Religion and Personal Laws: Conflict with Fundamental Rights

Md. Imran

Introduction

Personal Law in the most generic sense can be defined as ‘the portion of the law which constitutes all matters related to any individual or their families’[1]. In a country like India whose population is a heterogeneous mix of various religions like Hindu, Muslim, Christian, Parsi and so on; there is a need to preserve and protect the interests of each religion.  The Constitution of India guarantees the right to religion by way of Article 25[2] and Article 26.[3] However, a difference in personal laws with fundamental rights can cause a conflict of interest of a specific community and the society in general.

Personal Laws in India

India is a country which consists of numerous customs and religions. Religion has been an integral part of India’s culture and history. It is a religiously diverse nation and is tolerant in terms of religion by way of both law and customs. Although the word ‘Secularism’ is enshrined in the Preamble, there is a conflict in the whole concept of Secularism, specifically when it is interpreted with respect to the personal laws of citizens. Each religion has different personal laws relating to marriage, adoption, guardianship, divorce, and succession. These religious communities co-exist as a part of one nation yet the laws governing these religions in India differ from one religion to another. A few codified personal laws are given below:

  1. The Indian Succession Act, 1925
  2. The Parsi Marriage and Divorce Act, 1936
  3. The Special Marriage Act, 1954
  4. The Hindu Marriage Act, 1955
  5. The Muslim Women (Protection of Rights on Divorce) Act, 1986.
  6. The Indian Divorce Act, 1869
  7. The Indian Christian Marriage Act, 1872
  8. Muslim Personal Law (Shariat) Application Act, 1937

Personal Laws and Part-III of the Constitution

Since the inception of the Indian Constitution, the Indian Judiciary has been facing problems in defining the inter-relation of Personal Laws and Part III of the Indian Constitution which guarantees the fundamental rights of Indian citizens. Article 25 of the Constitution of India provides for the fundamental right of ‘freedom of conscience and free profession, practice and propagation of religion’ and at the same time places limitation to the provision which is subject to public order, morality and health for societal benefit. Similarly, Article 26 clause (b) provides that every religious denomination or any section has the freedom to manage their religious affairs subject to public order, morality and health. True to a great extent, India is a country, which abounds in personal laws and each community has its own personal law.[4]The religious beliefs and practices: rituals, rites, ceremonies, observances and modes of worship are thus protected under Article 25(1) and 26(b) of the Indian Constitution. These articles embody the principle of religious tolerance and secularity of India.

There is a difference in the religious customs and practices and thus various communities operate differently in the sphere of personal laws. They may at times be in conflict with the basic rights ensured by the Constitution to the citizens. Two scenarios arise which determine the conflict: –

  1. Personal laws, codified, customary in practice coming in conflict with the provisions of Part-III of the Indian constitution.
  2. Conflict of personal laws, which aims at reforming existing laws found to be arbitrary, unconstitutional with Article 25 of the Indian Constitution.”[5]
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Constitutional Validity of Personal Laws

Any law in force which is in conflict with fundamental rights will be considered void by virtue of Article 13[6] of the Indian Constitution. Article 372[7] provides for the continuance of existing laws before the commencement of the Indian constitution until altered or repealed or amended by the competent authority. If the personal laws come under the purview of Article 13 and 372 of the constitution, they will be void when in contravention to the fundamental rights. Following are the fundamental rights ensured by the Indian Constitution:

  1. Right to equality- Article 14-18
  2. Right to freedom- Article 19-22
  3. Right against exploitation- Article 23-24
  4. Right to freedom of religion- Articles 25-28
  5. Cultural & educational rights- Articles 29-30

However, in practice, this is not the case. The doctrine of judicial review is reflected in Article 13 of the Constitution. When any personal law is challenged on the ground that it is discriminatory or in conflict with the fundamental rights of another, it can be struck down by the courts.  However, issues such as Monogamy, Restitution of Conjugal rights, discriminatory grounds of divorce and maintenance are always challenging to the judiciary since it is essential to strike a balance between personal laws based on religion and social concerns for gender equality, justice and fairness of the law.

