Wls Final Draft

7/24/2019 Wls Final Draft

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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY LUCKNOW

Final Draft

World Legal Systems

Topic- Judicial Review of Religious Legal Systems in India and Israel

SUBMITTED TO: SUBMITTED BY:

Mr Malay !anday "ugmita !ratap

#sst !rofessor $Law% Section - &

Roll 'o ()*


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INTRODUCTION

In Fe+ruary ,*. &ritain/s #rc0+is0op of 1anter+ury stated in an interview t0at it 2seems

unavoida+le2 t0at parts of Islamic law. 3nown as s0aria. s0ould +e applied to Muslims in t0e4nited 5ingdom in t0e interest of social co0esion(# firestorm of pu+lic controversy ensued

# similar row erupted in 1anada in ,). as t0e province of 6ntario considered aut0ori7ing

voluntary. s0aria-+ased family law ar+itration, Suc0 conflicts over t0e accommodation of

religious norms wit0in secular. democratic legal systems are li3ely to +ecome increasingly

common Despite t0e conventional wisdom t0at moderni7ation and secularism go 0and in

0and. sc0olars 0ave pointed to a glo+al resurgence in religious +elief and religious

identification in recent years. especially wit0 respect to fervent forms of religion and

advocacy of religious politics !art I of t0is paper will discuss different models of religious

accommodation. and t0e current status and 0istorical origins of state accommodation of

religion in India and Israel. descri+ing. in particular. t0e operation of eac0 country/s system of

religious personal laws

!art II will analyse specifically 0ow t0e civil courts of eac0 country 0ave e8ercised t0e power

of 9udicial review over matters of religion and state. especially wit0 respect to t0e personal

laws

!art III will draw comparative conclusions a+out t0e a+ility of 9udicial review to protect

principles of secularism from religious pressures T0is part will first e8amine w0y :uestions

of religion and state are +eing increasingly answered +y courts. t0en it will assess t0e limits

of 9udicial power in t0is area. and finally it will turn to conclusions for states t0at are

considering introducing elements of religious pluralism into t0eir legal systems

1 Sharia Law in UK is Unavoidable, BBC NEWS, Feb !, "##$,h%%&'((newsbb))o*+(1(hi(*+(!""--1s%. See /n%erview b0 Chris%o&her Landa* wi%h r2owan Willia.s, 3r)hbisho& o4 Can%erb*r0 5Feb !, "##$6, available a%h%%&'((wwwar)hbisho&o4)an%erb*r0org(17!, 4or a 4*ll %rans)ri&% o4 %he 3r)hbisho&8ss&ee)h

" 9n%ario Pre.ier re:e)%s *se o4 Shariah law, CBC NEWS, Se&% 11, "##7,

available a% h%%&'((www)b))a()anada(s%or0("##7(#;(#;(sharia


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T0is paper argues t0at alt0oug0 t0e 9udiciaries in India and Israel generally issue rulings

supporting secularism. t0ey 0ave only a limited a+ility to resist trends t0at dominate

ma9oritarian politics. including t0e pressures of religious constituencies. wit0out losing

legitimacy and power T0erefore. states t0at are generally committed to principles of secular

governance and law s0ould +e wary a+out introducing elements of religious law into t0eir

legal systems. +ecause in cases w0ere civil legal principles conflict wit0 religious mandates.

regular civil courts may 0ave difficulty up0olding and enforcing t0e civil law

T0is paper analyses and compares 0ow two democratic states. Israel and India. incorporate

discrete sp0eres of religious law into t0eir secular legal systems It argues t0at. contrary to t0e

#rc0+is0op/s view. t0e incorporation of religious law into secular legal systems can

undermine t0e aut0ority of t0e secular legal system and erode t0e social co0esion t0at

promotes effective democracy T0e relations0ip +etween religion and state is a foundational.

constitution-level :uestion Li+eral democratic states +ased on secular principles of

governance 0ave adopted various different religion-state arrangements

6ne o+vious arrangement is t0e 4nited States/ model of strong secularism. featuring a

relatively ro+ust separation +etween c0urc0 and state.;+ut t0is is not t0e only model T0e

4nited 5ingdom. for e8ample. 0as an official state c0urc0. and many ot0er for e8ample. in t0e family law disputes of religious ad0erents >

wit0in a +roader secular. civil framewor3 Religious legal pluralism is an appropriate

description for t0ese legal regimes t0at admit multiple. 0y+rid. and sometimes overlapping

and conflicting +odies and systems of law T0e s0aria proposals for 1anada and t0e 4nited

5ingdom would 0ave +een e8amples of religious legal pluralism. alt0oug0 t0ose proposals

were controversial. in part. +ecause t0ose countries/ traditional met0ods for accommodating

=here are, o4 )o*rse, deba%es abo*% how rob*s% %he se&ara%ion be%ween )h*r)h

and s%a%e reall0 is *nder US law Se)*laris. in %he Uni%ed S%a%es and o%her

)o*n%ries is dis)*ssed in )o.&ara%ive &ers&e)%ive below

? For e@a.&le, Norwa0, en.ar+, Aree)e, Lie)hens%ein, ona)o, and o%hers

have es%ablished )h*r)hes

7 See Pa*l S)hi Ber.an, Alobal Legal Pl*ralis., $# S C3L L 2ED 1177 5"##!6


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religion and state are +ased more on separation t0an on pluralist recognition ? India and

Israel. 0owever. are two democratic states t0at. for 0istorical reasons. 0ave employed

religious legal pluralism since t0eir independence In t0ese countries. certain matters of

personal law are governed +y t0e law of an individual/s religious community. rat0er t0an +y

secular. civil laws !ersonal law. generally. refers to :uestions of family law. in0eritance. and

personal status

In (@=A-(@=*. as India and Israel emerged from &ritis0 rule and esta+lis0ed t0emselves as

independent nation -states. +ot0 countries preserved e8isting religious- +ased systems of

personal laws as a compromise wit0 religious elements of society T0e leaders0ip of +ot0

countries at t0e time of t0eir national independence and for some time afterward was secular

and moderately socialist in orientation. +elieving in t0e inevita+le progression and triump0 of

t0e state. and pro+a+ly t0at t0e political process would provide for t0e eventual elimination or

reform of t0ese religion-+ased legal sp0eres during t0e state-+uilding process

Bowever. t0e opposite social trend developedC Forces promoting religious politics 0ave

grown more powerful in +ot0 countries in recent decades 4na+le to reform t0e religious

personal laws t0roug0 t0e legislative process. t0e more secular-oriented forces in Israeli and

Indian society 0ave turned instead to constitutionalism and t0e courts to attempt to ac0ieve

t0ese outcomes 9udicially T0e purpose of t0is paper is to e8amine 0ow t0is conflict of secular

and religious legal norms 0as played out in t0e Israeli and Indian civil courts. and to draw out

lessons from t0ese countries/ e8periences wit0 religious legal pluralism T0ese lessons will +e

of particular relevance for proposals to introduce religious legal pluralism into li+eral.

democratic states. +ecause defenders of suc0 proposals often offer 9udicial review +y civil

courts as a means to safeguard esta+lis0ed civil rig0ts from infringement +y religious law

In recent years. t0e law in many democratic. constitutional states 0as converged around

common understandings of t0e content of many +asic civil. political. and 0uman rig0ts

'evert0eless. w0en it comes to freedom of religion > and more generally. t0e relations0ip

+etween religion and state > t0e different arrangements t0at e8ist in t0e democratic world

remain 0ig0ly idiosyncratic. reflecting diverse 0istories and religious traditions Despite t0ese

variations. 0owever. it is still possi+le to identify a few +asic models of accommodation of

