Northwestern Journal of International Law & Business

Volume 17
Issue 1 Winter

Fall 1996

Judicial Complicity with Communal Violence in

India
Sara Ahmad

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Sara Ahmad, Judicial Complicity with Communal Violence in India, 17 Nw. J. Int'l L. & Bus. 320 (1996-1997)

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 Judicial Complicity with Communal
Violence in India

Sara Ahmad

INTRODUCTION

Communal violence - or violence between groups which define

themselves by their differences from each other' - is one of the fore-
most human rights problems today.2 But the violence of the past 20
years differs from that of previous decades. Responsibility for current
sectarian violence lies not with specific extremist groups but with gov-
ernments which leverage inter-group hatred to gain power.3 Such sys-
temic sources of communal violence threaten basic principles of
democratic government and non-discrimination.4
5
Present-day communal violence originates in identity politics.
Identity politics stress the group nature of rights, experience and iden-
tity, whether based on race, sex, caste, class, language, religion or na-
tional or regional origin. 6 In many cases, the political-cultural

I HUMAN RIGHTS WATCH, PLAYING THE "COMMUNAL CARD": COMMUNAL VIOLENCE AND
HUMAN RIGHTS vii(1995).
2 i.
3 Id. at vii-viii.
4 See id.
5 Id. at x.
6 See Valentine M. Moghadam, Preface to IDErrY PoLmcs & WOMEN: CULTURAL REAS-
SERTIONS AND FEMINISMS IN INTERNATIONAL PERSPECrrVE ix, ix (Valentine M. Moghadam ed.,
1994) ("identity politics" refers to discourses and movements organized around questions of
religious, ethnic, and national identity); see also Vincent Cable, The DiminishedNation-State:A
Study in the Loss of Economic Power. What Futurefor the State?, DAEDALUS, Spring, 1995, at 23,
44-45; Leonard Stem, Cultural Collision:Why the Jewish-Black Alliance Has Come Apart at the
Seams, THE OTTAWA CrrIzEN, Jan. 22, 1995, at B1. Stem characterizes the operative assumption
of identity politics as the assumption that a specific trait has some essentialist value. Id.
 Judicial Complicity with Communal Violence
17:320 (1996)

movements which engage in identity politics seek fundamental juridi-

cal changes, political power and, sometimes, cultural hegemony.7
Minority and women's rights advocates embrace identity politics
because it has increased awareness of the legitimacy and unique expe-
rience of different groups such as women or Asian-Americans. 8 In
contrast, however, the sectarian strife that has repeatedly torn India,
Ireland, Sri Lanka and Pakistan illustrates its potential dangers. The
experience of these countries demonstrates that identity politics not
only fragments groups but also may render them "autistic." 9 The
rhetoric of identity politics allows groups to enclose themselves in
their own myths of self-righteous victimhood so that they cannot hear
or learn from anyone other than themselves. 10 By over-valuing their
own identity, group members distort the identity of non-group mem-
bers" and lose recognition of the common public interest which they
share with those non-group members. 12 This perceived lack of com-
mon ground undermines civic values, frustrates dialogue and facili-
tates inter-group hostility. Such hostility manifests itself in communal
3
violence.'
Governments engage in identity politics when they (1) claim the
existence of a national monolithic identity; (2) use that identity as a
rationale for judicial decisions against persons who do not share that
identity; (3) excuse harassment of targeted communities; (4) fail to
prosecute perpetrators of communal crimes; or (5) promote or direct
violence against non-majority or non-member communities.' 4 These
actions incite communal thinking and sectarian violence.
In India, government officials and political parties have engaged
in identity politics, with disastrous consequences for majority and mi-

7 Moghadam, supra note 6, at ix. Moghadam distinguishes such movements from the move-
ments of identity politics that are more expressive than political, and which represent the aban-
donment of the secular for the spiritual. For a more detailed discussion, see id.
8 See generally Bill Ong Hing, Beyond The Rhetoric ofAssimilation and CulturalPluralism:
Addressing the Tension of Separatism and Conflict in an Immigration-DrivenMultiracialSociety,
81 CALrF. L. REv. 863, 900 (1993); see also Catherine A. MacKinnon, From Practice to Theory,
Or What Is a White Woman Anyway?, 4 YALE J.L. & FEMInSM 13, 20-22 (1991).
9 See Michael Ignatieff, Nationalismand the Narcissism of Minor Differences,Ti OITAWA
CrrzEN, July 2, 1995, at C1.
10 See id.
11 See id.
12 Cf.Vincent Cable, Insidersand Outsiders;PoliticiansMust Learn to Satisfy Our Searchfor
Belonging, says Vincent Cable, TmE INDEPENDENT (London), Jan. 23, 1994, at 19; Stem, supra
note 6.
13 See HumAN RIGHTS WATcH, supra note 1, at vii.
14 See id. at xv-xvi.
Northwestern Journal of
International Law & Business 17:320 (1996)
nority communities alike.' 5 These groups have used identity politics
to promote separatist and exclusionary agendas which condone vio-
lence against non-group members. 16 This form of communalism has
made it extremely difficult for Indians today to relate to each other as
Indians.' 7
Despite the active role the Indian judiciary has played in the
struggle to end communal violence and related crimes,' s several re-
cent court decisions evince the influence of identity politics on judicial
thinking. These decisions undermine both the judiciary's indepen-
dence and its commitment to the civil liberties of majority and minor-
ity communities.
The communal thinking in these decisions has taken several
forms. First, courts have fueled communal sentiment by holding cer-
tain religious practices of minorities "un-Indian," and thus unconstitu-
tional. 19 These courts define the Indian identity in monolithic terms
or in terms of the culture of the Hindu majority,20 and, therefore, im-
plicitly grant less than full rights and recognition to persons of "un-
Indian" (i.e., non-Hindu) communities. 2 ' In addition, they reinforce
stereotypical notions of membership in majority and minority commu-
nities and destroy awareness of the multiple identities Indians have as
political, social and religious actors. Second, some courts have adjudi-
cated claims implicating the relationship between secular law and reli-
gious law in favor of secular law, not out of concern for minorities 22
under their religious law but in the interest of national integration.
The perceived threat that national integration represents to the way of

15 See generally id. at 18-29. But cf Radha Kumar, Identity Politics and the Contemporary
Indian Feminist Movement in IDENTrry PoLrnCS & WOMEN: CULTURAL REASSERTIONS AND
FEMINISMS ININTERNATIONAL PERSPECrIVE, supra note 6, at 274, 275 (arguing that the series of
identity movements which seek to dominate national Indian society are undermined by the enor-
mous range and variation of identities and identity politics). Kumar concedes, however, that
such movements have had considerable success.
16 See generally HUMAN RIaTs WATCH, supra note 1, at 18-29.
17 M. Moazzam Ali, Death of the Gandhi-Nehru Model of Secularism and Minority Rights -
Need for Resurrection Through New ConstitutionalProvisions, in MINOR=TIS AND STATE AT
THE INDIAN LAW: AN ANTHOLOGY 21,26 (Tahir Mahmood ed., 1991).
18 See, e.g., India. A System Shakes, TnE ECONOMIST, Mar. 23, 1996, at 35; India: Indian
PressReview for Thursday, March 24, Reuters News Service - India, available in LEXIS, World
Library, ALLWLD File.
19 See, e.g., Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531.
20 See id.
21 See HUMAN RIGHTs WATCH, supra note 1, at xv.
22 See, e.g., Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945; Sarla Mudgal v.
Union of India, A.I.R. 1995 S.C. 1531; the unreported Rahmat Ullah decision (described in John
Rettie, Divorce Ruling Puts IndianJudge at Odds With Muslims, TiE GuARDIAN,Apr. 30,1994,
at 15).

322
 Judicial Complicity with Communal Violence
17:320 (1996)

life of minorities in India has exacerbated communal sentiment.

Third, the government's failure to adequately punish Hindu perpetra-
tors of communal violence and its aggressive prosecution of non-
Hindu perpetrators of such violence have inflamed ethnic sensibilities
and diminished confidence in the political system.
Section One of this paper details the difference between current
and past communal violence and summarizes the constitutional provi-
sions which pertain to communal violence in India. Section Two ex-
amines several Indian judicial decisions, illustrates why these decisions
have triggered communal reaction, and highlights alternative constitu-
tional arguments which would have supported these decisions and
possibly mitigated ensuing communal violence. Analysis of these
cases demonstrates that the emergence of systemic communalism un-
dermines both the secular underpinnings of the Constitution and the
potential for peaceful pluralism in the country. Section Three con-
cludes that in order to more effectively deter communal violence, judi-
cial decisions which may have a communal impact should underscore
their neutral constitutional rationales and emphasize the obligations
of citizenship in a democracy.

I. HISTORY OF COMMUNAL VIOLENCE IN INDIA

Communal Violence, Pre-1970s

A.
In India today, the greatest amount of sectarian conflict
originates in tensions between Hindus and Muslims. 23 A variety of
explanations for the conflict exist. They include: (1) the Muslim inva-
sions of India one thousand years ago;24 (2) forcible conversion of
some Hindus to Islam; (3) the cultural and religious differences be-
tween Hindus and Muslims; (4) the psychological effect of the parti-
tion of the Indian subcontinent into a predominantly Hindu India and
a predominantly Muslim Pakistan; (5) the poverty of Muslims who
remained in India after the partition; and (6) the establishment of
Hindu political supremacy in India.25 However, historians often attri-
bute the communal violence of this century to the British colonization
23 See HuMAN RIGHTS WATCH, supra note 1, at 19. Ethnic, religious and caste tensions exist
between a number of groups in India, but the focal point of this Comment is the Hindu-Muslim
conflict.
24 Vyvyan Tenorio, Hindu-Muslim Friction Confronts Gandhi with Fresh Challenge, Tim
CmISTIAN ScI. MoNrroR, Mar. 17, 1986, at 14; Rajiv Desai, Raiv Gandhi Struggles to Modern-
ize His India, Cm. TRm., Nov. 17, 1986, at 15.
25 Pravin J. Patel, Communal Riots in ContemporaryIndia: Towards a SociologicalExplana-
tion, in CRISIS AND CHANGE IN CoN rEMoRARY INDIA 370, 371-73 (Upendra Baxi and Bikhu
Parekh eds., 1995).
 Northwestern Journal of
International Law & Business 17:320 (1996)

of India.26 Before the British came to India, Indian politics was a

world of minorities. 2 7 Caste, occupation, language and regional differ-
ences influenced identity28 and defined concepts of community.2 9 In
addition, limited infrastructure localized identity because it hindered
the formation of national, monolithic communities of Hindus or Mus-
lims.30 Consequently, for example, landlord groups composed of
members of various religions often formed alliances against the local
peasantry. 31 Identity was also fluid enough to permit movement be-
tween caste or religious groups.3 2 Thus, many people performed rites
of several different faiths and observed different religious customs at
different times in their lives.33
The British altered identity formation by codifying caste and reli-
gious affiliation in census and other official records.3 4 These records
permanently categorized the religious identities of individuals. The
British also fueled the communalization of Indian politics by eliminat-
ing earlier social patterns in the distribution of power. 6 They created
government positions which Hindu Brahmins, the more literate
classes, filled in large numbers.3 7 In response, Muslims fearful of
Hindu rule petitioned the British to establish separate electorates in
order to create a base of Muslim power.38 Consequently, in 1909, the
British passed the Morley-Minto reforms, which granted Indians a
limited right to vote but required that each religious community vote
in separate electorates. 39 Hence, where political power had previously
resided in localities, Hindus and Muslims now had to organize and

