Journal Articles by Saptarshi Mandal
Feminist Legal Studies, 2023
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Indian Law Review, 2022
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Jindal Global Law Review, 2021
This article argues that judicial compassion is descriptively and analytically useful in thinking... more This article argues that judicial compassion is descriptively and analytically useful in thinking about the relationship between courts and disability rights in India. Against the tendency to dismiss judicial compassion as either opposed to the rule of law, or demeaning of the disabled, the article suggests, that we assess it more favourably, for two reasons. First, compassion, on some philosophical and legal theoretical accounts, improves the quality of legal reasoning. Second, compassion allows judges to address gaps in the statutory framework for disability rights. These interventions are executed through the category of colour blindness, which is both a metaphor for the law's presumed dispassionate objectivity and an embodied state capable of evoking emotions in legal actors.
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The JMC Review, 2018
In December 2017, the union government introduced the Muslim Women (Protection of Rights on Marri... more In December 2017, the union government introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Lok Sabha, in a bid to contain the problem of Muslim men divorcing their wives through triple talaq. The practice was invalidated by the Supreme Court of India in a much-publicised case, Shayara Bano v Union of India, four months earlier. This paper examines three themes that animated the legislative debate on the Bill: gender justice for Muslim women; the use of criminal law as a tool of deterrence; and competing frames of protection offered by the state and marriage. The paper concludes that though the government's rhetoric of gender justice and the use of criminal law as the main point of contention between the government and the opposition gave the impression that the debate on the Muslim woman question had moved beyond the women's rights/minority rights binary, closer scrutiny revealed the difficulty of transcending either that binary or the ideology of protection in which questions of women's rights are framed.
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Indian Law Review, 2018
In a 2017 judgment, the Supreme Court of India invalidated triple talaq – a mode of instant, unil... more In a 2017 judgment, the Supreme Court of India invalidated triple talaq – a mode of instant, unilateral, extrajudicial divorce available to Muslim males. This mode of divorce has been widely criticized for making Muslim women vulnerable to threats of instant divorce and the resulting destitution. This note scrutinizes three formulations of the problem pursued by the judges in this case: triple talaq as constitutionally protected right to freedom of religion; as a violation of the fundamental right to equality; and as a practice disapproved within Islamic legal traditions. The note argues that the third formulation (the majority verdict), that eschewed constitutional rights analysis in favor of reforming Muslim personal law from within, along with wide participation of Muslim women's groups in the litigation, suggests new directions for the debate on Muslim personal law in India.
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Journal of Indian Law and Society, 2018
Lotika Sarkar, who passed away on 23rd February 2013, was a Professor of Law at Delhi University... more Lotika Sarkar, who passed away on 23rd February 2013, was a Professor of Law at Delhi University from 1951 till 1983, in addition to being a founding member of the Centre for Women’s Development Studies, New Delhi and the Indian Association of Women’s Studies. She was a member of the Committee on the Status of Women (Government of India) that produced the historic Towards Equality report in 1974. She is probably best known and remembered as one of the four signatories to the Open Letter written to the Chief Justice of India, in protest against the Mathura judgment in 1979. It is only fitting to dedicate this Special Issue on the Law Commission of India to Lotika’s memory, for it seeks to build upon and continue her inquiry into the Commission’s work on women’s equality, that she undertook twenty-five years ago.
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Jindal Global Law Review, 2016
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Hong Kong Law Journal, 2016
Dominant judicial construction posits s 377 of the Indian Penal Code as embodying a neutral prohi... more Dominant judicial construction posits s 377 of the Indian Penal Code as embodying a neutral prohibition of socially disapproved sexual acts, that applies to persons irrespective of their sexual identity, orientation or legal status. This article refutes this proposition by examining the legal regulation of sodomy within marriage in India. By comparing the legal regulation of sexual acts referred to as "unnatural sex" by s 377 with the regulation of the same set of sexual acts within marriage, by Indian divorce law and Indian rape law, the article highlights the exceptional treatment of what is otherwise deemed "unnatural". In the process, the article seeks to uncover a lesser-known legacy of colonial (sexual) governance in contemporary India: the idea of consensual sodomy within marriage, which also casts the wife as an "accomplice".