- 94 )o*rse, .*)h o4 %he )on%rovers0 )an also be a%%rib*%ed s&e)i)all0 %o 4ears

abo*% /sla. and Sharia in &ar%i)*lar, ra%her %han de


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religion in states t0at follow principles of secular. democratic governance First. t0ere is t0e

strong secularism or lacitE model


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Finally. t0ere is t0e model of religious legal pluralism 4nder t0is model. wit0in a generally

secular state $+ased on eit0er strong secularism or wea3 esta+lis0ment%. religion is granted

special status or aut0ority wit0in discrete sp0eres of law T0e two most nota+le e8amples in

t0is category are t0e su+9ect of t0is paperC Israel and India &ot0 of t0ese countries are

democracies +ased on principles of secular law and secular governance. +ut +ot0 recogni7e

religious law as governing certain matters of personal law

To illustrate. w0en a Muslim gets divorced in India. t0e courts apply a version of Islamic law

to t0e case. +ut w0en a Bindu gets divorced. a Bindu-+ased law is applied Similarly. w0en a

Jewis0 couple in Israel gets divorced. t0ey must go to a ra++inical court t0at applies Jewis0

law wit0 +inding legal power. +ut w0en a Muslim couple gets divorced. t0ey would go to a

Muslim court of similar standing

T0e operation of religious law wit0in an overall secular state 0as +een descri+ed as creating a

type of multicultural or differentiated citi7ens0ip in w0ic0 individuals possess different

religious and cultural group-+ased legal rig0ts From t0e perspective of t0e strong version of

secularism. multicultural legal pluralism may +e seen as violating +asic li+eral. secular tenets

of universal citi7ens0ip and complete e:uality +efore t0e law Modern understandings of

0uman rig0ts may +e violated +y legally imposed religious precepts For e8ample. many of

t0e controversies generated +y legal pluralism involve conflicts +etween legal rig0ts to

gender e:uality and traditional mandates of religious law $for e8ample. t0e treatment of

women under Islamic divorce law% 'evert0eless. it is not clear t0at religious legal pluralism

necessarily constitutes a violation of li+eral principles Indeed. some modern political

t0in3ers +elieve legal pluralism may furt0er li+eral principles of tolerance and autonomy For

e8ample. w0ere t0e ostensi+ly secular pu+lic culture and laws of t0e state clearly reflect t0e

values. +eliefs. and practices of t0e dominant religious group in society. as is t0e case in

many countries. t0e pluralist model may allow religious minority groups sp0eres of autonomy

in w0ic0 t0ey 0ave official legal aut0ority and protection to develop and maintain t0eir own

tradition

Legal pluralism may also function to mediate conflicts +etween and among mem+ers of

different religious groups in society 1ritics of legal pluralism. 0owever. would claim t0at it

perpetuates inter-religious conflicts +y undermining e:uality. reducing social co0esion. and

undermining a s0ared sense of civic identity T0e de+ate over t0e value of legal pluralism

often +oils down to :uestions a+out t0e nature of societyC w0et0er society is composed only


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of individuals or of groups as well. w0at rig0ts groups s0ould possess. to w0at e8tent legal

framewor3s t0emselves 0ave t0e effect of constituting society. and vice versa

#nswering t0ese fundamental. t0eoretical :uestions a+out t0e merits of legal pluralism is

+eyond t0e scope of t0is paper. w0ic0 focuses on understanding and evaluating t0e

e8periences of t0e Indian and Israeli Supreme 1ourts in resolving conflicts +etween secular

and religious claims to legal aut0ority

RELIGIOUS LEGAL PLURALISM IN INDIA

India is a country wit0 an enormous population of more t0an one +illion people. and is 0ome

to a great num+er of different religious traditions including Binduism. Islam. &udd0ism.

10ristianity. Si30ism. Jainism. and ot0ers Binduism and Islam are t0e two most common

religions. representing *)G and (;=G of t0e population respectively*Modern India is a

secular state wit0 no official state religion. +ut w0ose pu+lic culture 0as +een significantly

s0aped +y religion. and w0ic0 maintains specific sp0eres of religious legal pluralism in its

personal law

Bistorically. various empires ruled over parts of India. +ut local communities generally

operated as autonomous legal 9urisdictions living +y t0eir own traditions and customs. despite

t0e religion of t0e imperial ruler(= In (AA,. Warren Bastings. t0e first Hovernor-Heneral of

&ritis0 India. introduced various legal reforms esta+lis0ing a uniform criminal code $+ased

mostly on Islamic law%. and providing t0at 2in all suits regarding marriage. in0eritance. t0e

laws of t0e 5oran wit0 respect to Mo0ammedans. and t0ose of t0e S0astras wit0 respect to

Bindus s0all +e invaria+ly ad0ered to2 T0us t0e model of enclaves of religious personal

law wit0in a +roader. uniform national legal system was introduced in India

Initially. &ritis0 colonial 9udges appointed Bindu and Muslim e8perts to 0elp t0em decide

matters involving religious personal law. +ut eventually t0ese e8perts were eliminated and t0e

9udges interpreted t0e personal law on t0eir own Since +ot0 Binduism and Islam contain a

$ AE23L >3ES L32S9N, /n%rod*)%ion' =he Se)*lar S%a%e in a 2eligio*s So)ie%0, in

2EL/A/9N 3N PE2S9N3L L3W /N SECUL32 /N/3 7 5Aerald >a.es Larson ed, "##16


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great diversity of traditions and customs. t0e personal law administered +y t0e &ritis0

represented only one particular su+set of religious interpretations t0at gained aut0ority

t0roug0 t0e colonial legal system. and t0en continued to develop t0roug0 case law and

reforms T0e consolidation of Bindu law and Muslim law into only two systems. t0erefore.

represented a significant centrali7ation of t0e previously e8isting systems of religious law in

t0ese communities T0e elite class of anglici7ed Indians su+se:uently educated +y t0e later

&ritis0 colonial system largely founded t0e Indian 'ational 1ongress. t0e secular nationalist

party t0at led t0e struggle for Indian independence and dominated Indian politics for many

years after independence was ac0ieved in (@=A T0e 1ongress !arty soug0t to create a

unified. ma9oritarian. secular. democratic state around t0e one-nation t0eory of Indian

nationalism Muslim wariness of ma9oritarian democracy in India derived in part from t0e fact

t0at t0e Muslim community stood to lose more t0an t0e Bindu community in suc0 an

arrangement +ecause Muslims were a numerical minority U/C/32I1#- 5S&ringer 1;;?6


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practise and propagate religion2 #rt,)$(%"et additional clauses of t0e same article specify

t0at 2'ot0ing in t0is article s0all prevent t0e State from ma3ing any law providing for

social welfare and reform or t0e t0rowing open of Bindu religious institutions of a pu+lic

c0aracter to all classes and sections of Bindus.2 art,)$,% w0ic0 in t0is conte8t includes

&udd0ists. Si30s. and Jains $+ut not Muslims%T0us. freedom of religion is constitutionally

su+ordinated in India to t0e state/s responsi+ility for social reform. and specifically for t0e

reform of t0e Bindu society. w0ic0 0istorically featured a rigid system of social ine:uality

+ased on caste 4nder t0is concept of ameliorative secularism. t0e Muslim community/s

e8emption from t0e religious reforms of t0e constitution $evidenced +y t0e lac3 of a reference

to Muslims in #rticle ,). as well as #rticle ==/s failure to a+olis0 t0e religious-+ased personal

laws due to Muslim concerns% +ecomes. for Bindu critics. a re9ection of t0e social reform.

progress. and moderni7ation identified as t0e agenda of t0e independent Indian state From

t0e perspective of many in t0e Muslim community. 0owever. t0is need for social reform was

rooted in Bindu caste ine:ualities. and t0e preservation of t0e Islamic personal laws. spelled

2s0ariat2 in India. +ecomes identified wit0 t0e preservation of Muslim community rig0ts in a

