Sculpting of Personal Law by the Judiciary

  

PC: Economictimes

The laws to govern faith, beliefs and norms,

Are the laws to run parallel with time

The time when changes,

the faith enhances,

the belief moderates,

and the norms progress…

The basic identity of India lies in its cultural diversity, religious pluralism, and many other dissimilarities co-existing together peacefully. India has always been protective about this multifariousness in society. To execute the plan of safeguarding these variations the concept of Personal laws was developed. Personal laws, as the name suggests, are the laws special to each distinctly identifiable religious group. It not only controls the different practices that these groups follow but is also responsible for creation of divisive forces amongst different religious communities. Since then laws on matters relating to family, marriage, succession and so on, apply mostly on the basis of religious identity. Surveys show that India has not accepted the theory of atheism or ‘no religion’[1].

Groups with different religions are subject to different laws. Every personal law is derived from the religious scriptures that these groups follow. For example for the Christians it is the ‘Bible’, for the Muslims it is the ‘Hadith’ and the ‘Quran’, for the Parsis it is the ‘Avesta’, and so on.  

Personal laws are affected by timely beliefs, values, morals, ethics and norms. Sati was once considered to be a form of protection of women’s dignity. Under Canon laws it was forbidden for Christians to get divorced even if they mutually wanted to it, homosexuality and adultery [2] were considered as moral wrongs. Sati was abolished long back in colonial times in 1829 with the enforcement of The Bengal Sati Regulation[3]. Christians widened their beliefs by introducing Christian Marriage and Divorce act, 1957, and recently after struggling for more than a decade the LGBTQ community got recognition with the decriminalization of S.377 [4] of the Indian Penal Code. Consequently such reforms have molded the laws with the light of progress with which the society now shines.

These reforms have played a significant role in enhancing livelihood opportunities and quality of living. They have made us realize the difference between human based morals, values, beliefs, ethics, dos and don’ts, and scientific approach towards life. For example, it wasn’t scientifically wrong to get married to a person belonging from a different religion or to be a member of the LGBTQ+ community or to get divorced and remarry someone else or to not be able to procreate- it was all created and assumed by mankind. It was humans who decided that men need not burn themselves at the pyre of their wives, it was humans who deprived other religious groups of entry into a Parsi temple, and it was them who created the whole concept of religion and personal laws. Nowadays, religion and religious differences have become such an inalienable aspect of human society that the ideas of unity and solidarity are under threat. These barriers are created by humans and most of the times they end up being unreasonable and thus destructive.

Child marriage was used as a tool to get rid of the ‘liabilities’ of a girl child, so that they don’t end up marrying out of their own religious group. This was not only inhume, but also violative of basic fundamental rights and hence with the help of judicial precedents and legislative activism, the Child Marriage Restraint Act, 1929 was enacted.

The custom of triple talaq had been practiced in Islam for more than 200 years. However it is an absolutely absurd as well as biased practice when it comes to the equal and fair rights to both the sexes. There was already no right of women to divorce under Islamic law, and a woman getting divorced in less than 3 seconds was harsh and open to misuse. Therefore it was necessary for the judiciary to analyze this practice.

Reforms in personal laws have mostly been progressive if at all they have been changed. The fact that judiciary cannot look into the matter themselves entails that it is very important for the people to continuously check these laws and if needed seek help from the judiciary. Reforms do not mean that the laws have to be completely kept aside, they involve understanding of laws, critically analyzing them and then commenting on the nature they have or how they affect the social order.

For example the law of not giving maintenance to[5] Muslim women after iddat period, even though the Quran specifically stipulates it,[6] was practiced and still continued even after a Supreme Court judgment outlawing the same was passed. Since the judgement, Muslim women too have a right to claim maintenance under S. 125 of Code of Criminal Procedure[7].

PIL (Public Interest Litigation) to decriminalize S. 377 of the IPC was in consideration of Delhi High Court since 2001 when NAAZ Foundation first filed the PIL, but they were not given a final verdict till September 6, 2018. Many religious groups pressurized the Government and the judiciary to act ‘morally’ but when the right is guarded by truthfulness and righteousness no one can deny it. On 6 Sept 2018, the  judiciary firmly ruled that gay consensual sexual intercourse is not a crime, which was counted as progressive step taken by the judiciary.

To be precise, reforms are a matter of both,  judiciary and legislature. Judiciary is the one to pass a judgment nullifying the law but if the practice is brutal enough to be criminalized or so much prevalent that it needs special attention, then it is the duty of the legislature to make a specific bill or order in support of such a judgment, like it was done for the practice of sati, adultery, adoption[8] etc.

The cause of action here is the change in beliefs through certain medium which forces people to realize how prejudiced these practices, customs, traditions are. When the norms of society start progressing, it is then we should realize that the patriarchy, gender biasness and protests against inequality have to be addressed. Therefore the concept of personal reforms through judiciary exists. When the time is on its verge to change, the beliefs are yet to change and norms are still settling to change, it is vital that judiciary acts sensitively. [9]The transformation has to come through a kinder way else it might impair the setting of the society.

