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From Accommodation to Substantive Equality: Muslim Personal Law, Secular Law, and the Indian Constitution 1985–2015

Published online by Cambridge University Press:  09 September 2016

Sagnik DUTTA
Affiliation:
Department of Politics and International Studies, University of Cambridge

Abstract

The adjudication of religious personal laws of minority communities in India has been a domain of contestation between competing claims of cultural autonomy, gender justice, and individual rights. The Supreme Court of India has time and again been confronted with the conflict between the secular law and legislation that protects group rights of minorities. While the existing literature has taken note of the attempts by the Indian state and the judiciary at legal-pluralist interventions to secure gender justice within the framework of personal laws based on religion, there has not been a sustained analysis of the discursive construction of constitutional law in dynamic interaction with the secular law and tenets of religion. This paper attempts to address this important gap in the scholarship using a discourse analysis of the judgments of the Supreme Court of India from 1985 until 2015 pertaining to post-divorce maintenance for Muslim women. I examine how the “rights” of Muslim women are framed in a realm of dynamic interaction between legislation premised on community identity, notions of constitutionalism, and personal laws based on religion to argue that the state adopts an interventionist role in a legal-pluralist paradigm; it further uses the specificity of community identity to foreground a vision of social justice.

Type
Law and Society in South Asia
Copyright
© Cambridge University Press and KoGuan Law School, Shanghai Jiao Tong University 

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Footnotes

*

University of Cambridge, Department of Politics and International Studies. I am grateful for useful comments and insights on the initial draft of this article from the two anonymous peer reviewers, Prof. Werner Menski and Prof. Matthew J. Nelson of the School of Oriental and African Studies, and my PhD supervisor, Prof. Iza Hussin of University of Cambridge. I am also grateful to my former colleagues at OP Jindal Global University, especially colleagues working at the library, for useful reading suggestions. I wish to thank my undergraduate students at the university, especially Tushar Srirana Irrinki, Purushartha Satish, and Manikya Das, for their enthusiasm about the project that motivated me to see it through to its completion. Correspondence to Sagnik Dutta, Corpus Christi College, University of Cambridge, Trumpington St, Cambridge, CB2 1RH, UK. E-mail address: dutta.sagnik@gmail.com.

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