Constitutional Contradictions In India: A Critical Study Of Doctrinal Tensions, Social Realities, And The Need For A Dynamic Interpretation

How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today. There are two schools of thought on how to answer this question. Under the heading of accommodation, some have argued for the need to recognize, institutionalize and empower differences. There are a range of constitutional instruments available to achieve this goal, such as multinational federalism and administrative decentralization, legal pluralism (e.g. religious personal law), other forms of non-territorial minority rights (e.g. minority language and religious education rights), consociationalism, affirmative action, legislative quotas, etc. But others have countered that such practices may entrench, perpetuate and exacerbate the very divisions they are designed to manage. They propose a range of alternative strategies that fall under the rubric of integration that will blur, transcend and cross-cut differences. Such strategies include bills of rights enshrining universal human rights enforced by judicial review, policies of disestablishment (religious and ethnocultural), federalism and electoral systems designed specifically to include members of different groups within the same political unit and to disperse members of the same group across different units, are some examples. In this volume, leading scholars of constitutional law, comparative politics and political theory address the debate at a conceptual level, as well as through numerous country case-studies, through an interdisciplinary lens, but with a legal and institutional focus.

This article examines the concept of religious personal laws as used in Indian legal discourse. This concept is used to denote religious laws of various communities that are claimed to be upheld but not modified by the secular state and also to refer to the religion related rules followed by communities outside of state regulation. This existence of various ‘religious’ laws is increasingly being described as legal pluralism. The ambiguous status of religious personal laws serves to legitimize the continued denial by the state of gender equality to women in family law matters as it creates a space for rules or laws to operate that do not conform to the Constitutional requirements and yet are enforced by the state. When legal scholars deploy this concept un-reflexively they participate in the discourse formation about religious personal laws as exceptional laws or as (progressive) examples of legal pluralism. In this way they assist the state in using the concept as a mode of governance. In this article it is argued that the legal scholars need to accept responsibility for the significant power they wield as discourse formers and acknowledge the power of naming legal practices. They are the scholars who can and should deconstruct the concept of religious personal laws. This is necessary for a serious engagement with the issue of what kind of family law would be truly non-oppressive.

The Convention for the Elimination of All Forms of Discrimination Against Women is central in outlining the gendered dimensions of human rights. India ratified this treaty with the reservation that it would be complied with only in accordance with the religious personal law. This article will examine the ways in which the convention interfaces with religious personal law, and the efficacy of the convention in both top-down and bottom-up reform of religious personal laws, as well as secular laws.

Introduction

Contemporary India is a multicultural society that is pluralistic with regard to family laws. Different groups in India have separate religious personal laws that India's secular state is reluctant to reform. These laws deny even formal equality in personal relations. They have generated debate about the meaning of gender equality in India. Women occupy a less advantageous position in the arena of religious personal laws, which in fact goes against the Constitutional guarantees of equality and also cherished human rights. In India the constitutionally guaranteed gender equality is to be juxtaposed with the harsh societal realities. A uniform civil code (UCC) with all the existing discrepancies and inequalities is not the solution for the issue. The existing laws governing family relations should be critically analyzed and redefined from a feminist jurisprudential perspective, which of course should be the basis of UCC.

This article analyses the continued denial of equality to women in India's religious personal laws by focusing on the rights of brothers and sisters to illustrate the repeated failures of law. Although this failure has been normalised by deploying various conceptual tools, these theoretical trends need to be challenged. This article examines the 2005 amendment to the Hindu Succession Act which, although giving women extensive property rights, still gave sisters lesser rights than their brothers. It demonstrates that the concept of religious personal laws is a construct which is often used uncritically, and that it legitimises the denial of equal rights to women. The paper combines critical geography scholarship and legal feminist insights to argue that the law must be aware of spatial practices and that it is essential for legal thinkers to engage with the law in more than an instrumental sense. It analyses the processes of knowledge production and explores how the constitutive aspects of legal knowledge can be better integrated into legal scholarship. It thus aims to make visible the many spaces of the law: where laws are made; where ideas about men and women as owners of property are normalised; and where the law is expected to be implemented. It argues for legal scholars to be present and engaged in the contestation of meanings of the law.