26 See Tenorio, supra note 24.

27 Sudipta Kaviraj, Religion, Politics and Modernity, in CRISIS AND CH-ANGE IN CoNTmPo-
RARY INDIA, supra note 25, at 295, 305.
28 HUMAN RiGHrs WATCH, supra note 1, at 19-20. See also Sucheta Mazumdar, Moving
Away from a Secular Vision? Women, Nation, and the Cultural Constructionof Hindu India, in
IDENTITY PoLITcs & WOMEN: CULTURAL REASSERTIONS AND FEMINISMS IN INTERNATIONAL
PERsPEcrE, supra note 6, at 243, 248-49.
29 Mazumdar, supra note 6, at 248. Mazumdar notes that for the vast majority of people,
village affiliation, as formulated by caste, defined identity. Id. at 249.
30 HUMAN RIGH-s WATCH, supra note 1, at 19.
31 Id. at 19-20.
32 Id. at 20 n.5.
33 Id. "Thus, for example, many Punjabis viewed themselves as members of local castes
which were Hindu and Sikh or Hindu and Muslim." Id.
34 Id. at 20.
35 Id. at 20 n.5.
36 See Parmanand Singh, The Problem of Minoritiesand the Constitution- A PrefatoryNote,
in MINORITIES AND STATE AT THE INDIAN LAW: AN ANTHOLOGY, supranote 17, at 7.
37 Id.
38 Id.
39 Id.
 Judicial Complicity with Communal Violence
17:320 (1996)

lobby nationally, along religious lines to gain political power.40 By

transforming the fluid and localized conception of the social universe
into the modem image of mapped and counted voters, the British en-
gineered a modernist reconstruction of the Indian polity which helped
to reorient identity along sectarian lines.4 1 Many theorize that these
political and cultural changes led to the ensuing communal violence in
the period during and after British rule.4 2

B. Communal Violence, 1970s-1990s

Thus, the myth that hatred and violence from time immemorial
explain communal violence in India today is untenable.4 3 Rather,
identity politics, communal thinking and sectarian violence are the di-
rect result of government actions that have exploited group differ-
ences to win legitimacy and power. 44 In fact, the experience of India
parallels a global trend, wherein "[The] proximate cause of communal
violence is government exploitation of communal differences."4 5
The incidence of communal riots in post-partition India correlates
with the emergence of government-sponsored identity politics. Aside
from the period immediately following independence, communal riots
occurred infrequently during the 1950s and 1960s.4 6 Since then, how-
ever, the number of communal riots in India has grown at an unprece-
dented rate.4 7

40 HuriAN RIGHTS WATCH, supranote 1, at 17. Singh, supranote 36, asserts that Lord Minto
endorsed the Muslim petition because it would act as a counterpoise to nascent Indian national-
ism. Id. at 7. The separate electorates for Hindus and Muslims aroused political consciousness
among other groups fearful of the Hindu majority, and hence, these groups subsequently de-
manded their own separate communal electorates. Id. at 7-8.
41 See Kaviraj, supra note 27, at 300.
42 See Singh, supra note 36, at 9-10.
43 See HUMAN RIGHTS WATCH, supra note 1, at viii. Media accounts and policy debates
continue to describe conflicts around the world as ethnic conflicts, in which each rival group has
a monolithic and unchanging definition. Id at x. Such notions of identity rarely exist in fact. Id.
For example, prior to the intervention of Europeans in Rwanda, Hutu and Tutsi were not ethnic
definitions but rather were labels for changeable economic status: one was Hutu when poor, and
Tutsi when more prosperous. Id. at xi.
44 See id. at viii.
45 Id. at viii. Cf. Clerics Believe Religion Is Being Abused, Tim IRISH Tmms, Nov. 28, 1995, at
2 (describing how religious symbolism and sentiments are being used for social and political
ends).
46 Patel, supra note 25, at 370, 371.
47 Id. See also Anthony Chase, "Pakistanor the Cemetery!": Muslim Minority Rights in Con-
temporary India,16 B.C. THmn WoRLD U. 35,35 (1996); Shalendra D. Sharma, IndianDemoc-
racy and the Crisis of Governability, 18-SPG FLETCHER F. WoULD ArF. 147, 148 (1994) (book
review).
 Northwestern Journal of
International Law & Business 17:320 (1996)
Modem communalization of Indian politics by government offi-
cials began during the 1970s when Indhira Gandhi's Congress Party
lost support from its traditional electoral base. 48 To regain political
support, Mrs. Gandhi tried to appeal to conservative Hindus by begin-
ning state functions with Hindu rituals and by using Hindu symbols at
political ralies.49 Concurrently, by seeking support from conservative
Muslims and ignoring the views of secular and progressive Muslims,
the Congress Party encouraged the creation of a monolithic conserva-
tive Muslim identity. 0 This trend continued under Prime Minister
Rajiv Gandhi, who also supported Muslim conservatives, campaigned
in 1984 for the rule of the Hindu God Ram over India, and permitted
the increasingly vitriolic speech of the Hindu right-wing." Since this
time, overt use of upper-caste-Hindu symbolism has helped define na-
tional culture as Hindu culture,5" thereby simulating a national iden-
tity which only further divides the country along religious lines.
These actions set the stage for the Bharatiya Janata Party (hereaf-
ter BJP) to campaign on a platform favoring governance of the coun-
try according to principles of Hinduism.53 The BJP won 15 percent of
the vote in the 1989 national elections and gained control of four state
assemblies, including Uttar Pradesh, the most populous state in In-
dia.5 4 Other parties such as the Vishwa Hindu Parishad (World Hindu
Council) (hereafter VHP), which aims to give Hinduism the dominant
place in India, have grown in number and strength. Today, every

48 Chase, supra note 47, at 40-41; Sharma, supra note 47, at 150-51. Chase describes Mrs.
Gandhi's crackdown against the Sikhs as "a rallying cry for Hindus." Chase, supra, at 41.
49 HUMAN RIGHTs WATcH, supra note 1, at 21. See also Chase, supra note 47, at 40. Today,
Hindu revivalist bodies such as the Rastriya Swayamsevak Sangh (National Volunteer Organiza-
tion) and the Viswa Hindu Parishad (World Hindu Council) coordinate nationwide rallies and
public meetings. Rajiv Tiwari, India: Tridents Spearhead Hindu Revivalism, Inter Press Service,
Sept. 3, 1986, available in LEXIS, World Library, ALLWLD File.
50 See HUMAN RIGrS WATCH, supra note 1, at 21.
51 Id. See generally Bharat Wariavwalla, Gandhi Zig-Xags In An India of Mutual Hindu-
Muslim Mistrust L.A. TIMs, Aug. 9, 1987, § 5, at 2.
52 Mazumdar, supra note 28, at 247.
53 HUMAN RIGHTS WATCH, supranote 1, at 22 n.7. For a discussion of the rise of the BJP,
see Edward A. Gargan, Hindu Rage Against Muslims Transforming Indian Politics,N.Y. TimEs,
Sept. 17, 1993, at Al; Christopher Thomas, Riding the Chariot of Fire, TIE TiMES (London),
Mar. 16, 1991, at Features; David Housego, Indian Elections; Hindu Party'sRise Unsettles Mos-
lem North, FIN. TIMEs (London), May 14, 1991, at 4.
54 HUMAN RIHTms WATCH, supra note 1, at 22.
55 See Mazumdar, supra note 28, at 245; M.R. Narayan Swamy, Hindu Group Sets Religious
Agenda For Elections, Agence France Presse, Jan. 19, 1996, availablein LEXIS, World Library,
ALLWLD File.
 Judicial Complicity with Communal Violence
17:320 (1996)

party plays the communal card at elections,5 6 thereby crystallizing dif-

ferences and hostilities between groups.

C. Constitutional Provisions Relevant to Communal Violence

The provisions of the Indian Constitution reflect a delicate bal-
ance between fundamental rights and the state's duty to safeguard
public order and nondiscrimination. 7 The Preamble underscores the
nation's commitment to secularism and people's commitment to se-
cure to all its citizens:
justice, social, economic, political; liberty of thought, expression, belief,
faith and worship; equality of status and of opportunity; and to promote
among them all fraternity assuring58the dignity of the individual and the
unity and integrity of the Nation.
Consonant with the Preamble, the State guarantees to all persons
equal protection of the laws59 and prohibits State discrimination
against any person on grounds of religion, race, caste, sex or place of
birth.6 °
Concurrently, Article 25 ascribes to all persons in India - subject
to public order, morality, and health - the right to freedom of con-
61
science and to freely profess, practice, and propagate religion. Arti-
cle 26 permits every religious denomination - subject to public order,
morality, and health - to manage its own affairs in matters of religion
and to establish institutions for that purpose.62 Thus, while the body
of secular law consisting of the Constitution, the Code of Criminal
Procedure and other statutory law governs the behavior of all persons
in India, Articles 25 and 26 permit individuals and groups to order
56 Singh, supra note 36, at 15.
57 India is a union of states. INDIA CONST. pt. I (The Union and Its Territory), art. 1(1).
Executive power lies with the President of the Union. Id., art. 52-53. Parliament consists of the
President and a bicameral legislature. Id., art. 79.
The Indian judiciary consists of the Supreme Court of the Union, id. at 124(1), state courts
including subordinate courts, see id., art. 233(1), and a state High Court. Id., art. 215. The
Supreme Court has original jurisdiction over disputes between states and over disputes involving
the Union. See id., art. 131. The Supreme Court also has broad appellate jurisdiction which
includes jurisdiction over any judgment, decree or final order of a High Court of any territory (1)
when the High Court certifies that the case involves a substantial question of law as to the
interpretation of the Constitution, id., art. 132; (2) when the High Court certifies that the civil
matter is of general importance and one which the Supreme Court should decide, id., art. 133;
and (3) when the High Court decision involves a death sentence in a criminal case or involves a
question fit for appeal for the Supreme Court. See id., art. 134(1).
58 INDIA CONSr. pmbl. [emphasis added].
59 INDIA CONsr. pt. III (Fundamental Rights), art. 14.
60 INDIA CONSr. pt. III (Fundamental Rights), art. 15.
61 INDIA CONSr. pt. III (Fundamental Rights), art. 25.
62 INDIA CONST. pt. III (Fundamental Rights), art. 26(a)-(b).
 Northwestern Journal of
International Law & Business 17:320 (1996)

their personal affairs according to the dictates of their religion.

