Understanding the Silence: When Courts Don-t Speak About Religion

Authors: Kalindi Kokal

Abstract:

India recognizes the personal laws of the various religious communities that reside in the country. At the same time all the institutions of the state in India are committed to the value of secularism. This paper has been developed on the basis of a case study that indicates the dynamics of religion in the working of the lower judiciary in India. Majority of the commentary on religion and the judiciary has focused on debates surrounding the existence and application of personal laws. This paper, through a case study in the lower judiciary, makes an attempt to examine whether the interface between religion and the judiciary goes beyond personal laws. The first part of this paper explains the history and application of personal laws in social, political and legal contexts in India. The second part examines the case study located in two courts of first instance, following into the third part which provides an analysis of the empirical evidence. The fourth part focuses on preliminary observations about why there is a hesitancy to speak about religion in relation to the working of the judicial system.

Keywords: Lower Courts, India, Legal Pluralism, Personal Law.

Digital Object Identifier (DOI): doi.org/10.5281/zenodo.1075260

References:

[1] N. Subramanian, "Myths of the Nation, Cultural Recognition and Personal Law in India", Paper presented at the Harvard Conference on National Myths, May 2009, pp 9 - 11
[2] J. H. Mansfield, "Personal Laws or a Uniform Civil Code?" in Sociology of Law, Indra Deva Ed., New Delhi, Oxford University Press, 2005, pp 180
[3] Mansfield supra, pp 182
[4] T. Mahmood, Muslim Personal Law: Role of the State in the Subcontinent New Delhi, Vikas Publication House, 1977, Chapter 1
[5] Mansfield supra, pp 175
[6] R. Bajpai, Debating Difference: Group Rights and Liberal Democracy in India, New Delhi, Oxford University Press, 2011, pp 182
[7] W. Menski, "Flying Kites in a Global Sky" Socio-legal Review, Vol 7, pp 1 - 22, 2011
[8] S.N. Balagangadhara, "Religion, Secularism and Law-, platform paper presented at Rethinking Religion in India IV Conference. Also available at http://www.rethinkingreligion.org/files/downloads/RRI_IV_platform_pa per.pdf
[9] M.Galanter, "Hinduism, Secularism and the Indian Judiciary" Philosophy East and West, Vol. 21, No. 4, Symposium on Law and Morality: East and West, pp. 467-487, Oct., 1971
[10] M. Mohsin Alam, "Constructing Secularism: Separating ÔÇÿReligion- and ÔÇÿState- under the Indian Constitution", Australian Journal of Asian Law, Vol. 11, pp 29 - 55, 2007, pp 39
[11] Bajpai supra, pp 179
[12] Mohd. Ahmed Khan vs Shah Bano Begum And Ors, 1985 SCR (3) 844
[13] Bajpai supra, pp 180 - 181
[14] Majlis, Defending Muslim Women-s Rights: Bridging Muslim Personal Law and Court Judgments, Mumbai, Published by Majlis, 2012 ; Solanki G., Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism and Gender Equality in India, New York, Cambridge University Press, 2011
[15] Shabana Bano v. Imran Khan; AIR 2010 SC 305
[16] Lawyers explained how marriage among Muhammedans is a contract and is not considered a ÔÇÿsacrament- as amongst Hindus or Christians. "There is no bar on a Muslim woman to remarry. Therefore, even though Talaq may hamper her reputation to a certain extent; it does not curb the probability of her being remarried." They further expressed: "They don-t understand that we are governed in all aspects by our personal law and therefore the same disputes yield different decisions for Hindu litigants and Muslim litigants."
[17] Majlis supra, pp 66.
[18] A.Tundawala, "Multiple Representations of Muslimhood in West Bengal", South Asia Research, Vol. 32, No. 2, pp 139 - 163, July 2012
[19] Tundawala supra, pp 142
[20] Tundawala supra, pp 144
[21] Tundawala supra, pp 140 - 141
[22] Tundawala supra, pp 156
[23] Solanki G. supra, pp 132
[24] L. Holden and A. Chaudhary, "Daughters- Inheritance, Legal Pluralism and Governance in Pakistan", The Journal of Legal Pluralism and Unofficial Law, Vol. 45, No.1, pp 114 - 115
[25] Majlis supra, pp 7.
[26] M.S. Alam, "Social Exclusion of Muslims in India and Deficient Debates about Affirmative Action: Suggestions for a New Approach", South Asia Research, Vol. 30, No. 1, pp 33 - 65, February 2010, pp 44
[27] P. Shah, ÔÇÿIn Pursuit of the Pagans: Muslim Law in the English Context-, Journal of Legal Pluralism and Unofficial Law, Vol. 45, No. 1, pp 58 - 75, Published online March 2013
[28] A. Bilgrami, "Secularism and the Very Concept of Law" in The Crisis of Secularism in India, A. Needham and R. Rajan (ed), Ranikhet, Permanent Black, 2009, pp 316 - 330
[29] Holden and Chaudhary supra, pp 118
[30] Holden and Chaudhary supra, pp 112