Introduction

The Constitution of India, is a document which has special legal sanctity and sets out the principle functions of the organs of the state by declaring the operations of these organs. Under the guidance of Dr. B.R.Ambedkar, the Constituent Assembly drafted a  Constitution with 315 articles, 18 ‘Parts’ and 8 ‘Schedules’. One of the most important aspects of the Constitution is that of ‘Fundamental Rights’ which are guaranteed to all citizens of the democracy. These rights were written  into the constitution with the view of guaranteeing every citizen a life of peace and dignity throughout the Indian Territory. The basic structure of these rights were rooted from ‘France’s Declaration of Bill of Rights of Man’, ‘England’s Bill of Rights’, ‘Development of Irish Constitution’, as well as ‘United States of America’s Bill of Rights’. Originally, the Constitution provided for 7 Fundamental Rights, however after the 44th Amendment, 6 Fundamental rights are enshrined in the Constitution (Article 14 to Article 32).

Personal Laws & Fundamental Rights

The rule has it that any law enforced before the commencement and execution of the Constitution of India shall be void if found inconsistent with the constitutional provisions.A law can be declared to be void based on checking upon its consistency if it violates the Fundamental Rights. A law that is passed on later after the chapter of Fundamental Rights of the Constitution has been written will be declared to be void if it goes against the basic doctrine of violation of the Fundamental Rights. Specifically, if personal laws are covered under Articles 13 and 372 of the Constitution, they will be void to the extent that they are in contravention of Article 14, Article 15 and 21 of the Constitution. This means that any Personal Law that has been found to be contravening to the provisions of the aforesaid Articles i.e. Part III of the Constitution should have been immediately struck down by the Court. However,, we see that this is clearly not the case. The Judiciary has been conferred with the power not just to interpret various existing aws but also mould the existing laws in close proximity to changing times. This automatically questions the power of the Judiciary on the provisions of Personal laws and the provisions mentioned in the Constitution. In several cases, the court is of the view that personal laws are not susceptible to Part III and therefore cannot be challenged in the court for infringement of fundamental rights under Articles 14, 15 and 21. Contradicting their own decision, the Supreme court in several other cases opined that Personal laws form the basis of fundamental rights and are interpreted to make them consistent with the fundamental rights.

Personal law is defined as a law that applies to a certain class or group of people based on their culture, practices and religious faith. Indians have been following the concept of personal law since colonial times. Various personal laws prevail in India viz. Hindu Law, Muslim Law and separate laws for Christians and Parsi Community. Certain provisions in these personal laws go against the concept of fundamental rights and often women fall victim to these laws. The court may have striked down several provisions of these laws to protect the fundamental rights of the citizens however some provisions till date are prevailing.

Examples of Provisions conflicting Part III of the Constitution

Section 6 of the Hindu Minority and Guardianship Act, 1956 shows that the ‘natual guardianship’ of a Hindu minor boy and a Hindu married girl can only be given to a father and the mother gets the right only after the demise of the father. This Section has been challenged on the grounds of Gender inequality as it is a conflicting view under Articles 14 and 15 of the Indian Constitution. The Court however has interpreted that the provision is not a case of gender inequality but still a question arises that the explanation of the Court of the mother not being a ‘natural guardian’ is discriminatory. Another such instance can be drawn is from the Provisions given to the Muslim woman under Islamic Law. The Law states that a wife should receive 1/8th of her husband’s property after his death provided that they have a living child. If no child is born out of their marriage then the wife is entitled to only 1/4th of the property. The daughter shall receive half the share of that of the son. In contradiction, the husband is entitled to 1/4th property if they have a child and half if no child is born. The son receives double the share of the daughter. This provision clearly violates the fundamental rights of a Muslim women under Articles 14,19 and 21. The court is yet to take decision over this but opines that Muslim law as a personal law does fall under the ambit of Article 13 of the Constitution.

Bigamy too is an offence in India and this is seen to be a punishable offence under Hindu Law and seen to be completely outrageous. This is seen to be an offence under Indian Penal Code under Sections 494 and 495. However, the ‘Shariat Act’ allows Muslum men to practice polygamy where they can marry upto four times. But the Muslim women can marry only once and this is a clearly discriminatory Aricles 14,15 and 21. Lastly, one other example is that the Section 8 of the Hindu Adoption and Maintenance Act, 1956 does not allow Hindu woman to adopt whereas the Husband can adopt with the consent of the wife which is seen to be completely gender biased and a violation of Articles 14 and 15. This issue was raised in the case ‘Malti Roy’, the court was of the opinion that only the husband could adopt and in case of adoption by the wife, if held not a valid adoption. Islam does not recognize the concept of adoption but only ‘Acknowledgment of Paternity’. It is the principal which establishes the legitimacy of a child. As soon as a Muslim acknowledges a child to be his, the paternal responsibilities are conferred upon him. However such an act cannot be used to establish an illegitimate child legitimate. However recently the Supreme Court has allowed Muslims to adopt but time and again an interference from personal law is unavoidable.

Uniform Civil Code: The Last Resort

A few years back Bharatiya Janata Party again brought to light the issue that has plagued Indian Feminists for a long time, the Uniform Civil Code (“UCC”) for all Indian citizens.The debate over UCC in contemporary India is produced by the opposition between two notions of rights contained in Part III of the Constitution, “Fundamental Rights”, within which the bearer of rights is construed both individually and collectively. The former ensures individual’s right to equality and freedom and the latter protects religious, cultural and educational rights of minorities. The above-mentioned form part of personal laws and are enshrined individually in separate laws. The idea of providing a universal law for all citizens is in itself provided in the constitution of India under the heading of ‘Directive Principles of State Policy’.

Citizens are governed by different sets of personal laws based on their religion, caste, community etc. UCC would ensure that every citizen in India will be governed by the same set of secular civil laws in matters of marriage, maintenance, adoption etc. The object underlying a uniform code is to enhance national integration by eliminating contradictions based on religious ideologies. The Supreme Court in several cases have time and again highlighted the need and importance of a uniform civil code and opined that there is no connection between personal laws and religion in a civilised modern society. The issue of UCC was first touched upon by the Supreme Court in the famous Shah Bano Case and thereafter in various landmark cases such as the Sarla Mudgal Case.

Conclusion

While deciding one of the cases Justice Khare quoted, “It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a uniform civil code in the country”. However, several writs were filed to enforce Article 44 courts were of the opinion that this was a matter to be looked into by the legislature and not judiciary. Sandwiched between the judiciary and the legislature it is clear that implementing a uniform code was and will still remain a distant dream for a long time to come.

Sanchali Bhowmik, 3rd year L.L.B Hons student at O.P. Jindal Global Law School.