Hence, Islamic law governs the personal affairs of Muslims, Christian
law the personal affairs of Christians, Hindu law the personal affairs of
Hindus, and tribal codes the personal affairs of tribals. 63 Personal af-
fairs include matters relating to marriage and dissolution of marriage,
infants and minors, adoption, wills, intestacy and succession, and mat-
ters pertaining to the family's structure. 64
The problem posed by personal laws is that their very existence
implies unequal protection of the laws and creates potential for state
discrimination on grounds of religion. The difficult question is there-
fore whether provisions of the secular Constitution trump personal
law provisions when there is a conflict between them. The Supreme
Court first addressed this issue in a case concerning the conflict be-
tween the Hindu prohibition against bigamy and the limited Islamic
right to polygamy.65 In these cases, the Muslim personal law permit-
ting polygamy was allegedly void because it fell within the scope of
Article 13.66 Article 13 states that "laws in force" at the time the Con-
stitution went into effect and which conflict with the Constitution's
fundamental rights provisions are void.67 The Supreme Court did not
agree. It instead held that Article 13 does not apply to personal laws.
First, the Constitution's drafters did not intend to bring personal laws
within the application of Article 13. 68 Second, other constitutional
provisions implicitly recognize the continued existence of personal

63 M.R. Narayan Swamy, Indian Supreme Court Orders UniversalLaw for Hindus, Moslems,
Agence France Presse, May 11, 1995, availablein LEXIS, World Library, ALLWLD File. Hindu
personal law also applies to Sikhs, Buddhists, and Jains, who together constitute four percent of
the population. Id.
64 INDIA Co sT. pt. XI (Relations Between the Union and the States), art. 246, Seventh
Schedule, List III, §5. For Muslim women, personal matters include maintenance, guardianship
of children and dower. Muslim Personal Law (Shariat) Application Act, 1937, §2 (Act 26 of
1937), India A.I.R. Manual (1979). Note, however, that the scope of each personal law differs.
For example, adoption has a prominent place in Hindu personal laws but receives no recognition
in Muslim personal law. TAmm MAmMOOD, AN INDIAN CWL CODE AND IsLAMIc LAW 26
(1976).
The personal law of Muslims varies by sect. Muslims are Sunni or Shia. Sm D.F. Mu.LA,
PRINCIPLES OF MAHOMEDAN LAW 24 (16th ed. 1968). Moreover, there are four main schools of
Sunni law: the Hanafi school, the Maliki School, the Shafii School and the Hanbali School. Id.
Because the majority of Indian Muslims are Hanafi School Sunnis, aL, this Comment focuses on
the provisions of Hanafi Law.
65 See, e.g., State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom 84,87. For a discussion
of the conflict between Constitutional fundamental rights and personal law provisions, see TA-
MR MAHMOOD, MUSLIM PERSONAL LAW 88-94 (2d ed. 1983).
66 State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom 84, 88.
67 INDIA CONST. Pt. III (Fundamental Rights), art. 13(1).
68 See State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom 84, 89.
 Judicial Complicity with Communal Violence
17:320 (1996)
laws. 69 Third, if the courts recognize discrimination on the basis of the
existence of different personal laws, personal laws in India could not
exist.70 Thus as far as the Court is concerned, the mere existence of
different personal laws does not violate the non-discrimination and
equal protection provisions of the Constitution. 7 '
However, the State has ample leeway with which to modify and
regulate personal law provisions. For example, on countless occasions
the State has engaged in legislative or judicial reform of religious prac-
tices. 72 In addition, the Constitution itself permits the State to do so
in several ways. The State may provide for social welfare and reform
and establish public Hindu religious institutions open to all classes and
sections of Hindus.73 It may also regulate activities involving any eco-
nomic, financial, political, or other secular activity which may be asso-
ciated with religious practice. 74 In addition, notwithstanding Article
26, Article 44 encourages the state to create for all persons in India a
uniform civil code 75 which could supersede personal laws.

II. JUDICIAL COMPLICITY WrrIH COMMUNAL VIOLENCE

In the past ten years, three kinds of judicial decisions have tended
to provoke hostile communal attitudes and to spark acts of sectarian
violence. They include (1) decisions which hold that certain religious
practices are un-Indian; (2) decisions which, out of concern for na-
tional integration, undermine the rights under Articles 25 and 26 to
profess and practice religion; and (3) decisions which resolve cases in-
volving communal crimes on the basis of over-riding political consid-
erations. Each type of decision has challenged the constitutional
relationship between religious and secular law.
69 Id.
70 Gurdial Kaur v. Mangal Singh, A.I.R. 1968 Punj. 396, 398. However, in GurdialKaur v.
Mangal Singh, the judge did not hold that the personal law provision in question was a law in
force under Article 13(1). He simply held that it did not violate the non-discrimination clause of
the Constitution. ARCHANA PA EsHAR, WOMEN ANm FAMIy LAW REFORM IN INDIA: UNI-
FORM CIVIL CODE AND GENDER EouALrrY 207 (1992).
71 MA-IOOD, supranote 65, at 90. But see PARAsHAR, supra note 70, at 202-213. (challeng-
ing the rationales of the Bombay High Court in State of Bombay v. NarasuAppa Mali, A.I.R.
1952 Bom. 84, and arguing that the Constitution's drafters did not envisage religious personal
laws as extra-constitutional laws).
72 For a general discussion of reforms in Hindu and minority personal laws, see PARASHAR,
supra note 70, at 200; see also H.A. GANI, REFORM OF MUSLIM PERSONAL LAW 144, 146 (1988)
(arguing that personal laws have been repeatedly reformed, by the State, by the courts and by
the British).
73 INDIA CONST. pt. III (Fundamental Rights), art. 25(2)(b).
74 INDIA CONST. pt. III (Fundamental Rights), art. 25(2)(a).
75 INDIA CONS?. pt. IV (Directive Principles of State Policy), art. 44.
 Northwestern Journal of
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A. Decisions Based On A Nationalistic View Of The

Indian Identity
Judicial decisions which endorse a narrow, rigid view of the In-
dian identity contravene principles of Indian secularism and fuel xeno-
phobic communal attitudes. In 1994, the Supreme Court re-
emphasized the fact that the Constitution prohibits the state from
identifying itself with or favoring any particular religion or religious
sect or denomination.76 Judicial opinions which favor a monolithic
view of the Indian identity are therefore unconstitutional. Nonethe-
less, the decisions discussed below illustrate the influence of commu-
nal thinking on the judiciary and suggest one way in which the
judiciary can trigger communal animosity.
Increasingly in India today, the terms "true Indian," "un-Hindu,"
or "true Muslim" surface in judicial decisions.77 Typically, the "true
Indian" argument appears with respect to cases where religious law
conflicts with other religious or secular law.78 For example, when the
pressure brought to bear on one divorced Muslim woman induced her
to renounce the Supreme Court order for maintenance which she had
won,79 Muslim fundamentalist groups hailed her for having become a
80
true Muslim woman.
"True Indian" arguments have been made in cases involving
Hindu men who challenge the exclusive right of Muslim men to have
more than one wife.81 For example, in Sarla Mudgal v. Union of In-
dia, 2 four women sued for bigamy after their husbands converted to
Islam in order to marry again without first divorcing them.8 3 The

76 S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918, 2000.

77 See Mazumdar, supra note 28, at 243; Suzanne Goldenberg, Indian NationalistsPoisedfor
Success, Tim GUARDIAN, May 6,1996, at 8; Rajmohan Gandhi, How India Can Survive, WORLD
PRss REV., MAR., 1994, at 52; India:Illusions Desert Voters in Unwanted Poll, Tim GUARDIAN,
May 15, 1991, available in LEXIS, World Library, ALLWLD File.
78 Cf. Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531; see also Goldenberg, supranote
77, at 8; Gandhi, supra note 77, at 52.
79 Kumar, supra note 15, at 283.
80 Id. The decision in Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, is
discussed at length infra at Section II.B.1.
81 Islamic law permits marriage to more than one woman (and at most, to four women) at a
time. MULLA, supra note 64, at 251. The Quran makes it virtually impossible to do so, however.
The husband should "mete out absolutely equal treatment to all his wives in all objective mat-
ters." K.N. AHnMD, TBm MusLiM LAW OF DIVORCE 611 (1978). "Thus he has to provide equal
maintenance, servants, presents and accommodation to all his wives; he is also under an obliga-
tion to pass equal time with each wife turn by turn." Id.
82 Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531.
83 Id. at 1533; see also Alka L. Handoo, Civil Code Call Stirs Hornet's Nest, NEw STArrs
TIMEs (Malaysia), July 19, 1995, at 12.

