Abstract
The importance of ‘cultural competence’ comes prominently into play within the Indian legal landscape, when matters before the judiciary require a specific level of cultural expertise for effective adjudication. Such cases pose challenges due to the need for a comprehensive understanding of India’s many languages, traditions, and customs, highlighting how crucial it is for judges and advocates to appreciate cultural diversity to ensure equitable outcomes. Our interview with Advocate Shadan Farasat adds to the ongoing debates over the necessity for cultural competence in legal proceedings. In this interview, he advocates for an inclusive judicial system that is sensitive to cultural differences to promote justice and increase public confidence in the Indian judiciary.
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Notes
For example, two Hindus may choose to marry under the Hindu Marriage Act 1955 which is the codified law that governs marriage and marital rights of Hindus. Muslims in India can choose to marry under the Sharia Law which is mostly uncodified.
Under Section 7 of the Hindu Marriage Act 1956, a legally valid marriage is one which took place according to the customary ceremonies of the parties. Therefore, to a limited extent, ‘custom’ is recognised as law. Moreover, custom, according to Section 4 of the Hindu Marriage Act, could have an overriding effect, if the said custom is valid i.e. it is ancient, popular, continuous, and not opposed to public policy, see Sharad Dutt v Kiran (1997) 69 Del. L. T. 510 and G. Thimma Reddy v Special Tahsildar Land Reforms, Adoni II (1993) 1 An. W.R. 2.
For example, Muslim women in India are entitled to maintenance from their husband under the Sharia law, even after the iddat period, after divorce, see Danial Latifi v Union of India (2001) 7 SCC 740. To clarify, under Muslim personal law, women have to observe iddat after divorce or death of husband, before they could remarry. This is a waiting period of three lunar months in case of divorce, and four months and ten days in case of death of husband. During this period, the woman is supposed to restrict herself from meeting men who are not related to her through bonds of blood, and she is expected to stay in the home, or be accompanied by other women, if she steps out of the home. This is done in order to determine the parentage of the child she might have conceived before the divorce of death of her husband. Under Muslim personal law, when a woman is divorced, the husband is bound to maintain her during the iddat period only, and not beyond. However, the Danial Latifi case clarified that if a woman is unable to maintain herself beyond the iddat period as well, she can approach the courts for maintenance.
For a historical survey of the use of cultural expertise in India, see, for example, James Jaffe, ‘The Indian Panchayat, Access to Knowledge and Criminal Prosecutions in Colonial Bombay, 1827–61’ (2020) 38(1) Law and History Review 47; Madhu Kishwar, ‘Codified Hindu Law: Myth and Reality’ (1994) 29(33) Economic and Political Weekly 214.
As per articles 32 and 226 of the Indian Constitution, the Supreme Court and High Courts, respectively, have the exclusive jurisdiction as writ courts. The Supreme Court has the jurisdiction to issue writs in cases of violation of fundamental rights only, which are mentioned in Part III of the Indian Constitution. High courts have a wider jurisdiction and can issue writs in cases of violation of fundamental rights (mentioned in Part III of the Constitution), constitutional rights (rights mentioned in the Constitution, but not under Part III, for example, right to property under Article 300A of the Indian Constitution), and statutory rights (rights created by statutes, for example, right of easement, created by the Easement Act, 1882).
Emphasis added.
Fundamental rights are listed under Part III of the Indian Constitution.
Emphasis added.
Abigail C Saguy and Forrest Stuart, ‘Culture and Law: Beyond a Paradigm of Cause and Effect’ (2008) 619(1) The ANNALS of the American Academy of Political and Social Science 149.
Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965) 10.
John R Campbell, ‘Interrogating the Role and Value of Cultural Expertise in Law’ (2020) 9(4) Laws 29. Campbell notes that ‘specific role played by the two disciplines needs to be examined on a case-by-case basis’. 32.
In this case, amongst the several petitioners was the Animal Welfare Board of India which claimed that the sport of Jallikattu caused physical and mental torture to the animals involved. Animal Welfare Board of India v A Nagaraja and Ors (2014) 7 SCC 547 [3–4, 54].
