Personal Law and Human Rights in India and Israel

Israel Law Review

Volumn 34, Issue 1, 2000, Pages 101-133

  Galanter, Marc ^a   Krishnan, Jayanth ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

Author keywords

[No Author keywords available]

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EID: 85022821015     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700011894     Document Type: Article

References (275)

1. Marc Galanter, “The Displacement of Traditional Law in Modern India”, in Law and Society in Modern India (Oxford, Oxford University Press, 1989)
2. Asher Arian, The Second Republic: Politics in Israel (Chatham, Chatham House Publishers, 1998) 24–26.
3. Stanley Wolpert, A New History of India (Oxford, Oxford University Press, 1997) 149–86;
4. Arian, The Second Republic, A New History of India n. 1, at 23
5. John L. Esposito, Islam and Politics (Syracuse, Syracuse University Press, 1991).
6. For an old but still relevant book on modernity in India, see Lloyd Rudolph, Modernity of Tradition (Chicago, University of Chicago Press, 1967)
7. also see S.P. Gupta, Modern India and Progress in Science and Technology (New Delhi, Vikas, 1979)
8. T.P.S. Nair, ed., Modern India, Society and Politics in Transition (New Delhi, Inter-India Publications, 1988)
9. Yael Yishai, “Civil Society in Transition: Interest Politics in Israel” (1988) 555 The Annals of the American Academy of Political and Social Science 147–162.
10. For a discussion of the Haskalah, see Jacob Katz, ed., Toward Modernity: The European Jewish Model (New Brunswick, Transaction Books, 1987)
11. Saul Goodman, ed., The Faith of Secular Jews (New York, Ktav Press, 1976).
12. For a discussion on the Hindu renaissance and a literature review of important writers in this area, see David Miller, “Modernity in Hindu Monasticism” (1999) 34 J. Asian and African Studies 111–126.
13. Paul R. Brass, Riots and Pogroms (New York, New York University Press, 1996)
14. David Landau, Piety and Power: The World of Jewish Fundamentalism (New York, Hill and Wang, 1993)
15. Laurence Silberstein, ed., Jewish Fundamentalism in Comparative Perspective (New York, New York University Press, 1993).
16. Sunil Khilnani, The Idea of India (London, Hamish Hamilton, 1997) 194–95;
17. Arian, The Second Republic: Politics in Israel, The Idea of India. 1, at 28–41.
18. Wolpert, A New History of India, The Idea of India. 2, at 347–49;
19. Arian, Second Republic, The Idea of India. 1, at 24–27.
20. Atul Kohli, “India”, in Mark Kesselman, Joel Krieger and William Joseph, eds., Comparative Politics at the Crossroads (Lexington, D.C. Heath, 1996) 472–73;
21. Samuel Krislov, “Israel”, in W. Philips Shively, ed., Comparative Governance (New York, McGraw-Hill, 1997) 328
22. Deborah Sontag, “Barak Creates Wide Coalition with 7 Parties”, in The New York Times (internet edition), July 1, 1999.
23. Charles R. Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago, University of Chicago Press, 1998) 71–89;
24. Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford, Clarendon Press, 1966) 164–84.
