A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.

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Conservative mobilization and adolescent pregnancy in Latin America

by Camila Gianella, Marta R. de Assis Machado and Angélica Peñas Defago

On September 27, 2017, the Brazilian Supreme Court – in a 6 to 5 judgmentdecided that public schools can have “confessional” (Catholic) religious teaching in their curriculum. The constitutional case had been proposed by the Attorney General, who argued that current practice – that privileges Roman Catholic indoctrination – would violate the separation between Church and State as well as religious freedom. Although the judgment brings severe consequences to education rights in Brazil, it is only one example of the recent battles by conservative religious groups to influence Brazilian public education. The Catholic church has a long history of interference in Roman Catholic countries, aiming to block comprehensive sex education in schools. More recently, other churches and conservative groups have adopted similar strategies to influence educational policies in Brazil and elsewhere in Latin America.

In 2011, a school booklet advocating “Schools without Homophobia,” prepared by the Brazilian Ministry of Education, was recalled after strong pressure from conservative movements, evangelical and Catholic leaders. It was denounced as an instrument to promote homosexuality among children and to destroy families. In 2014, the debate over Brazil’s National Education Plan was the battlefield of conservative and religious groups against what they called “gender ideology”. Supported by civil society mobilization, including a organization (ironically) called Escola sem Partido [Schools without Politics] conservative members of congress overruled a clause in the Brazilian National Education Plan that stated, among the goals of the public educational system, overcoming educational inequalities, with emphasis in the promotion of equality among races, regions, genders and sexual orientations. Vocal critics of anti-discriminatory public policies in education also applied political pressure during the discussion and passing of state and municipal education plans.

Brazil is only one example of a new wave of conservative mobilization that is sweeping Latin America, characterized by the gathering of powerful old economic elites and religious conservative groups. Among its central political strategies, this new wave fights against the inclusion of a gender equality approach in public policies, including school curricula among their principal battlegrounds. Across the region, this movement has won many major disputes with significant impact. They have succeeded on blocking gender approaches and comprehensive sexual education not only in Brazil, but in the Argentinian provinces of Mendoza and Entre Rios, in Monterrey (Mexico), Panama, Paraguay, Peru, and even in the most secular country in the region, Uruguay.
As our forthcoming letter to the Editor of The Lancet (2017) explains, this new wave of conservative mobilization has tangible health effects. By opposing sexual education in the schools as well as the introduction of a gender equality approach within the school curricula, they hinder a core element of public health strategies to empower girls and adolescents, and consequently to prevent teenage pregnancies, which have a devastating negative impact on women, by, for example, contributing to female poverty.

Latin America is already the only region in the world where adolescent pregnancies are not decreasing. . . . Continue reading

Write On! The Palgrave Handbook of Critical Menstrual Studies

backlit_keyboardThis installment of Write On!, our periodic compilation of calls for papers, includes a call for suggestions as follows:

The Palgrave Handbook of Critical Menstrual Studies, is an ambitious endeavor undertaken by Chris Bobel, Breanne Fahs and Katie Ann Hanson, among others in the United States. The focus is to “establish[] a field of ‘critical menstrual studies’ as a coherent and multi-dimensional transdisciplinary subject of inquiry and advocacy.” Suggestions for chapters by potential authors and other possible lines of inquiry are welcomed and encouraged. Deadline is June 20, 2017.


#WomensMarch the Netherlands 2.0

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(Photo credit: MamaCash)

This weekend, around 20,000 people gathered in Amsterdam, the capital of the Netherlands, for a second Women’s March this year, this time specifically directed at Dutch politics. With the much-anticipated (for better or worse) parliamentary elections in The Netherlands only a few days away (15 March), it was a moment for many to show their support for the world-wide movement calling for equality, inclusivity, and tolerance, raising their voices against the rise of right-wing populism fuelled by fear and hatred all over Europe and elsewhere in the world. People from all ages, genders, and backgrounds marched together from Damplein to Museumplein in a sea of orange and other colours in a spirit of comradery. Beyond a call for inclusivity and equality for all in all aspects of life, the March was also an attempt to underscore the importance of the upcoming elections, and the power we have as citizens to change the negative tide that seems to be washing over Europe. Now more than ever it is our responsibility to change these dynamics and vote against hate.

This Women’s March on Amsterdam followed in the footsteps of the Women’s March on Washington on 21 January 2017, the largest protest in US history. Hundreds of Sister Marches were organised around the world, with an estimated total number of 5 million people marching. Amsterdam’s Sister March in January drew approximately 3,000 people to the Museumplein. This time again, there were many incredibly creative signs, some specifically directed at Dutch politics, in particular Geert Wilders and his so-called Party for Freedom, others referencing broader messages of equality and justice. Like at the Women’s March on Washington, a group of women also performed MILCK’s powerful song I Can’t Keep Quiet along the route.