Bindu-dominated state T0ese clas0ing perspectives lay at t0e 0eart of many post-

independence religion-state conflicts in India

In t0e early years of Indian independence. t0e parliament enacted a wide -ranging reform oft0e Bindu > +ut not t0e Muslim > personal laws T0ese 2Bindu 1ode2 reforms introduced

secular legal concepts into t0e Bindu personal law +y promoting e:uality of caste and gender.

introducing divorce. and endorsing t0e nuclear $Marc Halanter K Jayant0 5ris0nan. !ersonal

Law Systems and Religious 1onflictC # 1omparison of India and Israel. in R


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T0e uniform civil code provision and t0e lac3 of reform in t0e s0ariat :uic3ly +ecame a

central point in su+se:uent de+ates and controversies over religion and secularism in India

T0is secular-religious struggle focuses on t0e appropriate nature of t0e relations0ip of t0e

state wit0 its constituent religious communities. and w0et0er t0e state oug0t to recogni7e

communities at all It is a site of conflict +etween t0e Muslim community/s attempts to

preserve t0eir cultural autonomy on t0e one 0and. and. on t0e ot0er 0and. t0e attempts of +ot0

+ona fide 4niversalist. secularists and particularistic. Bindu nationalists to eliminate legal

pluralism in India &ecause eliminating legal pluralism in India 0as proved impossi+le

t0roug0 t0e legislature. courts 0ave +ecome t0e primary +attleground for t0is struggle

RELIGIOUS LEGAL PLURALISM IN ISREAL

4nli3e in India. w0ere ordinary civil 9udges 0ave long interpreted t0e different religious-

+ased codes of law. eac0 recogni7ed religious community in Israel maintains its own

independent religious court system to apply and interpret religious law T0ese religious

courts. financed +y t0e state. 0ave 9urisdiction over certain matters of personal status. suc0 as

marriage and divorce T0ere are fourteen recogni7ed religious communities in IsraelC Jews.

Muslims. and Dru7e. &a0ai. and ten 10ristian denominations T0e religious composition of

Israel. w0ic0 0as a population of roug0ly ?) million. is A?=G Jewis0. (?G Muslim. and

roug0ly ,G 10ristian and ,G Dru7e(?T0e ma9ority of t0e Jewis0 population in Israel is not

religiously o+servant. +ut nevert0eless all Israelis are su+9ect to t0e religious courts of t0eir

community

T0e origins of t0e Israeli personal law system lie in t0e 6ttoman


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state T0e !alestine 6rder-in-1ouncil of (@,,. w0ic0 served as t0e constitutional document of

t0e &ritis0 Mandate. preserved t0e millet system for personal law matters It retained

independent religious courts wit0 9urisdictional aut0ority over personal status :uestions

involving t0eir community mem+ers(( !ersonal status cases were defined as 2Suits

Regarding Marriage or Divorce. #limony. Maintenance. Huardians0ip. Legitimation and

#doption of Minors. In0i+ition from Dealing wit0 !roperty of !ersons W0o #re Legally

Incompetent. Successions. Wills and Legacies. #nd t0e #dministration of t0e !roperty of

#+sent !ersons2 In anot0er stro3e of legal pluralism. t0e &ritis0 also formed &edouin tri+al

courts to 0andle disputes among &edouin tri+es in t0e 'egev desert area according to t0eir

customs #rticle =) #s was t0e case under t0e former 6ttoman system. t0e Muslim courts in

Mandatory !alestine 0ad t0e widest 9urisdictional scope. wit0 aut0ority over all personal

status matters as defined a+ove. w0ile Jewis0 and 10ristian courts 0ad e8clusive 9urisdiction

only over 2marriage and divorce. alimony and confirmation of wills of religious community

mem+ers2

#t t0e time of Israel/s independence in (@=*. t0e secular. ionist. moderately socialist Mapai

$La+or% party dominated politics. +ut it nevert0eless soug0t t0e support of religious elements

of society Just prior to independence. David &en Hurion. t0e leader of t0e Mapai faction and

Israel/s first prime minister. 0ad reac0ed a compromise wit0 t0e Jewis0 religious parties5nown as t0e 2status :uo2 agreement. t0is compromise guaranteed Mapai/s support for t0e

Jewis0 ra++inical aut0orities/ preferences on a num+er of political issues. including

maintaining t0e personal law courts. esta+lis0ing religious sc0ools. and respecting t0e Jewis0

Sa++at0 and dietary $3os0er% laws in state institutions T0us. t0e actual sp0ere of religious

aut0orities/ power. at least for t0e Jewis0 community. e8tends a +it furt0er t0an t0e personal

law. and is implemented +y an officially recogni7ed religious +ody. t0e 10ief Ra++inate of

Israel

# 1onstituent #ssem+ly was convened in (@=* and c0arged wit0 drafting a written

constitution for Israel. +ut a constitution was never adopted Instead. t0e 1onstituent

#ssem+ly reconstituted itself as Israel/s parliament. t0e 5nesset. and t0e drafting of a

compre0ensive written constitution was postponed indefinitely in favour of adopting a series

of &asic Laws

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T0us. t0ere is no formal written constitution in Israel. +ut t0ere are several &asic Laws w0ic0

outline t0e state/s governmental structures and provide for t0e rig0ts of citi7ens T0e 5nesset

0as t0e power to create &asic Laws. and also retains t0e power to enact a formal constitution

at any time Israel 0as +een defined as a 2Jewis0 and democratic state2 in its &asic Laws. +ut

e8actly w0at it means to +e a 2Jewis0 state2 is unclear Judaism is not tec0nically considered

an official state religion. and private religious freedom is an individual rig0t recogni7ed +y

t0e Supreme 1ourt Israel T0eatres v Municipality of 'etanya. =A $;% !D (@,% T0us. t0e

most general understanding of Israel as a Jewis0 state is as a 0omeland for t0e 2Jewis0

people2 Israel is not a t0eocracy. as religious precepts do not generally enter into governance

t0e state is governed +y t0e democratically elected legislature Bowever. given t0e uni:ue and

privileged status of Judaism in Israel. t0e country can pro+a+ly +est +e descri+ed as a secular

state wit0 a 2wea32 religious esta+lis0ment and sp0eres of religious legal pluralism in

personal law # series of post-independence Israeli laws 0ave modified t0e legal aut0ority of

t0e religious courts In (@);. t0e 5nesset narrowed t0e e8clusive 9urisdiction of t0e ra++inical

courts :uestions of marriage and divorce T0e 5nesset also reformed t0e 9udicial

appointments process and t0e appeals structure of t0e ra++inical courts to +ring t0em in line

wit0 t0e norms in t0e civil system Bowever. t0e courts of t0e ot0er religions were not as

significantly modified. and so. for e8ample. t0e s0aria courts of Israel still 0ave t0e widest

9urisdictional scope of all Israeli religious courts. wit0 aut0ority over all personal status

:uestions for Israeli Muslim citi7ens #lt0oug0 t0e 5nesset preserved t0e autonomy and

integrity of t0e religious legal aut0orities and did not underta3e w0olesale reform of religious

law. li3e t0e Bindu 1ode laws did in India. t0e 5nesset did pass several civil laws intended to

provide indirect solutions to certain perceived ine:uities in t0e religious laws For e8ample.

t0e Women/s


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Secular Ju!c!al Ma"a#e$e"% &' Rel!#!&u( Le#al S)(%e$( !" I"!a a"

I(rael

In +ot0 Israel and India. t0e maintenance of t0e personal law systems +y t0e secular.

moderni7ing. post-independence leaders0ip represented a political compromise necessary to

ac0ieve t0e 0ig0er end of national unity to esta+lis0 t0e state In +ot0 countries. 0owever. t0e

personal law systems 0ave endured. and 0ave served to reinforce religious identity as an

important element of citi7ens0ip and to perpetuate certain illi+eral outcomes t0at are dictated

