Across faiths, personal laws debated in courts and Parliament: 

Across faiths, personal laws debated in courts and Parliament: 

Context

In the wake of the Supreme Court ruling that  ruled triple talaq to be illegal, the question of certain aspects of Muslim personal law being supposedly in conflict with the law and constitutional values has been much discussed recently.

Article 25 Vs article 19?

• While some believe that personal laws are protected by the Constitution under their right to Freedom of Religion (Article 25), the other, opposing view is that personal laws must necessarily be vetted in the light of firm constitutional values as outlined in the Right to Equality and other Rights.

Various article in constitution related to religion

• Art 15– No discrimination on grounds of religions, race,caste, sex, place of birth only.
• Art 25– Freedom of conscience and free profession, practice and propagation of religionsubject to reasonable restrictions on the grounds of public order, health and mortality.
• Art 25 (2) provides for regulating secular activities associated with religious practices and social welfare and reform.
• Art 26– right to establish and administer religious institutions.
• Art 27–  Prohibit state from levying tax proceeds of which are used for the benefit of a particular religion.
• Art 28– deals with issue of religious instruction in educational institutions.
• Art 44- A DPSP provides for  uniform civil code
• CAA 42nd inserted secularism in preamble.

Personal Laws of various religions coming being challenged in courts

Christian inheritance law:

• In the landmark Mary Roy vs State of Kerala case, Mary Roy challenged Christian law and petitioned the Supreme Court for equal inheritance. Eventually, the court ruled that Christians in the former State of Travancore were governed by provisions of the Indian Succession Act, 1925.

Santhara fast:

• In 2006, Nikhil Soni filed a PIL in Rajasthan High Court and sought directions under Article 226 to the central and state governments to treat Santhara, the fast unto death practised by Swetambara Jains (Digambars call it Sallekhana), as illegal and punishable under the laws of the land. He termed it suicide and, therefore, a criminal act. Following a high court ruling that outlawed it, members of the Jain community organised massive protests and challenged the ruling in the Supreme Court, where a bench headed by then Chief Justice H L Dattu restored the practice.

Sabarimala entry:

• In 1991, Kerala High Court had restricted the entry of women aged between 10 and 50 from entering the Sabarimala temple. After hearing petitions in 2016, the Supreme Court reserved its judgment. Last April, Justice Deepak Misra hinted at the possibility of a constitution bench being set up to take up the matter.

Parsi women:

• Parsi Personal Law decrees that a Parsi woman who marries a non-Parsi cannot offer prayers as a Parsi, or be treated as a Parsi., AParsi woman who married a Hindu, challenged the law in Gujarat High Court. In March 2012, the court ruled in favour of the ValsadParsiAnjuman Trust, which had not allowed Goolrokh to offer prayers at the Tower of Silence following the death of of her father. The Supreme Court is currently hearing a challenge against that ruling.

SikhiSwarup:

• The constitutional validity of the definition of a Sikh under the Sikh Gurudwara Act,1925, was challenged by GurleenKaur. She and others had been denied admission to an MBBS course at an institution run by the ShiromaniGurdwaraPrabandhak Committee (SGPC) on the ground that some of them were not eligible to be treated as Sikhs as they had plucked their eyebrows or trimmed their beards. In a landmark order in 2009, a three-judge bench of Punjab and Haryana High Court headed by J S Khehar (then chief justice) ruled that it was essential to the Sikh faith and that “SikhiSwarup” will be decided by those who practice the faith, and not by adherence to any other values/ideals.

What is Uniform Civil Code?

One nation,one law

• Uniform civil Code is a proposal to have a generic set of governing laws for every citizen without taking into consideration the religion.
• Article 44 of the Constitution says that there should be a Uniform Civil Code.
• According to this article, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Since the Directive Principles are only guidelines, it is not mandatory to use them.

Why India needs a Uniform Civil Code?

• A secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
• Another reason why a uniform civil code is needed is gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example.
• Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution.
• Courts have also often said in their judgements that the government should move towards a uniform civil code including the judgement in the Shah Bano case.

What are the hindrances in it’s implementation?

Court judgements:

• One argument in favour of a status quo and against a UCC is that the courts have in innumerable cases given secular laws precedence over personal, religious codes. In the past 12 months alone, a two-judge bench ruled that Muslim women are entitled to maintenance beyond the iddat (roughly three months) period. It upheld a previous Allahabad high court judgement that “polygamy was not an integral part of religion”. It has questioned why Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others

Lack of political will:

• The unfortunate interference and mixing of religions with politics has further complicated the social atmosphere.  The political stakes will ensure that no one can enforce a UCC over the multicultural society of India.

Article 25:

• On the other hand, if a different set of rules that violate the religious precepts are enforced upon individuals that would negate the fundamental rights of ‘Freedom of conscience and free profession, practice and propagation of religion’ guaranteed under Article 25 of the Constitution of India