It is necessary to acknowledge the appeasement tactic adopted by several politicians to use religion as a tool to gain popularity amongst masses. If a politician takes a stance to favour a religion amongst others, he must not do so in a manner that causes detriment to the people belonging to other religions. Positive discrimination works only when it is used to uplift oppressed sections of the society, otherwise this affirmative action is just used as a pretext to exercise bias. A politician who uses religious sentiments to benefit his vote bank is furthering a propaganda that can dissect the society and tear it up on a communal basis, disturbing the secular fabric of our country. Furthermore, if a politician is indeed favouring a religion without causing detriment to others’, the simple act is politicized by his rivals who turn it around and showcase him or her as patronizing a religion. Therefore, it becomes essential for the state to pick a neutral stance on subjects that are sensitive and personal in nature.
The Constitution of India recognizes the heterogeneity in the society and provides a holistic framework to protect the same. It has provisions under which Scheduled Classes (SCs) and Scheduled Tribes (STs) get reservation, representation for Anglo Indians is given in the Indian Parliament and religious as well as linguistic minorities have the right to establish their own educational institutions. Keeping in mind the need to be represented, the constitution safeguards the interests of such minorities irrespective of personal laws.
This legal plurality exists to fit the social organization of the society and is in congruence with it. Furthermore, it also provides for judicial review and amendment provisions as it recognizes that Statutes may overstep their authority and run the risk of infringing fundamental rights that it so earnestly protects. Hence, the judges have a duty to declare any statute or any provision under it ultra vires or “null or void” if a law is unconstitutional, violating the spirit of the Constitution. If the judges destroy such a law, it is the legislators that must create a code that collects all these fragmented pieces of lex and unify them to save contradictions that lay different rules for people belonging to different sections of the society.
The case of John Vallamattom is a sobering reminder to implement the provision under Article 44 of the constitution which directs the state to “secure for the citizens a uniform civil code throughout the territory of India”.
Though Section 118 of the Indian Succession Act was held unconstitutional in it, several other personal laws are based on out-dated customs that people are obliged to follow in the country. For instance, there is a tempestuous discourse on the distribution of property to Hindu women in the Hindu Succession Act of 1956 or the divorce provisions under the Indian Divorce Act of 1869 that reflects the archaic views held by the legislators of these statutes rendering them anachronical in today’s times. It is also important to note that personal laws have not been able to run independently of each other and tend to clash, making the judicial processes cumbersome.
Such a struggle was depicted in the case of Sarla Mudgal  where the rules for bigamy were different in personal laws concerning the parties. Justice Kuldip Singh requested “the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throughout the territory of India””. The case of Narsu Appa Mali  put personal laws “outside the ambit of judicial scrutiny under article 13” where they are not considered “law in force” and therefore, can not be subjected to judicial review.
The personal laws of many religions disadvantage women which can be seen in the cases of Maharshi Avdhesh, Pannalal Pitti, and Anil Kumar Mhasi .
The personal laws regulate a women’s right to marry, divorce, inherit as well as deprive her of sexual rights and protection from sexual violence; all infringing on her right to equality. Her legal rights are shaped by obsolete customs and differentiates her from women of other religion, putting all of them on unequal footing with each other. Such a contrast was deeply felt in the case of Lily Thomas which emanated several issues on the matters of marriage with respect to conversion. The case urged the government to introduce the Uniform Civil Code yet again so as to not deprive anyone of their fundamental rights under personal laws.
Since personal laws are not based on legal rights but rather customs, the need of the hour is to start the drafting of such a code and closely examining it with the help of public and parliamentary inquiry.“The secular state is, after all, an enabler of rights rather than an inhibitor in sensitive matters of religion and personal laws”. In a country that homes a plethora of prudent minds, a committee could be suggested where the finesse of accomplished political and religious scholars accumulate, challenge and finally, come to a consensus for the formation of the code.
Such professionals can accommodate the values and customs underlying the personal laws and uphold them in accordance with “justice, equity and good conscience” with the help of legal scholars, academia and judges of the common law. The communal tensions stemming from religious insecurity are likely to diminish as exercising religious biases through legislature would be hindered. The spirit of constitution that endorses equality and secularism as the basic structure would strengthen due to the coming of a singular, comprehensive law governing all pari passu.
- M. P. Singh, Special Editorial Note On Uniform Civil Code, Legal Pluralism and the Constitution of India, V. Journal of Indian Law and Society, http://docs.manupatra.in/newsline/articles/Upload/4B75B6CF-6545-4840-AE3A-1FE84EE3881D.pdf.
- Chandra Mallampalli, Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness, 28 Law and History Review 1043-1065 (2010), https://www.jstor.org/stable/25800904.
- Ashwani Malhotra, Personal Laws and the Constitution: Revisiting Narasu Appa Mali (Jun. 22, 2018), https://ssrn.com/abstract=3201090.
Author Details: Nivedita Pundale (O.P. Jindal Global University)
The views of the author are personal only. (if any)