ANR Programme 2009-2013
image of courtroom
A Joint Programme on Justice and Governance in India and South Asia
(Hosted by Centre for Himalayan Studies)

4- Fundamental Rights

Section 4: Fundamental and constitutional rights

The relationship between national constitutions and international human rights is a complicated one.  On the one hand, constitutions typically offer a list of fundamental rights akin to the types of rights protected in international human rights law. On the other hand, constitutions are national and necessarily provincial, while human rights are international and cosmopolitan. Thus, the question of whether constitutions and international human rights are consonant or conflicting is a very difficult one to answer. One way the project will address the issue will be to reflect on the role the constitution, supplemented by decisions of the Supreme Court, has in defining rules of judicial governance, and the political implications it entails at the local level. Which categories of the population are entitled to which rights, and how does the “rule of law” (which is also the rule of the state) effectively ensures that fundamental rights are implemented?

This section concerns Jeff A. Redding (coordinator), Niraja Gopal Jayal, Kriti Kapila and Ranabir Samaddar

Detailed projects

>> Ranabir Samaddar

will be working on justice as a historical category. He will particularly address the governmental idea of justice (“taking care of justice”) and its roots in the constitution, in contrast with what could be a “dialogic form of justice”. There is a sometimes marked difference between the subject of justice and the justice-seeking subject, with consequences in the political history of the struggle for justice at the quotidian level -which the research will analyze by relying on a few emblematic cases.

>> Niraja Jayal Gopal

proposes to examine how the idea of the rule of law is perceived and understood in the context of local governance in India. An under-researched area of recent judicial history is the litigation around the panchayati raj institutions. This experience of local-level representative democracy has spawned two types of litigations: first, cases around the constitutional validity of provisions made by the conformity acts of various states, such as the two-child norm, which prevents candidates for panchayat elections from contesting them if they have more than two children. This has worked particularly to the detriment of women who have little or no control over reproductive decisions. The second type corresponds to cases filed by elected representatives whose presence in the panchayats has been made possible through reservations/quotas. Such representatives are often undermined in humiliating ways. The exclusion obviously becomes stronger in the case of dalit women, disadvantaged on the basis of both caste and gender. A few such individuals have gone to court to claim their constitutional rights and have succeeded in enforcing these. Through an ethnographic study of a few such cases, this research will focus on how two important ideas – that of the rule of law and that of the norms that underlie the proper functioning of public institutions – are understood in rural society.

>> Kriti Kapila

will work on the legal measure of “tribe” in contemporary India. The project will focus on the evidentiary regimes that are in place to verify claims made by groups to a tribal status. This will entail a review of relevant litigation in the Supreme Court on the one hand, and anthropological research amongst groups that are fighting for this status. The main focus of the research will be the critical assessment of the procedures and evidence basis in place for the legal recognition of non-caste marginal groups in India -taking into account the overlaps and disjuncture between the criteria along which the Indian state affirms their recognition as tribal and/or indigenous, and the premises on which such groups make their claims. The overall framework will be to explore the tensions and contradictions in the politics of recognition as pursued by tribal groups and the policies of redistributive justice as guaranteed by the Constitution.

>> Jeff A. Redding

will study issues related to so-called « multiculturalism » in India. Muslims and multiculturalism are once again at the forefront of many governmental policy discussions around the world.  Recently, Canada debated whether to allow Muslims to arbitrate their family law disputes using Islamic law instead of Canadian law. In Europe, the U.K. is struggling with the same issue and, along with France, debating how to increase minority political participation and representation more generally.  In this research project, J.A.Redding will look at similar debates that are occuring in India, another major secular democracy.  He will focus on current debates and policy discussions concerning the possible delegation of Muslim family law administration to Muslim arbitration councils and non-state Muslim "courts." .