In this week’s faculty seminar, Dr. Surabhi Shukla, Lecturer at the School of Law, University of Sheffield, and an alumna of the NLSIU (2011). Surabhi will be presenting her upcoming book titled “With God as our Witness.” The seminar will be held on April 2, 2025, at 4 pm, in the Ground Floor Conference Hall at NLSIU’s Training Centre.

Abstract

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 is not restricted to, gender and sexuality cases: abortion, sexual orientation and gender identity, marital rape, sex work, euthanasia, bar dancing, etc.

This book 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 abovementioned themes. I then perform a systematic content analysis to extract religious and cultural claims and examine their 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; 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.

About the Author

Dr. Surabhi Shukla is Lecturer at the School of Law, University of Sheffield, and an alumna of the NLSIU (2011). Surabhi is also Deputy Director of Employability and Enrichment Activities (Legal Tech) at the University. Read her complete profile here.

Reflections from the Author

“The most controversial human rights issues of our time, like abortion and surrogacy, LGBTQ + rights, sex work, euthanasia, etc., all invite passionate religious and cultural debate posing a classic question of constitutional law — to what extent can religious and cultural views shape human rights in secular democracies? For example, can the religious and cultural sentiments of the general populace determine whether there is a right to abortion in a country? This is the question that I answer in my upcoming book ‘With God as our Witness.’ Having learnt how to read constitutional law at NLSIU, it was a special pleasure and privilege to debate this question with a room full of engaged colleagues and teachers turned colleagues. The feedback is extremely valuable in finalising this work in progress. Hoping to be back again when the book is published in 2026!”

Gallery

In this week’s faculty seminar, Ishita Ghosh, Academic Fellow, will be presenting her paper titled “Accommodating Disability ‘Reasonably’: The Indian Supreme Court and the Shifting Contours of ‘Reasonable Accommodation’ under the Rights of Persons with Disabilities Act, 2016.” The seminar will be held on March 26, 2025, at 3:45 pm, in the Ground Floor Conference Hall at NLSIU’s Training Centre.

Abstract

The principle of reasonable accommodation (RA) for persons with disabilities forms an indispensable component of the Rights of Persons with Disability Act, 2016. Largely mirroring Article 2 of the United Nations Convention on the Rights of Persons with Disabilities, 2006, the principle is considered to be an elucidation of the doctrines of ‘equality before the law’ and ‘equal protection under the law’ contained in Article 14 of the Indian Constitution.

Considered to be an innovative, progressive and inclusive principle that exemplifies the right  of the disabled to be treated equally, and afforded equal opportunity, while placing a corresponding obligation or duty on the State to ensure the realisation of these core rights. An enquiry into its constituent elements reveals three main components, firstly, the requirement to make ‘necessary and appropriate modifications and adjustments” secondly, that ensures equal enjoyment of rights by the disabled as all others; thirdly, without imposing a disproportionate or undue burden on the authority in a particular case”. Yet, the application of the principles itself, alongside its very contents, has seen widespread conflict between the State and the disabled beneficiaries, and has required innovative-albeit inconsistent and piecemeal-approaches and arguments to be adopted by the higher judiciary to further the cause of the disabled, almost bordering on altruism. This raises concerns regarding the nature of RA, and elicits the need to dig deeper to locate what kind of norm is RA, and it is meant to serve as a vehicle to realise the right to equality and equal opportunity, or does it have an independent existence of its own?

In this paper, I argue that RA exists as a ‘duty-based norm’, rather than a ‘right-based norm’ or a ‘goal-based norm. More accurately, RA exists as a duty-based norm embedded with a goal-based framework of each particular legislation or precedent. In the context of RPwD, RA serves to provide an avenue or conduit for the realization of goals such as non-discrimination, equality, inclusivity and accessibility for disabled individuals. Through an exploration of the jurisprudential treatment of RA by the Indian Supreme Court, revealed a conceptual puzzle at the heart of the Court’s attempts to grant relief to disabled claimant(s) under the principle of RA due to a misreading of RA as a ‘right-based norm’ under the RPWD, as opposed to a ‘duty based norm’. This means that as opposed to being simply a pre-existing justiciable right which the individual/group can seek to enforce before a Court of law, reasonable accommodation creates a conditional duty on the State to make provisions even in the absence of a right, so far as the State can realistically and ‘reasonably’ accommodate.