+y religious law Wit0 personal law reform unavaila+le t0roug0 t0e legislative process due to

political deadloc3. yet desired +y significant segments of society. t0e secular courts of India

and Israel 0ave acted. wit0in limits. to seculari7e and 0omogeni7e t0e national law +y

overseeing and restraining t0e aut0ority of religious law t0roug0 a variety of mec0anisms

I"!a

&ac3groundC T0e Indian Judiciary and 1onstitutional Law +efore delving into India/s 9udicial

management of religious law. it is first necessary to understand India/s constitutional structure

and t0e powers of its Supreme 1ourt During t0e first two decades of Indian independence.

t0e Indian Supreme 1ourt was 0ig0ly deferential to t0e legislature. rarely 0olding t0at


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legislative acts were unconstitutional e8cept in a 0andful of property rig0ts cases In t0e late

(@?s. 0owever. t0e 1ourt +egan to assert itself more forcefully on :uestions of fundamental

rig0ts #ccording to #rticle (;$,% of t0e Indian constitution. 2t0e State s0all not ma3e any

law w0ic0 ta3es away or a+ridges2 t0e fundamental rig0ts descri+ed in t0e constitution !art

III of t0e Indian constitution. comprising articles (;-;). is a +ill of fundamental rig0ts.

including rig0ts to e:uality +efore t0e law. non-discrimination of t0e +asis of religion. race.

caste. se8. or place of +irt0. freedom of speec0. and many ot0ers #rticle (; provides t0e

foundation for rig0ts-+ased 9udicial review of legislation for constitutionality +y t0e Supreme

1ourt of India In t0e ma9or (@?A case of Hola3nat0 v !un9a+(,. t0e Supreme 1ourt 0eld t0at

constitutional amendments t0emselves. w0ic0 can +e enacted +y super-ma9ority vote of +ot0

c0am+ers of t0e Indian parliament. were considered 2law2 under #rticle (;$,%. and t0at

t0erefore constitutional amendments were su+9ect to 9udicial review +y t0e court to ma3e sure

t0ey did not ta3e away or a+ridge fundamental rig0ts guaranteed +y t0e constitution T0e idea

t0at t0e court could limit t0e legislature/s power to amend t0e constitution itself was seen as a

radical e8pansion of 9udicial power. and t0e decision was 0ig0ly controversial #fter t0e

1ongress !arty won an overw0elming ma9ority in t0e (@A( elections for t0e Lo3 Sa+0a.

India/s lower 0ouse of parliament. t0e government c0allenged t0e court +y introducing t0e

,=t0 amendment. w0ic0 was intended to overrule Hola3nat0 and reinstate parliament/s power

to amend t0e constitution wit0out 9udicial oversig0t In 5esavananda &0arati. t0e court

tec0nically overruled Hola3nat0. +y up0olding t0e validity of t0e ,=t0 amendment and

overturning t0e doctrine t0at amendments were su+9ect to review under article (;$,%

'evert0eless. t0e court preserved its essential power to review constitutional amendments for

validity under a different framewor3 T0e court 0eld t0at amendments and ot0er laws w0ic0

violated or attempted to c0ange t0e /+asic structure/ or /+asic features/ of t0e Indian

constitution would +e 0eld invalid T0e response of t0e legislature to t0is ruling was t0e =,nd

amendment. passed in (@A?. w0ic0 attempted to reverse t0is 2+asic structure2 doctrine

Bowever. t0e court voided t0e provisions of t0e =,nd amendment t0at contradicted t0e +asic

structure doctrine. and t0e doctrine 0as since remained esta+lis0ed in Indian 9urisprudence

T0e court since t0en 0eld t0at secularism is +asic part of constitution

1" C9NS=/=U=/9N 9F /N/3 ar% 1, )l " "1Aola+na%h v P*n:ab, 3/2 1;-! SC1-?


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Secular!($ !" I"!a" S&c!e%)

T0e rulings of t0e Supreme 1ourt of India on t0e :uestion of personal law 0ave. on t0e

w0ole. attempted to e8pand its vision of secularism in Indian law W0at secularism means in

India. 0owever. is a :uestion t0at spar3s great de+ateW0en spea3ing a+out t0e meaning of

secularism in Indian society and law. it is possi+le to identify t0ree different visions of

secularism T0is vision of secularism may also lin3 secularism to social progress.

moderni7ation and t0e unification of t0e Indian state. as illustrated +y Jawar0alal 'e0ru/s

statements t0at 2rreligion is a 0indrance to t0e tendency to c0ange and progress in0erent in

0uman society.2 and t0at 2t0e +elief in a supernatural agency w0ic0 ordains everyt0ing 0as

led to a certain irresponsi+ility on t0e social plane. and emotion and sentimentality 0ave ta3en

t0e place of reasoned t0oug0t and in:uiry2 #ccording to t0is +rand of secularism. t0e

personal laws in India s0ould +e a+olis0ed and replaced wit0 a religiously neutral. uniform

civil code. as envisioned +y #rticle == of t0e Indian constitution Second. t0ere is t0e populist

vision of secularism associated wit0 Bindu rig0t-wing parties. suc0 as t0e &0aratiya Janata


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P a g e | 16

!arty $&J!. or t0e Indian !eople/s !arty% T0e &J! advocate for a uniform civil code for India.

+ut do so wit0 t0e understanding t0at suc0 a code will reflect t0e perspectives of t0e dominant

Bindu ma9ority T0eir ideology is +ased on t0e concept of Bindutva. w0ic0 refers to t0e idea

t0at 2Binduness2 oug0t to underlie Indian identity. alt0oug0 t0ey contend t0at Bindutva refers

to an idea of Indian civili7ation t0at is not religiously e8clusive T0is last contention may

seem strange. and t0e genuineness of its proponents 0as +een c0allenged. +ut it derives from

t0e idea. internal to Bindu discourse t0at Binduism is non-dogmatic and +ased on t0e diverse

traditions of t0e Indian su+continent T0ird. t0ere is t0e 2e:ual respect2 secularism of t0e

status :uo in India. in w0ic0 mem+ers of different religious communities are afforded some

legal recognition and autonomy t0roug0 t0e personal law T0is vision can +e considered

consistent wit0 'e0ru/s statement t0at 2a secular state does not mean an irreligious stateC it

only means t0at we respect and 0onour all religions and give t0em t0e freedom to function2

In t0is vision of secularism. t0e state is generally secular. and personal laws act to protect t0e

minority religion and culture from +eing su+9ected to t0e religiously derived norms of t0e

ma9ority community T0e Indian Supreme 1ourt/s decisions 0ave generally endorsed t0e first

vision of secularism outlined a+ove. consistently agitating for a neutral. uniform civil code In

several rulings involving t0e personal law. t0e court appears overtly 0ostile to t0e t0ird.

pluralist model. casting it as contrary to t0e principles of secularism and in violation of t0e

spirit of t0e Indian constitution Bowever. t0e court 0as +een 0esitant to stri3e down personal

laws as contrary to t0e constitution directly. most li3ely due to t0e sensitive political nature of

:uestions of religion and personal law in India In some cases. t0e court 0as 0eld t0at t0e

personal laws are not su+9ect to t0e fundamental rig0ts in t0e constitution. +ut several recent

cases indicate t0at t0e personal laws are su+9ect to fundamental constitutional rig0ts

'evert0eless. t0e court. in cases w0ere it clearly +elieves fundamental rig0ts are in conflict

wit0 t0e personal law. uses interpretive strategies ot0er t0an direct 9udicial invalidation of t0e

law in :uestion to ac0ieve t0e desired outcome Despite wielding a power of 9udicial review

t0at is legally more powerful t0an in most ot0er countries. t0e Indian Supreme 1ourt must

still act in t0e s0adow of t0e legislature and pu+lic opinion. and in t0e cases w0ere it 0as

forgotten t0is reality. it 0as sto3ed pu+lic controversy and c0allenges to its legitimacy


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T*e I"!a" Su+re$e C&ur%,( Per(&"al La- Jur!(+rue"ce