330
 Judicial Complicity with Communal Violence
17:320 (1996)

Supreme Court held that the second marriages violated Hindu per-
sonal law and were therefore invalid. 84 In his concurring opinion, one
justice further noted that the conversions were made only to escape
the consequences of bigamy. 5
But rather than squarely condemn the defendants for their con-
versions to Islam, the Court unambiguously laid the blame for fraudu-6
lent conversions to Islam on the plurality of personal laws in India.1
It called on the government to enact a uniform civil code for people of
all religions. 87 The Court further noted that State reforms of Hindu,
Buddhist, Jain and Christian personal laws showed that these groups
"had forsaken their sentiments for the cause of national unity," while
other communities had not done so. 8 In addition, the Court implic-
itly distinguished between "true Indians" and those who engaged in
religious practices which deviated from rituals of the majority:
Those who preferred to remain in India after [the partition of India],
fully knew that the Indian leaders did not believe in [a] two-nation or
three-nation theory and that in the Indian Republic there was to be only
one nation - [the] Indian Nation - and no community89
could claim to
remain a separate entity on the basis of religion.
Understandably, the Court's call for a uniform civil code was in-
stigated by the the "totally unsatisfactory state of affairs" without
one9° and the need to check the abuse of religion.91 However, in the
existing socio-political climate, calls for a uniform civil code only exac-
erbate communal sentiment because the proposed code promoted by
the Congress Party resembles Hindu laws.92 Furthermore, the most
84 Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531, 1537. The Supreme Court ex-
amined a variety of cases involving conversion with subsequent remarriage, and concluded that
dissolution of a marriage celebrated under one personal law does not occur when a party to the
marriage converts to another religion. Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531,
1536.
85 Id. at 1540 (Sahal, J., concurring).
86 Id. at 1533. "Tll the time we achieve the goal - uniform civil code for all citizens of India
- there is an open inducement to a Hindu husband who wants to enter into second marriage
while the first marriage is subsisting, to become a Muslim." Id.
87 Id. at 1539.
88 Id. at 1538.
89 Id. at 1539.
90 Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531, 1538 (quoting Justice 0. Reddy's
opinion in Jordan Diengdeh v. S.S. Chopra, A.I.R. 1985 S.C. 935).
91 See Sarla Mudgal v. Union of India, A.I.R. 1995 S.C. 1531, 1540 (Sahal, J., Concurring).
92 Madhu Mehra, Remarks at the Conference on Women Resisting Violence; A Sub-Re-
gional Preparatory Meeting for the 1995 Beijing Conference on Women (June 11, 1995) (tran-
scripts available from Dr. Hameeda Hossain; 7, New Bailey Road; Dhaka 1000, Bangladesh); see
also GArN, supra note 72, at 109 (quoting an interview of Asghar A. Engineer). One operating
assumption of those in favor of scrapping personal laws is that the Hindu personal law on which
the proposed Code is based is secular because it has been reformed much more than other
 Northwestern Journal of
International Law & Business 17:320 (1996)
vocal supporters of the code are Hindu fundamentalists. 93 Conse-
quently, many minorities fear that a uniform code will allow non-mi-
norities to define the rights of minorities and impose "Hindu" rights
and obligations on non-Hindus. 94
Given this environment, the Sarla Mudgal decision provoked
communal animosity in two ways. First, by suggesting that bigamy is
un-Indian, the Court implied that Muslims in India are un-Indian.
Second, whatever the merits or demerits of bigamy, Muslims inter-
preted the Court's pronouncement not as a statement about the plight
of women but as a statement about the perceived problems which
Muslims pose to national unity and social reform. 95 In this light, mi-
norities viewed the call for a uniform civil code as a threat to their
96
constitutionally protected right to manage their own religious affairs.
The non-discrimination and equal protection clauses of the Con-
stitution, 97 in conjunction with the guarantees of freedom of con-
science,98 prevent the state from giving a particular religion or sect
preference over others.99 Hence, courts should instead base their de-
cisions on "secular" arguments and policy considerations independent
of sectarian notions of "true Indian" identity.
The Court in Sarla Mudgal could have done so in several ways.
For example, the Bombay High Court had previously held that reli-
gious practices which undermine public order, morality, or health

personal law. Madhu Kishwar, Pro-Women or Anti-Muslim? The Furore Over Muslim Personal
Law, in TmE SHAH BANo CoNTRovERsy 52, 55 (Asghar A. Engineer ed., 1987). For a discus-
sion of the range of problems Hindu women suffer under Hindu personal law, notwithstanding
such reform, see id. at 55-56.
93 Asghar A. Engineer, Introduction to THE SHAH BANo CoNTRovERsY, supra note 92, at
18; see also Anika Rahman, Religious Rights Versus Women's Rights in India: A Test Case for
InternationalHuman Rights Law, 28 COLUM. J. TRANSNAT'L L. 473,480 (1990). The VHP, the
RSS, and other similar organizations have vociferously demanded the imposition of a common
civil code. Engineer, supranote 92. Engineer argues that whatever the merits may be of such a
code, when the demand for it comes from communalist Hindus, it arouses deep suspicions
among the Muslim intelligensia that what is being demanded is a Hindu code. Ld.
94 Swamy, supra note 63.
95 In the context of social and economic changes, women and family life often become repos-
itories of cultural identity. See Donna J. Sullivan, Gender Equality and Religious Freedom: To-
ward a Frameworkfor Conflict Resolution, 24 N.Y.U. J. INT'L L. & PoL. 795, 812 (1992).
96 Rahman, supra note 93, at 480. One author notes that Muslim sentiment concerning a
uniform civil code was unfounded. GANa, supranote 72, at 45. He asserts that laws enacted to
reform Hindu personal law have not ousted the place of Hindu personal law in the lives of
Hindus. Id. Further, one version of the Code under consideration would allow individuals to
choose whether the Code or personal law would govern their personal affairs. Id.
97 INDIA CONST. Pt. III (Fundamental Rights), art. 14, 15.
98 INDIA CONST. Pt. III (Fundamental Rights), art. 25, 26.
99 S.R. Bommai v. Union of India A.I.R. 1994 S.C. 1918, 2000.
 JudicialComplicity with Communal Violence
17:320 (1996)

must give way to the good of the people of the State as a whole.100 In,
several bigamy decisions, Indian courts had held that a Hindu or
Christian who converts to Islam to remarry is not exercising his free-
dom of conscience and converts fraudulently. 101 The Court in Sarla
Mudgal could have argued that such fraudulent conversions are a
"growing menace"' ° contrary to both public order and morality and
are an injustice to both Hindu and Islamic law. 10 3 They also violate
1°4
the spirit of the constitutional guarantee of freedom of conscience.
Given that these fraudulent conversions could potentially worsen
group relations, the Court had ample justification for regulating a per-
sonal law issue such as bigamy on constitutional grounds. 10 5
Another example more pointedly demonstrates the emergence of
problematic "true Indian" rationales. In December 1992, Hindu fun-
damentalist forces destroyed the Muslim Babri Mosque in
Ayodhya.1°6 Immediately afterward, two judges of the state's High
Court reinforced the claim of Hindu groups to the contested site of
100 State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Born 84, 86.
101 See id See also In Re Nagarassayya, 1988 Mat. LR 123 and B. Chandra Manakiamma,
1988 A.P. LU 1848 (discussed in Tahir Mahmood, Freedom of Conscience and Conversion to a
Minority Religion - Legal Parametersand Social Realities, in MrNoRrrrns ANrD STATE AT THE
INDIAN LAW: AN ANTHOLOGY, supra note 17, at 78, 81 n.41).
102 Handoo, supra note 83.
103 Tahir Mahmood, Islamic Law in the Indian Court 1988, IX Islamic C.L.Q. 57 (1989).
104 Tahir Mahmood, Freedom of Conscience and Conversion to a Minority Religion - Legal
Parameters and Social Realities, in MiNomEs AND STATE AT THE INDIAN LAW: AN ANTHoL-
OGY, supra note 17, at 79.
105 The Bombay High Court has said of Articles 25 and 26:
If religious practices run counter to public order, morality or health, or a policy or social
welfare upon which the State has embarked, then the religious practices must give way...If,
therefore, the State of Bombay compels Hindus to become monogamists, it is a measure of
social welfare and reform and if it is a measure of social reform the State is empowered to
legislate with regard to social reform under Art. 25(2)(b) notwithstanding the fact that it
may interfere with the right of a citizen freely to profess, practice and propagate religion.
State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 85, 86-87.
106 HUMAN RIGHTS WATCH, supra note 1, at 28. In the latter months of 1992, various polit-
ical parties and religious and cultural groups publicly called on Hindus to demolish the Babri
mosque in Ayodhya, Uttar Pradesh, and to build a Hindu temple in its place. In their view, the
site was the birthplace of the Hindu God Ram, and the building of the temple was therefore a
fundamental step in the establishment of Hindutva, or Hindu rule. Id. Over 150,000 militants
answered the call and came to Ayodhya to destroy the mosque. HUMAN RIGHTS WATCH, supra
note 1, at 23. In mid-December of 1992, they gathered in Ayodhya and destroyed the sixteenth
century mosque, attacked Muslims in the neighborhood, looted Muslim shops and burned their
homes. Id. at 18. In the two days following the destruction of the mosque, 14 Muslims were
killed and 267 houses, 23 mosques, and 19 grave sites were destroyed in Ayodhya. Id. at 23.
The local, state and central governments allowed the destruction of the mosque, despite
discussions in the weeks before December 6 of the need for protection of the mosque and warn-
ings of its imminent destruction. Id. State and local police forces in Ayodhya were actually
reduced in early December, and the state government instead deployed a police force known for
its communal bias. Id.
 Northwestern Journal of
International Law & Business 17:320 (1996)
the mosque. They reached their decision in part because an illustrated
copy of the Constitution signed by members of India's Constituent
Assembly in 1949 contained a picture of the Hindu God Ram. 10 7 The
judges found that Ram was therefore "a constitutional entity" and a
"figure constitutionally accepted as the Lord by the builders of this
nation and its culture."' 0 The same court, in a later decision, modi-
fied the ban the government had placed on all worship at the site and
allowed Hindus to offer prayers at a reasonable distance from the
makeshift temple constructed on the site of the old Mosque. 10 9 The
decision followed violence in a nearby town in which residents and
police prevented several hundred Muslims from marching to Ayodhya
to pray near the destroyed Mosque."' The Supreme Court refused to
pass any order on the plea of Muslim organizations to stay the Allaha-
bad High Court order. 1"
A state organ which gives a God of a particular religion constitu-
tional status clearly violates the non-discrimination and equal protec-
tion clauses of the Constitution. Moreover, the fact that courts have
historically refused to decide the issue of which group has a better
claim to the Ayodhya site underscores the impropriety of the judges'
decision. In 1885, the same court had rejected a similar petition de-
manding that the state build a temple in the Mosque's outer yard be-
cause the Mosque was built on the birthplace of Ram. 112 Again, in
1949, when Hindu idols were placed inside the Babri Mosque, the
courts held that neither Muslims nor Hindus could enter the build-