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(Photo credit: Women’s March Netherlands)

Speakers and performers before and after the March included Marjan Sax – long-time feminist advocate and founder of several feminist organisations, transactivist VreerDevika Partiman – founder of StemOpEenVrouw, Petra Benach – main organiser of the Women’s March Netherlands, and spoken word artist Babs Gons, with Anousha Nzume as MC. What I appreciated in particular was not just the broad demographic participating – from grandparents to grandchildren and everything in between – but equally the attempts made by the March organisers, as with the Women’s March on Washington, regarding inclusivity. Repeatedly calls were made during the various speeches to remember and honour those who could not, for whatever reason, join the march (such as the undocumented for fear of being arrested), and particular attention was given to those with disabilities, including an interpreter for the deaf on stage.

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(Photo credit: MamaCash)

But the March aimed at more than raising our voices for justice and equality for all. It was a call to action to the citizens of the Netherlands to vote with their conscience on Wednesday. To vote against hate and for greater diversity, because as one of the signs said “Diversity is our Strength”.

White men have dominated Dutch politics for far too long, and this problematic reality hit us again during the Party Leaders Debate on 12 March, with the party leaders of the eight biggest parties leading the polls (minus Geert Wilders of the Partij voor de Vrijheid (‘Party for Freedom’) who declined, as per usual, to participate in this debate). Of these eight parties, only one is headed by a woman (Marianne Thieme of the Partij voor de Dieren, ‘Party for the Animals’). During the 12 March debate, as the only female partly leader, she was asked “Of your fellow party-leaders, who do you think is cutest?” It was the most important televised political debate this year. Of course this question wasn’t posed to her male colleagues. Sexism to the fore, yet again! And are we surprised? Of all 28 parties participating in the elections, only three are headed by women, and two have no woman on their list at all (the one-member party Vrije Democratische Partij, not currently represented in Parliament, and the Staatkundig Gereformeerde Partij, with currently 3 seats in Parliament). At the moment, only 57 of 150 Dutch Parliamentarians (38%) is female, and if we are to believe the polls, it seems likely that this number will only go down rather than up after the Wednesday elections.

To increase the number of women in politics, a new initiative has emerged called “Stem Op Een Vrouw” (Vote For A Woman). Perhaps symbolically, 2017 also marks 100 years since women in The Netherlands gained the right to be elected to public office (although they didn’t get the right to actually vote in elections until 1922). What would be better than to reach full equality this year? As the Stem Op Een Vrouw initiative explains, a lot of people already (symbolically) vote for the first woman on their preferred party’s list. But what many people don’t realise is that voting for women high up on a party’s electoral list in the Dutch system of proportional representation won’t actually change these numbers. Our votes to the respective party will ensure that women high on the list get into Parliament in any case. Instead, we should use our preferential votes to vote strategically for women lower on a list. Only by voting for women who, without these preferential votes otherwise would not win a seat in Parliament, can we change the gender balance.

But we don’t just need more women in Dutch politics. We need more diversity in every respect. Currently only one Parliamentarian is black. There is only one trans-woman currently on the list of party members hoping to get elected. And the majority of Dutch parliamentarians are culturally “autochthonous” Dutch. This lack of ethnic, gender, cultural and other diversity is not and cannot be representative of Dutch society.

The Women’s March was one of several protests in The Netherlands calling for greater diversity and equal rights regardless of gender, background, ethnicity, nationality, or other status. As I am sure many of my fellow country-women and -men, I will be watching the election results on Wednesday evening with both fear and anticipation, knowing that Nevertheless, I persisted and voted with my conscience.

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(Photo credit: Tammy Sheldon Photography, for Women’s March Netherlands)

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(Photo credit: MamaCash)

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(Photo credit: Matilde Olsen)

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(Photo credit last two photos: Tammy Sheldon Photography, for Women’s March Netherlands)

Cross posted from EUI blogs.

Call for Submissions-Race, Gender and Law: A tribute to the scholarship of Sherene Razack- Canadian Journal of Women and the Law

Call for Submissions – Race, Gender and Law: A tribute to the scholarship of Sherene Razack

http://bit.ly/cjwlcfp

The Canadian Journal of Women and Law (CJWL) seeks submissions for a special issue 30(2) to be published in December 2018 on Race, Gender and Law: A tribute to the scholarship of Sherene Razack (guest edited by Gada Mahrouse, Carmela Murdocca, and Leslie Thielen-Wilson). The deadline for submitting articles for this special issue is September 1, 2017. 