T0e most well- 3nown controversy involving t0e personal law in India is t0e case of S0a0

&ano(;S0a0 &ano was a ?, year-old Muslim woman w0o was divorced +y 0er 0us+and of

=; years t0roug0 t0e Muslim practice of tala:. w0ic0 allows a 0us+and to immediately.

unilaterally divorce 0is wife 4nder t0e Muslim personal law. S0a0 &ano/s e8- 0us+and was

only o+ligated to pay 0er a small sum of maintenance money during t0e t0ree mont0s after

t0e divorce. 3nown as t0e period of iddat Bowever. lac3ing t0e resources to support 0erself

and 0er five c0ildren. S0a0 &ano soug0t maintenance payments in t0e courts 4nder Section

(,) of India/s 1ode of 1riminal !rocedure. a 0us+and may +e ordered to pay maintenance to

0is wife or e8-wife if s0e is una+le to maintain 0erself. +ut under Section (,A of t0e same

law. t0is maintenance order is to +e cancelled +y t0e court w0ere t0e woman 0as received t0e

sum due to 0er under t0e personal law #lt0oug0 t0is case did not directly raise a

1 oha..ed 3h.ed Khan v Shah Bano Beg*., 1;$7 3/2 SC ;$7


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constitutional conflict +etween t0e personal law and t0e rig0t to e:uality under #rticle (= of

t0e constitution. t0is concern was o+viously on t0e minds of t0e Supreme 1ourt 9ustices w0en

t0e case eventually reac0ed t0em T0e court ruled in favour of S0a0 &ano First. it 0eld t0at

t0at t0e rig0t to maintenance under Section (,) was a secular legal rig0t t0at could +e

2e8ercised irrespective of t0e personal law of t0e parties.2 and t0at 2section (,) overrides t0e

personal law. if t0ere is any conflict +etween t0e two2 It also re9ected t0e 0us+and/s argument

t0at Section (,A was automatically satisfied +y 0is payment of dowry $mar% T0ose rulings

alone could 0ave decided t0e case. +ut t0e Supreme 1ourt went muc0 furt0er In t0e opening

paragrap0 of t0e decision. written +y Justice 10andrac0aud. a Bindu. t0e court :uotes and

endorses a nineteent0-century &ritis0 orientalist/s view t0at Islam/s treatment of women

constitutes t0e religion/s 2fatal point.2 and suggests t0at Muslim women are 2traditionally

su+9ected to un9ust treatment2 T0e court also em+ar3ed on its own novel interpretation of t0e

s0aria +y directly analysing certain verses from t0e uran Finally. t0e court sermoni7ed on

t0e need for a uniform civil code and admonis0ed t0e state for failing to enact oneC T0ere are

ot0er cases in w0ic0 t0e Supreme 1ourt 0as attempted to press t0e government to a+olis0 t0e

personal laws For e8ample. in Sarla Mugdal v 4nion of India.(=a (@@) case t0at involved

married Bindu men w0o were converting to Islam practice polygamy. w0ic0 is legal under

Muslim personal law 'ot surprisingly. t0e court ruled t0at t0e second marriage of a Bindu

convert to Islam would +e invalid T0e ruling in S0a0 &ano caused an immediate and massive

popular furore to erupt in some parts of t0e Muslim community t0at interpreted t0e ruling as

an attac3 on t0eir religious rig0ts T0e strident tone of t0e court/s criticism of t0e personal

law. as well as its critical assessment of Islamic practices. and its attempt to interpret t0e

uran on its own initiative. amplified t0e +ac3las0 from t0e Muslim community +y giving

t0e clear sense t0at t0e case was not 9ust a+out t0e rig0ts of maintenance for an impoveris0ed

divorcee. +ut a 9udgment on t0e w0ole system of Muslim personal law In response to t0e

0ars0 reaction to t0e ruling among Muslims. t0e 1ongress !arty government. led +y Ra9iv

Hand0i. passed t0e Muslim Women/s $!rotection of Rig0ts on Divorce% #ct (@*?. w0ic0

nullified t0e ruling in S0a0 &ano +y e8cluding Muslim women from Section (,) T0is #ct. in

turn. served to agitate many Bindus and galvani7e support for t0e Bindu rig0t-wing. w0ic0

accused t0e 1ongress !arty of compromising t0e principles of secularism in order to appease

Islamic fundamentalists and get Muslim votes T0e #ct specified t0at 2a Muslim divorced

1? Sarla *gdal v Union o4 /ndia, 1;;7 3/2 SC 171


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woman s0all +e entitled to a reasona+le and fair provision and maintenance wit0in t0e period

of iddat +y 0er former 0us+and

T0e court ultimately returned to t0e issue in t0e ,( case of Danial Latifi v 4nion of India.()

in w0ic0 t0e Muslim Women/s #ct was c0allenged on various constitutional grounds.

including t0e violation of #rticle (= $e:uality% and #rticle () $discrimination% of t0e

constitution. as well as violating t0e +asic constitutional feature of secularism T0e court

up0eld t0e constitutionality of t0e #ct. +ut did so t0roug0 a +road. li+eral construction of t0e

#ct/s re:uirement t0at t0e 0us+and ma3e a 2reasona+le and fair provision and maintenance

wit0in t0e period of iddat2 T0e court commented t0at if maintenance could only +e

aut0ori7ed for t0ree mont0s alone. t0at would appear to ma3e t0e statute violate t0e

constitutional rig0ts provisions on e:uality and discrimination. and. so. applying t0e

constitutional avoidance canon. t0e court construed t0e statute to aut0ori7e maintenance

orders for 2reasona+le and fair2 sums t0at may provide support for t0e divorced wife for

muc0 longer t0an 9ust t0e t0ree-mont0 period of iddat. so long as t0e payment itself is made

during t0e period of iddat T0is ruling. alt0oug0 contrary to t0e common understanding of t0e

#ct/s purpose. followed t0e actions of some lower courts at t0e state level. w0ic0 0ad already

+een interpreting t0e statute in t0is fas0ion and awarding lump sum maintenance payments to

divorced Muslim women T0us. t0e Latifi ruling used creative statutory interpretation tododge constitutional controversy. w0ile still preserving 9udicial discretion in determining t0e

si7e of maintenance awards +ased on t0e facts of eac0 case T0is strategy suggests t0at t0e

court in t0e wa3e of S0a0 &ano 0as learned to employ greater restraint and diplomacy in

advancing t0eir interpretations of t0e law

T0e Supreme 1ourt 0as used ot0er similar strategies in t0e attempt to circumscri+e t0e

personal law in ot0er cases # final set of cases from t0e mid-(@@s merits discussion 0ere In

t0ese rulings 3nown as t0e Bindutva cases. t0e Indian Supreme 1ourt considered w0et0er

appeals to Bindu identity violated t0e Representation of t0e !eople #ct (@)(. an election law

t0at pro0i+its candidates from see3ing votes on t0e +asis of religion. or provo3ing inter-

religious enmity

17 La%i v Union o4 /ndia, "##1 3/2 ;7$


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I(rael Bac#r&u": Secular!($ a" %*e I(rael! Ju!c!ar)

W0ile +ot0 Israel and India 0ave religious-+ased personal law systems. t0ese laws function

differently under Israel/s constitutional structure #s noted a+ove. in Israel. t0e religious laws

are not applied +y t0e civil courts instead. independent religious courts apply religious law to

mem+ers of t0eir religious community Jewis0 ra++inical courts 0ave e8clusive 9urisdiction

over marriage and divorce among Jews. w0ile Muslim s0aria courts 0ave 9urisdiction over

most personal status cases for Muslims T0ere are no legal appeals from t0e decisions of t0e

0ig0est religious courts. and t0us t0ese courts remain t0e final ar+iters of t0eir own religious

law &ecause t0e religious courts are considered administrative agencies of t0e state.

