Privileging the Powerful: Religion and Constitutional Law in India
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AbstractThere is vast literature on secularism in India and on the effects of Hindu nationalism on secular constitutionalism. This article takes a different tack. It focuses on cases where minority status is contested or competing rights of minorities are at stake. The article uses three exemplary recent cases to illustrate how judicial doctrines devised to reform discriminatory religious practices or to protect minority interests have, perversely, favoured certain groups at the expense of others. In each area examined, the jurisprudence privileges the more powerful of those interests: the sanctity of Muslim personal law over the rights of Muslim women; Hindu dalits over dalits that converted to other religions; and minority educational institutions over children from ‘weaker’ and ‘disadvantaged’ sections of society. The article concludes by proposing a new jurisprudence of religion and constitutional practice for India, one that takes account of these inequalities and gives meaning to the fundamental rights of the most vulnerable individuals and groups.
Acceptance Date01/07/2018
All Author(s) ListRehan Abeyratne
Journal nameAsian Journal of Comparative Law
Year2018
Month12
Volume Number13
Issue Number2
PublisherCambridge University Press
Pages307 - 331
ISSN1932-0205
LanguagesEnglish-United Kingdom
KeywordsReligion, Constitutional Law, Constitution of India

Last updated on 2021-27-02 at 01:01