Govt can regulate polygamy for public order, says SC

The court said this while upholding the validity of the UP government rules, mandating dismissal of an employee for bigamy.

By: Express News Service | New Delhi | Updated: February 10, 2015 1:51 am

The Supreme Court Monday held that polygamy was not an integral part of any religion and that the State could regulate such practices in the interest of public order, health and morality.

“What was protected under Article 25 was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25,” observed a bench of Justices T S Thakur and Adarsh Kumar Goel while referring to a judgment in 2003.

Expressing its concurrence with the previous judgments, the court said a practice did not acquire sanction of religion simply because it was permitted. Such a practice could be regulated by law without violating Article 25, which prescribes for freedom of conscience and free profession, practice and propagation of religion.

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The bench added that it was for the legislature to decide as to what constituted the social reform on subjects that may include marriage and if they come to a conclusion that monogamy tends to the welfare of the State, then it is not for the courts of law to sit in judgment upon such a decision. The court said this while upholding the validity of the UP government rules, mandating dismissal of an employee for bigamy.

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  1. R
    Rag
    Feb 10, 2015 at 12:11 pm
    The question here is not whether Muslims should practise monogamy or polygamy.. It is a gross understatement, and a insult to the time of the Supreme court. The question the Supreme court is answering is 1. Do religious laws p the "Principle of Natural Justice " principles, and if not, they violate the basic tenets of consution and law, not just in India, but everywhere ? 2. Are fundamental rights, non-alienated, absolute rights..? 3. Are "Interpreters of Religion", or the "Guardians of Religious laws and discourse" such as Archbishops, Maulvis, and Sadhus allowed under the Consution to tell the world that their interpretation of religious law are right ? 4. If a religious law is counter to the Principles of Natural Justice, should the state intervene ? POINT 1 : Do religious laws p the "Principle of Natural Justice " principles, and if not, they violate the basic tenets of consution and law, not just in India, but everywhere ? ==> Indian Penal Code, overrides Guarantee of Free Speech, under a prescribed set of morality rules, India has set itself into. A common principle of morality defines the law, and any deviations on that morality is handled by the law i.e Indian Penal Code. Now, the question, is that Quran or the Bhagavad Gita, or the Bible may have prescribed alternate versions of that morality. Now, that's not the problem of the Consution. It is the problem of the religion. In a sense Consutional laws on morality are not a "Common Minimum program" , but based on a widely accepted concepts of morality as a society sees from time to time. Polygamy may have been seen as a virtue in the 12th century.. By 21st century standards, polygamy is seen more as an exploitation of women, and less as a virtue. And I will use the Principle of Natural Justice to explain. = By the token of Principle of Natural Justice, all are equal - Women, Men, s, Homouals, everyone else. = If a law states that Men can have more than 1 women in their life, the"Quid Pro Quo" concept of natural justice is violated.. Which says, that Justice is possible, only when an agreement between two parties have equivalent set of constraints imposed on each other.. i.e If Men were allowed to Marry up-to 4 women, then Women should be allowed to marry up-to 4 men. So, the religious law in this case, violates the basic tenet of Principle of Natural Justice , and not just the Consitution of India, which is based on the same concept. = If men are allowed to have property rights, women also should have property rights = If people cannot practice their uality, heterouality should also be declared a crime. MY OPINION : If any religious law does not p the "Principle of Natural Justice" muster, or conflicts with the local Consution of that country, those religious laws are criminal, and the Consution must protect those people who choose not to follow it, without censure, and fear. POINT 2 : Are fundamental rights , absolute rights ? Fundamental rights are not non-alienated, absolute rights.. Guarantee of Free Speech is restricted by Section 153A of the penal code, Section 295(A) Article 25, the freedom to practice and promote any religion is restricted by Section 153A of the penal code, Section 295(A) So, any fundamental right can be practiced only with a set of boundaries of morality, again, referring back to General Socially accepted principle of Morality, and not constrained and restricted versions of morality. So, if not wearing a Hijab is immoral according to Muslims, the state cannot be asked to accept that line of argument, as , as per generally accepted "Quid Pro Quo" principles, Men must wear a Hijab also.. Now, if one argues that Indian penal code is also restrictive.., By the same rule, polygamy is an one sided law.. It is partial to men, and punishes women. If Muslim personal law allows Muslim women to marry up-to 4 Men, then that law is impartial. = As long as a restriction applies to all people of all creeds, , race, religion, it pes the rule of Principles of Natural Justice, and therefore can be applied as a law suding the Fundamental right.. = Also, expression of ones fundamental right cannot encroach into the fundamental right of another person, and also cannot restrict or deviate the implementation of the law or Consution themselves. So, if a Judge of a Court becomes a religious preacher, then how can the judge p judgments on cases concerning interpretation of religious law. MY OPINION : Morality is an outcome of a current social state, and currently globally accepted principles of law and order, and the state must enshrine those and only those in the Consution, and Religions cannot have their own set of moralities which conflicts with the consution. If they want restricted versions, they have to practice it indoors, and cannot be made into law. POINT 3 : 2. Are "Interpreters of Religion", or the "Guardians of Religious laws and discourse" such as Archbishops, Maulvis, and Sadhus allowed under the Consution to tell the world that their interpretation of religious law are right ? The beauty of the Consution, is that for amending a consution or law, you need to p that amendment in the floor of the Houses. The problem with religions is that the either " They have self appointed heads", or the election of the embly of Leaders is not authorized, or audited by the local Consution, and as such un-audited elections cannot be representative of the mood or opinion of the communities themselves. So, if a Sadhu comes and tells that " Having 4 children is right", or a Maulvi comes and tells that " Taking Revenge is OK", then these are simple personal opinions and not validated as law, even if the Maulvis and Sadhus can refer and quote sections in their religious books. That is because, the Maulvis are not authorised people , who have been given a democratic mandate to act as custodians of that holy book, and its interpretations. Interestingly, there are so many differing voices within the same community on the same set of issues. So, how can that be converted into a Personal law for that community. MY OPINION: No religious leader who has not been elected via an audited, Consutionally approved means of Election, can claim their interpretation of the religious law is correct, and Individuals cannot convert their opinions into law. Only a group of religious leaders, voting in a democratic manner can enforce opinions as law over their own subjects. However, the state can still overrule these opinions, if they conflict with the Principle of Natural Justice., POINT 4: If a religious law is counter to the Principles of Natural Justice, should the state intervene ? State can intervene, as much as the religious laws violate the countervailing laws and principles of the Consution.. MY POINT : State should take control of morality over a period of time, and personal or religious views of morality is a personal opinion, and should not be encouraged by the state, and probably should be discouraged by the state.
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