25. H.E. Baker, The Legal System of Israel (Jerusalem, Israel University Press, 1967) 197–207,232–43;
26. Martin Edelman, Courts, Politics, and Culture in Israel (Charlottesville, University of Virginia Press, 1994) 46.
27. J.D.M. Derrett, Essays in Classical and Modern Hindu Law (Leiden, Brill, vol. 4, 1978) 18–20;
28. Izhak Englard, Religious Law in the Israeli Legal System (Jerusalem, Hebrew University, 1975) 33–46.
29. see: Edelman, Courts, Politics, and Culture, Religious Law in the Israeli Legal System n. 9, at 77–88;
30. Aharon Lavish, Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of Shari'a Courts in Israel (New York, John Wiley & Sons, 1975)
31. Nathan Brown, “Sharia and State in the Modern Muslim Middle East” (1997) 29 Int'l J. Middle East Studies 359–76;
32. Yitzhak Reiter, Islamic Institutions in Jerusalem: Palestinian Muslim Organization under Jordanian and Israeli Rule (Boston, Kluwer Law International and Jerusalem Institute for Israel Studies, 1997)
33. Abdur Rahman I. Doi, Shari'ah and the Islamic Law (London, Ta Ha Pub., 1984)
34. John L. Esposito, Women in Muslim Family Law (Syracuse, Syracuse University Press, 1982)
35. Amira El Azhary Sonbol, Women, the Family, and Divorce in Islamic History (Syracuse, Syracuse University Press, 1996).
36. Edouardo Vitta, The Conflict of Laws in Matters of Personal Status in Palestine (Tel Aviv, S. Bursi, 1947) 14.
37. M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford, Claredon Press, 1975)
38. John H. Mansfield, “The Personal Laws or a Uniform Civil Code?”, in Robert Baird, ed., Religion and Law in Independent India (New Delhi, Manohar Publishers, 1993) 139
39. M.P. Jain, Outlines of Indian Legal History (Bombay, Tripathi, 1981) 369–70; 393–94.
40. Edelman, Courts, Politics and Culture, Outlines of Indian Legal History. 9, at 52–53;
41. Mansfield, “Personal Laws”, Outlines of Indian Legal History. 14, at 144
42. for more on the jurisdiction of personal law see: Galanter, “The Displacement of Traditional Law in Modern India”, in Law and Society, Outlines of Indian Legal History. 1
43. J.D.M. Derrett, Religion, Law and State in India (London, Faber & Faber, 1968)
44. Derrett, Essays in Classical, Law and State in India. 10
45. Tahir Mahmood, Muslim Personal Law, Role of the State in the Indian Subcontinent (Nagpur, All-India Reporter, 1983)
46. Tahir Mahmood, Personal Laws in Crisis (New Delhi, Manohar, 1986)
47. Rajeev Dhavan, “Religious Freedom in India” (1987) 35 Am. J. Comp. L. 209–54;
48. Izhak Englard, “Law and Religion in Israel” (1987) 35 Am. J. Comp. L. 125–208.
49. Mansfield, “Personal Laws”, Am. J. Comp. L. 14, at 148–157.
50. Am. J. Comp. L., at 173–174.
51. Bassam Tibi, “Islamic Law/Shari'a, Human Rights, Universal Morality and International Relations” (1994) 16 Human Rights Q. 277–299.
52. Human Rights Q., at 285.
53. Human Rights Q., at 277–299.
54. Mansfield, “Personal Laws”, Human Rights Q. 14, at 146–147.
55. Mahmood, Personal Law in Crisis, Human Rights Q. 15, at 42–43;
56. Galanter, “The Displacement of Traditional Law in Modern India”, Law and Society, Human Rights Q. 1.
57. Bengal Regulation of 1772. By 1793, the language was' amended to ‘Mohamadan Laws’ and ‘Hindu Laws’. Regulation IV of 1793, sec. 15.
58. Mansfield, “Personal Laws”, Regulation. 14, at 163.
59. Regulation.
60. Derrett, Religion, Law and State in India, Regulation. 15, at 274–320.
61. On the transformation of Indian personal law, see Galanter, “The Displacement of Traditional Law in Modern India”, in Law and Society; Regulation. 1
62. Derrett, Religion, Law and State in India, Regulation. 15, at 274–320.
63. Regulation.; also see The Shari'a (Application) Act of India of 1937 which according to Derrett “was reactionary and tended entirely to the consolidation and unification of that [Muslim] community in terms of its personal law”. Derrett, Religion, Law and State in India, Regulation. 15, at 323.
64. Mansfield, “Personal Laws”, Regulation. 14, at 148–150.
65. State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.
66. Galanter, “The Displacement of Traditional Law in India”, in Law and Society, A.I.R. 1.
67. Law and Society, A.I.R. Varnas refer to the four great estates or divisions of Hindu socio-legal theory, often mistranslated as caste. Anglo-Hindu law contained a number of rules that differed by varna.
