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11 Furthermore, comparing India and Israel is important for methodological reasons. Both countries possess variation along the key independent variable in this study — personal law systems. If we are to determine whether or not personal law systems matter, then we need to study cases where personal law systems differ, not where they are similar. Using India and Israel for our study provides an opportunity to test the importance of this variable.

12 For the most part, we focus on how personal laws affect the major religious community in each country: the Hindu community in India and the Jewish community in Israel. Because of the way the personal law system in India is structured, we see significant conflict between Hindus and Muslims. Hence, we devote some time to discussing how personal law in India affects not only the Indian Hindu community but also the Indian Muslim community. In Israel, because there is not the same degree of conflict between the various religious communities over issues involving personal status, we focus only on the country's majority Jewish population. The recognized minority religious communities in Israel are granted great autonomy to administer personal law matters. For example, the largest religious minority in Israel is the Muslim community. Muslims comprise nearly 80% of the non-Jewish population, and this community is left almost entirely alone to handle issues relating to personal status. There are Muslim courts of first instance in which Muslim judges (qadis) apply Muslim law (shari'a) to personal law cases. There is also a shari'a court of appeals in Jerusalem. (There is no ulema or set of formal religious scholars who are affiliated with religious institutions in Israel. Nor is there a community of muftis or religious specialists in Islamic law. Thus, qadis are the main authorities who interpret and apply the shari'a in Israel.) These Muslim courts are left to deal with various personal law issues including: dower for brides-to-be; maintenance for divorced women; unilateral divorces by men (talaq); and succession. The qadis, moreover, have a significant impact on these four areas. With respect to the first two issues, evidence indicates that the qadis have encouraged the curtailing of dower and promoted equitable maintenance payments to divorced women. With respect to the last two issues, evidence suggests that the qadis have been unwilling to abolish completely the practice of talaq and that women have yet to be given the same rights to inherit as men. For further information on Muslim courts, see: Edelman, , Courts, Politics, and Culture, supra n. 9, at 77–88Google Scholar; Lavish, Aharon, Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of Shari'a Courts in Israel (New York, John Wiley & Sons, 1975)Google Scholar; Brown, Nathan, “Sharia and State in the Modern Muslim Middle East” (1997) 29 Int'l J. Middle East Studies 359–76CrossRefGoogle Scholar; Reiter, Yitzhak, Islamic Institutions in Jerusalem: Palestinian Muslim Organization under Jordanian and Israeli Rule (Boston, Kluwer Law International and Jerusalem Institute for Israel Studies, 1997)Google Scholar; Doi, Abdur Rahman I., Shari'ah and the Islamic Law (London, Ta Ha Pub., 1984)Google Scholar; Esposito, John L., Women in Muslim Family Law (Syracuse, Syracuse University Press, 1982)Google Scholar; Sonbol, Amira El Azhary, Women, the Family, and Divorce in Islamic History (Syracuse, Syracuse University Press, 1996).Google Scholar

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25 Ibid.

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30 Art. 44, The Constitution of India. But see ibid. Mansfield makes the argument that the 7th Schedule of the Constitution (Item 5 List III), and Article 44 might also lend support for the continuation of personal laws in the country. In addition, Mansfield argues that the language in Article 372, sections 1 and 3, along with Article 13 (19) indicates that the framers intended for “laws in force” prior to 1947 (which included personal laws) to remain valid so long as they did not conflict with the Fundamental Rights section of the Constitution.

31 State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.

32 Galanter, “The Displacement of Traditional Law in India”, in Law and Society, supra n. 1.

33 Ibid.Varnas refer to the four great estates or divisions of Hindu socio-legal theory, often mistranslated as caste. Anglo-Hindu law contained a number of rules that differed by varna.

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41 Derrett, , Religion, Law and State in India, supra n. 15, at 328.Google Scholar

42 The laws include: The Converts' Marriage Dissolution Act, 1866; The Indian Divorce Act, 1869; The Indian Christian Marriage Act, 1872; The Kazis Act, 1880; The Anand Marriage Act, 1909; The Child Marriage Restraint Act, 1929; The Parsi Marriage and Divorce Act, 1936; The Dissolution of Muslim Marriage Act, 1939; The Special Marriage Act, 1954; The Hindu Marriage Act, 1955; The Foreign Marriage Act, 1969; and The Muslim Women's Protection Act, 1986.

