The quest for gender equality and attaining socioeconomic equilibrium through the realm of personal laws has historically been the prime cause of ambient conflicts between the constituents of the most progressive and the regressive orders of society. Recently, we have experienced a lot of hue and cry relating to Triple Talaq and the Sabarimala episode although the matters have been well-settled by the Supreme Court.
The passage of The Muslim Women (Protection of Rights on Marriage) Bill, 2018, this Thursday, in the lower house which criminalises Triple Talaq with three years imprisonment for the guilty, has drawn sharp criticism from the opposition parties. The critics view this as too stringent, given the fact that, Supreme Court has already set aside the practice of Triple Talaq and declared it unconstitutional, which implies any act of divorcing through triple talaq to be void ab initio or void from the beginning. In such a case, criminalising an otherwise civil offence of wrongfully divorcing one’s wife is considered too harsh and against the spirit of constitution, particularly when a non-muslim man wrongfully deserting his wife, is considered a civil offence. While the supporters foresee a paradigm shift in the legal framework inching further towards securing gender equality and empowerment of Muslim women, the critics consider it as draconian, unnecessary and an election gimmick.
It can easily be perceived that personal laws may not always be contra bonos mores or against the good principles, but they inherently contain gender biases and unreasonable practices, since they are born out of the socio-economic conditions under which the respective religions are born. And interestingly, it has always been about the convenience of the dominant group which has dictated the terms of the personal laws.
Invincibility of personal laws in the face of constitutional scrutiny is time tested in the Indian legal history. The Hindu Law Committee’s report of 1947 which culminated into ‘Hindu Code Bill’ of 1948 was ndefeated in the Constituent Assembly, and this led to resignation of Dr Ambedkar as the first Law Minister of India in 1951. Any expectation of ‘personal laws’ being in conformity with the highest constitutional standards is marred by tussle between Article-25 of the Constitution, i.e., Right to practice religion of one’s choice and Article-44 which prescribes Uniform Civil Code or ‘One nation, one law’ (for personal laws).
However, the State of Goa is an exception to the rest of the Indian peninsula, which has a Uniform Civil Code for all religious communities, in the form of Portugal Civil Code of 1867 or Codigo Civil Portuguese, or the Goa Civil Code (as popularly known).
Echoing the concerns over difficulty in implementation of the code, the Supreme Court of India has observed in Pannalal Bansilal Patil vs State of Andhra Pradesh, AIR 1996 SC 1023, that, “Uniform law for all persons may be desirable. But its enactment in one go may be counter-productive to the unity of nation.” This may sound politically correct, but the expediency for subjecting personal laws to judicial review under the ambit of Article-13 of the Indian Constitution is often felt in the face of inconvenience to various interest groups and individuals, especially when their fundamental rights stand abridged.
The question, “whether ‘personal law’ can be included in the expression ‘laws in force’ used in Article 13(1) of the Constitution, and the extent to which personal laws are subject to fundamental rights,” first came up before the Bench constituting Chief Justice MC Chagla and Justice PB Gajendragadkar of the Bombay High Court in The State of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84. This is considered as the turning point in the constitutional history, where personal laws were made sort of invincible, as the Bombay High Court held that “personal law” is not included in the expression “laws in force” used in Article 13(1) of the Constitution, which made personal laws immune from judicial review.
What happened next is history, as the Narasu Judgment is still in vogue and firmly holds the field, which is yet to be overruled.
However, the recent Sabarimala verdict saw an illustrious judgment being delivered by Justice DY Chandrachud, who has dissected the Narasu Appa Mali judgment only to hold it incongruous to constitutional suitability. Amidst such status quo in approach of courts, in not subjecting personal laws to judicial review (under Art-13), the apex court in Saha Bano Begum, AIR 1985 SC 945, has ruled in favour of providing maintenance to Muslim women under Section 125 CrPc, despite being against the tenets of Muslim Law.
Another major breakthrough from the reign of the seemingly invincible personal laws, was in the shape of the judgment in Shayara Bano Case, (2017) 9 SCC 1, in which the misogynistic practice of triple talaq was declared unconstitutional. Further, the judgment in Indian Young Lawyer’s Association vs State of Kerala or the Sabarimala case has come out as a torch-bearer for all times to come, against the discrimination faced by women for, ‘who they are’ and for, ‘what nature has bestowed upon them’.
Often the malignant innovations in personal laws are an exploitation of the social contract theory, forged by the shrewd oppressors of the time, to secure and sustain their personal influence. For instance, according to Ameer Ali, the mode of triple talaq, which is whimsical and unreasonable, was post-prophet innovation by Omayyad Monarchs. On the contrary, the Holy Quran at SURAH 4 Verse 35 has emphasized on reconciliation between the man and woman, so that, they can take time and help of arbitrators for their reconciliation and take the right decision with calm and poised mind, and not in sudden and grave anger.
Here, it is worth invoking George Mason, who wrote for the drafting committee appointed by the Virginia Convention in May, 1776, that, m“all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divert their posterity, among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” This may be considered as the jurisprudence behind subjecting personal laws to judicial review or taking a step towards Uniform Civil Code.
Experience says, vested interest groups shall continue to derail any effort to mutate personal laws to a more egalitarian tone and mould, through judicial review or a Uniform Civil Code, but the wise know, it is worth risking such a venture to embalm our collective conscience and constitutional goals. And certainly, Saha Bano Begum, Shayara Bano and Sabarimala shall continue to inspire us, in achieving social equilibrium and growth, through a more benevolent set of personal laws. However, this voyage for justice, can’t commence without meaningfully answering, “are personal laws invincible in India?”
(The author is a lawyer based at Bhubaneswar. email@example.com.)