68. A.I.R.
69. See also Derrett, Religion, Law and State in India, A.I.R. 15, at 321–351.
70. On the concept of tutelary laws, see Carl E. Schneider, “Moral Discourse, Bioethics, and the Law” (1996) 26 The Hastings Center Report 37–39;
71. Luis Oropeza, Tutelary Pluralism: A Critical Approach to Venezuelan Democracy (Cambridge, Center for International Studies, Harvard, 1983)
72. for a more general discussion, see Robert Dahl, Polyarchy: Participation and Opposition (New Haven, Yale University Press, 1971) 3.
73. Mansfield, “Personal Laws”, Participation and Opposition. 14, at 168.
74. Galanter, “The Displacement of Traditional Law in India”, in Law and Society, Participation and Opposition. 1.
75. For a useful, extended discussion, consult Donald E. Smith, India as a Secular State (Princeton, Princeton University Press, 1963).
76. Special Marriage Act of 1872.
77. see, J.D.M. Derrett, Hindu Law Past and Present (Calcutta, A. Mukharjee & Co., 1957) 73.
78. Special Marriage Act of 1954
79. also see Hindu Law Past and Present., at 74.
80. Derrett, Religion, Law and State in India, Hindu Law Past and Present. 15, at 328.
81. The laws include: The Converts' Marriage Dissolution Act, 1866
82. The Indian Divorce Act, 1869
83. The Indian Christian Marriage Act, 1872
84. The Kazis Act, 1880
85. The Anand Marriage Act, 1909
86. The Child Marriage Restraint Act, 1929
87. The Parsi Marriage and Divorce Act, 1936
88. The Dissolution of Muslim Marriage Act, 1939
89. The Special Marriage Act, 1954
90. The Hindu Marriage Act, 1955
91. The Foreign Marriage Act, 1969
92. The Muslim Women's Protection Act, 1986.
93. Shyamla Pappu, et al., “Women and the Law”, in B.K. Pal, ed., Problems and Concerns of Indian Women (New Delhi, ABC Publishing, 1987) 132–33;
94. Epp, The Rights Revolution, Concerns of Indian Women. 9, at 79.
95. Anika Rahman, “Religious Rights Versus Women's Rights in India: A Test Case for International Human Rights Law” (1990) 28 Columbia J. Transnational L. 473
96. S. Raj, ed., Quest for Gender Justice: A Critique of the Status of Women in India (Madras, T.R. Publications, 1991)
97. Asghar Ali Engineer, ed., Problems of Muslim Women in India (London, Sangam, 1995).
98. Mansfield, “Personal Law v. Uniform Civil Code”, at 140.
99. Saba Naqvi Bhaumik, “Surviving Friends”, India Today (internet edition), January 19, 1998
100. Khilnani, Idea of India, India Today n. 6, at 189–190.
101. “Temple, Art. 370 not on Campaign Agenda: PM”, Times of India (internet edition), 24 August 1999.
102. Mahmood, Muslim Personal Law, Times of India. 15, at 118–125.
103. Rajkumari Agrawala, “Uniform Civil Code: A Formula Not a Solution”, in Tahir Mahmood, ed., Family Law and Social Change (Bombay, M.N. Tripathi, 1975)
104. Master-Moos, “The Personal Law of Parsees”, in Namada Khodie, ed., Readings in Uniform Civil Code (Bombay, Thacker, 1975)
105. Mahmood, Personal Law in Crisis, Readings in Uniform Civil Code. 15.
106. Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 945–955.
107. A.I.R 1985 S.C. 946–47;
108. also see, Madhu Kishwar, “Pro Women or Anti-Muslim? The Shah Bano Controversy”, in Madhu Kishwar, Religion at the Service of Nationalism (Delhi, Oxford University Press, 1998) 208
109. Robert Hargrave, “The Challenge of Ethnic Conflict” (1993) 4 Journal of Democracy 54–68.
110. A.I.R. 1985 S.C. 947. For a discussion on talaq see n. 12. Note, a husband upon saying a phrase such as “I divorce you”, or “You are divorced”, three times may end the marriage.
