Conflict Between Fundamental Rights And Personal Laws

INTRODUCTION

Justice Robert Jackson at the U.S. Supreme Court once said, “We are not final because we are infallible, but we are infallible because we are final.” This means that the decision given by the apex court is final not because they are without any fault or error whereas, it is faultless and absolute that’s why it is final. Every Supreme Court in the world relied on the same. Whereas, the Indian Apex Court does not fall under the ambit of such categories of Supreme Courts, because the judgments given by the Supreme Court of India are neither final nor infallible.

Before the British rule, Hindu, Muslim, and Jewish personal laws were applied in India and during that period a policy of 'non- Inference' in the personal law of the local population was adopted by British rulers. Whereas, after independence and in the current government system also, the same policy of non- inference is proceeded by the judiciary apart from legislative involvement on certain issues.

According to Subba Rao(1), “Personal Laws apply to those who profess a particular religion. Considering that, Pearl (2) further defined it by stating “Personal law is a part of a person through which his or her connection with a particular legal regime is determined”. Devadson stated that “the connecting factor does not have to be religion, but can also be factors such as race, nationality, domicile, tribe or residence.

On the other hand, Fundamental Rights are a group of rights that are specially identified under the Indian Constitution act, under the supreme law of the country in part III. Therefore, it implies that these rights are applied to all citizens irrespective of their race, place of birth, religion, caste, creed or gender. These are codified rights and hence, enforceable by the court.

In India, various religious, traditional and cultural group practice their religion, tradition, and culture with relatively little interference from the state(3). Each of these groups have their own personal laws that govern their personal matters. Many of them are codified laws whereas, others are not. The application of these various personal legal systems in Indian courts is problematic. Hence, conflicts between the common rights of all and personal laws always arise and the court has to decide whether the application of personal laws will prevail over fundamental rights or not(4). As many of the personal laws are not codified- custom and usage therefore, whether to be called as law or not is not interpreted by the courts. It's only when these personal laws become discriminatory against one section of the society, the court has to interfere in between.

SUPREME COURT’S STAND ON PERSONAL LAWS

Article 13 of Indian Constitution states that any law, which contravenes with the provisions of fundamental rights, shall be void to the extent of contravention and personal laws are codified and uncodified and hence, the main controversy which arises before the apex court is whether personal laws will be considered as laws under Article 13 or not. Supreme court has taken differing views on the question of the precedence of personal laws over the fundamental rights.

Beginning with the case of Krishna Singh v. Mathura Ahir of 1980 (5)where the apex court held that “personal laws could not be challenged for being in contravention of the provisions of Fundamental Rights enshrined under the Indian Constitution”. As Bombay High Court has already in its earlier judgment of 1951 occupied that Personal laws are not laws under Article 13 of the Constitution.

Whereas, the three-judge bench of the Supreme Court in Mudaliar case of 1996 (6) adheres that “personal laws are void to the extent that they are in violation of fundamental rights.”

RECENT CASES ON CONFLICT BETWEEN THE TWO

Firstly, in the very famous case on the same is Mohd. Ahmed Khan v. Shah Bano Begum of 1985(7) where the apex court directed Shah Bano's husband to pay her alimony according to the laws applicable to other Indians as she was entitled to receive further maintenance after iddat period also which was not given under Muslim personal laws. Result of which was the insertion of section 125 under the Criminal Procedure Code.

Another was the case of Mrs. Mary Roy v. State of Kerala of 1986(8) in which the Supreme Court ruled that Syrian Christian women were entitled to an equal share in their father’s property and by delivering such judgment once again court interfered with the personal laws as on the ground of equality.

In 2017, the five Judge bench including the then Chief Justice of India in its landmark judgment of Shayara Bano v. Union of India & others(9) held that the concept of triple Talaq under Muslim personal law is unconstitutional on the ground of equality, gender discrimination, the impeachment of human rights of a woman and secularism.

In 2014, the Supreme Court answered a question raised by many Muslim women as to why they can’t adopt a child under their personal law. A three-judge bench headed by then Chief Justice of India directed that Muslim women had the right to legally adopt children like any other Indian citizen and the same could not be denied by Muslim personal Laws.

Though there are many customs and traditions that are still being practiced under personal laws like the concept of Bigamy under Muslim Law which are not being questioned before the apex court for any interpretation. As the court can’t Suo-Moto takes any action against any custom or usages being followed under personal laws.

Hence, because of such disparities, the law of Uniform Civil code must be introduced under the Indian law which ensures equality, irrespective of any personal laws of any religion. Debate on UCC started in early 1947 and the result of the same was the introduction of Article 44 in the Indian Constitution. As the same is part of the Directive principle under part IV which is not enforceable by any court.

[The author, Pratibha Bansal is a final year law student at Banasthali Vidhyapith, Rajasthan]

1. GCV Subba Rao, Family Law in India (3ed 1978) 3.
2. D Pearl Interpersonal conflicts of law in Indian, Pakistan, and Bangladesh (1981) 27-34
3. Christa Rautenbach, The Comparative and International Law Journal of Southern Africa Vol. 39, No. 2, July 2006 pg. 256
4. ibid
5. Krishna Singh v. Mathura Ahir 1980 SCR (2) 660
6. c. Masilamani Mudaliar & Ors. vs. The idol of Sri Swaminatha Thirukoil & o AIR 1996 SC 1697
7. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
8. Mrs. Mary Roy v. State of Kerala AIR 1986 SC 1011
9. Shayara Bano v. Union of India & others 2017 9 SCC 1