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Abstract
Located at the intersection of community and nation, public law and private law, Muslim women are simultaneously included and excluded from the enjoyment of equal rights. Applying the notion of human rights offers the possibility of analyzing this disjuncture between formally guaranteed constitutional rights and state-legitimized discrimination under the religious personal law in a way that relates women's experience of discrimination to the narrative of the law. Exploring religious personal law, this article evaluates the potential of a human rights framework as an analytical tool to challenge Muslim women's exclusion from equal citizenship in India. Increasingly, the Supreme Court of India is turning to international human rights law to interpret constitutional guarantees of equality and freedom from discrimination. Examining universal norms of human rights, this article considers the emancipatory potential of this discourse for the particular situation of Muslim women in India. Evaluating the possibility for Muslim women to move towards equality through the translation of human rights from a universal to a local context, this article evaluates the potential and promise of universal norms of human rights to recognize their equality rights, that paradoxically, cultural relativist arguments might, in this particular context, preclude.
i. Introduction
This article evaluates the potential of a human rights framework as an analytical tool to challenge Muslim women's exclusion from equal citizenship in India.1 Located at the intersection of community and nation, public law and private law, Muslim women are simultaneously included and excluded from the enjoyment of equal rights by the continuance of the personal law system. In sharp contrast to the formal guarantees of equality in the Constitution of India, this parallel system governing family law is explicitly discriminatory on the basis of religion and gender. Applying the framework of human rights offers the possibility of analyzing this disjuncture between formally guaranteed constitutional rights and state legitimized discrimination under the religious personal law.
Women across the globe, and particularly in the Asia Pacific region, are challenging laws, religious norms, and cultural traditions, drawing upon arguments of international human rights law, particularly the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).2 In India, this engagement with international human rights law occurs at multiple levels. As claimants, women challenge the justice system to...