Animal Welfare Board of India and Ors v Union of India Writ Petition (Civil) No 23 of 2016.
ibid [40].
ibid [27].
Debayan Roy, ‘Punjab Government Appoints Supreme Court Lawyer Shadan Farasat as Additional Advocate General’ (Bar and Bench, 4 February 2023). https://www.barandbench.com/news/litigation/punjab-government-appoints-shadan-farasat-as-additional-advocate-general. Accessed 26 November 2023.
The Triple Talaq case refers to the five-judge bench judgement of the Supreme Court of India in Shayara Bano v Union of India (2017) 9 SCC 1. In this case the majority held that the practice of talaq-e-bidat, also known as instantaneous triple talaq, is constitutionally invalid. Administering divorce under Muslim personal law involves pronouncement of talaq and waiting for a period of three lunar months, to attempt reconciliation, after which the talaq or divorce becomes binding. Talaq-e-biddat or instantaneous triple talaq is a practice where Muslim men divorce their wives by pronouncing talaq thrice, in one go, and the talaq becomes binding, without the prescribed waiting period of three lunar months. This practice is not recognised as a valid form of divorce by almost all the sects of Muslims, except Hanafis and a few sub-sects.
Supriyo @ Supriya Chakraborty & Anr v Union of India (2023) INSC 920.
Janhit Abhiyan v Union of India (2022) SCC OnLine SC 1540.
Government of NCT of Delhi v Union of India (2023) INSC 635.
For example, on the relationship between custom and tradition see Judit Beke-Martos, ‘Custom and Tradition: An Ambiguous Relationship’ (2021) 1(1) Romanian Journal of Legal History 5; Bruce Rigsby, ‘Custom and Tradition: Innovation and Invention’ (2006) 6 Macquarie Law Journal 113.
Culture, tradition, and custom are often noted to be related to each other, see Robert H Winthrop, Dictionary of Concepts in Cultural Anthropology (Greeenwood Press 1991). According to Winthrop, the idea of custom has been surpassed by the contemporary notion of culture. This is because custom carries a biased connotation that highlights the dissimilarities between the culture of the observer and that of the observed. 70–72; Another scholar, Rigsby, in ‘Custom and Tradition’ (n 21) observes that ‘tradition [in its] core sense signifies the process of the transmission of culture across the generations’, and that traditions ‘are customs which have been handed down across the generations from the past’. 118.
Constitutional matters here loosely refer to cases where the validity of an Indian law is challenged on the basis that it does not conform to the Constitution of India, particularly Part III of the Indian Constitution which contains fundamental rights.
Emphasis added.
Custom has been defined to mean a practice or usage that in ancient, popular, continuous, and not opposed to public policy, by Indian courts, see Arun Navalkar v Meena Arun Navalkar AIR 2006 Bom 342.
Matsugu Takemura, ‘The Law of Customs and Usages’ in Historical Theses and Dissertations Collection 283 (Cornell Law School 1891); See also Kirsten Hastrup and Karen Fog Olwig, ‘Introduction’ in Karen Fog Olwig and Kirsten Hastrup (eds), Siting Culture: The Shifting Anthropological Object (Routledge 1997). Hastrup and Olwig define culture as a ‘dynamic process of self-understanding’. 3.
For an introductory source, see Fred E Jandt, An Introduction to Intercultural Communication: Identities in a Global Community (10th Edn, SAGE Publications 2020) 11.
For example, Yaacov Yadgar, ‘Tradition’ (2013) 36(4) Human Studies 451.
Shayara Bano v Union of India (n 17).
‘Warisha Farasat and Shadan Farasat in an Interview with Ankita Ramgopal’ (Indian Cultural Forum, 8 September 2017). https://indianculturalforum.in/2017/09/08/muslim-women-dont-need-savingwarisha-farasat/. Accessed 26 November 2023.
The practice of instantaneous triple talaq or talaq-e-bidat allows a Muslim man to instantly divorce his wife on pronouncing the word ‘talaq’ thrice, instantaneously. For more on this practice see Flavia Agnes, ‘Aggressive Hindu Nationalism: Contextualising the Triple Talaq Controversy’ in Angana P Chatterji, Thomas Blom Hansen, and Christophe Jaffrelot (eds), Majoritarian State: How Hindu Nationalism is Changing India (Oxford University Press 2019) 335.