0owever. t0eir rulings are su+9ect to review +y t0e Israeli Supreme 1ourt under t0e ru+ric of9udicial review of administrative action and compliance wit0 constitutional 0uman rig0ts


21/32

P a g e | 21

norms em+odied in t0e &asic Laws uestions involving t0e role of religion in society and

Israel/s status as a Jewis0 state come +efore t0e Israeli Supreme 1ourt wit0 relative

fre:uency. and t0e court/s 9urisprudence can +e descri+ed. generally. as seculari7ing. in t0e

sense t0at it 0as usually functioned to reduce t0e influence of Jewis0 ra++inical law and scope

of ra++inical aut0ority on t0e Israeli legal system as a w0ole For e8ample. under t0e Israeli

Law of Return. passed in (@). Jews are entitled to immigrate to Israel In a series of cases

over t0e decades since (@). t0e Supreme 1ourt 0as determined eligi+ility for immigration

under t0at statute using definitions of w0o is a 2Jew2 t0at differ from t0e definitions t0at

o+tain under traditional Jewis0 law T0e decisions in t0ese cases. and ot0ers. 0ave earned t0e

Supreme 1ourt a reputation of 0ostility to religion in fervently 6rt0odo8 circles in Israel

Secular 9udicial power in Israel received a significant +oost in t0e mid-(@@s following t0e

enactment of two new &asic Laws in (@@, #s descri+ed a+ove. Israel does not 0ave a

constitution in t0e form of a single. written document as in India and t0e 4nited States. +ut

rat0er a series of +asic laws t0at outline t0e +asis of t0e political order T0e (@@, &asic Laws

0ave +een interpreted to ena+le t0e Supreme 1ourt to e8ercise 9udicial review of 5nesset

legislation +y stri3ing down laws t0at are incompati+le wit0 t0e rig0ts under t0e &asic Laws

T0is development 0as +een termed a 2constitutional revolution2 in Israel In an early case t0at

illustrates 0ow 9udicial review functions in Israel. a private company. Meatrael. t0at soug0t to

import non-3os0er meat appealed to t0e Supreme 1ourt against t0e government/s refusal to

allow t0e importation T0e company claimed a violation of its rig0ts to freely pursue an

economic initiative under t0e &asic LawC Freedom of 6ccupation. w0ile t0e government

argued t0at Israel/s status as a Jewis0 state. ens0rined in t0e &asic Laws. permitted it to for+id

t0e importation demonstrates t0e Israeli 9udiciary/s role as a 3ey player in resolving t0e

religious-secular controversies t0at fre:uently arise in Israeli society #lt0oug0 t0e Israeli

court lac3s t0e powers of t0e 0ig0 courts in t0e 4nited States and India. w0ere t0e courts.

rat0er t0an t0e legislature. can 0ave t0e 2final say2 on certain constitutional matters. t0ere are

often 0ig0 political costs for t0e legislature to overturn a decision of t0e Supreme 1ourt.

especially w0en controversial claims a+out rig0ts are at issue. and so t0e Israeli court still 0as

significant power to influence many :uestions of pu+lic policy


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T*e I(rael! Su+re$e C&ur%,( Per(&"al La- Jur!(+rue"ce

T0e Israeli Supreme 1ourt/s rulings. li3e t0ose of t0e Indian court. display a clear tendency to

ta3e t0e side of secularism in religious-secular conflicts In t0e arena of t0e personal law. t0e

court/s rulings operate to 0omogeni7e and regulari7e t0e operations of t0e religious courts.

and to e8tend secular. civil rig0ts and principles into t0e religious courts Bowever. t0e so-

called 2constitutional revolution2 in Israel would not. at first +lus0. appear to affect :uestions

of t0e personal law and t0e power of religious courts deeply &ecause t0e power of 9udicial

review of legislation under t0e (@@, &asic Laws does not allow t0e court to stri3e down laws

or parts of laws t0at were previously enacted. t0e Supreme 1ourt cannot directly invalidate or

circumscri+e any of t0e legislation setting up t0e religious courtsN+ecause all of t0islegislation predates (@@, Indeed. for e8ample. t0e legislation aut0ori7ing t0e 10ristian


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religious courts in Israel remains t0e &ritis0 !alestine 6rder- in-1ouncil of (@,,. w0ic0 is

still in effect w0ere it 0as not +een superseded Rat0er t0an invalidating legislation. 0owever.

t0e court. muc0 li3e its Indian counterpart. generally uses ot0er tools and norms of legal

interpretation to accomplis0 t0e same result Two gender e:uality cases illustrate 0ow t0e

0uman rig0ts norms em+odied in t0e &asic Laws can +e applied to limit ine:ualities in

Jewis0 law. and t0e c0allenges of suc0 an approac0 in t0e first case. &avli v Hreat Ra++inical

1ourt from (@@=. t0e Supreme 1ourt instructed t0e ra++inical courts to apply t0e principle of

e:ual division of marital property > w0ic0 does not accord wit0 0ala30a T0e +asis for t0e

decision rested on t0e court/s interpretation of a civil law > t0e Women/s as applying in religious courts as well as civil courts T0e court/s decision went on to

add t0at religious courts must follow general principles and norms of constitutional law. as

defined in t0e &asic Laws. t0us e8panding t0e court/s power of 9udicial review over t0e

religious courts(?T0is 9udicial approac0 > t0at religious law must +e applied in 0armony wit0

transcendent general principles of secular law > is similar to t0e one ta3en +y t0e Indian court

in Mad0u 5is0war

'ot surprisingly. t0e ra++inical courts 0ave opposed t0e &avli ruling. in some cases refusing

to follow it. on t0e grounds t0at t0ey are +ound to apply 0ala30a (AT0e issue of e:uita+le

division of marital property arose again in t0e similar ,; case of "emini v HreatRa++inical 1ourt. in w0ic0 t0e Supreme 1ourt again ruled t0at religious courts must apply an

e:uita+le distri+ution In "emini. t0e decision turned on t0e court/s interpretation of anot0er

civil statute. t0e Spouses $!roperty Relations% Law (@A;. w0ic0 is to apply in all courts

unless t0e parties 0ave agreed t0at religious law s0ould apply T0e Ra++inical 1ourt argued

t0at +y su+mitting a case to t0e 9urisdiction of t0e religious court. w0en concurrent

9urisdiction also e8isted wit0 civil courts. t0e parties 0ad agreed to +e +ound +y Jewis0 law

and not t0e !roperty Relations Law T0e Supreme 1ourt. 0owever. interpreted t0e statute to

re:uire t0e e8plicit consent of +ot0 parties to +e +ound +y religious law rat0er t0an t0e

!roperty Relations law. regardless of t0e forum of litigation

1- GC> 1###(;" Bavli v Area% 2abbini)al Co*r% J1;;? /srSC ?$5"6 ""1

1! See Ioav o%an, =he S&illover Ee)% o4 Bills o4 2igh%s' 3 Co.&ara%ive

3ssess.en% o4 %he /.&a)% o4 Bills o4 2igh%s in Canada and /srael, 7 3 > C9PL "; 5"##76


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P a g e | 24

T0us. &avli and "emini illustrate 0ow t0e Supreme 1ourt "et t0ese cases also illustrate t0e

difficulty of t0e secular courts in successfully ac0ieving religious law reform t0e ra++inical

courts may disregard t0e principles underlying t0e Supreme 1ourt/s controversial rulings

