Updated: September 20, 2017 10:14:28 am
The question of certain aspects of Muslim personal law being supposedly in conflict with the law and constitutional values has been much discussed recently. In the wake of the Supreme Court ruling that termed ruled triple talaq to be illegal, the question has been so frequently discussed, in fact, that it would appear as if Muslim law is the only such personal law that, despite being at variance with other Constitutional laws, is accorded “protection”. But the fact is that Hindu, Christian, Parsi and tribal customs too are protected by their own special, complex sets of laws.
Broadly speaking, while some believe that personal laws are protected by the Constitution under their right to Freedom of Religion (Article 25), the other, opposing view is that personal laws must necessarily be vetted in the light of firm constitutional values as outlined in the Right to Equality and other Rights.
Aspects of religiosity and personal laws across communities have been often challenged in courts, and elicited a variety of responses.
Personal laws in court
Christian inheritance law: In the landmark Mary Roy vs State of Kerala case, Mary Roy challenged Christian law and petitioned the Supreme Court for equal inheritance. Eventually, the court ruled that Christians in the former State of Travancore were governed by provisions of the Indian Succession Act, 1925.
Santhara fast: In 2006, Jaipur-based lawyer Nikhil Soni filed a PIL in Rajasthan High Court and sought directions under Article 226 to the central and state governments to treat Santhara, the fast unto death practised by Swetambara Jains (Digambars call it Sallekhana), as illegal and punishable under the laws of the land. He termed it suicide and, therefore, a criminal act. Following a high court ruling that outlawed it, members of the Jain community organised massive protests and challenged the ruling in the Supreme Court, where a bench headed by then Chief Justice H L Dattu restored the practice.
Sabarimala entry: In 1991, Kerala High Court had restricted the entry of women aged between 10 and 50 from entering the Sabarimala temple. The restriction was enforced under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965: “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship”. After hearing petitions in 2016, the Supreme Court reserved its judgment. Last April, Justice Deepak Misra hinted at the possibility of a constitution bench being set up to take up the matter.
Parsi women: Parsi Personal Law decrees that a Parsi woman who marries a non-Parsi cannot offer prayers as a Parsi, or be treated as a Parsi. Goolrokh Adi Contractor, a Parsi woman who married Mahipal Gupta, a Hindu, challenged the law in Gujarat High Court. In March 2012, the court ruled in favour of the Valsad Parsi Anjuman Trust, which had not allowed Goolrokh to offer prayers at the Tower of Silence following the death of of her father. The Supreme Court is currently hearing a challenge against that ruling.
Sikhi Swarup: The constitutional validity of the definition of a Sikh under the Sikh Gurudwara Act,1925, was challenged by Gurleen Kaur. She and others had been denied admission to an MBBS course at an institution run by the Shiromani Gurdwara Prabandhak Committee (SGPC) on the ground that some of them were not eligible to be treated as Sikhs as they had plucked their eyebrows or trimmed their beards. In a landmark order in 2009, a three-judge bench of Punjab and Haryana High Court headed by J S Khehar (then chief justice) ruled that it was essential to the Sikh faith and that “Sikhi Swarup” will be decided by those who practice the faith, and not by adherence to any other values/ideals.
Codification of Hindu law
This is what led to political jockeying among first PM Jawaharlal Nehru, his cabinet colleagues B R Ambedkar (who eventually resigned) and Syama Prasad Mookerjee, and then President Rajendra Prasad. The Hindu Mahasabha, the Jana Sangh and its later avatar, the BJP, have always maintained that Hindu laws were codified but minorities, read Muslims, were “appeased” by having been spared codification. This episode in Indian lawmaking continues to cast its shadow on much of the debate today.
In September 1951, Nehru was thinking of an omnibus reform to Hindu law regarding marriage, divorce, succession, inheritance, property and women’s rights. After discussing it with President Prasad for three days, he wrote him a letter saying Parliament should govern the country only until the general elections and should not enact such a bill as it was “highly discriminatory” as it was only confined to Hindu law.
Granville Austen writes in Working a Democratic Constitution that Nehru responded to “serious matters of great constitutional importance” the same day (especially as Prasad had raised matters relating to his powers as a President vis-à-vis such an issue and powers to send Parliament a message). Nehru described the reform bill as very moderate and said the Speaker had ruled Parliament competent to pass it. On September 27, Ambedkar expressed disappointment at Parliament postponing the consideration of the Hindu Code Bill and resigned.
The Hindu Code Bill had been prepared by 1948. Mookerjee hadn’t said a word against the bill while he was a member of Nehru’s cabinet (1947-50) but in 1951, he severely criticised the bill, saying it would “shatter the magnificent architecture of the Hindu culture”. By then he had founded the Jana Sangh. N C Chatterjee of the Hindu Mahasabha and a number of others opposed the bill and Mookerjee alleged that “the government did not dare to touch the Muslim community”.
It was an acrimonious debate: Ambedkar’s speech in Parliament did not hold back on his thoughts on gods and goddesses in the Hindu pantheon, and how that reflected on Hindu laws and morality.
Eventually, Nehru was to tell Parliament that he would bring the bill in its entirety only after the first general elections in 1952. The Congress campaigned extensively on these issues and swept the first polls.
Yet, the Hindu Code Bill was brought as four separate bills one by one, minimising resistance to the reforms. The Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act were in force by 1956.
Nehru chose to not press on with codifying Muslim personal law. Analysts say he was mindful of the need to reassure Muslims who had chosen to remain in India.
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