111. See Flavia Agnus, Law and Gender Inequality: The Politics of Women's Rights in India (Delhi, Oxford University Press, 1999) 111–12;
112. Bruce Lawrence, Shattering the Myth (Princeton, Princeton University Press, 1998) 131
113. Kishwar, Religion at the Service, Myth. 53, at 217.
114. A.I.R. 1985 S.C. 947.
115. Sec. 125, All India Criminal Procedure Code.
116. A.I.R. 1985 S.C. 947.
117. S.C.
118. A.I.R. 1985 S.C. 950–952.
119. S.C.
120. S.C., at 951.
121. S.C.
122. S.C., at 954–55. Although we attribute no causal importance to this fact, it is interesting to note that all of the five justices sitting in this case were at least nominally Hindus.
123. S.C., at 947.
124. This was not the first instance of the Supreme Court attempting to define the essentials of a religious tradition. In Sastri Yagnapurushdasji v. Muldas Bhundardas Vaishya (also known as the Satsangis case, A.I.R. 1966 S.C. 1119)
125. an earlier Supreme Court propounded its view of the essence of Hinduism to invalidate the practices of a Hindu sect. Galanter, “Hinduism, Secularism, and the Judiciary”, in Law and Society, A.I.R. 1.
126. Agnus, Law and Gender, A.I.R. 54, at 100–06;
127. Lawrence, Shattering the Myth, A.I.R. n. 54, at 163
128. Asghar Ali Engineer, “Forces Behind the Agitation”, in Asghar Ali Engineer, ed., The Shah Bano Controversy (Hyderabad, Orient, 1987) 39–41.
129. For an argument that Muslim law may, in fact, be more beneficial to women than the Indian Criminal Procedure Code, see Saleem Akhtar, Shah Bano Judgment in Islamic Perspective (New Delhi, Kitab Bhavan, 1994) 243–261.
130. A. I. R. 1979 S.C. 362.
131. A. I. R. 1980 S.C. 1730.
132. Kishwar, Religion at the Service, A.I.R. 53, at 206–207.
133. Epp, The Rights Revolution, A.I.R. 9 88
134. Danial Latifi, “The Muslim Women Bill”, in Asghar Ali Engineer, ed., The Shah Bano Controversy, A.I.R. 67.
135. Since 1986 there have been two unreported cases, described by Flavia Agnus, in which an Allahabad High Court judge deemed talaq-divorces unconstitutional. See, Agnus, Law and Gender Equality, A.I.R. 54, at 112–116.
136. The unreported cases are: Rahmat Ullah v. State of U.P., Writ Petition no. 45 of 1993
137. Khatoon Nisa v. State of U.P., Writ Petition no. 57 of 1993.
138. Sultan Shahin, “Ulema to Launch Campaign for Personal Law”, Times of India (internet edition), 6 May 1999. At present, case cite unavailable to authors. The authors have contacted sources in India to provide cite. (This case was decided by a two-judge bench.)
139. “Ulema to Launch Campaign for Personal Law”.
140. For a discussion of this position, see Agnus, Law and Gender, “Ulema to Launch Campaign for Personal Law. 54, at 129–40;
141. J. Hinnells, “Parsi Attitudes to Religious Pluralism”, in Howard G. Coward, ed., Modern Indian Responses to Religious Pluralism (Albany, New York, 1987)
142. also see more generally M. Shabbir and S. Manchanda, Parsi Law in India (Allahabad, Law Books Company, 1991).
143. For a discussion of this position, see Agnus, Law and Gender, Parsi Law in India n. 54, at 141–63;
144. Srimati Basu, She Comes to Take Her Rights (Albany, SUNY Press, 1999)202.
145. A.I.R. 1986 SC 1011.
146. V. Menon, “Mother Roy”, Rediff on the Net, 1997 (http://www.rediff.com/news/oct/30arun.htm). This news web-site discusses how after the Court decision, there was a backlash by the Christian community
147. also see Basu, at 201–02, 191–92.
