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Jurisprudence Strategies Questioned

Kalpana Kannabiran

Edited by Indira Jaising
Women Unlimited, Delhi, 2005, pp. 392, Rs. 500.00


Constitutionalism and gender justice in South Asia is underwritten by the colonial legacy of each of the countries in this region, that put in place plural legal systems ensuring the troubled coexistence of religious with secular/public laws, each with its own institutional apparatuses. While there are differences in the ways in which this plurality plays out, a uniform consequence has been the systematic dispossession of women through the convergence of state with community in matters related to women’s entitlements – almost inevitably relegated to the private realm. The central question that Indira Jaising attempts to address is, what is the relationship between the right to the freedom of religion and the rights to equality before the law and against discrimination, especially where religion is interpreted in a way that sanctions and validates discrimination? However even before this question is posed there are more fundamental ones that must be resolved: the question of defining religion, sifting through practices to settle up which are religious practices, and then deciding which religious practices are entitled to constitutional protection under the freedom of religion provision, have led the courts to devise jurisprudential strategies that remain problematic. Pratap Bhanu Mehta traces this process through case law, proposing in the final analysis, a theory of toleration that would be built around notions of democratization and self-determination as the only viable option for a plural democracy.   Identity is central to social existence and has become increasingly central to discourses on identity and belonging. Women find themselves in difficult positions where their sense of identity is filtered through the experience of their communities that are governed by men, exemplified in the response of the Sri Lankan woman to a question on whether she thought she faced discrimination because she was a woman or because she was a Muslim: “but I am both”, cited by Ramani Muttettuwegama (p. 173). In situations where these communities are marginalized or where they are subjected to discrimination/exclusion, women acquiesce in discriminatory practices, “in the interests of the group/community” thereby reinforcing the subordinate status within the hierarchy of their religious, ethnic or tribal identity (p.25). Mapping this process of bending women’s interests to community will in diverse locations, Radhika Coomaraswamy argues that questions of cultural relativism must be addressed in ways that do not derogate women’s rights to economic independence and their right against torture pointing to the specific ways ...

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