43 Interviews by the second author with leaders of the Multiple Action Research Group, All-India Democratic Women's Association, and All-India Women's Association.

44 Pappu, Shyamla, et al. , “Women and the Law”, in Pal, B.K., ed., Problems and Concerns of Indian Women (New Delhi, ABC Publishing, 1987) 132–33Google Scholar; Epp, , The Rights Revolution, supra n. 9, at 79.Google Scholar

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48 Bhaumik, Saba Naqvi, “Surviving Friends”, India Today (internet edition), January 19, 1998Google Scholar; Khilnani, , Idea of India, supra n. 6, at 189–90.Google Scholar

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52 Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, 945–55.

53 A.I.R 1985 S.C. 946–47; also see, Kishwar, Madhu, “Pro Women or Anti-Muslim? The Shah Bano Controversy”, in Kishwar, Madhu, Religion at the Service of Nationalism (Delhi, Oxford University Press, 1998) 208Google Scholar; Hargrave, Robert, “The Challenge of Ethnic Conflict” (1993) 4 Journal of Democracy 54–68.Google Scholar

54 A.I.R. 1985 S.C. 947. For a discussion on talaq see n. 12. Note, a husband upon saying a phrase such as “I divorce you”, or “Tou are divorced”, three times may end the marriage. See Agnus, Flavia, Law and Gender Inequality: The Politics of Women's Rights in India (Delhi, Oxford University Press, 1999) 111–12Google Scholar; Lawrence, Bruce, Shattering the Myth (Princeton, Princeton University Press, 1998) 131Google Scholar; Kishwar, , Religion at the Service, supra n. 53, at 217.Google Scholar

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56 Sec. 125, All India Criminal Procedure Code.

57 A.I.R. 1985 S.C. 947.

58 Ibid.

59 Sec. 127 (3) (b), All India Criminal Procedure Code. This purpose of this section was to accommodate dower or mehr.

60 A.I.R. 1985 S.C. 950–52.

61 Ibid.

62 Ibid., at 951.

63 Ibid.

64 Ibid., at 954–55. Although we attribute no causal importance to this fact, it is interesting to note that all of the five justices sitting in this case were at least nominally Hindus.

65 Ibid., at 947.

66 This was not the first instance of the Supreme Court attempting to define the essentials of a religious tradition. In Sastri Yagnapurushdasji v. Muidas Bhundardas Vaishya (also known as the Satsangis case, A.I.R. 1966 S.C. 1119), an earlier Supreme Court propounded its view of the essence of Hinduism to invalidate the practices of a Hindu sect. Galanter, “Hinduism, Secularism, and the Judiciary”, in Law and Society, supra n. 1.

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70 A. I. R. 1980 S.C. 1730.

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73 Since 1986 there have been two unreported cases, described by Flavia Agnus, in which an Allahabad High Court judge deemed talaq-divorces unconstitutional. See, Agnus, Law and Gender Equality, supra n. 54, at 112–16. The unreported cases are: Rahmat Ullah v. State of U.P., Writ Petition no. 45 of 1993, and Khatoon Nisa v. State of U.P., Writ Petition no. 57 of 1993.

74 Shahin, Sultan, “Ulema to Launch Campaign for Personal Law”, Times of India (internet edition), 6 May 1999.Google Scholar At present, case cite unavailable to authors. The authors have contacted sources in India to provide cite. (This case was decided by a two-judge bench.)

75 Ibid.

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78 A.I.R. 1986 SC 1011.

79 Menon, V., “Mother Roy”, Rediff on the Net, 1997 (http://www.rediff.com/news/oct/30arun.htm).Google Scholar This news web-site discusses how after the Court decision, there was a backlash by the Christian community; also see Basu, at 201–02, 191–92.

80 The last half of 1998 and the first half of 1999 saw widespread reports of attacks on Christians in India. For a sample of articles, see: Murthy, Dakshina, “Christian Prayer Service Attacked”, Hindustan Times (internet edition), 24 November 1998Google Scholar; “23 Million Christians to Protest Today”, Hindustan Times (internet edition), 4 December 1998; “CBI Accuses 18 in Stains Murder Case”, Times of India (internet edition), 23 June 1999; “Panel Presents Admission-Related Facts”, Times of India (internet edition), 17 July 1999.