148. The last half of 1998 and the first half of 1999 saw widespread reports of attacks on Christians in India. For a sample of articles, see: Dakshina Murthy, “Christian Prayer Service Attacked”, Hindustan Times (internet edition), 24 November 1998
149. “23 Million Christians to Protest Today”, Hindustan Times (internet edition), 4 December 1998
150. “CBI Accuses 18 in Stains Murder Case”, Times of India (internet edition), 23 June 1999
151. “Panel Presents Admission-Related Facts”, Times of India (internet edition), 17 July 1999.
152. Marc Galanter, Competing Equalities (Berkeley, University of California Press, 1984) 41–42.
153. Competing Equalities., at 43–44.
154. Competing Equalities., at 43.
155. Competing Equalities., at 42. OBC's may include non-Hindu, tribal, and nomadic groups as well.
156. Competing Equalities., at 534–535.
157. A. I. R. 1951 S.C. 229.
158. A. I. R. 1963 S.C. 649.
159. A. I. R. 1964 S.C. 1823.
160. Sunita Parikh, The Politics of Preference (Ann Arbor, University of Michigan Press, 1997) 186.
161. The Politics of Preference, at 187.
162. The Politics of Preference, at 187–89. Parikh describes how Singh's policy decision sparked a chain of events that eventually led to the downfall of his government.
163. Indra Sawhney v. Union of India, A. I. R. 1993 S.C. 477
164. A. I. R., at 536–54. Note, the Court also stressed the importance of Article 16(1) of the Constitution, which guarantees “equality of opportunity in matters of public employment”. The Court noted that in order eventually to arrive at a situation where there could be equal opportunity for all, the government's plan needed to be implemented.
165. Swami Agnivesh, “A Concept of Insecurity”, Hindustan Times (internet edition), 23 January 1999. In this article, Agnivesh is critical of converts to Christianity who “shout for government charity”;
166. also consider, John Webster, The Dalit Christians: A History (Delhi, ISPCK, 1994).
167. Galanter, Competing Equalities, “A Concept of Insecurity” n. 81, at 312–314.
168. “A Concept of Insecurity”., at 312, quoting from Michael v. Venkataswaran, A. I. R. 1952 Mad. 478.
169. Jayanth Krishnan's interview with Dr. Godfrey Shiri, November 14,1998, Bangalore, India.
170. Rajagopal v. Armugam, A. I. R. 1969 S.C. 101.
171. Obvious questions emerge, including: What constitutes acceptance? Is acceptance required of the whole caste or just a section of it? See Galanter, Competing Equalities, “A Concept of Insecurity. 81, at 328–329.
172. Wilson Reade v. C.S. Booth, A. I. R. 1958 Ass. 128
173. Horo v. Jahan Ara, A. I. R. 1972 S.C. 1840.
174. But see, Urmila Ginda v. Union of India, A. I. R. 1975 Del. 115, where the Delhi High Court ruled that a high caste woman who sought membership into her husband's lower caste group for the purposes of seeking a government-reserved post, could not be admitted into this lower caste, even by the acceptance of its members.
175. See also, Mrs. Vaishali v. Union of India, 1978 80 Bom LR 182
176. Smt. D. Neelima v. The Dean of P.G. Studies, A. I. R. 1993 Andh Pra 299.
177. See, Shantha Kumar v. State of Mysore, 1971 Mys. L. J. 21
178. also see, Galanter, Competing Equalities, Mys. L. J. n. 81, at 339–41;
179. also see, Natraja v. Selection Committee, 1971 1 Mys LJ 226
180. R. Srinivasa v. Chairman, Selection Committee, A. I. R. 1981 Karnataka 86
181. A.S. Sailaja v. Kurnool Medical College Kurnoon, A. I. R. 1986 Andh Pra 209
182. N. B. Rao v. Principal, Osmania Medical College, A. I. R. 1986 Andh Pra 196.
183. But also see, Khazan Singh v. Union of India, A. I. R. 1980 Delhi 60, where the court ruled that an adoption alone into a Scheduled Caste family was enough to acquire benefits.
