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No Personal Law of Any Community or Sect have Precedence Over Constitutional Laws

In Favour

—Manisha Tripathi

“The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

—Article 44 (Indian Constitution)

There is a famous saying. “We are all humans until Race disconnect us, Religion separates us, Politics divides us, And wealth classifies us.”

India is a dynamic and organised society. Every society works on some basic sets of principles, some grand norms which have connected the individuals with our Constitution. It is not merely a legal document but it is the characteristic of any legislative action, any executive action, or any individual action. All these actions are interlinked with the constitution. Whatever action we do, we think or we act upon is protected by the constitution. Constitution is nothing but the common will of the society.

The Idea is that society can be organised on some said basic principles. On the basis of those principles society is regulated and made more stable. These principles may be used to create rules of Governance i.e. the basic laws and to create the coherence and stability in the society. As we said above society is dynamic and it will always be, the constitution needs to adapt to these changes in the society. Therefore, there should be sufficient mechanism for such adaptation, amendment or conventions. That is why we say constitution does not only organise the society rather it is ‘always at work’.

Personal Law is a practice, it originates from the customs of different sects existing in the society since time immemorial. Nothing can harm their customs or take away their own conventions and practices. But where it comes for upliftment of the society as a whole then the principle of basic governance is to be followed. It does not mean that it should curtail racial or religious thinking of various sects but it should be kept in mind what more can be done for the welfare of the society. There cannot be the conflict between personal law and the Constitution of India. As it is extended arm of one, the Constitution talks about equality and social justice and it is not only limited to the provision or fundamental rights and especially Article 15 clause(3) and Article 14 (4). But the basic equality irrespective of religion, race, caste, sex for example the poor person in the villages who is ill, not able to get treated himself properly and in the good hospital where as if we talk about cities every one has the adequate facility to get treated. Is this not a social injustice to them whether he be Hindu, Muslim, Sikh or of any other religion. Similarly if we talk about the government scheme for instance scheme of family planning controlling the number of births of children in family which if for longer purpose i.e. for the benefit of future resources and sustainable development is for every individual residing living in India and not only Hindu but for any particular community but for every individual living in the country. One can take the plea of their personal laws that it is ‘sinful’ which is not truly correct as they are also Indians; it should be equally applicable on them also.

Now there is a hot topic of debate i.e. triple talaq, women are not a backward class but they are vulnerable class; they are given a special protection in the Constitution by the virtue of Article 15(4). And all Indians whether they are Muslims, Hindu, Sikh, Christian, Jew, Parsi etc. they have adopted the Constitution and it is Supreme document which says that no one is above it. Whenever there is a requirement to uplift any particular sect the government made rules for the betterment of the society. The concept of triple talaq is no doubt their practice but what about the dignity of women. Is this not a social inequality. Is this not a social injustice to a vulnerable class. This is against the very spirit of the Indian Constitution. If we talk about triple talaq i.e., talaq-ul-Biddat, in Muslim the different sects in Muslim Shia and Sunni they themselves differ in their opinion. It is applicable in Sunnis and not among Shias. It does not mean that one is more devoted than other to the holy Quran. Some time male chauvinism prevails rather than the preachings of the holy book. This personal law is not codified but mere interpretation of the words by different minds. On the basis of mere personal interpretation of few people or the group of people something cannot be above the common will of citizens of India i.e. our Constitution.

Against

        —Shruti Pal

The Constitution of India has clearly established its ideology and objective in its preamble when it seeks to promote unity and integrity and being secular and liberal regarding faith at all times. The articles 29 and 30 tend to protect minority rights while articles 25–28 protect rights regarding religion. Similarly article 21 has a wide scope about personal liberty. In such a democracy, it becomes extremely important for personal laws to gain a special niche for efficacy.

Personal liberty is a virtue that should exist so as to spawn a successful civilization that goes hand in hand with progress and harmony. “Our ability to reach unity in diversity will be the beauty and the test of our civilization,” are words of Mahatma Gandhi that remind us that for the Constitution to succeed in promoting the unity in diversity the society has to succeed in establishing the virtues of liberty, belongingness and heterogeneity in coexistence with each other.

The term ‘Personal law’ includes all those laws which relate to the personal law of human beings. These include the three major areas of Matrimonial Laws, Inheritance laws and other family laws. The whole purpose of personal laws is to take into consideration and deal with the more specific problems faced by each community that may not be universally faced by all. Personal laws also tend to preserve unique customs and rituals practised by different communities like a distinct mix of Indo-Turkish-Mughal Culture, Zoroastrians, Christians etc. They also safeguard the distinctive way of life as that of various adivasi groups.

Considering the intent, personal laws as such do not carry any ill will. It is the so called ‘guardians of the laws’ that tend to manipulate the intent so as to make it work in their favour. Personal laws do have the potential to bring in progress and harmony when implemented with the right scheme. Otherwise, a just change in the laws will also fail to bring in results. For example, change in laws in favour of women like Hindu Inheritance Act has neither brought about any change in the percentage of the property held by women nor in their status.

The talks of a Uniform Civil Code in the country are being opposed for the reason that they threaten the secularism of the country. It is seen to be the imposition of laws of the Hindus upon every other community including the Muslims. The outlook of a Uniform Civil Code as that prevailing of Hindu laws indicates, very well, the precedence of personal laws of one community over the Constitution. This triumph is then justified over the context that the Hindu laws are more modernistic and in resonance with human rights principles.

“Indians today are governed by two different ideologies. Their political ideal set in the preamble of the Constitution affirms a life of liberty, equality and fraternity. Their social ideal embodied in their religion denies them.”

— Dr. B. R. Ambedkar

Thus when the Constitution provides an indirect sanction of existence of personal laws, what is essential is the personal laws’ reforms in resonance with human rights principles especially gender equality. In addition to this, the next sequential step is the implementation through the hands of expert in law, rather than few religious power hungry heads. Because as said, law is an ordinance of reason for the common good, made by him who has care of the community. In the words of Thomas Jefferson—“The execution of laws is more important than the making of them.”

Democracy is not just constitutional and legislative rules; it is a culture and practice and adhering by the law and respecting international human rights principles. While these principles need to be amalgamated in the personal laws of various communities to bring an end to issues like gender inequality, they cannot be written off. In the words of Jalaluddin Runi.

“Christians, Jews, Muslims, Shaman, Zoroastrians, Stone, ground, mountain, river, each has a secret way of being with the mystery, unique and not to be judged.”

The continuing personal law system can handle the potential inequality through the intricate process of gradual harmonization of Indian personal laws. This when viewed in accordance with the constitutional laws can acquire actual precedence as it would bring in more specificity in imparting justice to the downtrodden. What is essential is the need to be given space to each other to grow, to be themselves, to exercise their diversity. This needs to be done so that each may both give and receive such beautiful things as ideas, openness, dignity, joy, healing and inclusion.

A community’s personal law that is an amalgamation of universal human rights principle with the insightful prudence of uniqueness can certainly be seen as fulfilment of the objective of the Constitution as so enshrined in the Preamble, as strength lies in differences and not in similarities !

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