81 Galanter, Marc, Competing Equalities (Berkeley, University of California Press, 1984) 41–42.Google Scholar

82 Ibid., at 43–44.

83 Ibid., at 43.

84 Ibid., at 42. OBC's may include non-Hindu, tribal, and nomadic groups as well.

85 Ibid., at 534–35.

86 A. I. R. 1951 S.C. 229.

87 A. I. R. 1963 S.C. 649.

88 A. I. R. 1964 S.C. 1823.

89 Parikh, Sunita, The Politics of Preference (Ann Arbor, University of Michigan Press, 1997) 186.CrossRefGoogle Scholar

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91 Ibid., at 187–89. Parikh describes how Singh's policy decision sparked a chain of events that eventually led to the downfall of his government.

92 Indra Sawhney v. Union of India, A. I. R. 1993 S.C. 477

93 Ibid., at 536–54. Note, the Court also stressed the importance of Article 16(1) of the Constitution, which guarantees “equality of opportunity in matters of public employment”. The Court noted that in order eventually to arrive at a situation where there could be equal opportunity for all, the government's plan needed to be implemented.

94 Agnivesh, Swami, “A Concept of Insecurity”, Hindustan Times (internet edition), 23 January 1999.Google Scholar In this article, Agnivesh is critical of converts to Christianity who “shout for government charity”; also consider, Webster, John, The Dalit Christians: A History (Delhi, ISPCK, 1994).Google Scholar

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97 Jayanth Krishnan's interview with Dr. Godfrey Shiri, November 14, 1998, Bangalore, India.

98 Rajagopal v. Armugam, A. I. R. 1969 S.C. 101. Obvious questions emerge, including: What constitutes acceptance? Is acceptance required of the whole caste or just a section of it? See Galanter, , Competing Equalities, supra n. 81, at 328–29.Google Scholar

99 Wilson Reade v. C.S. Booth, A. I. R. 1958 Ass. 128, Horo v. Jahan Ara, A. I. R. 1972 S.C. 1840. But see, Urmila Ginda v. Union of India, A. I. R. 1975 Del. 115, where the Delhi High Court ruled that a high caste woman who sought membership into her husband's lower caste group for the purposes of seeking a government-reserved post, could not be admitted into this lower caste, even by the acceptance of its members. See also, Mrs. Vaishali v. Union of India, 1978 80 Bom LR 182; Smt. D. Neelima v. The Dean of P.G. Studies, A. I. R. 1993 Andh Pra 299.

100 See, Shantha Kumar v. State of Mysore, 1971 Mys. L. J. 21; also see, Galanter, Competing Equalities, supra n. 81, at 339–41; also see, Natraja v. Selection Committee, 1971 1 Mys LJ 226; R. Srinivasa v. Chairman, Selection Committee, A. I. R. 1981 Karnataka 86; A.S. Sailaja v. Kurnool Medical College Kurnoon, A. I. R. 1986 Andh Pra 209; N. B. Rao v. Principal, Osmania Medical College, A. I. R. 1986 Andh Pra 196. But also see, Khazan Singh v. Union of India, A. I. R. 1980 Delhi 60, where the court ruled that an adoption alone into a Scheduled Caste family was enough to acquire benefits.

101 Valsamma Paul v. Cochin University, A. I. R. 1996 1011.

102 Ibid., at 1022.

103 Khilnani, Idea of India, supra n. 6, at 37.

104 Arian, Asher, Politics in Israel: The Second Generation (Chatham, Chatham House, 1989) 18.Google Scholar

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107 According to statistics, the population of Israel is approximately six million people. Non-Jewish populations include Muslims (nearly fifteen percent of the total population), Christians (approximately two percent) and Druze (about 1.6 percent). Figures are from Israeli Central Bureau of Statistics.

