Date Published:Dec 7, 2009
Contemporary democratic reality is characterized by the growing role of courts in politics, as social activists regularly utilize the judicial process in an attempt to secure their values and interests as law. Observers of constitutional politics generally explain this phenomenon in the recent constitutional transformations worldwide, manifested primarily in the enactment of bills of rights accompanied by judicial review powers. These constitutional transformations enabled and simplified the ability of those with limited access to the majoritarian-led parliamentary process to challenge governmental policies through the courts.1 As a result, law has come to be perceived as a compelling mechanism to effectuate progressive change and facilitate authoritative resolutions to conflicts.2 In societies divided along religious lines, the appeal of litigation has been particularly strong, with secular and religious groups increasingly viewing it as a principal opportunity to mold the public sphere in accordance with their political and moral preferences.
This paper seeks to evaluate the efforts to achieve these perceived goals—of effectuating change and managing conflict—through the judicial process, by examining its effects in the context of the religion-based conflicts of India and Israel. By way of an empirical comparison the paper considers: (i) the judicial impact on the realization of fundamental rights, the rectification of existing discriminatory practices, and the advancement toward a more pluralist and egalitarian society; (ii) the judicial contribution to generating authoritative resolution to religion-based conflicts; and (iii) possible long term social and political implications stemming from judicial intervention in policy questions concerning hotly disputed religion-based conflicts.