Dr. Sherene Razack is one of Canada’s leading critical race feminist theorists. She is especially known for developing an analytic that shows: 1. how racial violence is often legally and socially authorized and is integral to the making of states; and 2. how racial violence is gendered and sexualized. This special issue is in celebration of the 20th anniversary of her ground-breaking book Looking White People in the Eye (now in its fourth edition) and her important and on-going contributions to the interdisciplinary field of critical race feminisms and socio-legal studies. We invite articles in English and French from academics, legal scholars, educators, and activists, working in the areas of gender, race, and law. We are interested in receiving articles that are explicitly informed by Razack’s methodology or any other important aspect of her work.

Submissions should be no more than 35 pages (10,000 words) and should conform to the Style Guide available on our website: http://bit.ly/cjwlsubmit.  Please send articles in word format indicating it is for the special issue on “Race, Gender and the Law.” to: cjwl-rfd@uottawa.ca
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Putting the “Woman Question” front and centre: Professor Ruth Rubio Marín

SOU-Ruth

On 5-7 May 2016, the European University Institute in Florence, Italy, hosted the sixth edition of the State of the Union, a space for high-level reflection on Europe. This year, these reflections revolved around the topic of Women in Europe and the World. There were many amazing and strong women who spoke at this conference, such as Valerie Amos and Patricia Sellers, and the various panels featured fascinating discussions on topics such as women in conflict, women and transition in the Middle East, migration, employment and social affairs, or sexual and reproductive politics. One particular highlight of the conference was the State of the Union address on day 2, given by Professor Ruth Rubio Marín (pictured above), who holds the chair of Constitutional and Public Comparative Law at the European University Institute. Her powerful speech was rewarded with what seemed like a never-ending standing ovation. It was well deserved. I highly recommend listening to the address in full, but here are some highlights.

In her speech, Professor Ruth Rubio Marín highlighted the injustices women and girls in Europe and the World face on a daily basis in a very straight forward manner. For those of us working on issues of gender equality and women’s emancipation and rights, the statistics Professor Rubio Marin provided were all too familiar. One in three women will suffer some form of physical or sexual violence at least once during their lifetime, and for one in five women, this violence occurs at the hands of a current or former partner. Yet, only 14 per cent of women report their most serious incident of intimate partner violence to the police. Women receive only 84 cents to every euro men earn, and the pension gap between women and men is 38 per cent. Working men devote only 9 hours a week to unpaid care and household duties, compared to 26 hours a week for working women. The gap in care responsibilities when high-wage women enter the labour market, is often filled by migrant women, thus perpetuating global (gender) inequalities. Women still account for only 20 per cent of company board members of the largest publicly listed companies, and on average only 28 percent of parliamentarians around the world are women. Androcentric values remain systematically privileged over those traditionally seen as ‘feminine’. As Professor Rubio Marín so rightfully stated: “Oppression does not only happen in cases of a cruel tyrant with bad intentions. Indeed, a well-intentioned liberal society can place system-wide constraints on groups and limit their freedom, relying not only on overt rules but also on unquestioned norms, habits and symbols.”

But what struck me most about her address was her courage and honesty. The personal became the general, the general the personal. When speaking about the by now well-known statistics about the number of women who have suffered some form of physical or sexual violence (1 out of 3), she bravely said: “Ladies and gentlemen, I have never said so publicly, but the time has come to unite and end any form of silence. I was one in the ones out of three.” And when addressing the gender pay gap, she directly addressed the president of the European University Institute, Professor Joseph H.H. Weiler, saying: “The gender pay gap is perpetuated by the generalised practice of lack of transparency around payment by almost every employer, including our beloved European University Institute. Dearest president, perhaps the time has come to change that?”

By drawing on these experiences, Professor Rubio Marín made the numbers we so often hear personal, perhaps making it a little easier for those more unfamiliar with the statistics to grasp their meaning. I could not help but notice that the majority of speakers on the second day of the conference, held at Palazzo Vecchio, were men (14 men versus 13 women spoke on day 2). I hope we can count on all of them in the struggle for gender equality, both in Europe and in the World. Women remain an oppressed group, and it is up to all of us together to change that. To paraphrase Professor Rubio Marín: Now, more than ever, we must put the “Woman Question” front and centre, both in Europe and in the World.

  • Listen to Professor Ruth Rubio Marín’s speech in full
  • Get a written copy of the speech