184. Valsamma Paul v. Cochin University, A. I. R. 1996 1011.
185. A. I. R., at 1022.
186. Khilnani, Idea of India, A. I. R. n. 6, at 37.
187. Asher Arian, Politics in Israel: The Second Generation (Chatham, Chatham House, 1989) 18.
188. Edelman, Courts, Politics, and Culture, The Second Generation. 9, at 51.
189. Krislov, “Israel”, The Second Generation. 8, at 302.
190. Englard, Religious Law, The Second Generation. 10, at 13.
191. Vitta, Personal Status, The Second Generation. 13, at chap. 6,145–75. Also, according to Lewis, the formal millet system was extended to the Jewish community in the 19th century.
192. Bernard Lewis, The Jews of Islam (Princeton, Princeton University Press, 1984).
193. Edelman, Courts, Politics, and Culture in Israel, The Second Generation. 9, at 76
194. for a further discussion of how Islam was the official religion of the state also see Lord Kinross, The Ottoman Centuries: The Rise and Fall of the Turkish Empire (New York, Quill, 1977) 112.
195. The Ottoman Centuries., at 52.
196. J. Shaw, The Jews of the Ottoman Empire and the Turkish Republic (New York, New York University Press, 1991) 65.
197. Edelman, Courts, Politics, and Culture, The Jews of the Ottoman Empire and the Turkish Republic. 9, at 52.
198. The Jews of the Ottoman Empire and the Turkish Republic., at 5
199. Asher Arian, Politics in Israel, The Jews of the Ottoman Empire and the Turkish Republic. 104, at 238.
200. See Edelman, Courts, Politics, and Culture, The Jews of the Ottoman Empire and the Turkish Republic. 9, at 52–53, for a useful discussion of this evolution of Jewish law from the time of the Ottomans through the time of the British Man date and until 1955.
201. Yet, see The Jews of the Ottoman Empire and the Turkish Republic., 54–57, where Edelman argues that the debate over the jurisdictional authority of the rabbinical courts is just one source of tension between the Orthodox and non-Orthodox communities. Another source, he contends, may be in the overall interpretation of what political culture and national identity mean in Israel to these communities. For the traditional Orthodoxy, religion is inseparable from Israeli political culture and Israeli national identity, while for the less or non-religious segment of the population, religion is separable from these other two concepts.
202. Baker, Legal System of Israel, The Jews of the Ottoman Empire and the Turkish Republic. 9, at 159–182.
203. Yael Yishai, Between the Flag and the Banner: Women in Israeli Politics (SUNY, Albany, 1997) 186.
204. Frances Raday, “Religion, Multiculturalism and Equality: The Israeli Case” (1996) 25 Isr. Yrbk Hum. Rts. 211, 214–15.
205. Edelman, Yrbk Hum. n. 9, at 53
206. also see M. Elon, “The Sources and Nature of Jewish Law and its Application in the State of Israel” (1968) 3 Is. L.R. 416–453.
207. Englard, Religious Law, L.R. 10, at 62, 176.
208. L.R., at 62.
209. also for a sample of articles on this subject, see Aryeh Dean Cohen, “Russian Immigrants Believe PM Caves in to Haredim”, The Jerusalem Post (internet edition), 12 May 1999
210. Haim Shapiro, “Ministry Must Justify not Registering Ethiopian Family as Jews”, The Jerusalem Post (internet edition), 22 June 1999.
211. D. Sharfman, Living Without a Constitution (New York, M.E. Sharpe, 1993) 79.
212. Living Without a Constitution, at 79–80. Kohanim are the “priestly caste”; membership passes patrilineally.
213. Funk and Schlesinger v. Minister of Internal Affairs (1963) 17 P.D. 222). As of February 2000, another channel opened for a limited group of Israelis. The Interior Ministry on 13 February 2000, announced that it will “now recognize consular marriages for couples at least one of whom is a citizen of a state that authorizes its consuls to perform such marriages”.