After the destruction of the mosque, Uttar Pradesh security forces participated in the at-
tacks against Muslims; Uttar Pradesh government officials were well aware of the Hindutva or-
ganizations which organized the departure of thousands of Hindu militants by train. Id. at 25.
In Bombay, the violence which ensued in the days after December 6 involved clashes mostly
between Muslims and the police. Id. at 24. Muslims who publicly demonstrated against the
events in Ayodhya were stopped by the police and later attacked by both the police and support-
ers of Hindu rule. Id.During the same period, the police did not stop Hindus demonstrating in
support of the destruction of the mosque. Id. In addition to firing on the demonstrators, the
police entered households, burned down homes, tortured those arrested, and fired on defense-
less residents. Id. Transcripts of recordings of police radio conversations demonstrate their com-
plicity: "Don't burn anything belonging to a Maharashtran. But burn everything belonging to a
Muslim." Id. at 25. [Maharashtra is the state in which Bombay is located]. Large-scale commu-
nal riots ensued. Id.
107 Hamish McDonald, India: Backlash in Bombay, FAR E. ECON. REv., Jan. 21, 1993, at 16.
108 Id.
109 Indian Court Allows Hindus to Pray at Makeshift Ayodhya Temple, Agence France Presse,
Jan. 1, 1993, availablein LEXIS, News Library, ALLWLD File.
110 Id.
111 Major News Item in Leading Indian Newspapers, The Xinhua General Overseas News
Service, Jan. 23, 1993, available in LEXIS, World Library, ALLWLD File.
112 See HuMAN RIHTs WATCH, supra note 1, at 22.
 Judicial Complicity with Communal Violence
17:320 (1996)
ing. 113 Ownership
4
of the site was still in dispute when the Mosque was
11
razed.
The non-discrimination and equal protection clauses of the Con-
stitution, 115 previous court opinions which refused to discuss the own-
ership issue, 116 and the nation-wide communal violence which
followed the destruction of the Mosque 17 all suggest that the Allaha-
bad High Court should have refused to adjudicate ownership of the
land in Ayodhya. The Supreme Court recently adopted this position
and refused to answer a presidential request for an advisory opinion
on whether a Hindu temple existed at the site of the demolished
Mosque before its creation some 400 years ago." 8 The Court thereby
effectively diminished the potential for communal interpretation of its
acts and communal reaction to a judicial decision. Moreover, given
the way the reference was framed, only one group could have been
satisfied with the decision.119 The Congress Party had hoped that by
seeking the Court's view on the historical facts of the dispute, it might
avoid12making a decision which would alienate either Hindus or Mus-
ims. 0 The Court's refusal to hear the case demonstrated that the
"mess politicians make must be cleaned up by them, not the
12 1
courts.'

B. Decisions Which Undermine The Rights Under Articles 25 and

26 to Profess and Practice Religion and Manage
Religious Affairs
Judicial decisions affecting the Article 25 and Article 26 preroga-
tives of individuals to practice their religion and to manage their reli-
gious affairs exacerbate communal violence. More specifically, it is
the courts' reasoning in these decisions, not the outcomes, that has
triggered the ensuing communal reaction.

113 Id.
114 Cf. India-Politics:Supreme Court Ruling Revives Ayodhya Dispute, Inter Press Service,
Oct. 25, 1994, available in LEXIS, World Library, ALLWLD File.
115 INDIA CONST. pt. III (Fundamental Rights), art. 15.
116 See discussion in HumA RIGHTS WATCH, supra note 1, at 22.
117 See id. at 23-27.
118 India-Politics:Supreme Court Ruling Revives Ayodhya Dispute, Inter Press Service, Oct.
25, 1994, availablein LEXIS, World Library, ALLWLD File.
119 See id. 'IWo judges on the bench ruled that they found fault with the reference because it
favored one religious group over the other. ld.
120 Id.
121 Id
 Northwestern Journal of
International Law & Business 17:320 (1996)

1. The Shah Bano Decision

In Md. Ahmed Khan v. Shah Bano Begum"2 (hereafter Shah

Bano), the Supreme Court addressed the plight of destitute divorced
Muslim women. Shah Bano, a 56 year old woman, had been married
42 years to Mohammed Ahmed Khan, a prominent lawyer with an
annual income of approximately 60,000 Rupees, when he drove her
out of their home.' 2 3 Shah Bano sued Khan for maintenance of 500
Rupees per month under Section 125 of the Code of Criminal Proce-
dure (hereafter the CrPC). 124 Generally, Section 125 is not a provi-
sion for divorced women but a provision for the maintenance of
destitute women, children, and parents. 2 5 However, Section 125 per-
mits any woman to sue her husband for maintenance before or after a
divorce if the husband has sufficient means and has neglected or re-
fused to maintain her.' 26 Khan responded to the maintenance suit by
divorcing Shah Bano. 127 Even though under Islamic law, divorced
Muslim women have a right to maintenance only for the first three

122 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945.
123 Id. at 946-47.
124 Id at 947. Section 125 reads:
§ 125. Order For Maintenance of Wives, Children and Parents.
(I) If any person having sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to main-
tain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first
class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father or mother,
at such monthly rate not exceeding five hundred rupees in the whole, as such Magis-
trate thinks fit, and to pay the same to such person as the Magistrate may from time
to time direct:...
Explanation: - For the purposes of this chapter
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.
India Code Crim. Proc. ch. IX, §125(1) (1973)(availablein India A.I.R. Manual (1989)).
125 Kishwar, supra note 92, at 54.
126 See India Code Crim. Proc. ch. 19, §125(1) (1973) (available in India A.I.R. Manual
(1989)). The maximum amount of 500 Rupees per month is inadequate for both shelter and
subsistence. Kumar, supra note 15, at 274, 276.
127 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 947.
 Judicial Complicity with Communal Violence
17:320 (1996)

months following a divorce, 12 the lower129

courts ordered Khan to con-
tinue to pay Shah Bano maintenance.
Khan appealed to the Indian Supreme Court. He argued that,
after the divorce, he not only had maintained Shah Bano for over two
years but also had paid her mahr,130 or dower.131 Khan argued that he
therefore fell within the Section 127(3)(b) exception to Section 125,132
which allows a Magistrate to cancel a maintenance award if he is satis-
fied that the divorced claimant has received adequate payment of

128 AHMED, supra note 81, at 719.

Maintenance of the wife and children is one of the primary Islamic obligations of the hus-
band on marriage. AsAF A.A. FYzEE, OurLINEs OF Mu-AmmADAN LAW 211 (4th ed. 1974). The
wife has a right to maintenance, even if she has the means to maintain herself and her husband
does not have the means to maintain her. Id. at 211-12. This right is subject to the condition that
the husband has neglected or refused to maintain his wife. Id. at 213.
Women lawfully entitled to maintenance include women lawfully married to a man and
divorces during the iddat period (usually, the three month period following the divorce). AH-
MED, supra note 81, at 719. A divorcee who is pregnant at the time of divorce has a right to
maintenance until the delivery of her baby. Id. The purpose of the iddat period is to ensure that
the problems between the parties cannot be reconciled and to ensure the paternity of children
born in the months after the divorce. FYZEE, supra, at 107-08. The wife's right to maintenance
ends at the end of the iddat period, when the divorce becomes irrevocable. ASOHAR A. ENGI-
N-ER, THE Rioirrs OF WOMEN IN ISLAM 130 (1992).
For a discussion of the Islamic right of a Muslim woman to be maintained when her husband
tries to evade giving her her share of his property, see Asghar A. Engineer, S.C. Judgement on
Maintenance:ForcesBehind the Agitation, in Tim SHAH BANo CoNToVERsy, supranote 92, at
35, 38-39.
129 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 947. The lower court
awarded Shah Bano 25 Rupees per month, and the state High Court increased the payment to
179 Rupees per month. ld.
130 Mahr is an amount of money or property a Muslim woman is entitled to receive from her
husband in consideration of marriage, and as a token of love, truthfulness and sincerity. ENGI-
NEER, supra note 128, at 111.
131 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 947.
132 127. Alteration in allowance. - (1) On proof of a change in the circumstances of any
person, receiving, under section 125 a monthly allowance, or ordered under the same sec-
tion to pay a monthly allowance to his wife, child, father or mother, as the case may be, the
Magistrate may make such alteration in the allowance as he thinks fit:
(3) Where any order has been made under section 125 in favour of a woman who has been
divorced by, or has obtained a divorced from, her husband, the Magistrate shall, if he is
satisfied that -

ib)" the woman has been divorced by her husband and that she has received, whether
before or after the date of the said order, the whole of the sum which, under any
customary or personal law applicable to the parties, was payable on such divorce,
cancel such order, -
(I) in the case where such sum was paid before such order, from the date on which
such order was made,

iii) in any other case, from the date of expiry of the period, if any, for which
maintenance has been actually paid by the husband to the woman;
India Code Crim. Proc. ch. IX, §127 (1973), (available in India A.I.R. Manual (1989)).
Northwestern Journal of
International Law & Business 17:320 (1996)
maintenance under her personal religious law. 133 Khan further argued
that the CrPC provisions conflicted with Islamic law, under which he
had an obligation to maintain Shah Bano for only three months after
divorcing her.134
After reviewing Quranic verse and its interpretations by Islamic
scholars, the Supreme Court held that the mahr which Khan had paid
Shah Bano was a sum payable to her in consideration of marriage.
Therefore, Khan's payments of mahr did not qualify him for the Sec-
tion 127(3)(b) exception because the mahr was not "a sum payable to
the wife on ... divorce" but "an obligation imposed as a mark of
respect for the wife.' 1 35 Thus, Shah Bano had not received from
Khan the whole sum due her upon divorce.
On the basis of its review of Quranic verse, the Court also held
that it was "not only incorrect but unjust" to limit a Muslim husband's
obligation to maintain a divorc6e to the iddat period - the three-
month post-divorce period 36 - and not to extend the obligation to
divorc6es unable to maintain themselves. 37 Moreover, the Court
held that because Islamic provisions for maintenance did not address
the situation of destitute divorc6es, 38 there was no conflict between
the provisions of Islamic law and those of the CrPC.139 The Court
also noted that where personal law conflicts with Section 125, the lat-
ter prevails. 140 Finally, the Court called for the enactment of a uni-
form civil code for all peoples of India.' 4 '
The Court's decision to require a Muslim husband to maintain his
divorced wife beyond the iddat period was a landmark in the fight for
social justice for women. The decision also clearly reflected the
court's concern that secular law (such as the criminal code) applies
uniformly to all citizens. 142 Not surprisingly, however, the Shah Bano
decision provoked sharp reaction from Muslims throughout the coun-