Saptarshi Mandal, ‘Triple Talaq Judgment and the Continuing Confusion about the Constitutional Status of Personal Law’ (2017) 52(35) Economic and Political Weekly 2, 4.
ibid 5, 6.
Hadith is one of the four primary sources of Muslim personal law, the other three being Quran, Ijma, and Qiyas. The Quran is the holy book. Hadith and Sunnah are the traditions derived from the sayings of the Prophet and way of life of the Prophet, respectively. Ijma is the opinion of the companions of the Prophet of the religious leaders after him. Qiyas is the application of analogy to resolve a modern-day problem.
Jérémie Gilbert, ‘Indigenous Peoples and Litigation: Strategies for Legal Empowerment’ (2020) 12(2) Journal of Human Rights Practice 301.
See Heather Douglas, ‘Customary Law, Sentencing and the Limits of the State’ (2005) 20(1) Canadian Journal of Law and Society 141. The author argues that where cultural issues are secondary, ‘liberal’ approach adopted by a court to ‘reconcile conflicting concepts of culture and justice’. 141. But see Noelle Higgins, ‘Cultural Expertise and Indigenous Rights’ in Livia Holden (ed), Cultural Expertise, Law, and Rights: A Comprehensive Guide (Taylor & Francis 2023). Higgins’ arguments are in favour of having representation of indigenous people in cases concerning their culture as they could be the ones who possess the most relevant and accurate knowledge of it.
See for example in Nikhil Soni v Union of India (2015) Cri LJ 4951, the Rajasthan High Court criminalised the traditional religious practice of the Jain community called Santhara/Sallekhana, or fast-unto-death. The Court equated Santhara to ‘suicide’ under the Indian Penal Code, 1860. This judgement has, however, been stayed by the Supreme Court of India, see Dhananjay Mahapatra, ‘Supreme Court Permits Jain Community to Practice Santhara’ (Times of India, 1 September 2015). https://timesofindia.indiatimes.com/india/supreme-court-permits-jain-community-to-practice-santhara/articleshow/48751751.cms. Accessed 04 December 2023; In Shayara Bano v Union of India and Ors (n 17), the Supreme Court declared instantaneous triple talaq as unconstitutional and invalid form of talaq; In Aishat Shifa v State of Karnataka (2022) SC 842, the Supreme Court ruled that a government order prohibiting female Muslim students from wearing headscarves or hijab in schools and colleges is unconstitutional, as it infringes on their privacy and dignity; In Benazeer Heena v Union of India and Ors (2022) Writ Petition (Civil) No 000348, the Supreme Court has admitted a plea challenging the constitutionality of Talaq-e-hasan, an Islamic form of unilateral divorce where a husband can divorce his wife by saying talaq once a month for three months.
Jallikattu is a traditional event in the Indian state of Tamil Nadu where a bull is released into a crowd, and human participants attempt to grab the large hump on the bull’s back while it tries to escape. Participants must hold the hump for as long as possible to bring the bull to a stop, sometimes removing flags on the bull’s horns. See Kirti Bhargava, ‘Jallikattu: An Ancient Sport Caught Between Culture And Law, Tradition And Modernity, Religion And Morality’ (Outlook India, 29 December 2022). https://www.outlookindia.com/national/jallikattu-how-an-ancient-sport-is-caught-between-culture-and-law-tradition-and-modernity-religion-and-morality-news-249233. Accessed 15 November 2023.
Animal Welfare Board of India v A Nagaraja and Ors (n 12). In this case, the Supreme Court banned Jallikattu. The Court said the Act was also not ‘relatable’ to Article 48 of the Constitution which deals with the duty of the state to ‘organise agriculture and animal husbandry’. It also stated that any violation of the law in the name of cultural tradition would be punishable.
Kambala means the traditional sports event involving buffalo’s (male) race normally held as a part of tradition and culture in the state on such days and places, as may be notified by the State Government.
