Constitutionalising Muslim Women’s Rights: A Perspective from India

Vrinda Narain

 

Abstract: The constitutional contradiction between public equality and private inequality has profoundly disadvantaged Muslim women who are located at the intersection of gender, religion, and community and experience multiple axes of discrimination. The Indian Constitution guarantees equality and freedom from discrimination on the basis of gender and religion. Yet, this equality stops short at the family, where Muslim women are explicitly disadvantaged under religious personal law. Applying to individuals on the basis of religious affiliation, the personal law system regulates all family relations; Muslim women, who are governed by Muslim personal law, are subject to discriminatory laws in matters including marriage and divorce, custody and guardianship, and inheritance and succession. Together with this disadvantage in legal status, as members of a religious minority, Muslim women are at the margins of citizenship and democracy with regard to political participation and representation, and socio-economic status. Historically, the neglect of gender and its relevance to the constitutional canon has served to marginalise substantive gender equality. Muslim women’s substantive equality has traditionally been constructed as oppositional to minority rights and religious freedom. This article examines the potential of constitutionalising Muslim women’s equality rights through the lens of Shayara Bano, a landmark judgment in which the Supreme Court struck down the practice of instantaneous triple talaq for violating the constitutional guarantee of equality. Drawing from the insights of feminist constitutionalism, the objective of this article is to analyse the transformative potential of the Indian Constitution for Muslim women.