133 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945,952. Khan thus argued that
payment of maintenance during the iddat period, coupled with mahr, fulfilled a husband's Is-
lamic obligation to maintain his wife. Kishwar, supra note 92, at 52-53. Shah Bano disagreed.
She argued that the whole sum owed in customary law includes mataa, or "a fair and reasonable
provision" upon divorce, and that she had not been paid mataa. I&L at 53.
134 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 949-50.
135 Id. at 953.
136 See also AHMED, supra note 81 (and discussion of iddat period at note 128).
137 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 950.
138 Id.
139 Id. at 951.
140 Id.
141 1& at 954.
142 Rahman, supra note 93, at 479.
 Judicial Complicity with Communal Violence
17:320 (1996)

try.'4 3 They asserted that the Supreme Court had interfered with Is-
lam in its interpretation of (1) the meaning and role of mahr; and (2)
the scope of a husband's Islamic obligation to maintain his wife."' In
their view, only Muslim theologians could interpret the Quran. 145 In
addition, Muslims and other minorities feared that the uniform civil
code which the decision heralded would reflect the dominant Hindu
community's narrow nationalism. 146 The most vocal proponents of a
uniform code had been Hindu communalists desirous of eliminating
Islamic cultural traditions. 147 Thus, in their view, a uniform civil code
would force total assimilation of minority groups and a loss of sepa-
rate identity. 14 8
Elements of the decision justified these fears. Though the call for
a uniform civil code clearly was made in the context of concern for the
way in which women have been traditionally subjected to unjust treat-
ment, the Court went on to state:
A Common Civil Code will help the cause of national integration by
removing disparate loyalties to laws which have conflicting ideologies.
No community is likely to bell the cat by making gratuitous concessions
on this issue.... We understand the difficulties involved in bringing per-
sons of different faiths and persuasions on a common platform. But a
beginning has to be made if the Constitution is to have meaning.' 49
Thus in addition to its concern regarding justice for women, the
Court's desire for national integration also prompted its call for a uni-
form civil code. 50 The decision also implied that a uniform code
would require that minority groups forego "disparate loyalties" to
their religion.' 5 ' In this manner, the language of its decision under-
mined the Court's concern with both the supremacy of secular law and
justice for women.
As with other instances of judicial antagonism toward communal
feelings, the Court overstepped its bounds. The judiciary has ample

143 Kumar, supranote 15, at 278; K.R. Malkani, A Participant'sResponse, in MiNoRms AND
STATE AT THE INDL4N LAW: AN ANTHoLOGY, supra note 17, at 165,166; Tenorio, supra note 24;
Gargan, supra note 53; Steven R. Weisman, Dispute Over a Moslem Divorce Ensnarls Gandhi,
N.Y. TImEs, Feb. 9, 1986, at A3; Venugopala Rao, India: Storm Brews Over Rights of Divorced
Moslem Women, Inter Press Service, Feb. 27, 1986, available in LEXIS, World Library,
ALLWLD File.
144 See PAR saAR, supra note 70, at 175.
145 Rahman, supra note 93, at 479.
146 Singh, supra note 36, at 14.
147 Engineer, supra note 93, at 18.
148 Singh, supra note 36, at 14.
149 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 954.
150 Kumar, supra note 15, at 277.
151 Id.
 Northwestern Journal of
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authority to interpret statutes codifying different aspects of Islamic

law 52 and, in fact, has done so repeatedly in the past.5 3 However, in
the Shah Bano decision, the Court imposed an Islamic obligation on
Muslim men unrecognized by Islamic jurisprudence or relevant
statutes. 54

Well aware of the strong reaction its judgment would provoke

from Muslim leaders, the Supreme Court appealed to Quranic and
other Islamic sources generally accepted by Muslims everywhere in
order to convince Muslims of the justice of Section 125 awards to
divorc6es.15 5 Regrettably, this tactic destroyed the distinction be-
tween maintenance awards granted on divorce pursuant to personal
law and maintenance awards designed to prevent destitution, which
are granted on divorce pursuant to Section 125.16 Instead of noting
the difference between these two distinct kinds of maintenance, the
Court stated that it was unjust to limit a Muslim husband's mainte-
nance obligation to the iddat period. 157 The Court thereby suggested
that Islamic marital obligations and social obligations designed to help
152 Baharul Islam, The Supreme Court Judgement (Divorced Muslim Women), in SHAH
BANo 55, 56-57(Janak R. Jai ed., 1986) (documenting the sources of judicial power to interpret
the Quran). See also, e.g., Dissolution of Muslim Marriages Act, 1939, (Act 8 of 1939), India
A.I.R. Manual (1989); Bengal, Agra and Assam Civil Courts Act, 1887, (Act 12 of 1887), India
A.I.R. Manual (1989); Muslim Personal Law (Shariat) Application Act, 1937, (Act 26 of 1937),
India A.I.R. Manual (1979).
153 The Supreme Court has ruled that religious practices which constitute an essential part of
the religion are immune from state regulation, see M.H. Quareshi v. State of Bihar, A.I.R. 1958
S.C. 731, but that courts must decide what constitutes an essential part of religion or religious
practice. Saifuddin Saheb v. State of Bombay, A.I.R. 1962 S.C. 853. On this basis, Indian courts
have interpreted a variety of personal law provisions. For a discussion of these decisions, see
M.R. Kazimi, Right to Practice Religion - Judicial View of ConstitutionalPrinciples,in MINom-
TIEs AND STATE AT -m INDIAN LAW: AN ANTHOLOGY, supra note 17, at 48, 51-52.
154 Some debate exists as to the extent of a husband's obligation to maintain his divorced
wife. The Shah Bano decision revolved around the interpretation of a Quranic verse which
states: "And the divorced women, too, shall have (a right to) maintenance in goodly manner.
This is a duty of all who are fearful of God." (quoted in ENGNEER, supra note 128, at 129). The
only point of agreement among Islamic scholars is that the verse does not specify a period of
time over which the obligation is due. See ENGINEER, supra note 128, at 129-32.
Commenting on Shah Bano, Engineer argues: "The granting of maintenance beyond the
period of iddatmay not have been provided for in.the Shariat [Islamic Law], but... there is no
clear injunction in the Shariat against it. On the contrary, the Quran makes it obligatory on the
pious to do ihsan (benevolence) to the divorcee. It is repeatedly asserted. And what is ihsan if
not giving more than what is obligatory? The Supreme Court might have used rather offensive
language (which could have been condemned), but the substance of its judgement is certainly in
keeping with the true spirit of [the] Quran." Asghar A. Engineer, ShariatNot a Closed System,
in SHAH BANO 61, 64 (Janak R. Jai ed., 1986).
155 Asghar A. Engineer, S.C. Judgement on Maintenance: Forces Behind the Agitation, in
THm SHAH BANO CoNROVmEsY, supra note 92, at 35, 35-36.
156 Kumar, supra note 15, at 276.
157 Md. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 950.
 Judicial Complicity with Communal Violence
17:320 (1996)

destitute women were one and the same. In this manner, the Court
created a conflict between Section 125 and the religious rights of Mus-
lim men.

2. The Rahmat Ullah Decision

An unreported decision which provoked similar communal reac-
tion involved a Muslim whose land holding exceeded the amount per-
58
mitted by the Uttar Pradesh Land (Ceiling and Regulation) Act.1
Mr. Rahmat Ullah, the owner of the land in question, attempted to
avoid penalties for violating the Act by declaring that he had been
divorced for 15 years and had transferred title of part of his land to his
ex-wife. 159 Therefore, in his view, his land holding did not violate the
Act because both he and his ex-wife were each entitled to the maxi-
mum land holding. 160 However, the Allahabad High Court held that
the divorce was invalid because 61Ullah and his ex-wife continued to
live together in the same house.'
The Court also held that the form of divorce Ullah had used to
terminate his marriage was unlawful in India. 62 Ullah executed a
triple talaq divorce, 63 which occurs when a Muslim husband repeats
"talak," or "I divorce you," three times to his wife.164 The Allahabad
High Court held triple talaq divorce unlawful for lack of proof of judi-
cial dissolution of the marriage. 65
As with the Shah Bano decision, the Ullah decision would have
caused little comment had the judge's written opinion not exceeded
the scope of the issue. In dicta, he stated that wherever Islamic law
conflicts with the secular law, the latter takes precedence. 66 The
court's oversimplification of the complex relationship between Arti-
cles 25 and 26 and other constitutional provisions elicited a communal
reaction. Iqbal Masud, a liberal columnist in India, complained that

158 John Rettie, Divorce Ruling Puts Indian Judge at Odds With Muslims, Tim GuAiDiA,
Apr. 30, 1994, at 15.
159 Id.
160 Id. The Act considers a married couple to be a single owner. Id.
161 Id
162 John Rettie, Land Issue Triggers DivorceRuling; Decisionby Indian Judge Sparks Heated
Debate Among Muslims, Tim GAzEIE (Montreal), Apr. 30, 1994, at B7.
163 Id.
164 Such a talaq is irrevocable and is lawful, though sinful, under Hanafi law. Fyzun, supra
note 128, at 154. Most Muslim countries have banned triple talaq divorces, but the practice
continues in India. Neena Bhandari, India-Women: Legal Rights Fail to Protect Women, Inter
Press Service, May 15, 1995, available in LEXIS, world Library, ALLWLD File.
165 Rettie, supra note 158.
166 Id.
Northwestern Journal of
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all Muslims, traditional or liberal, resented the blatantly "self-right-

eous and patronizing attitude implicit in [the court's] exhortation." 167
Masud asserted that the Court's lecture about the need for Muslims to
"emerge from medievalism to modernity" annoyed the average Mus-
lim, who considered non-Muslim India as caste-ridden, superstitious,
1 68
and medieval as Muslim India.