The Constitution of India 1950, art 29 (1).
Animal Welfare Board of India and Ors v Union of India (n 13).
The Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act 2017 read with Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules of 2017; The Prevention of Cruelty to Animals (Maharashtra Amendment) Act 2017 read with The Maharashtra Prevention of Cruelty to Animals (Conduct of Bullock Cart Race) Rules 2017; The Prevention of Cruelty to Animals (Karnataka Second Amendment) Act 2017.
The Constitution of India, art 254.
Animal Welfare Board of India and Ors v Union of India (n 13), ‘Even if we proceed on the basis that legislature is best suited branch of the State to determine if particular animal-sports are part of cultural tradition of a region or community, or not, if such cultural event or tradition offends the law, the penal consequence would follow. Such activities cannot be justified on the ground of being part of cultural tradition of a State.’ [40].
ibid: ‘Since legislative exercise has already been undertaken and Jallikattu has been found to be part of cultural heritage of Tamil Nadu, we would not disrupt this view of the legislature. We do not accept the view reflected in the case of A. Nagaraja that performance of Jallikattu is not a part of the cultural heritage of the people of the State of Tamil Nadu. We do not think there was sufficient material before the Court for coming to this conclusion.’
Ilenia Ruggiu, ‘The “Cultural Test” as Cultural Expertise: Evolution of a Legal–Anthropological Tool for Judges’ (2019) 8(3) Laws 15.
Gilles Tarabout, ‘Ruling on Rituals: Courts of Law and Religious Practices in Contemporary Hinduism’ (2018) 17 South Asia Multidisciplinary Academic Journal (SAMAJ); Mariam Rawan Abdulla, ‘Culture, Religion, and Freedom of Religion or Belief’ (2018) 16(4) The Review of Faith and International Affairs 102.
In Animal Welfare Board of India and Ors v Union of India (n 13) [15, 40]. The petitioners in Jalikattu case argued that Jallikattu does not have any religious significance and was found to be cruel as per Nagaraja case (n 12) and against Section 11 of the Prevention of Cruelty Against Animals (Tamil Nadu Amendment) Act 2017 which prohibits cruelty against animals. The Supreme Court did not object to this contention, nor did it find otherwise.
Scott C Idleman, ‘The Role of Religious Values in Judicial Decision Making’ (1993) 68(2) Indiana Law Journal 433.
Tarabout, ‘Ruling on Rituals’ (n 48); Aishwarya Deb, ‘Religion v. Reform: Role of Indian Judiciary vis-à-vis ‘Essential Religious Practices’ Test’ (2019) 12 Army Institute of Law Journal 1; Tahir Mahmood, ‘Religion, Law, and Judiciary in Modern India’ (2006) 26(3) Brigham Young University Law Review 755.
The Constitution of India, art 25.
Indian Young Lawyers’ Association v State of Kerala (2019) 11 SCC 1. In this case, the customary practice of not allowing women between ages of 10 to 50 to visit the Sabarimala temple was challenged on grounds that it violated the rights of equality, freedom of religion under the Constitution of India. The deity of the temple is a celibate and therefore women of menstruating age were prohibited from entering the temple to protect his celibacy.
The Constitution of India, art 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Indian Young Lawyers’ Association v State of Kerala (n 53) [63]. Also see S Mahendran v Secretary, Travancore Devaswom Board AIR 1993 Kerala [36, 41].
Idleman, ‘The Role of Religious Values in Judicial Decision Making’ (n 50).
‘Sabarimala: Protest Mounts Against SC Verdict’ (The Hindu, 3 October 2018). https://www.thehindu.com/news/national/sabarimala-protest-mounts-against-sc-verdict/article25106618.ece. Accessed 28 November 2023.
Michael A Helfand, ‘Litigating Religion’ (2013) 93(2) Boston University Law Review 493; Thio Li-ann, ‘Courting Religion: The Judge between Caesar and God in Asian Courts’ (2009) Singapore Journal of Legal Studies 52.
