Sex equality under the Constitution of India: Problems, prospects, and "personal laws"
* Elizabeth A. Long Professor of Law, University of Michigan Law School. This talk was originally delivered to The Second Lawyers Collective Women's Rights Initiative Colloquium on Justice for Women—"Empowerment Through Law, Gender Justice and Personal Laws: A Constitutional Perspective," December 14–16, 2001. In prior form, it can be found in Indira Jaising, ed., Culture, Law and the People (Women Unlimited 2005) and in Catharine A. MacKinnon, Are Women Human? And Other International Dialogues (Harvard Univ. Press 2006). I thank Indira Jaising for her collegiality, support, and friendship. In addition to hers, helpful readings and research assistance were provided by Lisa Cardyn, Jessica Neuwirth, Shirin Keen, Michel Rosenfeld, Chen Chao Ju, and Swati Mehta. Email: camtwo{at}umich.edu
Delivering equality rights through family law to women of disadvantaged religious minorities under the Constitution of India and international law is undertaken. The legal model of equality predicated on sameness and difference, predominant around the world, is criticized. An alternative model addressing dominance and subordination—ordinal hierarchy—is developed and illustrated through discussion of the Supreme Court of India's jurisprudence. Their failure to apply this model to family law is identified, and a new solution to the difficult problem of guaranteeing sex equality rights to Muslim women under India's "personal laws" is proposed.