Abstract:The article examines the conceptual category of semi-liberal constitutionalism and offers some thoughts on the unique normative challenges that arise in the resolution of human rights conflicts in semi-liberal constitutional systems. Under the definition offered a semi-liberal constitutional system is a system that meets two conditions: first, it exhibits a simultaneous dual normative commitment to liberal rights and principles and to other values or interests that result in enduring and significant restrictions on some of these rights; second, this dual normative commitment is constitutive and is expressed in the basic elements of the system. Describing the problem of shaping and interpreting normative commitments in a semi-liberal constitutional regime, the article argues that an insufficient understanding of semi-liberal normativity may result in skewed reasoning by both courts and policymakers trying to resolve human rights conflicts in semi-liberal constitutional regimes, because the application of liberal rights reasoning in semi-liberal settings neglects the power differentials inherent in such systems and tends to overprotect the rights of some at the expense of the rights of others. Offering Israel as an example of a semi-liberal constitutional system and using one aspect of its semi-liberal nature – the structure of its religion–state relations and specifically of its religious personal laws – the article analyses three decisions of the Israeli Supreme Court, pointing to the special difficulties arising in such settings and offering critiques and corrections to the Court’s rulings where applicable.

The Spiritual Dimension of Social Justice

Associative Solidarity, Relational Goods, and Autonomy for Refugees: What Does it Mean to Stand in Solidarity with Refugees?

Ancient social hierarchies and inequalities in India have perpetuated social stratification and unequal resource access. The Indian social divide based on class, caste, creed, race, and gender has led philosophers to propose achieving social justice and equality. Indian philosophers have advocated affirmative action for marginalised groups, as reflected in Articles 14, 15, 16, and 335 of the Indian Constitution. These provisions aim to ensure equal protection and representation for all individuals. The implementation of reservation policies in education, employment, and administration has impacted socio-economic mobility. Although society has transformed since these policies were implemented, implementation challenges persist. Debates about efficiency and merit often oppose affirmative actions. Affirmative action exists in countries like the USA and South Africa to counter discrimination, yet India faces backlash when advocates promote equal representation. To address these issues, reforms are necessary to enhance reservation policies. This study examines social justice through affirmative action and addresses misconceptions about reservations in India. By exploring historical context, constitutional provisions, and implementation challenges, this study contributes to understanding affirmative action's role in promoting social justice. Keywords: Affirmative action, Constitution, Social Justice, Reservation

Located at the intersection of community and nation, public law and private law, Muslim women are simultaneously included and excluded from the enjoyment of equal rights. Applying the notion of human rights offers the possibility of analyzing this disjuncture between formally guaranteed constitutional rights and state-legitimized discrimination under the religious personal law in a way that relates women's experience of discrimination to the narrative of the law. Exploring religious personal law, this article evaluates the potential of a human rights framework as an analytical tool to challenge Muslim women's exclusion from equal citizenship in India. Increasingly, the Supreme Court of India is turning to international human rights law to interpret constitutional guarantees of equality and freedom from discrimination. Examining universal norms of human rights, this article considers the emancipatory potential of this discourse for the particular situation of Muslim women in India. Evaluating the possibility for Muslim women to move towards equality through the translation of human rights from a universal to a local context, this article evaluates the potential and promise of universal norms of human rights to recognize their equality rights, that paradoxically, cultural relativist arguments might, in this particular context, preclude.

