Despite various political dispensations using this issue for their own benefit, a close scrutiny shows that the supreme court upholds the right of each religion to have its own personal law
By Sachin Dhawan
Featured image: A Muslim marriage, solemnized as per community customs
The BJP government’s stand on hot issues such as land acquisition has generated significant controversy. This may be a sign of things to come as it has adopted a provocative stand on many other issues, including the Uniform Civil Code (UCC).
During the Winter Session of parliament, Law Minister DV Sadananda Gowda reiterated the BJP government’s intention to enact a UCC.
Asserting that this was not simply a matter of partisan politics, he cited several Supreme Court (SC) cases—Shah Bano, Sarla Mudgal and John Vallamattom—supporting the cause of a common code. In each of these cases, the SC urged the government to do away with the prevailing system of personal laws, a long-cherished objective of the BJP. These cases, therefore, give the impression that the Court shares the BJP’s negative assessment of personal laws. However, Gowda offers a one-sided analysis of the SC’s rulings on personal law. Crucially, he neglects to mention how often the SC has defended personal laws.
The way the SC has used its enforcement powers to defend personal laws is a much better indication of where it stands on these laws rather than its unenforceable comments.
The Shah Bano divorce case kicked off a big debate on personal laws
QUESTION OF ENFORCABILITY
A survey of the judicial record brings out two contradictions in the minister’s narrative and shows how much the Supreme Court differs from the BJP on personal laws. One, the Court’s defense of personal laws is enforceable. Two, its criticism of personal laws is unenforceable.
The minister, in criticizing personal laws, is relying on that part of the judicial record dealing with unenforceable Directive Prin-ciples. The Court’s defense of personal laws, by contrast, is based on the enforceable Fundamental Rights provisions. But the minister neglects to mention this distinction.
This distinction accounts for the varying treatment of personal laws in different SC cases. When it is dealing with personal laws in the context of Directive Prin-ciples, it can be critical of the lack of progress in realizing Article 44 of these Principles. But when it is dealing with personal laws in the context of Funda-mental Rights, the Court has often mounted a spirited defense of personal laws, even bestowing upon them protection from a certain level of constitutional scrutiny. The cases cited by the minister represent the Court’s criticism of inaction regarding Article 44, and are not emblematic of its support for a UCC.
If one has to gauge the Court’s approach to personal laws, one has to see its use of the powers at its disposal regarding these laws. These considerable powers are exercised in the Fundamental Rights context. Here, the Court refrains from removing personal laws. But it does not stop there. It even exempts personal laws from the purview of Fun-damental Rights.
The origin of the court’s reasoning in those cases lies in a Bombay High Court (HC) case. In the Narasu Appa Mali case of 1951, the HC was urged to outlaw personal laws in the face of the coming into force of Article 13 of the constitution. This states that no existing law in contravention of the Fundamental Rights can remain valid. The BJP has echoed lack of constitutional justification for the continued existence of personal laws. But the HC rejected the proposal to apply Fundamental Rights to personal law, holding that the definition of “law” in Article 13 did not include personal laws.
Therefore, personal laws were exempt from the scrutiny of the Fundamental Rights provisions. For instance, Article 14, a provision of the Fundamental Rights, states that the state shall not deny to any person equality be-fore the “law”. Polygamy, to take one example of a personal law practiced by Muslims, denies women equality before the law. But polygamy-sanctioning personal law under the Narasu dispensation is not a law, so the practice of polygamy does not violate Article 14.
There’s enough space for each community to follow its practices, and SC has stood by their rights
Had they been subject to the Fundamental Rig-hts, many provisions of Muslim personal law such as polygamy and triple talaq would likely have been banned. While the BJP has been campaigning to bring about precisely this for a long time, its purported ally, the SC, has moved in the opposite direction. We can see this clearly in the 1997 Ahmedabad Women Action Group & Ors vs Union of India case, wherein the petitioners urged the SC to use the Fun-damental Rights provisions to nullify the provisions of Muslim law which sanction polygamy and easy divorce for men. But the Court, citing the Narasu Appa Mali case, pointed out that personal laws could not be outlawed by the Fundamental Rights bec-ause they were outside their scope, ie, personal laws did not count as laws. Had the court wanted, it could have made personal laws subject to Fundamental Rights.
The way the SC has used its enforcement powers—to defend rather than destroy personal laws—is a much better indication of where it stands on personal laws rather than its unenforceable comments. The Court’s view should be divined on the basis of its use of its own powers rather than on how it tells the government to use its powers. This is the litmus test.
—The writer is assistant professor and assistant director, Centre for Law and Humanities, Jindal Global Law School