3. Consequences of the Decisions

Both the Rahmat Ullah decision and the Shah Bano decision had
several harmful effects. First, in the minds of some Muslims, the lan-
guage of these decisions suggested a judicial inclination to infringe on
Muslims' religious autonomy based on majoritarian notions of iden-
tity. As such, the decisions undermined the government's stated com-
mitment to pluralism. Second, Muslims mobilized in response to169a
perceived threat to their constitutional right of religious autonomy.
Many Muslim organizations simply used the Shah Bano Judgment as a
tool to gain political power among Muslims. 170 This united Muslim
front adopted a rigid, reactionary interpretation of Islamic law and,
hence, of the rights of Muslim men and women. Many Muslims as-
serted, for example, that Islamic provisions concerning maintenance
and divorce were immutable and beyond the jurisdiction of secular
courts. In this manner, the movement by Muslims to preserve reli-
gious autonomy undermined the heterogeneous and evolutionary na-
ture of Islamic interpretation of women's rights and undid the work of
progressive Muslims and women's advocates who had sought and won
amendments to Islamic laws. 17 1 Indeed, only one year before the Ul-
lah decision, one Muslim sect had already denounced triple talaq di-
vorce as un-Islamic. 172 Even the Muslim Personal Law Board, created
to protect Islamic laws from legislative or other reform and to seek
removal of "un-Islamic provisions" in existing laws affecting Mus-
limS, 1 7 3 had agreed that triple talaq divorce was "a criminal act" under
Islamic law. 174 Both the Shah Bano and Rahmat 175
Ullah decisions thus
triggered a political, not a religious, reaction.

167 Id.
168 Id.
169 PARASEAR, supra note 70, at 173.
170 GANI, supra note 72, at 79-80.
171 See PARASHAR, supra note 70, at 184.
172 Rettie, supranote 158.
173 TAnm MAHMOOD, MUSUM PERSONAL LAw 145-46 (1st ed. 1977).
174 Rettie, supra note 158. However, in another ruling the Board justified the use of triple
talaq as a long-standing tradition. Id.
175 Engineer, supra note 93, at 10-11.
 Judicial Complicity with Communal Violence
17:320 (1996)

Third, the outcry over the Shah Bano decision prompted the
Prime Minister to pass The Muslim Women (Protection of Rights on
Divorce) Act of 1986 (hereafter the Muslim Women's Act). 76 De-
spite its name, this Act revoked the Shah Bano judgment and effec-
tively deprived Muslim women of the protection all other Indian
women have under Section 125.'77 Notwithstanding vigorous parlia-
mentary debate in which reformist Muslims, women's advocates, and
many of the opposition parties argued that the bill would be unfair to
women, 178 Gandhi issued the bill to limit loss of Muslim political sup-
port 179 by demonstrating that a secular country would not allow a mi-
nority community to feel that it was unable to practice its own
religion. 80 However, in so doing, he reinforced the inaccurate image
of a homogeneous Muslim community and a monolithic Islamic juris-
prudence.'8 ' Moreover, he effectively sacrificed support for women's
rights to political expediency," 8 thereby lending legitimacy to the idea
that women had only a religious identity and no secular rights. 83

4. Alternative Rationalesfor the Decisions

Some of the communal reaction to the Shah Bano and Rahmat
Ullah decisions might have been avoided had the courts reached their
holdings on alternative rationales. For example, the Supreme Court
in Shah Bano could have accomplished the same result by relying on
176 Rahman, supra note 93, at 480-81.
177 Id.at 481. The Act requires that destitute divorced Muslim women apply for maintenance
from their relatives or from the Waqf Board. The Muslim Women Act, §4 (1989) (available in
THE SHAH BANo CozrmovEnsy, supra note 92, at 85-87). The Waqf Board is an Islamic reli-
gious charity or trust created for a specific purpose. GANI, supra note 72, at 39. The Waqfs have
no fund for the maintenance of divorced women. Id. Spokesmen for several State Waqf Boards
have complained that they are unable to meet the obligations created by the Act. Id.
178 India: Moslem Divorce Bill PassedBy Parliament,Inter Press Service, May 6, 1986, avail-
able in LEXIS, World Library, ALLWLD File; See also Weisman, supra note 143; Rao, supra
note 143.
179 Tenorio, supra note 24; Wariavwalla, supra note 51.
180 India: Moslem Divorce Bill PassedBy Parliament,Inter Press Service, May 6, 1986, avail-
able in LEXIS, World Library, ALLWLD File.
181 PARAsHAR,supranote 70, at 184. As one commentator noted, "Only the government and
that particular section of Muslims on whose advice it has formulated the controversial bill on
divorced Muslim women's rights can pretend that it reflects the majority opinion in the Muslim
community. Hasan Suroor, Most Muslims in U.P. Opposed to Bill in THE SHAH BANo CotrN-o-
vERsy, supra note 92, at 141, 141-42. "[L]iberals find it odd that an avowedly secular prime
minister who is so passionately hooked on the 21st century is allowing himself to be manipulated
by the communalists in both communities by pandering to Hindu reaction in Ayodhya and to
Muslim fundamentalism in Shah Bano's case." Id
182 Kumar, supra note 15, at 279.
183 Id at 280. See also Nusrat B. Ruhi, Revival of Islamic Fundamentalism, in THE SHAH
BANO CoNTRovERsy, supra note 92, at 48, 48-49.
 Northwestern Journal of
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principles inherent in the Constitution rather than engaging in a direct

interpretation of the Quran. In fact, only the rationales used in Shah
Bano, and not its outcomes, were new. Several Indian Supreme Court
judgments before Shah Bano had used the CrPC provisions to grant
monthly maintenance awards to divorced Muslim women in order to
prevent the emergence of the social problems of destitution and pros-
titution.' 8 4 In these cases, the Supreme Court had underscored the
distinction between maintenance awarded under personal law and
maintenance awarded to prevent destitution.185 The distinction was
useful because it eliminated the theoretical conflict between the two
grounds for maintenance. Moreover, in effect, the distinction empha-
sized the multiple and fluid nature of Indian identity.
In addition to these precedents, the Court in Shah Bano could
also have relied on constitutional provisions to uphold Section 125
maintenance awards to women. The Article 25 freedom of religion
and the Article 26 right to manage one's religious affairs may be
abridged for reasons of "public order, morality and health."'18 6 Thus,
the Court could have ordered maintenance payments because destitu-
tion and prostitution threaten public health and morality. Similarly,
the Court could have held that Muslim husbands violate public policy
when they divorce their wives who have justly sued for maintenance
because such actions constitute an exercise of religious rights in dero-
gation of the public order, health and morality. The Court could then
have awarded Shah Bano maintenance beyond the iddat period be-
cause she would have been entitled to such maintenance as Khan's
wife. Moreover, though Article 25 guarantees every individual reli-
gious freedom, it does not guarantee the right of groups to impose
their views on even one individual."8 Hence, Article 25 guarantees
religious freedom to minorities (i.e., women) within minority
groups.' 8 Finally, the Court in Shah Bano could have defended Sec-
tion 125 as a special provision for women and children, within the pur-

184 See Bai Tahira v. All Hussain Fissalli Chothia, A.I.R. 1979 S.C. 362; Fuzlunbi v. K.
Khader Vali, A.I.R. 1980 S.C. 1730; Zohara Khatoon v. Md. Ibrahim, A.I.R. 1981 S.C. 1243;
Mehra, supra note 92.
185 See Bai Tahira v. All Hussain Fissalli Chothia, A.I.R. 1979 S.C. 362, 366; Fuzlunbi v. K.
Khader Vali, A.I.R. 1980 S.C. 1730, 1736; Zohara Khatoon v. Mohd. Ibrahim, A.I.R. 1981 S.C.
1243, 1248.
186 INDIA CONST.pt. III (Fundamental Rights), art. 25, 26.
187 PARASHAR, supranote 70, at 172 (quoting a letter of Hameedulla Beg which was reprinted
in Radiance, 23-29. xi. 83).
188 Id.
 Judicial Complicity with Communal Violence
17:320 (1996)

view of Article 15(3).189 In Gupteshwar Pandey v. Ram Peari, a state

High Court had already upheld Section 125 against a constitutional
challenge on precisely that ground.' The Court in Shah Bano could
have relied on these precedents to establish the civic duty of every
Indian, regardless of religion, to support divorced women unable to
maintain themselves.' 9 1
Similarly, in the Rahmat Ullah decision, the Allahabad High
Court might have avoided causing the concern it engendered had it
held the triple talaq divorce fraudulent and thus contrary to public
policy. Moreover, while the decision was a victory for women fighting
for removal of religious constraints on their lives, the same Court
could have created a much more powerful precedent for women had it
used constitutional provisions to support its decision. For example,
the Court could have relied on its jurisdiction to regulate a number of
religious activities, including activities involving "public order, moral-
ity and health," under Article 25(1), 192 or on its power to provide for
"social welfare and reform," 193 or on its power to address the particu-
lar problems faced by women and other disadvantaged groups in In-
dia. 194 Clearly, the court had strong constitutional grounds with which
to address the situation of groups disadvantaged by personal law pro-
visions, but it chose not to employ them.