Affirmative action programs are those that seek to redress racial and gender discrimination in the work force. Initiated 1965 in the United States, affirmative action focuses on hiring and promotion practices and on broader employment issues, such as the culture at work and effects of gender segregation in jobs (e.g., Holloway, 1989; Kilborn, 1990, 1991; Lowe and Wittig, 1989; Uchitelle, 1990). Affirmative action often elicits strong positive and negative reactions and considerable controversy. In brief, opponents claim that affirmative action unfairly disadvantages non-beneficiaries (i.e., white men) and, in addition, harms and stigmatizes beneficiaries (e.g., Sowelt, 1990; Steele, 1990; see also Nacoste, 1989). Proponents assert the important role of affirmative action in restoring justice and equal opportunity to a society that has been unable to eliminate prejudice and discrimination. Because the basis of this controversy is social justice and because this topic has worldwide relevance, affirmative action is an especially apt focus for Social Justice Research. All papers in this issue focus on affirmative action research. For some papers, affirmative action is a means, a social intervention that offers social scientists an opportunity to examine existing theories of justice. For other papers, affirmative action is an end, for which justice theory can clarify the problems of affirmative action. Papers here are roughly ordered from those whose primary focus is justice theory to those whose primary focus is affirmative action. This array, while useful, is overly simplistic. Each paper examines how theory can (or should) influence practice and at how practice can (and should) inform theory. In doing so, the papers reframe the more obvious justice question of affirmative action--"Is it fair?"--with more subtle and

Malaysia's New Economic Policy (NEP), promulgated in 1971, established a two‐pronged national social justice agenda of poverty reduction, and social restructuring or pro‐Bumiputera affirmative action. This distinction of these policy objectives must be appreciated, but various misconceptions, especially regarding affirmative action, have resulted in polarization and stalemate after 50 years of the NEP. Social justice and affirmative action must be conceptualized and evaluated with clarity and rigor, with policy objectives, mechanisms and outcomes aligned. Malaysia needs to systematically formulate a new social justice paradigm, building on the NEP and anchored on the principles of equality and fairness. In the affirmative action sphere, this framework must focus on developing capability and competitiveness, and balance identity, need and merit in the allocation of opportunity.

Bihar, a state in eastern India, has long been recognized for its dynamic and deeply rooted caste-based political structure. This paper examines the historical development, electoral trends, and governance outcomes influenced by caste politics. The paper explores how caste politics shapes policy decisions and socio-economic development by analyzing post-independence political changes, the Mandal Commission era, and contemporary alliances. The study critiques the impact of caste dynamics on governance efficiency, law and order, and public service delivery in Bihar. Leaders like Lalu Prasad Yadav and Nitish Kumar have played pivotal roles in reshaping power equations through caste-based mobilization. Despite improvements in social justice, issues such as corruption, nepotism, and inefficient governance persist. The socio-economic inequalities entrenched by historical caste hierarchies remain significant challenges. This paper proposes balancing caste-based affirmative action with institutional reforms is essential for achieving sustainable development and inclusive governance in Bihar.

Establishing a relation based on trust between citizens and institutions leads to a good functioning of society and a legitimation of the political system. According to previous research (IRES, 2010, 2012, 2016, IMAS, 2011), Romanians– particularly youth, show low confidence in institutions, especially in politics. Why does this generate negative effects? If citizens have confidence in institutions, they can give a meaning to their civic and political involvement. When level of trust tends to be negative, the motivations to engage in civic or political actions will decrease based on the presumption that even if change is desired, the institutions will not allow it to happen. Thus, the paper aims to analyse the degree of students’ trust in public institutions and their civic/ political behaviour, in the context in which these indicators can influence – on medium and long term -, the type of political culture and the relationship between government and citizens. The study is based on a quantitative research conducted between December 2019 – January 2020 among students from three specializations within the Faculty of Philosophy and Social-Political Sciences, “Alexandru Ioan Cuza” University of Iasi, Romania on a sample of 433 subjects, and had as main directions of analysis: the level of trust in public institutions, the forms of civic/ political involvement practiced by students, the ability to effect changes at high level. The results bring into attention that youth have limited trust in institutions and this fact can justify an apathy condition and insecurity regarding social and political change. At the same time, most students are unsatisfied by the Romanian democracy regime. The most common forms of civic and political involvement over the last year have been voting, signing petitions and participating in volunteer oriented work.