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112 Informally, the scope of rabbinic and communal control extended further to regulation of property employment, and consumption. As Shaw states, “Together Jewish law and custom, community regulations and customs and judicial decisions constituted what amounted to a code of law and jurisprudence which regulated in great detail all religious, social and economic areas of life in each Jewish community as well in the millet as a whole. The kahal enforced them with a kind of policy surveillance to make certain that they were applied, whether in the temple, the school, the marketplace, or the home. Various penalties such as herem (excommunication) and niddui (bans) were imposed by the bet din courts and by rabbis against those who violated the laws and regulations or their provisions and instructions. Prisons were maintained in the synagogue buildings, usually on the ground floors directly beneath the sanctuaries, to punish members who violated the community regulations and laws, while violators of the Sultan's laws and those requiring execution and more severe or lengthy punishments were turned over to Ottoman police and prisons”. Shaw, Stanford J., The Jews of the Ottoman Empire and the Turkish Republic (New York, New York University Press, 1991) 65.CrossRefGoogle Scholar

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116 Yet, see ibid., 54–57, where Edelman argues that the debate over the jurisdictional authority of the rabbinical courts is just one source of tension between the Orthodox and non-Orthodox communities. Another source, he contends, may be in the overall interpretation of what political culture and national identity mean in Israel to these communities. For the traditional Orthodoxy, religion is inseparable from Israeli political culture and Israeli national identity, while for the less or non-religious segment of the population, religion is separable from these other two concepts.

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124 Sharfman, D., Living Without a Constitution (New York, M.E. Sharpe, 1993) 79.Google Scholar

125 Ibid., at 79–80. Kohanim are the “priestly caste”; membership passes patrilineally.

126 Funk and Schlesinger v. Minister of Internal Affairs (1963) 17 P.D. 222). As of February 2000, another channel opened for a limited group of Israelis. The Interior Ministry on 13 February 2000, announced that it will “now recognize consular marriages for couples at least one of whom is a citizen of a state that authorizes its consuls to perform such marriages”. Prince-Gibson, Etta, “Consular Marriages: An Unorthodox Solution”, The Jerusalem Post, 18 February 2000.Google Scholar Critics suggest that the new policy does not go far enough in providing the basic right of marriage to all Israelis. The article notes that nearly a quarter-million citizens still cannot marry even with this new policy.

127 For an excellent review of the political and legal setting in Israel, see Dotan, Yoav, “Judicial Review and Political Accountability” (1998) 32 Is. L.R. 448–74.CrossRefGoogle Scholar

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131 Ibid.

132 Edelman, , Courts, Politics, and Culture, supra n. 9, at 64.Google Scholar

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134 Sharfman, , Living Without a Constitution, supra n. 124, at 79.Google Scholar Also see internet edition of the Jerusalem Post, 1 March 1999, where the article entitled, “Chained Women to Picket Rabbinate Today”, reports stories very similar to this scenario still occurring throughout the country.

135 Yishai, , Between the Flag, supra n. 118, at 186–87.Google Scholar

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141 Dotan, “Judicial Review and Political Accountability”, supra n. 127.

142 Keren v. Minister for Affairs of Religion (1989) 43(ii) P.D. 661.

143 Adguaitzo v. General Rabbinical Council of Israel (1989) 43(ii) P.D. 152.

144 Miller v Minister of Interior (1986) 40(iii) P.D. 436.

145 Bauli v. Grand Rabbinical Court (1994) 48(ii) P.D. 221; ruling later reaffirmed in Aknin v. District Rabbinical Court of Haifa et al. (1996) 50(i) P.D. 370.

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147 We define “second personal laws” as issues including matters relating to education, conversion, burial, and exemption from military service that turn on the relation of public law to Jewish law and those who claim to interpret it.

148 The Jerusalem Post (internet edition) “A List of Haredi Grievances”, 12 February 1999. Also see, response by ultra-orthodox to Hoffman et al. v. The Guardian of the Western Wall, (1994) 48(ii) P.D. 263, in The Jerusalem Post, “Women of the Wall Win High Court Hearing” 18 February 1999. And see, Caspi, Arie, “Two States for Two Nations”, Haaretz 19 February 1999.Google Scholar

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150 Dotan demonstrates that the Israeli state judiciary has been an active policy-maker in a range of rights-based matters. See, Dotan, “Judicial Review and Political Accountability”, supra n. 127, and see, Dotan, Yoav, “Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice During the Intifada” (1999) 33 Law and Society R. 319–63.CrossRefGoogle Scholar

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153 Edelman, Courts, Politics, and Culture, supra n. 9, at chap. 3. See also Dotan, “Judicial Rhetoric, Government Lawyers, and Human Rights”, supra n. 150.

154 For a discussion of the failure of early efforts at revival, see Marc Galanter, “The Aborted Restoration of ‘Indigenous’ Law in India”, in Law and Society in Modern India.

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