimes began to repress pro-plebiscite and pro-Pakistan movements in Kashmir, invoking colonial-era draconian laws prohibiting association and speech. Popular forms of dissent were framed as “anti-national, seditious, and subversive.” It was not a democracy when the Indian National Congress-led governments rigged elections in Kashmir in the late 1980s, eventually leading to armed rebellion. And it is certainly not a democracy today, as we mark over 120 days of siege against eight million people, depriving them of internet and restricting phone lines, while also detaining and torturing many of them—including children as young as eleven years of age.

The tragedy of Kashmir is not a reflection of the erosion of Indian democracy. It is a product precisely of the sham of Indian democracy: its irresolvable contradictions; violent majoritarianism; and pernicious secularity that thrives on quashing minority lives in the name of liberal pluralism. Any perspective that valorizes the territorial frame of the Indian nation-state insidiously suffocates the possibility of alternate political futures and horizons unimprisoned by the idea of India. It is precisely such an absence of political imagination that nourishes the tendency to view Indian atrocities in Kashmir primarily through the prism of the threat they pose to other Indian states and populations— as a whole host of analysis did after 5 August.

In this slippery slope argument, the critique of the Indian state is invariably couched in the language and imperative of "saving Indian democracy" from itself, of preventing others parts of India from becoming Kashmir. We must note the way this framing both instrumentalizes Kashmir in the service of rescuing India from its own majoritarian pitfalls, at the same time it shackles Kashmir to the project of "improving Indian democracy." I repeat: Kashmir has never been a part of India, it’s people never gave consent to India’s rule over them, it is not a laboratory of Indian democracy, and it is not a litmus test of India's alleged promise of secular equality. The vast majority of Kashmiris desire and demand complete freedom from the territory, idea, and promise of India in all its manifestations and apparitions

To posit the question of Kashmir as one of Indian federalism—meaning that if only the center could figure out the appropriate degree of control it wants to hold over the various states—is misguided at best and intellectually dishonest at worst. Consider the perspective of one scholar in the BBC: "The single biggest significance of this move is that we are moving towards a unitary state, and abrogation of democratic principles. This is weakening federalism in India. People are so busy celebrating the move that they don't seem to get the big picture.” This position simply reiterates the Indian state’s talking point that the question of Kashmir is one of governance rather than sovereignty.

One cannot engage with the question of Kashmir without also acknowledging that Kashmir had a historic popular anti-feudal and anti-monarchical struggle for sovereignty well before 1947. The claims and longer histories of the people of this region, who existed before India and Pakistan emerged as post-colonial nation-states have been ignored. Kashmir is not like other regions of India, because no other region in India has numerous UN resolutions that stake claim to its disputed status under international law. The provisional status of Kashmir’s contested accession to India marks it as a different case altogether from other regions. 

I want to briefly turn to another source of liberal and left anxiety about Kashmir: Islam. It is hard to escape the fact that liberal and left anxieties about Kashmir have much to do with Islam—and this has pre-dated the post-2001 war on terror. That it is anti-secular, violent, and uniquely misogynist—all of these claims and tropes are harnessed and deployed against the Kashmiri struggle. They work to undermine any kind of nuanced discussion—leave alone solidarity—with the Kashmir movement. That is not to dismiss the ways that the war on terror has been crucial in shifting the ground. Undoubtedly, the Indian state has perniciously used the war on terror logic to undermine the movement for self-determination. As Zunaira Komal notes, those “Kashmiris engaged in jihad against the state’s occupation, have had their Islamic framework of physical and moral struggle labeled and collapsed under the global phantasm of “terrorism” a tactic that is strategically deployed by the global war on terror beneficiaries to disenfranchise Islamic anti-colonial movements.” What we need to understand is the ways in which Islam is simultaneously spectacularized and erased within the logic of the War on Terror. Komal continues that “taking seriously the moral universe being espoused in such aspirations would necessitate a nuanced hermeneutic sensitive to the moral discourse of Islam which challenges the very notion of secular freedom itself.”

Conclusion


We, as scholars, students, and concerned individuals must stake an ethical position on the question of Kashmir—one that engages with this oft-repeated refrain of what do Kashmiris really want. Ending the Indian occupation and giving Kashmiris a right to self-determination is truly the only ethical position one can take on Kashmir. Understandings that simply focus on improving governance, reinstating Article 370, or addressing the human rights violations, fail to get to the root of what is at stake. Any solution must of course take into consideration the aspirations of all regions and communities of the former princely state. Here, I think it is important to note, as the anthropologist Mona Bhan has argued, the state of Jammu and Kashmir’s diversity (religious, linguistic, and ethnic) is held up as evidence of the intractable nature of political divides in the state. It is only the Kashmiri speaking Sunni Muslims of the Kashmir Valley who demand azadi (freedom), the argument goes. What about everyone else? Bhan argues that this difference from Kashmiri Muslims is used to frame the Kashmiri struggle for self-determination as parochial and territorially limited in order to render it morally and politically illegitimate. She asks whether those who speak on behalf of these communities “know what it means to live on the border, on the state’s margins, to be asked to offer their lives, land and resources to maintain India’s security and territoriality. “ Furthermore, as the editors of Resisting Occupation in Kashmir argue, “the diversity of the state has been heavily policitized through selective patronage and regional biases in development and governance mechanisms, a policy that local governments have actively pursued to fragment communities in order to stall Kashmir’s political resolution and perfect the colonial strategy of divide and rule.”   

Therefore, foregrounding and resolving Kashmir enables us to think of aspirational futures of the subcontinent beyond the India vs. Pakistan binary and beyond Hindu-Muslim divides. Perhaps it will allow us to foresee a future for South Asia beyond the nation-state paradigm. Azadi for Kashmir will mean azadi for Pakistan, for India, and for the region as a whole.

[This article is based on presentations given at the “Article 370 and its Aftermath” and “Kashmir: Article 370 and Beyond” panel events, held at Columbia University and New York University, respectively, in September 2019. A video of the author's Columbia University presentation can be viewed here.]