General

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This Blog is written by Tania Abraham from Symbiosis Law School, Hyderabad. Edited by Oshin Suryawanshi.

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INTRODUCTION

When India gained independence in 1947, its leaders discovered a unified confessional system- similar to that of Egypt- in place, under which the personal laws of Hindus, Muslims, Christians, Sikhs, Buddhists, Jains and Parsis were directly applied in civil courts by secularly trained Anglo- Indian judges. This system of personal law was formally acquired and merged into the legal system of the new state with the adoption of the 1950 constitution. However, as the writers of the constitution hinted at in Articles 44 and 372, the continuation of colonial institutions and practices of personal law was initially considered as a stopgap solution until a new civil code was enacted for all the citizens of India irrespective of their religion.

Today, more than sixty years after Article 44 was enshrined in the constitution, India still lacks a unified code that applies to all of its residents. In other words, despite its constitutional obligation to treat everyone equally before the law (Article 14) and not discriminate on the basis of religion, caste or sex (Article 15), India a socialist, secular and democratic republic, continues to see its judges administer state-sanctioned religious and customary laws and apply different sets of laws to people with different ethno-religious backgrounds. This article will address the question of how the continuance of state-enforced religious rules has impacted Indian citizens’ rights and freedoms.

In terms of the effects of Indian personal laws on rights and liberties. They have frequently imposed marriage, divorce, post-nuptial support and inheritance related disabilities on individuals who are subject to their jurisdiction, particularly on the rights of Muslim and Hindu women. However, India claims to provide its inhabitants with an optional secular code of marriage and divorce (the SMA of 1954), allowing the individuals to opt out of religious laws and employ secular laws at their discretion, as well as freely negotiate interfaith marriages. In general, the existence of the SMA attests not only to the Indian regime’s inclusionary and secular traits, but also to its own vision and concept of family and nation.

However, the fundamental question at this time is whether the existence of secular remedies such as the SMA of 1954 or Section 125 of the CrPC of 1973 has provided Indian citizens with a feasible escape option: “protecting their rights and freedoms against potential encroachments of state-enforced religious laws.”

HOW PERSONAL LAWS IMPACT THE RIGHT AND FREEDOMS OF INDIAN CITIZENS?

State-enforced personal status laws typically have negative consequences for individuals’ rights and freedoms, as well as causing systemic disparities by applying separate sets of norms to various sexes and people from different ethno-religious backgrounds.

Many liberal and communitarian theorists have pointed out that the presence of millet-like systems in today’s modern democracies raises several fundamental questions: To what extent should a democratic system tolerate, let alone integrate and directly implement, religious norms that impose certain restrictions and disabilities on the rights and freedoms of those under its jurisdiction? To put it another way, can democracies put up with millet-style personal status systems? Some argue that multicultural pluralist arrangements in the legal sphere can be tolerated by democratic regimes only provided that individual community members are guaranteed freedom of exit and association, as well as a number of other institutional and normative criteria. People would argue that the laws enacted do provide Indian citizens with the “right to exit” but now the question is “whether the laws enacted actually furnish Indian citizens with the type of exit that theorists articulated?”

This very question was answered in the known case of Shah Bano case. Some Muslim leaders say, “the Supreme Court’s Shah Bano case which interfered with the sacred laws of Islam and called for their abolition by way of enacting  a UCC, was one of the most serious threats ever posed to Muslim identity in India.”

Finally, the Shah Bano controversy, the demolition of the Babri Masjid, the Gujarat pogroms, and the rise of the BJP and its allies profoundly transformed the Indian political landscape in the 1990s and early 2000s, and inextricably linked the UCC debates to right-wing politics. Under such conditions, where Hindu fundamentalists cynically took on the task of elevating Muslim women by introducing a UCC, all actors, from political parties to the judiciary, women’s organizations to Islamists, have felt a pressing need to realign their policies and strategies in line with the ideological shifts that have shaken Indian politics since 1986.

The effects of state-enforced religious personal laws on Indian citizens’ fundamental rights and liberties have been similar to those of state-enforced religious laws on citizens of Israel and Egypt. The negative effects of state-enforced religious laws were particularly visible in the Hindu community in terms of women’s rights to inheritance and property (despite legislative changes), and in the Muslim community in terms of women’s rights to divorce and post-nuptial maintenance – at least until the Supreme Court’s landmark decision in 2001. Like the Egyptian and Israeli governments, which have long avoided substantive reforms in Muslim personal law, the Indian state has systematically avoided interfering with Muslim marital laws for fear of further antagonizing the Muslim minority, particularly conservative male elements within it.

HOW CAN RIGHTS BE UPHELD UNDER STATE-ENFORCED RELIGIOUS LAWS?

Personal status laws enacted by the state have placed restrictions and limitations on fundamental freedoms and rights. And none of the countries appear to have found a solution to the question of how to best protect individuals’ rights under personal status systems, or the extent to which they should allow non-human-rights-compliant religious laws to be applied.

Only if the community in question willingly grants such freedom to its individual members, and if there is a larger society outside that embraces liberal values and is willing to welcome and protect the person after she has deserted her own normative community, can the right of exit be meaningful.

Individuals should be educated about their rights and liberties under secular and religious law through various legal literacy and awareness-raising campaigns, according to human rights defenders and policymakers. Individuals should be educated by human rights defenders during these awareness-raising campaigns, particularly about their rights that already exist under the current state-enforced religious laws. To put it another way, before inventing “new” rights, human rights advocates should ensure that the rights that already exist under religious or secular law are fully functional.

As a result of this recognition, human rights defenders must adapt and change their tactics. Accept all available means without prejudice and work until every single human being – regardless of location – has the opportunity to fully exercise their fundamental rights and liberties under the law.