ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

Articles by Saptarshi MandalSubscribe to Saptarshi Mandal

Section 377: Whose Concerns Does The Judgment Address?

The Supreme Court’s recent judgment reading down Section 377 of the Indian Penal Code is a landmark on many counts. But while we celebrate the judgment, it is important to remember that Section 377 meant different things to different groups of queer people. While for some it was the symbolic harm of their desire being designated as “unnatural,” for others it had a material significance in their everyday negotiations with harassment and violence in public spaces.

What Do Judges in India Think About Marital Sex?

Despite a sensitive understanding of marital sexuality, the judicial discourse on the subject does not involve any mention of consent. This article also highlights four approaches taken by judges towards marital sexuality — seeing sex within marriage as a norm, a pragmatic approach valuing it for its health consequences, a formalist approach of attaching a formal legal function to it, and a moral panic approach warning against attaching legal relevance to sexual dissatisfaction as a criterion for ending marriage.

Triple Talaq Judgment and the Continuing Confusion about the Constitutional Status of Personal Law

The judgment in Shayara Bano does not change the legal position of Instant Triple Talaq that existed before, but creates confusion on the constitutional status of personal law, and misses a great opportunity to elaborate on the constitutional vision of justice for women from minority religious groups.

Do Personal Laws Get their Authority from Religion or the State--Revisiting Constitutional Status

What enables an obscurantist, patriarchal body such as the All India Muslim Personal Law Board to challenge the state’s authority to intervene in Muslim Personal Law is  uncertainty over the constitutional status of personal laws, that is, does the authority of personal law come from religion or the secular state. However, what eventually came to be known as “Hindu and Mahomedan laws” were creations of the colonial state following a complex process of rationalisation, rather than a simple codification of religious commands.


Adjudicating Disability: Some Emerging Questions

The government intends to replace the Persons with Disabilities Act with a new law, in conformity with the United Nations Convention on the Rights of Persons with Disabilities. This article maps some of the recent developments in the judicial approach to understanding disability. In interpreting the statutory definition of disability, the focus on the disabling impact of impairments has resulted in the inclusion of a range of impairment groups and disabling conditions, though the basis on which these were included is not known. This approach is problematic, for it associates "disability" with health conditions commonly regarded as "illness".

Disability Law in India: Paradigm Shift or Evolving Discourse?

The inclusion of disability as a subject matter of law and policy is a relatively recent development in India. An analysis of some landmark judgments delivered by the appellate courts between 1996 and 2007 under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act highlights the central characteristics of disability jurisprudence. This analysis provides an insight into the violations faced by persons with disabilities and the nature of litigation coming under the disability laws. It draws attention to the changing understandings of the notions of disability and personhood in society.

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