Ratna Kapur, ‘Gender and the “Faith” in Law: Equality, Secularism, and the Rise of the Hindu Nation’ (2020) 35(3) Journal of Law and Religion 407. To quote the author: ‘The underlying assumption is that to choose a faith where women are assumed to be invariably oppressed is to choose subordination over autonomy. The judiciary regards this as no choice at all.’ 421. The author also notes in reference to Hadiya case, ‘The Court’s interventions and scrutiny of the choices of a Muslim woman, especially of a Hindu woman turned Muslim, using the intelligence and surveillance apparatus of the state is problematic.’ 422. In the Hadiya case or Shafin Jahan v Ashokan K M AIR 2018 SC 357, the Indian Supreme Court dismissed the false allegation by parents of a girl named Hadiya (formerly Akhila Ashoka), that she was deceived into marrying Shafin Jahan and forcibly converted to Islam. The Court held that Hadiya is an adult and mature enough to take her decisions, however, it also allowed the National Investigation Agency to continue investigation in the case to rule out criminal allegations.
Kapur, ‘Gender and the “Faith” in Law’ (n 59). To quote the author, ‘Gender equality is defined by and aligned with majority political ideals and thus axiomatically associated with the autonomous, non-Muslim, female subject.’ 421.
Bronwyn Winter, ‘Women as Cultural Markers/Bearers’ in Nancy Naples, et al., (eds), The Wiley-Blackwell Encyclopaedia of Gender and Sexuality Studies (Wiley Blackwell 2016).
M T Stepaniants, ‘The Image of Woman in Religious Consciousness: Past, Present, and Future’ (1992) 42(2) Philosophy East and West 239.
Mohammed Wajihuddin, ‘20,000 Women Join Silent Rally to Raise Voice Against Instant Triple Talaq Bill’ (Times of India, 1 April 2018). https://timesofindia.indiatimes.com/city/mumbai/20000-women-join-silent-rally-to-raise-voice-against-instant-triple-talaq-bill/articleshow/63562296.cms . Accessed 27 November 2023.
Douglas J Cremer, ‘Patriarchy, Religion, and Society’ in Joan Marques (ed), Exploring Gender at Work: Multiple Perspectives (Palgrave Macmillan 2021) 25.
Maria Jawed and Dhanaji Mukundrao Jadhav, ‘Evolving a New Religious Freedom Jurisprudence: A Step Towards Ensuring Equality for Women’ (2021) 10(2) Oxford Journal of Law and Religion 327; Sanskriti Prakash and Akash Deep Pandey, ‘Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform’ (2017) 4 Indian Journal of Law & Public Policy 108.
Emphasis added; Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Indian Supreme Court (Oxford University Press 2010). The author states, ‘The Indian state has had to negotiate the dual task of religious even-handedness, on the one hand and religious reform on the other.’ xiii.
Faizan Mustafa, ‘SC Ruling That Minority Rights Cannot be Waived is a Boost for Minority Institutions’ (The Wire, 2 May 2018). https://thewire.in/law/sc-ruling-rights-minority-institutions. Accessed 3 December 2023. ‘In any democratic society, the constitutional impulse for giving some special rights to minorities stems not from the desire to create a “pampered” or “appeased” section of population but to give to them a sense of security and confidence.’
Kapur, ‘Gender and the “Faith” in Law’ (n 59). To quote the author, ‘The discursive strategies of the Hindu Right seek to redefine the relationship between religion and politics in Indian society, in part, by bringing a very particular understanding of equality to the popular understanding of secularism. These strategies have also played out in relation to the rights of Muslim women and the treatment of the Muslim community and to the rights of Hindu women in relation to Hindu men.’ 6.
Here, the interviewee was referring to the interviewer.
Both Danial Latifi v Union of India (n 3) and Mohd Ahmed Khan v Shah Bano Begum 1985 (2) SCC 556 case were with regard to the issue of maintenance under Muslim personal law, after divorce. For detailed explanation, see (n 3).
Sen, Articles of Faith (n 66) xiii.
Kapur, ‘Gender and the “Faith” in Law’ (n 59).