214. Etta Prince-Gibson, “Consular Marriages: An Unorthodox Solution”, The Jerusalem Post, 18 February 2000. Critics suggest that the new policy does not go far enough in providing the basic right of marriage to all Israelis. The article notes that nearly a quarter-million citizens still cannot marry even with this new policy.
215. For an excellent review of the political and legal setting in Israel, see Yoav Dotan, “Judicial Review and Political Accountability” (1998) 32 Is. L.R. 448–474.
216. Raday, “Religion, Multiculturalism and Equality, Is. L.R. n. 119, at 211.
217. Baker, Legal System of Israel, M.E. 9, at 210.
218. M.E.
219. Edelman, Courts, Politics, and Culture, M.E. 9, at 64.
220. Baker, Legal System of Israel, M.E. 9, at 210.
221. Sharfman, Living Without a Constitution, M.E. 124, at 79. Also see internet edition of the Jerusalem Post, 1 March 1999, where the article entitled, “Chained Women to Picket Rabbinate Today”, reports stories very similar to this scenario still occurring throughout the country.
222. Yishai, Between the Flag, M.E. n. 118, at 186–187.
223. Dayyanim is the Hebrew word for rabbinical court judges. These particular judges are state officials. In order to serve they must take a competitive examination administered by the Chief Rabbinical Council. Members of a nomination committee within the Council then select the dayyanim. Edelman, Courts, Politics, and Culture, M.E. 9, at 53.
224. As opposed to restrictions on agunot, “the male divorce refusenik, on the other hand, can start a new family without fearing that the children born to the union will be bastards [mamzerim] (meaning that they can only marry other bastards [mamzerim])”. Sharfman, Living Without a Constitution, M.E. 124, at 79.
225. Edelman, Courts, Politics, and Culture, M.E. 9, at 52–53, 62–63.
226. Rufeisen v. Minister of the Interior (Brother Daniel Case) (1962) 16 P.D. 2428.
227. The Law of Return is a statute that was passed by the 1950 Knesset. The law permits every Jew in the world to immigrate to Israel. As Asher Arian eloquently states, “the Law of Return is the concrete expression of the prophetic vision of the ‘ingathering of the exiles.’” (Arian, Second Republic, p. 10).
228. Dotan, “Judicial Review and Political Accountability”, Second Republic. 127.
229. Keren v. Minister for Affairs of Religion (1989) 43(H) P.D. 661.
230. Adguaitzo v. General Rabbinical Council of Israel (1989) 43(ii) P.D. 152.
231. Miller v Minister of Interior (1986) 40(iii) P.D. 436.
232. Bavli v. Grand Rabbinical Court (1994) 48(h) P.D. 221
233. ruling later reaffirmed in Aknin v. District Rabbinical Court of Haifa et al. (1996) 50(i) P.D. 370.
234. Edelman, Courts, Politics, and Culture, P.D. 53, at 32.
235. The Jerusalem Post (internet edition) “A List of Haredi Grievances”, 12 February 1999.
236. Also see, response by ultra-orthodox to Hoffman et al. v. The Guardian of the Western Wall, (1994) 48(ii) P.D. 263
237. in The Jerusalem Post, “Women of the Wall Win High Court Hearing” 18 February 1999.
238. And see, Arie Caspi, “Two States for Two Nations”, Haaretz 19 February 1999.
239. See, James Manor, “India”, in Shively's Comparative Governance, Haaretz n. 8, at 80.
240. Also see Samuel P. Huntington, Political Order in Changing Societies (New Haven, Yale University Press, 1980).
241. Dotan demonstrates that the Israeli state judiciary has been an active policy-maker in a range of rights-based matters. See, Dotan, “Judicial Review and Political Accountability”, P.D. 127
242. and see, Yoav Dotan, “Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the Intifada” (1999) 33 Law and Society R. 319–363.
