Secularism, the Rule of Law, and 'Shari'a Courts': An Ethnographic Examination of a Constitutional Controversy

Abstract

This article both closely examines, and situates broadly, a constitutional dispute instigated in 2005 by a private attorney, Vishwa Lochan Madan, in the Supreme Court of India. Mr. Madan’s 2005 petition to the Supreme Court aimed to completely shut down a network of non-state Muslim dispute resolution service providers — or, what has been crudely and imprecisely referred to in a number of jurisdictions as a system of “shari‘a courts” or “Muslim courts” — that has been operating in India for many years now. This (still unresolved) petition was dramatic, but so were the events instigating it, namely the “adjudication” by non-state Muslim legal actors of a number of alleged rapes of married Muslim women by their fathers-in-law. The welfare of Muslim women was not the only concern of Mr. Madan’s petition, however; this petition also spoke broadly of the ways in which the existence of non-state Muslim dispute resolution service providers undermines liberal constitutional values, such as “secularism” and “the rule of law.”

The methodological approach deployed in this article takes inspiration from Kim Lane Scheppele’s observation as to the need for more of what she terms “constitutional ethnography.” As Scheppele describes it, constitutional ethnography provides a particular lens on constitutionalism because it “does not ask about the big correlations between the specifics of constitutional design and the effectiveness of specific institutions but instead looks to the logics of particular contexts as a way of illuminating complex interrelationships among political, legal, historical, social, economic, and cultural elements.” Following Scheppele’s description of a constitutional ethnographic methodology, this article looks to all of the elements Scheppele identifies (e.g., political, legal, cultural) with the goal of illuminating the multiple logics operative within a particular constitutional context (i.e., India), as well as a particular dispute in that context concerning the meaning of liberal constitutional values.

Keywords: Islam, India, secular, rule of law, ethnography, constitutionalism