Religion, Culture, and Human Rights in India

This book provides a novel judicial framework for receiving and considering religious and cultural claims in shaping human rights in constitutional secular democracies. It does this through an extended case study of the Indian constitutional jurisprudence.Abortion and surrogacy, LGBTQ + rights, sex work and euthanasia are arguably the most controversial human rights issues of our time. They all invite passionate religious and cultural debate but are not themselves religious or cultural rights issues. Instead, they pose a fundamental constitutional question: How far can religion and culture go in shaping general human rights in secular constitutional democracies?Moving beyond the logic of individual rights, this book provides an integrated and holistic approach to answering this classic question of constitutional law. To do this, it proposes an innovative empirically backed normative-theoretical framework which synthesises insights from cultural psychoanalysis, feminist legal scholarship, socio-legal method, constitutional law, evidence law, and political theory. It looks at a unique constellation of cases belonging to eight different human rights themes covering the period since India’s independence in 1947 and systematically analyses the religious and cultural claims made in those cases. It finds that in India, a more holistic approach to answering our classic constitutional puzzle requires a simultaneous consideration of three different theories:A theory of constitutional interpretation which formulates restrictions on a judge considering religious and cultural claims in fundamental rights cases;A theory of judicial notice which determines when such claims can be admitted without proof;A theory of secularism and public reason which argues that the claims must be given weight in the final decision only if they match defensible conceptions of constitutional values.The book develops these theories and applies them to the Indian cases, providing an innovative approach to an age-old question.