The Rule of Law in South Asia: Is ‘Secular’ India lagging behind ‘Religious’ Pakistan?
Wednesday, October 31, 2012
Senior Research Fellow at the Centre for International Studies and Research, in Paris, France, the author of India's Silent Revolution: The Rise of the Lower Castes in North India and the editor of Pakistan: Nationalism Without A Nation.
Dr. B.R. Ambedkar Visiting Professor of Indian Constitutional Law (Fall 2012) and the author of Democracy and Constitutionalism in India.
In 1947, India and Pakistan embarked on separate constitutional journeys. While India adopted a constitution which it called ‘secular’, Islam was given a central role in Pakistan. Nevertheless, Indian state continued to be interventionist in religious affairs. Religious groups have continued to be governed by separate religious family laws, and ‘secular’ courts are asked upon to adjudicate on these religious laws. It has partly succeeded to reform Hindu law, but failed to touch minority Muslim law. Controversially, religion and politics are more intertwined than ever before, and in some cases courts have given this their stamp of approval. On the other hand, in Pakistan, religious and secular courts have remained separate, and codification and reform of sharia law has been undertaken.
Has the ‘secular’ Indian system succeeded to maintain an adequate separation of religion and state? Has the ‘religious’ system of Pakistan allowed for a more dynamic reform of religious law? Has the Indian model provided better protection of minority rights and preservation of the rule of law? How different or similar are the paths charted by the two countries, and are their fates diverging or converging?