The role of judiciary is contrastingly limited. It accounts for two things — analyzing the present laws and critically reading it with the present beliefs of society, and giving a judgment which is not affected by beliefs and norms of society but is only based on merits of the law and justice. Interestingly both the things are contrary to each other and deplete the faith of the masses in judiciary even more. Though, one must remember that it is impossible to satisfy each and everybody.

The scope of these reforms therefore is limited to changes in the law. This is because, religious laws are so inherently accepted by the respective groups that removing them completely will create a societal imbalance. Personal laws were made to preserve the socio-cultural and religious dissimilarities, therefore now if it is removed it would result in chaos within the society. [10]

The present Government has a strong opinion to remove such dissimilarities which create the isolation of these groups. They claim that these isolations are giving rise to brutalities like honour killing, child marriage, dominance of men,  suppression of women at every stage, non-acceptance of third gender, religious extremism and so on. The religious groups are not yet willing to accept the progressive norms which assert equality amongst all. They argue that education will at least lessen the societal injustice and with time if education is given to all, the inequality that lies in their beliefs and customs will change drastically. Education is the only process which can let justice stand without disturbing the ‘peaceful’ setting of the community.

Though the judicial review of personal laws are still in question the judiciary is still commenting on the rectitude of the laws and its validity. Article 13 of the Constitution of India [11]which enables the removal of any inconsistent laws does not include personal laws. [12]But judiciary has shown with time that the changes have to be made for reformation of society.

Another critical view is on UCC i.e. Uniform Civil Code[13]. The importance of UCC and its drawbacks are equally influential. The debate around UCC has always been regarding whether it is actually a progressive rule enhancing the right to equality or a threat to right to equality and violates the right to religion.[14]

The two views are equally crucial and should be taken into account. Critics who support the quest for UCC base their arguments on Article 14 which suggests right to equality that is equal punishment for equal crimes. For example having four wives in Muslim law is not only unfair for women but also infringement of their dignity and respect and hence should be criminalized like in other personal laws.

The other side of the argument is that their personal laws in accordance with their set of rules give the permission to provide for equal dignity of each wife which if not given can be a ground for divorce. Hence the right to follow respective religion and the right to be unequal from other religious groups has to be ensured. The principle of equality amongst equals fits very well in this social context.

Another difficulty in implementing UCC is when to implement it — now or later?

Without education and knowledge of the fact that fake news is spreading with a great speed in present time the decision to implement UCC is to be decided very sensibly and sensitively. The more one drives themselves towards UCC the more threat they might receive from the ones who don’t want it. Association and acceptance with any belief becomes harder when public violence is involved. Therefore before actually implementing the concept, it should be educated to the public and rigorous debates should be held to know the public opinion and all the aspects of the code so that after its application it does not leave any death marks.

The dilemma is now created that whether the scope of reforms in personal laws is to be kept only to the changes in the law and not the removal of the law itself or to enforce UCC. In some cases, the former option might marginalize people with the same backward laws and impose greater inequalities. However if we try to implement the latter and bring the equal treatment theory to practice then the diversity quotient of the country would die. [15]

And hence it becomes important to prioritize-

Whether diversity, the basic identity of our country and the fundamental right to religion which is an important aspect guaranteed under the Constitution of India is to be sacrificed or the law which creates equal recognition for all communities and works parallel with time has to be forgotten?

By 

LawVastutah

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[1]“Freedom from Religion: Why 'No Religion' should be a Category”, Forbes India, available at http://www.forbesindia.com/article/recliner/freedom-from-religion-why-no-religion-should-be-a-category/35893/1 , (last visited on 10/02/2020)

[2] Joseph Shine v. Union of India (UOI),  AIR 2018 SC 4898

[3]The abolished 'Sati Pratha': Lesser-known facts on the banned practice,  India Today, available at https://www.indiatoday.in/education-today/gk-current-affairs/story/sati-pratha-facts-275586-2015-12-04  (last visited on 10^th Feb, 2020)

[4] Navtej Singh Johar and Ors. Vs. Union of India (UOI) and Ors.,  AIR 2018 SC 4321

[5] Shabana Bano Vs. Imran Khan, AIR 2010 SC 305.

[6] Razia Patel, “Indian Muslim Women, Politics Of Muslim Personal Law And Struggle For Life With Dignity And Justice”, 44 Economic And Political Weekly 44 (2009).

[7] Code of Criminal Procedure (Act 2 of 1974) s. 125(1) (a).

[8] M/S Shabnam Hashmi v. Union Of India & Ors., AIR 2014 SC 1281

[9] Archana Parashar, ‘Gender Inequality and Religious Personal Laws in India’, 14 The Brown Journal of World Affairs 103 (2008).

[10] Law Commission,  Law commission consulted paper on Reform of Family Law

[11] The Constitution of India, art. 13.

[12] Ahmedabad Women’s Action Group v. Union of India, (1997) 3 SCC 573

[13] The Constitution of India, art. 44.

[14] The Constitution of India, art. 25.

[15] D. K. Srivastava, ‘ Personal Laws And Religious Freedom’,18 Journal of the Indian Law Institute 551 (1976)