COMPARATIVE LAW: In Search of a Muslim Identity Between the Two Extremes of Secularism and Religious Law

Abstract

This paper analyses the development of the Indian Muslim identity with respect to the coexistence of Shariat and sovereign laws. The period of analysis is postcolonial India. The paper analyses the different conflicts of legal philosophy and practice that exist between the judiciary of India and that of the parallel Islamic system. The conflict is such that private citizens suffer from wrongful interpretation of religious law and there is an infringement of the fundamental right to justice as guaranteed by the sovereign laws to every Indian citizen. The analysis begins with a brief discussion of a case that involved a conflict of laws and, vicariously, a conflict of legal ideology between the two systems. The paper mentions other similar cases in corroboration of the primary claim—conflict of legal philosophy. The views of the Indian State are considered with special reference to the idea of secularism in the Indian context. The Constitution of India is analysed to establish as to what the word 'secular' means under the Supreme Law of the Indian State. The analyses reveal that the parallel system, although impractical serves the cause of meeting the Indian idea of secularism. The paper concludes that the secular ethos of Indian democracy allow for infringement of certain Common Law values to make space for certain religious laws, even though they are more conflictive than complimentary