+ecause t0ey regard 0ala30a as t0e source of legal aut0ority. w0ile t0e Supreme 1ourt lac3s

aut0ority to actually rule on matters of 0ala30a In #mir. t0e Supreme 1ourt applied t0e same

ultra vires logic in t0e arena of ar+itration In t0at case. +ot0 parties 0ad consented to an

ar+itration in t0e ra++inical courts over a dispute stemming from a divorce agreement t0at

originated in t0e ra++inical court. +ut t0e Supreme 1ourt 0eld t0at t0e religious courts. as

state organs. 0ave not +een granted t0e legal aut0ority to act as ar+itrators # recent religious

controversy involving t0e 10ief Ra++inate of Israel and t0e sale of agricultural produce also

illustrates many of t0e tec0ni:ues used +y t0e Israeli Supreme 1ourt in reviewing t0e action

of religious aut0orities #lt0oug0 t0e 10ief Ra++inate is a separate state institution from t0e

religious courts. +ot0 are considered administrative +odies su+9ect to t0e same type of 9udicial

review +y t0e Supreme 1ourt T0e issue promptly came +efore t0e Supreme 1ourt In

!roduce !roduction and Mar3eting &oard v 10ief Ra++inate of Israel. (*t0e Supreme 1ourt

ruled against t0e Ra++inate. ordering it to return to its traditional. centrali7ed policy and issue

3os0er certifications for produce grown under t0e sales permit T0e court/s ruling illustrates

many of t0e met0ods it typically employs in overseeing religious aut0orities. including

religious courts T0e court noted t0at w0ile it gives deference to t0e Ra++inate and does not

itself interpret 0ala30a. t0e Ra++inate. as a state administrative +ody. must ad0ere to norms of

administrative law. including reasona+ility. proportionality. and procedural ade:uacy in

decision-ma3ing T0ese norms > li3e t0e rule t0at an infringement of a +asic rig0t must +e

2proportionate2 or t0at a decision must reflect a 2reasona+le2 weig0ing of interests > are open

to su+stantial 9udicial interpretation. t0ere+y allowing t0e Supreme 1ourt significant

discretion to review decisions of t0e religious aut0orities T0e court generally uses t0is

discretion to ease t0e +urden of religious coercion perceived +y many in Israel/s secular

ma9ority 'evert0eless. t0e religious population is growing proportionally larger. is politically

influential in t0e 5nesset. and 0as mo+ili7ed vast pu+lic protests against t0e Supreme 1ourt

due to 2antireligious2 &y contrast. t0e Israeli Supreme 1ourt/s approac0 to t0e Muslim s0aria

courts reflects a more laisse7 faire attitude. unli3e in India w0ere de+ates over reforming t0e

personal law of t0e si7ea+le Muslim minority are t0e ma9or point of contention #s noted

1$ GC !1"#(#! Prod*)e Prod*)%ion and ar+e%ing Board v Chie4 2abbina%e o4/srael J"##!


25/32

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a+ove. t0e s0aria courts 0ave t0e widest 9urisdiction of all religious courts in Israel. wit0

e8clusive 9urisdiction over most matters of personal status for Muslims T0is +road

9urisdiction gives t0e s0aria courts a significant role in t0e Muslim community #s t0ere are

no official ulama or muftis $traditional sc0olarly interpreters of Islamic law% in Israel. s0aria

in Israel 0as developed case-+y-case t0roug0 t0e decisions of t0e :adis. t0e Islamic court

9udges 1ivil laws. li3e t0e Women/s


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+e updated T0is survey of t0e Israeli Supreme 1ourt/s religious and personal law

9urisprudence suggests several trends First. t0e court is very active in ad9udicating religious-

secular controversies involving Jewis0 religious courts. generally ruling to minimi7e t0e

9urisdictional aut0ority of t0ese religious courts +y prioriti7ing $(% procedural norms of

secular law and $,% t0e civil and 0uman rig0ts of t0e individual over claims of religious

autonomy or any concept of Israel as a Jewis0 state in t0e religious sense Second. t0e court/s

reliance on 2general principles2 of administrative and constitutional law > including

reasona+leness and proportionality tests > give it su+stantial discretionary aut0ority to review

religious decisions T0ird. specific rulings of t0e court on religion-secular matters 0ave

provo3ed c0allenges to its aut0ority from t0e 5nesset. t0e religious courts. and religious

segments of t0e pu+lic. +ut t0is resistance appears to affect t0e court/s rulings primarily at t0e

level of r0etoric rat0er t0an outcome

E/alua%!"# %*e E''ec%!/e"e(( &' Ju!c!al Ma"a#e$e"% &' Rel!#!&u( La-

T0e record of ad9udication on :uestions of religious law in t0e supreme courts of Israel and

India indicates only a limited a+ility of t0ose courts to safeguard or advance principles of

secularism t0roug0 9udicial review 6f course. t0is conclusion is only tentative. as t0ese

issues are continuing to +e resolved +y courts. and t0e long-term effects of 9udicial politics

may +e difficult to evaluate 'evert0eless. if we assume t0at certain responses to a 9udicial


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decision are indicative of an erosion in 9udicial power > out+rea3s of violence. disregard for

t0e decision. protests. and legislative responses to reverse t0e decision or limit t0e power of

t0e court > t0en it seems t0at all of t0ese outcomes. eit0er directly or indirectly. can +e tied to

9udicial decision-ma3ing on religion :uestions in India and Israel 6nly non-violent protests

and legislative responses indicate a 0ealt0y democracy is functioning. alt0oug0 if one/s

definition of democracy includes su+stantive guarantees of 0uman rig0ts. li3e gender e:uality

or lac3 of religious coercion. or if one prioriti7es t0ose su+stantive values a+ove t0e value of

ma9oritarian democracy. t0en even t0ese responses will +e unsatisfactory T0e e8periences of

India and Israel suggest t0at civil courts in a religious legal pluralist polity may not +e a+le to

protect secularism and civil rig0ts from religious forces in ma9oritarian politics T0is

conclusion 0as significant implications for de+ates a+out t0e power of courts to effect social

c0ange. t0e 2counter ma9oritarian difficulty2 allegedly posed w0en courts ma3e political

decisions. as well as for proposals to introduce pluralism into ot0er democracies

T0e S0a0 &ano decision of t0e Indian Supreme 1ourt and its aftermat0 provide a useful

illustration of 0ow ape8 courts can fail in t0eir attempts to secure citi7ens/ secular legal rig0ts

against claims made +y traditional sources of cultural and religious aut0ority #s descri+ed

a+ove. t0e decision not only provo3ed a popular Muslim +ac3las0 t0at led to t0e passage of a

law reversing t0e court/s ruling. +ut t0is. in turn. provo3ed a counter-+ac3las0 t0atstrengt0ened anti-Muslim e8tremism and. according to some. led to acts of terrorism and civil

strife T0us. t0e court/s decision 0ad t0e effect of diminis0ing t0e court/s aut0ority. +y t0e

reversal of its decision. and provo3ed religious tension in society. +ut did little to advance t0e

secularist goals descri+ed in t0e opinion T0e strident tone of t0e S0a0 &ano opinion itself.

and its lac3 of 9udicial economy. indicated +y its unnecessary foray into uranic

interpretation. may 0ave 0ad a lot to do wit0 t0e furore it provo3ed T0e court/s more recent

decision in Latifi. w0ic0 reac0es t0e same functional result as S0a0 &ano in a more restrained

fas0ion. did not provo3e t0e same controversy T0us. for now it seems. t0e court 0as

ultimately ac0ieved t0e outcome it wanted on t0e issue of support payments for divorced

Muslim women &ut (A years passed +etween t0ese two decisions. and ma9or c0apters in

Indian politics. suc0 as t0e rise of t0e Bindu rig0t and a resurgence of sectarian violence. +ot0

of w0ic0 may 0ave +een affected +y t0e S0a0 &ano affair. too3 place in t0e interim

Despite t0e opinions in w0ic0 t0e Indian Supreme 1ourt 0as advocated for a uniform civil

code and reminded t0e government movement in t0at direction Furt0ermore. t0e Indian

Supreme 1ourt appears to 0ave softened its own interpretation of secularism and sided more


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wit0 pu+lic opinion in t0e Bindutva 9udgments. w0ic0 were issued at a time w0en t0e Bindu

rig0t proponents of Bindutva were gaining significant political power T0us. w0ile t0e Indian

