Guest Editor's Preface
This symposium issue of the Drexel Law Review marks the anticipated launch of a new section on Law and South Asian Studies of the Association of American Law Schools, including several contributions that were initially presented during a session of the proposed section at the AALS Annual Meeting for 2010. The proposed AALS section comes at a moment of heightened interest in the region among lawyers, policymakers, and the public at large in the United States, and is part of a rapidly growing constellation of scholarly initiatives on law in South Asia that have emerged internationally in recent years.
Foreword: World of Our Cousins
Most of the people who live under some version of the common law today live in South Asia, as do a large portion (perhaps a majority) of those who live under a working constitutional democracy. Nevertheless, until very recently this part of our world was quite invisible to the American legal academy and profession. It is a pleasure to introduce this symposium, apparently the first of any mainstream American law review to focus on South Asian law. Its appearance is one of several markers that the neglect of South Asia by American law schools is being left behind.
The Substance of the Constitution: Engaging with Foreign Judgements in India, Sri Lanka, and South Africa
The last two decades have seen an expansion of judicial power in developing and newly democratizing countries across the globe. The enhanced role for the judiciary, which some scholars have categorized as a “juristocracy,” has accompanied a dialogue or at least a tendency for judges to look beyond their national borders at other courts for assistance in resolving difficult national, legal, and political disputes. The Supreme Court of Pakistan has drawn on the rationale of India’s apex court to support public interest litigation, while India’s courts have referred to judgments from South Africa, the United States, Canada and the European Convention on Human Rights (ECHR) to argue for a right to life with dignity. Such engagement with foreign laws has provoked criticism from influential judges like Justice Antonin Scalia of the U.S. Supreme Court for eroding national sovereignty and even imposing foreign interpretations on culturally contextual national issues.
No Justice, No Peace: Conflict, Socio-Economic Rights, and the New Constitution in Nepal
One day after the signing of the November 21, 2006 Comprehensive Peace Accord (CPA) between the Nepali government and the Communist Party of Nepal (Maoist), Kathmandu’s The Himalayan Times editorial board declared, “Nepal has entered into a new era of peace, democracy and governance.” The CPA formally ended the more than ten-year conflict waged by Maoist insurgents since 1996. Over the next thirteen months, a new interim constitution was adopted, the royal family’s property was nationalized, and a republic was declared, dissolving the world’s last Hindu royal kingdom. National elections were held the following year. For hundreds of thousands of Nepalis, peace was a welcomed change. In the southern plains and hill regions, where much of the guerilla fighting had been concentrated, farmers were finally able to return to work.
Uterine Prolapse and Maternal Morbidity in Nepal: A Human Rights Imperative
In 2008, the Supreme Court of Nepal recognized what maternal health advocates in Nepal had known for decades: the status of reproductive health of women in Nepal is in a serious state, and it is also clear that no plan has been made to address this problem. In the present context,
there are approximately six hundred thousand women suffering from the problem of uterus prolapse and it is also evident that no preventive or remedial programs focusing on problems relating to reproductive health and uterus prolapse have been initiated. The Supreme Court’s proclamation in this case, Prakash Mani Sharma v. Government of Nepal (Sharma), marked the first time that a legal body, international or national, has recognized explicitly that a high incidence of uterine prolapse may constitute a violation of human rights, including specifically
women’s reproductive rights.
The Jammu and Kashmir State Subjects Controversy of 2004
In 2004, the Jammu and Kashmir Legislative Assembly passed the Jammu and Kashmir Permanent Residents Disqualification Bill (the “Disqualification Bill”), which proposed that women who married nonstate subjects could no longer claim state subject status and would thereby lose both preferential treatment in government hiring and the ability to acquire new property in the State. Various political actors decried
the Disqualification Bill’s violation of Kashmiri women’s fundamental rights under the Indian Constitution, while proponents of the Disqualification Bill issued apocalyptic pronouncements about the end of constitutionally guaranteed autonomy for Jammu and Kashmir if the Disqualification Bill
failed to pass. Arguments for and against the Disqualification Bill fell largely along the lines of a false and dangerous dichotomy, casting feminism and Kashmiri autonomy as inherent opposites.
Political Censorship and Indian Cinematographic Laws: A Functionalist-Liberal Analysis
India produces more motion pictures than any other country. Indian cinema is synonymous with the extravagant musicals of “Bollywood,” a portmanteau word that the Oxford English Dictionary credits the British detective novelist H.R.F. Keating with inventing. There also exists a parallel arthouse genre of Indian cinema. Internationally, the most well-known proponent of the latter school is probably the late Bengali director
Satyajit Ray, whose many laurels include an honorary Oscar for Lifetime Achievement. Throughout history, these two divergent cinematic schools have shared an unfortunate common characteristic—that of rigorous state censorship.