243. Carl Baar, “Social Action Litigation in India: The Operations and Limitations of the World's Most Active Judiciary” (1990) 19 Policy Studies J. 140–50;
244. Upendra Baxi, Courage, Craft, and Contention: The Supreme Court in the 1980's (Bombay, M.N. Tripathi, 1985)
245. P.N. Bhagwati, “Judicial Activism and Public Interest Litigation” (1985) 23 Columbia J. Transnational L. 561–77;
246. Jamie Cassels, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?” (1989) 37 Am. J. Comp. L. 495
247. Clark Cunningham, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience” (1987) 29 J. Indian Law Instit. 494–523;
248. Rajeev Dhavan, “Law as Struggle: Public Interest Law in India”, (1994) 36 J. Indian Law Instit. 302–38;
249. Madhava Menon, “Justice Sans Lawyers: Some Indian Experiments” (1985) 12 Indian Bar Rev. 444
250. G.L. Peiris, “Public Interest Litigation in the Indian Subcontinent: Current Dimensions” (1991) 40 Intl and Comp. L.Q. 66–91;
251. S.P. Sathe, “Judicial Activism” (1998) 10 J. Indian School of Political Economy 399–441 (1998)
252. S.P. Sathe, “Political Activism (II): Post-Emergency Judicial Activism: Liberty and Good Governance” (1998) 10 J. Indian School of Political Economy 603–40;
253. Susan D. Susman, “Distant Voices in the Courts of India: Transformation of Standing in Public Interest Litigation” (1994) 13 Wisconsin Intl L.J. 58–103.
254. Indeed, “activism” may be deployed to avoid confronting the tension between personal law and gender equality. A recent example is Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
255. Edelman, Courts, Politics, and Culture, SCC. 9, at chap. 3.
256. See also Dotan, “Judicial Rhetoric, Government Lawyers, and Human Rights”, SCC. 150.
257. Edelman, Courts Politics, and Culture, SCC n. 9, at 61.
258. Our discussion on freedom draws on Isaiah Berlin's, Four Essays on Liberty (Oxford, Oxford University Press, 1969) 122–134.
259. Kishwar, Religion at the Service, Four Essays on Liberty. 53, at 245–46;
260. Guido Tedeschi, Studies in Israel Law (Jerusalem, Hebrew University Students' Press, 1960) 238–88;
261. T. Mahmood, “Common Civil Code, Personal Laws and Religious Minorities”, in Mohammed Imam's, ed., Minorities and the Law (Bombay, Tripathi, 1972) 60–65;
262. J.D.M. Derrett, “The Indian Civil Code or Code of Family Law: Practical Propositions”, in N. Khodie, ed., Readings in Uniform Civil Code, Minorities and the Law. 51, at 28–30.
263. Mansfield, “Personal Law v. Uniform Civil Code”, at 169.
264. On the recent debate over secularism in India, see the various articles in Part IV of Rajeev Bhargava, ed., Secularism and its Critics (Delhi, Oxford University Press, 1998)
265. Brenda Cossman and Ratna Kapur, Secularism's Last Sigh: Hindutva and the (Mis) Rule of Law (Delhi, Oxford University Press, 1999).
266. Lawrence, Shattering the Myth, Secularism and its Critics. 54, at 56–64;
267. Rashida Patel, Socio-Economic Political Status and Women & Law in Pakistan (Karachi, Faiza Publishers, 1991) 2.
268. See Socio-Economic Political Status and Women & Law in Pakistan.
269. also see Rashida Patel, Islamisation of Laws in Pakistan?, (Karachi, Saad Publishers, 1986) 6–7.
270. See Lawrence, Shattering the Myth, Socio-Economic Political Status and Women & Law in Pakistan. 54, at 54–64.
271. Patel, Socio-Economic Political Status, Socio-Economic Political Status and Women & Law in Pakistan. 160, at 99–102;
272. Rashid Ahmed, “Raise the Crescent” (1998) 161,49 Far Eastern Economic R. 20–22;
273. “Sharif s Sharia” (1991) 319 The Economist 33.
274. Ahmed, “Raise the Crescent”, The Economist. 163, at 20–22;
275. Rashid Ahmed and Shiraz Sidhva, “Fundamental Pakistan” (1998) 161, 38 Far Eastern Economic R. 20.