A few instances of such conflict between personal laws and societal reforms have been elucidated below:

Right to Marriage: In the case of Lata Singh v/s State of U.P[8], it was opined that the Right to marriage is an essential right under the Article 21 and that people have the right to choose their partners without any compulsion. The court in the instant case held that “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with their son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage.”

Mohd. Ahmed Khan v. Shah Bano Begum,[9] which is commonly referred to as the Shah Bano case was a controversial maintenance lawsuit. This case is a milestone in the struggle of rights and freedom of Muslim women. Justice Y.V. Chandrachud, the then C.J.I, delivered the judgement on April 25th, 1985. It was held that:

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Section 125 of CrPC was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of Section 125 of CrPC. Such provisions that are essentially of prophylactic nature cut across the barriers of religion. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality which cannot be clubbed with religion”

Shah Bano’s case brought into the limelight the need for a secular Uniform Civil Code. This judgement remains ground-breaking in Indian divorce law and is often used as a benchmark by the courts to this date.

Sabarimala temple case[10], In 1991, the Kerala High Court in their decision, prohibited passage of women over the age of 10 and beneath the age of 50 from offering worship at Sabarimala Shrine amid any time of the year expressing that such limitation was as per the usage predominant from time immemorial. Likewise, the judges of the High court ordered the Government of Kerala to utilize police force to guarantee the decision to boycott the passage of women to the temple was implemented. On 28th September 2018 the Supreme Court of India, in a 4-1 majority decision, toppled this prohibition on women from entering the temple on the grounds that the rule violated their right to equality under Article 14 along with the right to worship.

Above-mentioned are only a few instances where the personal laws of a religion infringed the rights of an individual that are fundamental as provided by our constitution. The question arises that whether there is any pressing need in order to harmonize the personal laws in to a Uniform Civil Code in a diverse country like India which is a population mix of various religious communities.

Uniform Civil Code

India practices secularism which essentially means that the state has no official religion. It provides its citizens the right to practice any religion. This leads to the existence of numerous personal laws in India. Every religious community has its own personal law, which governs it. These personal laws govern their inter-personal matters such as marriage, divorce, succession, inheritance, adoption and so on. UCC or Uniform Civil Code is sought to replace all these personal laws with a single common law which will govern all such affairs.

The court in Shah Bano[11] observed:

“Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which entrusted with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A beginning has to be made if the Constitution is to have any meaning.”

Conclusion

Personal laws of a religious community are enacted to secure the identity and practices of that religious community. However, some customs, practices, and beliefs come in the way of enjoyment of the fundamental rights of an individual. The courts are then put in a position to decide whether the personal laws of religion will prevail over an individuals’ fundamental right or not. Shah Bano’s case puts into the limelight the long awaited discussion of whether a Uniform Civil Code is needed for to answer this question once and for all.

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In my opinion, a uniform civil code is needed in order to implement a secular way of life but there is no need to force UCC on the population which is resistant to change. It is not urgent and necessary. Most people are not in true terms prepared to adapt to a secular law which is different from religious customs. The UCC can only be successfully implemented when there is an improvement in literacy and awareness on various socio-political issues. Only then there can be enlightened and legitimate discussions on social and religious mobility. The main object of the UCC should be to ensure equality, integrity, and unity amongst individuals. It should be an instrument to secure justice for all people of all religions.

While implementing the Uniform Civil Code, it will be important to take into consideration, the interest of the minority religious groups which should also be properly addressed as to avoid insecurity and complete loss of identity and marginalization within the Indian society. It is important for the implementation of the UCC, that it gets complete support and acceptance from the entire country and all the different communities and that it upholds the supremacy of the fundamental rights over any other law.


[1] Bryan A. Garnet, Black’s Law dictionary (11th Edn. 2019).

[2] INDIAN CONST. art 25.

[3] INDIAN CONST. art 26.

[4] Paras Diwan, Family law (14th edn, 2016).

[5] Saksham Solanki & Shaivya Manaktal, Uniform civil code and conflict of personal laws, 3.4 INT. J.L. 08-13, (2017).

[6] INDIAN CONST. art 13.

[7] INDIAN CONST art. 372.

[8] Lata Singh v. State of U.P, (2006) 5 SCC 475.

[9] Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945.

[10] Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689.

[11] Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945.