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Australian Feminist Studies, (2014) Vol. 29, No. 81, 255-272
India is one of the few countries in the world that continues to exempt husbands
from being char... more India is one of the few countries in the world that continues to exempt husbands
from being charged with rape committed against their wives. This article describes a brief
period of contestation between feminists and the state in India, when this exceptional
treatment of marriage was challenged and it was demanded that the husband’s legal
immunity be ended. Unpacking the responses of the state for retaining the immunity, this
article shows how the idea of marital rape as an impossibility is constituted and contested in
contemporary India. While the demand for repealing the husband’s immunity did not succeed,
the manner in which the state framed the issue and internal debates among Indian feminists
over the politics and potentials of criminalising marital rape, complicates our understanding of
the issues at stake. Consequently, the article emphasises the need for situating the marital
rape question within a broader analysis of the legal regulation of marriage, rather than
focusing on criminal law reform alone.
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Indian Journal of Gender Studies, (2013) Vol. 20, Issue 1, 1-29
What is the evidentiary value accorded to a woman’s testimony in a rape trial, when she is disabl... more What is the evidentiary value accorded to a woman’s testimony in a rape trial, when she is disabled? How is her testimony—conveyed non-verbally and made accessible to the judges through an interpreter—processed by a legal culture that values descriptive precision and intelligibility? How does ‘intelligibility’ itself act as a sieve through which the testimony of the disabled prosecutrix is passed to determine if the allegation of rape is proved beyond reasonable doubt? By examining judicial decisions of Indian courts in cases of rape of disabled women, this article attempts to explore these questions and shows how the testimony of the disabled prosecutrix is devalued and disregarded through a combination of evidentiary, doctrinal and ideological practices inscribed in law.
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Economic & Political Weekly, Jan 1, 2010
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NUJS L. Rev., Jan 1, 2009
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Economic & Political Weekly, Jan 1, 2009
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Book Chapters by Saptarshi Mandal
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Pushpesh Kumar (ed) Sexuality, Abjection and Queer Existence in India (Routledge, 2021)
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Tanja Herkoltz and Siddharth de Souza (eds.) Mutinies for Equality: Contemporary Developments in Law and Gender in India (Cambridge University Press), 2021
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Indira Jaising & Pinki Mathur, eds., Conflict in the Shared Household: Domestic Violence and the Law in India (Oxford University Press, 2019) 171-199, 2019
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Opinion Pieces, Book Reviews, Miscellany by Saptarshi Mandal
Economic and Political Weekly, 2023
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Constributions to Indian Sociology, 2021
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Journal Articles by Saptarshi Mandal
from being charged with rape committed against their wives. This article describes a brief
period of contestation between feminists and the state in India, when this exceptional
treatment of marriage was challenged and it was demanded that the husband’s legal
immunity be ended. Unpacking the responses of the state for retaining the immunity, this
article shows how the idea of marital rape as an impossibility is constituted and contested in
contemporary India. While the demand for repealing the husband’s immunity did not succeed,
the manner in which the state framed the issue and internal debates among Indian feminists
over the politics and potentials of criminalising marital rape, complicates our understanding of
the issues at stake. Consequently, the article emphasises the need for situating the marital
rape question within a broader analysis of the legal regulation of marriage, rather than
focusing on criminal law reform alone.
Book Chapters by Saptarshi Mandal
Opinion Pieces, Book Reviews, Miscellany by Saptarshi Mandal
from being charged with rape committed against their wives. This article describes a brief
period of contestation between feminists and the state in India, when this exceptional
treatment of marriage was challenged and it was demanded that the husband’s legal
immunity be ended. Unpacking the responses of the state for retaining the immunity, this
article shows how the idea of marital rape as an impossibility is constituted and contested in
contemporary India. While the demand for repealing the husband’s immunity did not succeed,
the manner in which the state framed the issue and internal debates among Indian feminists
over the politics and potentials of criminalising marital rape, complicates our understanding of
the issues at stake. Consequently, the article emphasises the need for situating the marital
rape question within a broader analysis of the legal regulation of marriage, rather than
focusing on criminal law reform alone.