Supreme 1ourt 0as. on t0e w0ole. generally ruled in favour of secular outcomes. it 0as made

only a few practical advances in restraining or reforming t0e personal law t0ese advances

0ave +een 0ard foug0t over t0e course of many years its 9urisprudence on t0ese :uestions is

defensive in t0at it tends to use canons of construction to avoid raising any overt

constitutional conflicts. even w0ere t0ese conflicts mig0t seem readily apparent and it is not

immune from t0e prevalent forces of pu+lic opinion

T0e Israeli Supreme 1ourt appears to 0ave 0ad slig0tly more success t0an t0e Indian 1ourt in

legally restraining religious aut0ority. +ut practically it 0as also provo3ed more fre:uent

c0allenges to its aut0ority In #mir v Hreat Ra++inal 1ourt. t0e Supreme 1ourt enforced t0e

limits on t0e ra++inical courts 9urisdictional aut0ority. and in t0e sa++atical year case. t0e

court effected a reversal of t0e 10ief Ra++inate/s policy "et even t0oug0 +ot0 of t0ese

e8amples appear to impose legal limitations on religious aut0ority. t0ey can also +e seen as

defensive rulings in w0ic0 t0e Supreme 1ourt merely prevented an unaut0ori7ed e8pansion

of ra++inical court power into a new arena $as in #mir%. and protected t0e status :uo wit0

respect to a (,-year old 3os0er policy t0at was under attac3 from e8tremely 6rt0odo8

factions T0e Meatrael case in Israel is similar to t0e S0a0 &ano affair in India in t0at itprovides an e8ample of 0ow a +ac3las0 to a 9udicial ruling on a religious :uestion can lead to

a decrease in t0e court/s power and a reversal of its decision In t0at case. as descri+ed a+ove.

t0e 5nesset reduced t0e court/s power of 9udicial review +y revising t0e &asic Law to allow

for a parliamentary override. and t0en overrode t0e court/s specific decision wit0 a new law

pro0i+iting non-3os0er meat importation T0e reaction to t0e Israeli court/s &avli decision on

marital property provides an illustration of a different sort of aut0ority +ac3las0 pro+lem t0an

t0e one in MeatraelC Some religious courts simply refused to follow t0e Supreme 1ourt/s

legal ruling T0is disregard for t0e general. secular law is also a pro+lem in t0e Israeli T0ese

cases indicate t0at w0en ruling on :uestions of religious law. t0e secular supreme courts face

a deficit of w0at Ric0ard Fallon terms 2sociological legitimacyC2 t0e support of t0e pu+lic for

t0eir rulings(** Fallon descri+es t0ree types of sociological legitimacyC institutional

legitimacy $w0et0er t0e pu+lic +elieves in general t0at t0e court is a trustwort0y decision

-ma3er% t0e su+stantive legitimacy of rulings $w0et0er t0e pu+lic +elieves a particular ruling

is su+stantively correct% and aut0oritative legitimacy $w0et0er t0e pu+lic +elieves 9udicial

decisions s0ould +e o+eyed T0e reactions to t0e prominent religion-state cases a+ove


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illustrate significant legitimacy c0allenges to secular courtOs ruling on religion-state

:uestions T0e primary source of t0ese legitimacy c0allenges comes from t0e religious pu+lic

> Muslims in India. 6rt0odo8 Jews in Israel > w0o +elieve t0e ultimate aut0ority of religious

law is divine in origin. and t0erefore. t0at 9udicial review +ased on t0e supremacy of secular

laws 0as got it +ac3wards #lt0oug0 t0e S0a0 &ano decision clearly 0ad a su+stantive

legitimacy pro+lem. in Israel. t0e aut0oritative legitimacy of court decisions is undermined +y

t0e noncompliance of religious courts. and t0ere are proposals to alter t0e framewor3 in

w0ic0 t0e 9udiciary operates 4nder a draft version of a formal Israeli constitution t0at 0as

+een prepared +y t0e 5nessset/s 1onstitution. Law. and Justice 1ommittee. t0e Supreme

1ourt would lose t0e power of 9udicial review over religious matters anot0er constitutional

proposal from t0e Israel Democracy Institute. a prominent t0in3 tan3. would also ta3e away

t0is power from t0e court In sum. in neit0er Israel nor India 0as t0e 0ig0 court effected a

fundamental c0ange in t0e status of t0e religious personal laws or t0e +asic components for

religion-state accommodation. despite t0e courts/ secular-oriented 9urisprudence T0e Israeli

court appears to 0ave +een a +it more activist in its defence of secularism t0an t0e Indian

court. w0ic0 at times may 0ave 0as modified its vision of secularism to reflect trends in line

wit0 ma9oritarian politics. +ut in so doing. t0e Israeli court may 0ave provo3ed greater

c0allenges to its aut0ority

C&"clu(!&"

T0is conclusion suggests civil courts in democratic states 0ave only a limited a+ility to

advance $or defend% principles of secularism against entrenc0ed religious aut0orities +ac3ed

+y politically influential segments of society T0e fact t0at courts in a democracy lac3 strong

implementation powers and must fear t0e reversal of t0eir decisions or t0e erosion of t0eirpowers +y t0e legislature means t0at t0eir resources for opposing pu+lic opinion. as reflected


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in t0e legislature. are limited T0e counter ma9oritarian difficulty refers to t0e argument t0at

court decisions lac3 democratic legitimacy w0en unelected 9udges overturn t0e decisions of

popularly elected legislatures


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constitutional law against w0ic0 t0e validity of all ot0er laws may +e tested !utting civil

courts in t0e position of mediating +etween t0ese clas0ing sources of aut0ority is pro+lematic

+ecause t0e civil courts/ own aut0ority clearly derives from t0e secular law t0eir social

legitimacy as impartial interpreters on religious :uestions may +e called into :uestion.

particularly w0en t0ey venture directly into religious interpretation. as in S0a0 &ano and t0e

Bindutva cases #not0er lesson from t0e e8perience of Israel and India is t0at social groups

w0o see t0emselves as t0e primary +eneficiaries of t0e religious legal systemNsuc0 as Israeli

6rt0odo8 Jews and Indian MuslimsN+ecome politically invested in t0e continued autonomy

and preservation of t0e system #ttempts to reform or restrain t0e system from t0e outside

$eg. +y t0e civil courts or t0e legislature% are li3ely to +e interpreted as attac3s on t0ese

groups/ religious rig0ts T0at perception leads to magnified social tension and conflict around

civil court cases implicating religious law. and ma3es outside supervision and management of

religious legal systems comple8 and fraug0t wit0 potential controversy T0is type of

fundamental and irreconcila+le social tension is not conducive to democracy +ecause t0e

rationale for maintaining a democratic state depends on t0e state/s citi7ens perceiving some

form of a common political-legal identity

T0ese pluralist systems of law 0ad t0eir origin as political concessions to local communities

+eing ruled +y foreign imperial powers. and 0ave long outlasted t0e empires t0emselves#lt0oug0 t0e prevailing political and social conditions 0ave c0anged. and modern India and

Israel are in many ways radically different from t0e 6ttoman and &ritis0 eras. t0e systems of

religious aut0ority persist 6nce t0ese legal systems gained t0e +ac3ing of t0e state as

ve0icles for t0e autonomy of certain communities. t0ey 0ave proved remar3a+ly rooted. self-

perpetuating. and resistant to reform. surviving c0anges of government. revolutions.

partitions. and wars T0erefore. any secular. democratic state t0at is considering adopting a

version of religious legal pluralism s0ould carefully weig0 t0e costs and +enefits of doing so.

since t0at decision may +e wit0 t0em for a long time to come

B!0l!ra+*)

BOOK

H


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M R#' BIRS1BL. T6W#RDS J4RIST61R#1"C TB< 6RIHI'S #'D

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