For a detailed discussion on women as bearers of cultural identity, see Bronwyn Winter, ‘Politicising the Personal: Questioning the Public/Private Divide’ in Liz Conor (ed), A Cultural History of Women in the Modern Age (Bloomsbury 2013) 97.
Shakira Hussein, ‘The Limits of Force/Choice Discourses in Discussing Muslim Women’s Dress Codes’ (2007) 2(1) Transforming Cultures eJournal 1.
Emphasis added.
Aishat Shifa v State of Karnataka (2022) SC 842.
In the Indian state of Karnataka, Muslim students wearing hijab to classes were denied entry due to a violation of the college’s uniform policy. The Karnataka state government issued an order stating that uniforms must be worn compulsorily, and several educational institutions denied entry to Muslim girls wearing hijab. Petitions were filed in the Karnataka High Court, the decision of which upheld the ban. This decision was appealed in the Supreme Court. See Sanya D Kishwar, ‘Does Secularism Mandate Neutrality?—Comments on the Karnataka Hijabophobia’ (Legis Nations, 25 February 2022). https://legisnations.com/karnataka-hijabophobia/. Accessed 4 December 2023.
Animal Welfare Board of India and Ors v Union of India (n 13) [40].
The Constitution of India, art 341.
Meera Matthew, ‘Relevance of Value Judgment in Law’ (2012) 24(1) National Law School of India Review 147.
Animal Welfare Board of India and Ors v Union of India (n 13) [40]; Monica Miller, Waleed Jami, and Lauren A Anderson, ‘When Culture and Law Collide: The Role of Cultural Differences in Court Decisions’ (2020) 14(2) Charleston Law Review 339.
‘Courts Must be Open to Public Scrutiny, Criticism, Says Supreme Court Lawyer Harish Salve’ (The Economic Times, 17 January 2021). https://economictimes.indiatimes.com/news/politics-and-nation/courts-must-be-open-to-public-scrutiny-criticism-says-supreme-court-lawyer-harish-salve/articleshow/80311056.cms. Accessed 29 November 2023.
In Re Section 6A of the Citizenship Act 1955 Writ Petiton Civil No 274/2009.
Joyston D’Souza, ‘What does Section 6A of the Citizenship Act have to do with the NRC exercise in Assam?’ (SCO Observer, 5 October 2023). https://www.scobserver.in/journal/what-does-section-6a-of-the-citizenship-act-have-to-do-with-the-nrc-exercise-in-assam/. Accessed 3 December 2023. The author explains that Section 6A of the Citizenship Act 1955 contains special provisions on citizenship for the persons covered by the Assam Accord of 1985. The Assam Accord was an agreement between the Indian government and the Assam movement, which was protesting the ‘influx of immigrants’ into Assam.
See Sanjib Baruah, ‘Immigration, Ethnic Conflict, and Political Turmoil—Assam, 1979–1985’ (1986) 26(11) Asian Survey 1184. Baruah explains how the Indo-Pakistan war of 1971 led to a significant influx of Bengali-speakers in Assam, causing a six-year agitation by the All Assam Students’ Union (AASU) in 1979. The AASU demanded the identification and deportation of all ‘illegal foreigners’ in the state. In 1985, the Assam Accord was signed, creating three classes of immigrants: Indian citizens who entered Assam before 1 January, 1966, Indian citizens who entered after 1 January, 1966, but before 24 March, 1971, and ‘illegal immigrants’ who entered on or after 25 March, 1971. This Accord was incorporated into the Citizenship Act 1955, with special provisions for Assam, the effect to which was given by S 6A of the Indian Citizenship Act 1955.
D’Souza, ‘What does Section 6A of the Citizenship Act have to do with the NRC exercise in Assam?’ (n 84). The author explains that the Assam National Register of Citizens, based on Section 6A of the Citizenship Act 1955, differs from Section 3 of the Indian Citizenship Act 1955 which states that a person born in India on or after 26 January 1950, but before 1 July 1987, is considered a citizen by birth and any person born on or after 1 July 1987 up until 2 December 2004 shall be considered to be an Indian citizen if one of their parents was an Indian citizen at the time of their birth. Section 6 of the 1955 Act also differs from Section 3 which states that a person born on or after 3 December 2004, is an Indian citizen if both parents were born in India.
