The limits of religious and cultural claims in fundamental rights cases: a judicial framework

Thesis

In secular, constitutional democracies, religion and culture are assumed to be of legal importance only for deciding the scope of religious and cultural freedom, maintaining communal harmony, and determining the scope of minority protection laws. However, across jurisdictions, courts have been influenced by religion and culture in determining other human rights as well. This phenomenon is especially observed in, but not restricted to, gender and sexuality cases: abortion, sexual orientation and gender identity, marital rape, sex work, euthanasia, bar dancing, surrogacy, etc.

This thesis examines the limits of religious and cultural influence on fundamental rights questions under secular and liberal constitutions, and proposes a judicial framework to determine the same. Using intensity sampling, I select the population of cases (31 in number) pertaining to the above-mentioned themes in the Indian jurisdiction. I perform a systematic content analysis on these cases to extract the religious and cultural claims and record various attributes. I find that, even though the law has mandated no role for them, such claims determine the outcome in 29% of the cases in which 78.5% of those claims are judicially noticed, i.e., admitted without proof. This makes it imperative to investigate the institutional limits upon the judiciary when dealing with religious and cultural claims.

The judicial framework that I propose has three pillars: 1. a theory of constitutional interpretation which discusses constitutional restrictions on the judge when considering religious and cultural arguments in fundamental rights cases; 2. a theory of judicial notice to determine when such claims can be admitted without proof; and 3. A theory of secularism and public reason which argues that once a religious or cultural claim has been admitted, it should be given weight in the final decision only if it matches defensible conceptions of constitutional values.

The thesis makes the following significant contributions to the field: 1. it identifies a unique class of human rights cases that are influenced by religious and cultural claims; and 2. it provides an empirically driven judicial framework to determine the limits of these claims in the outcome of those cases.

Authors: Shukla, S

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: empirical legal research; religion; fundamental rights; constitutional interpretation; judicial notice; secularism; systematic content analysis; public reason; culture
• Subjects: Law and fact; Law