C. Decisions Reached On The Basis Of Overriding

Political Considerations
Courts which decide cases involving communal crimes on the ba-
sis of political considerations provoke communal attitudes and sectar-
ian violence. For example, in 1993 a special Uttar Pradesh court
released seven right-wing Hindu political leaders held on charges of
criminal responsibility for the demolition of the Babri Mosque. 195 The
court stated that the government had invoked a little-used law which
requires that prisoners not be moved from jail if moving them might

189 IDIA CONSr. pt. III (Fundamental Rights), art 15(3)("Nothing in this article [on non-
discrimination] shall prevent the State from making any special provision for women and
children").
190 Gupteshwar Pandey v. Ram Peari Devi A.I.R. 1971 Pat. 181, 182.
191 While the Court recognized that Section 125 served this purpose, Md. Ahmed Khan v.
Shah Bano Begum, A.I.R. 1985 S.C. 945, 948, it chose not to rest its holding on this ground.
192 INDIA CONST. pt. III (Fundamental Rights), art. 25.
193 INDIA CONSr. pt. III (Fundamental Rights), art. 25(2)(b).
194 INDIA CONST. pt. III (Fundamental Rights), art. 15(3).
195 Indian Court Frees Hindu Leaders in Mosque Case, Reuters Limited, Dec. 20, 1993, avail-
able in LEXIS, World Library, ALLWLD File.
Northwestern Journal of
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threaten public order. 196 Therefore, because the men would not ap-
pear for a hearing, the court was forced to release them uncondition-
ally.197 Party sources said the release resulted from a deal between
Prime Minister Rao's Congress Party and the BJP, which had caused
considerable political agitation as a result of the arrests.' 98 Hence, the
government yielded to communal pressure and ignored the need for a
just resolution of the Babri Mosque episode.
Despite the judiciary's efforts in the struggle to end communal
violence, 199 the Uttar Pradesh decision more closely resembles the
failure of the executive branch to prosecute indiscriminately those
who commit communal crimes. For example, the government has not
yet prosecuted any of the militants who destroyed the Babri Mosque
in Ayodhya on December 16, 1992, and attacked Muslim neighbor-
hoods, shops, and homes.200 The majority of those who led or partici-
pated in the attacks and were readily identifiable were not detained or
prosecuted. 201 However, a number of Muslims demonstrating against
the attacks were arrested for allegedly terrorist activities. 2 2 Commis-
sions set up by the government to investigate the riots have not yet
held anyone accountable for these events,20 3 despite thousands of affi-
davits and hundreds of interviews. 2°
In contrast, the government aggressively prosecuted those in-
volved in the 1992 bombings in Bombay.20 5 In March 1992, twelve
bomb blasts, allegedly organized by Muslim militants, killed 357 peo-
ple and injured 700 in Bombay. 20 6 A criminal investigation began im-
mediately. The police portrayed the attacks as a Muslim attack
against the city. 2° In stark contrast to their inaction over the

196 Id.
197 Id.
198 Id.
199 See, eg., India. A System Shakes, THE ECONOMIST, Mar. 23, 1996, at 35; India: Indian
Press Review for Thursday, March 24, Reuters News Service - India, availablein LEXIS, World
Library, ALLWLD File.
200 HuMAN RIGHTS WATCH, supra note 1, at 22.
201 Id. at 18. Of the 2278 cases filed in relation to this violence, 90 are ongoing, 1333 were
closed for lack of evidence, and 848 cases were filed against the accused, but no trials have
begun. Id. at 26.
202 Id.
203 Id. at 18. The inactivity of the police is not unprecedented. During the killing of 2700
Sikhs in Delhi in 1984, the police failed to protect the Sikhs under attack. Ten years later, no one
has been prosecuted or punished for the violence. Id. at 19 n2.
204 Id. at 26.
205 Id.
206 Id. at 27.
207 Id.
 Judicial Complicity with Communal Violence
17:320 (1996)

Ayodhya riots, the police immediately detained 400 people, the major-
ity of which were Muslim, and vigorously pursued the investigation.2 °s
In seven months, they completed their investigation, collected testi-
mony from 3,741 witnesses, and filed a 9,400 page charge sheet against
20 9
those believed to be responsible.
In the context of executive failure to indiscriminately prosecute
criminal offenders, the Uttar Pradesh Court's decision on Ayodhya
was unfortunate. This type of judicial waffling in cases involving com-
munal crimes further strengthens the formation of communal identi-
ties. Furthermore, it undermines judicial independence and
confidence in the political system.

III. AN ALTERNATIVE APPROACH TO CASES WITH

COMMUNAL IMPLICATIONS

The cases discussed may represent few problematic decisions

among thousands of others that are arguably well-decided cases.
However, the sensitivity of religious groups to the treatment of per-
sonal affairs underscores the need for aggressive endorsement of the
neutral constitutional principles which underly decisions involving
personal law. All of the cases analyzed demonstrate that the courts
could have reached the same holdings on the basis of constitutional
provisions, common-law precedent or public policy, and thus could
have avoided directly interpreting religious texts or propounding con-
troversial notions of Indian identity. Indeed, the decisions discussed
above are problematic less for their holdings and more for the nature
of the rhetoric used to present the Courts' rationales.
Given today's climate, disinterested decision-making is the ap-
propriate approach to use. Without question, the decisions in the
cases discussed would trigger communal reaction even if courts
avoided arguably suspect grounds. The depth and extent of group en-
mity suggests that judicial decisions simply will not solve the problem
of communal hostility and violence. However, the real challenge to-
day is to identify ways to anticipate and transcend such polarization
and to disrupt the formation of communal identities. 210 To this end,
neutral judicial decision-making may increase awareness of the differ-
ent political, social, and religious identities all Indians have, protect
the perception of the judiciary's independence, and deter some of the
violence which previous decisions have provoked.

208 Id.
209 Id.
210 Kumar, supra note 15, at 290.
 Northwestern Journal of
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Moreover, this type of decision-making increases confidence in

the judicial system and bolsters the notion of citizenship in a democ-
racy.211 For this reason, "the constitutional state [must] carefully keep
both the shared political culture and common civic identity separated
from the subcultures and cultural identities. . .entitled to coexist
within the polity. ' 212 Neutrality in this context means de-coupling the
majority culture from the political culture with which it was originally
fused.213
As demonstrated above, though such neutral decision-making
may require restraint in the direct interpretation of religious law, it
does not curtail the ability of courts to act as the counter-majoritarian
bulwark and to protect groups which do not have the political power
to protect themselves in the political process. In addition, if direct
judicial interpretation of religious texts triggers communal violence, as
in the Shah Bano case, a somewhat restrained approach to textual in-
terpretation may foster progressive ecumenical interpretation of reli-
gious law.
For example, though human judgment may be responsible for
Quranic interpretation detrimental to women, it is also responsible for
reform and evolution in Islamic law.214 Two Islamic principles, qiyas
and ijma,215 facilitate the use of human judgment in the application of
Islam to new problems and situations and have thus contributed to the
diversity of interpretation and doctrine in the Muslim community.21 6
Qiyas is a method of legal analogical reasoning described as an exten-
sion of a Quranic ruling in one situation to another situation that217 is
similar in reason or cause but for which no Quranic guidance exists.
Ijma, or the unanimous agreement of the jurists of a particular age on
a specific issue, is an Islamic principle which permits resolution of is-

211 Jurgen Habermas, Race and Remedy in a Multicultural Society: Address: Multiculturalism
and the Liberal State, 47 STAN. L. REv. 849, 851-53 (1995).
212 Id at 851.
213 Id at 852.
214 Bharathi A. Venkatraman, Islamic States and the United Nations Convention on the
Elimination of All Forms of Discrimination Against Women: Are the Shari'a and the Conven-
tion Compatible?, 44 AM. U.L. REv. 1949, 1969 (1995).
215 Id. at 1969.
216 JoHN EsPosrro, WOMEN AND MusLiM FAMILY LAW 121 (1982). On the basis of these
principles, Egypt, Pakistan, and Syria have enacted reform legislation to more equitably meet
the changing social and economic needs of women and the family in modem Islamic society. Id.
at 102,116-26. Esposito notes that jurists have used ijma inconsistently, on an ad hoc basis, Id. at
100, 102, but highlights the value of qiyas and ijma as the basis for a reasoned but dynamic
Islamic jurisprudence. Id. at 102-3.
217 Id at 7.

348
 Judicial Complicity with Communal Violence
17:320 (1996)
sues according to the general Islamic purposes of justice and equity.21
Islamic law is thus not divine; both ijma and qiyas introduce a human
element into its interpretation.2 19 These principles permit a process of
moving from individual opinion to community approval to accepted
practice (and then to difference of opinion when conditions
change). 220 It is precisely this evolutionary process which resulted in
the Muslim Personal Law Board ruling which held that a triple talaq
divorce is a criminal act in Islam.22 In India, some women's advo-
cates have suggested that this kind of evolution may be the only effec-
tive way to improve the plight of women, given the extent to which
religion defines women's rights in practice.222 In this manner, some
restraint in the direct interpretation of religious texts may encourage
reform of personal law by adherents of the religion themselves.
For similar reasons, to some extent, judicial decisions on commu-
nal questions absolve the people of their political responsibility to re-
solve these issues themselves. Hindus and Muslims must engage in
extensive public debate in a variety of forums to determine how to
solve majority-minority problems223 and to discuss the meaning of In-
dian nationhood and secularism.
However, in a nation like India, the difficulties of sustaining ef-
fective dialogue on such issues are evident.224 Ultimately, the nation's
size and diversity suggest that its judiciary may be one branch of gov-
ernment truly able to effectuate this end. If so, the judicial role in
propounding a doctrine of neutral principles which reinforce the
layered identities of Indians must be underscored. Judicial decisions
can encourage a heterogeneous public to affirm differences through
218 Id.
219 Engineer, supra note 93, at 2-3.
220 Esposrro, supra note 216, at 121. See also Sullivan, supra note 95, at 811.
221 See Rettie, supranote 158; (see also discussion supra at note 174, and accompanying text).
222 Venkatraman, supra note 214, at 1996 (religious justification for suppressing women's
rights must be critically examined by adherents of the religion themselves). One scholar notes
that the Shah Bano agitation "interrupted developing critiques of personal law and moves to-
ward some form of uniform civil code." Kumar, supra note 15, at 281-82. Before Shah Bano, two
feminist petitions for a uniform civil code had received wide support from feminists throughout
the country: Mary Roy's plea against Christian personal law, and Shahnaz Sheik's petition
against Muslim personal law. Sheikh argued that the Muslim personal law should be declared in
violation of Articles 13-15. Id. at 281.
223 See HUMAN RIGHTS WATCH, supra note 1, at xvii.
224 The Supreme Court in Shah Bano emphasized this point when it noted that no religious
community had in fact moved towards reforming religious provisions or towards synthesizing
them with the secular Constitution: "A Common Civil Code will help the cause of national
integration by removing disparate loyalties to laws which have conflicting ideologies. No com-
munity is likely to bell the cat by making gratuitous concessions on this issue." Md. Ahmed Khan
v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 954.

349
Northwestern Journal of
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their religion and culture and concurrently foster links between mem-
bers of different groups as citizens in a democracy.2" In this manner,
the judiciary may impede the formation of communal sentiment and
increase awareness of the multiple and fluid identities which Indians
have always had and shared.

225 See Adeno Addis, Individualism, Communitarianism,and the Rights of Ethnic Minorities,
66 NoijmE DAmE L. REv. 1219, 1225 (1991).