The Assam Accord 1985, Preamble states: ‘The Assam Accord is an accord between The All Assam Students’ Union (AASU), All Assam Gana Sangram Parishad (AAGSP), Central and State Government on the Foreigner Problem Issue.’ Also see D’Souza, ‘What does Section 6A of the Citizenship Act have to do with the NRC exercise in Assam?’ (n 84) where the author, while explaining the relation between the Section 6A of the Indian Citizenship Act with the NRC exercise, notes that in Assam, India’s only state targeted for the NRC exercise, this was first prepared in 1951. An update exercise was conducted between 2013–2019 to identify ‘illegal immigrants’, mainly from Bangladesh. The 1951 exercise aimed to quantify the influx of migrants from East Pakistan. However, the NRC failed to achieve its objective due to the Foreigners Act of 1946 not treating Pakistani citizens as ‘foreigners’.
Assam, India’s only state with a citizenship cut-off date, faced concerns over four million individuals who were born or lived in India for decades being declared stateless. Despite the Supreme Court’s statement that persons born before 30 June 1987 would not be excluded from the National Register of Citizens (NRC), the Court upheld the NRC Coordinator’s recommendation to exclude lakhs of persons born in Assam between 1950 and 1987. The final Assam NRC list was released in August 2019. Christoph Sperfeldt and Amelia Walters, ‘A Crisis of Citizenship in India is Risking Mass Statelessness’ (Pursuit, 15 September 2019). https://pursuit.unimelb.edu.au/articles/a-crisis-of-citizenship-in-india-is-risking-mass-statelessness. Accessed 2 December 2023.
The fundamental rights-related questions aimed to test if Section 6A of the Indian Citizenship Act 1955 treats Assam differently, affects citizens’ lives and personal liberty, and threatens minority language, script, and culture rights.
Manilal Bose, Social History of Assam: Being a Study of the Origins of Ethnic Identity and Social Tension During the British Period, 1905–1947 (Concept Publishing Company 1989).
Assam Sanmilita Mahasangha & Ors v Union of India & Ors Writ Petition Civil No 562/2012. ‘Not only is there an assault on the life of the citizenry of the State of Assam but there is an assault on their way of life as well. The culture of an entire people is being eroded in such a way that they will ultimately be swamped by persons who have no right to continue to live in this country.’ [30].
Edward Gait, A History of Assam (Spink & Company 1906); K M Sharma, ‘The Assam Question: A Historical Perspective’ (1980) 15(31) Economic and Political Weekly 1321.
Emphasis added.
Lon L Fuller, ‘American Legal Realism’ (1934) 82(5) University of Pennsylvania Law Review 429. Fuller explains how the Realist movement in America was a response, rather a movement against the formalist approach of mechanical application of law.
Emphasis added.
Idleman, ‘The Role of Religious Values in Judicial Decision Making’ (n 50).
Emphasis added.
Nick Robinson, ‘Judicial Architecture and Capacity’ in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2014).
‘Essential to Make Process of Litigation Citizen-Centric, Says CJI Chandrachud’ (Deccan Herald, 26 November 2022). https://www.deccanherald.com/india/essential-to-make-process-of-litigation-citizen-centric-says-cji-chandrachud-1165919.html. Accessed 28 November 2023.
V Venkatesan and Devi Nandana Baiju, ‘If Supreme Court Has to Remain People-Centric, It Has to Shed Its Polyvocal Image’ (The Wire, 4 September 2023). https://thewire.in/law/india-supreme-court-people-centric-polyvocal-image. Accessed 29 November 2023.
Matthew, ‘Relevance of Value Judgment in Law’ (n 80).
Association for Democratic Reforms v Union of India 2021 INSC 222.
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Kishwar, S.D., Singh, S. & Nandal, H. Adjudication on issues of culture in India: In conversation with Advocate Shadan Farasat. Jindal Global Law Review 14, 371–391 (2023). https://doi.org/10.1007/s41020-023-00214-y
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DOI: https://doi.org/10.1007/s41020-023-00214-y