Constitutional Scrutiny of Personal Laws

Constitution is the incomparable and central law of our nation is not only an archive constituting and constraining the Government, however, an epitome of the qualities and ethics of a democratic nation. It promises extraordinary security for the religious and social minorities present in the nation. Be that as it may, inside each of these groups there exist unfair practices that quandary individuals from that group. For instance, women and individuals from a lower caste are denied from entering certain Hindu sanctuaries. In addition Muslim men appreciate the privilege to divorce their wife by the method for “triple talak”, i.e. by only expressing “talak” thrice whereas Muslim women has no such right to confer. Muslim Personal law provides that Muslim men can have up to four spouses (however, they are committed to treating everyone of their wives similarly), though there is embargo restricting the number of husbands Muslim women should have.

At the point when there are two provisions, which are in apparent conflict with each other, they ought to be deciphered such that impact can be given to both and that construction which renders both of them out of inoperative and futile ought not to be received aside from in the final resort.

The subject of justiciability of Personal laws has drawn significant contemporary consideration in the light of Ms Shabnam Hashmi’s PIL thought of the Supreme Court testing the foreswearing of the right to legacy to inheritance to a child adopted by a Muslim guardian. The bench, held that Muslim Personal law is uncodified law and has neither limited the Muslim not to embrace a deserted, surrendered child nor forced to adopt one.

In the recent case, Dr Noorjehan Safia Niaz v. Condition of Maharashtra, the Bombay High Court lifts the prohibition on the Muslim women to enter the Haji Ali Daragh. A division bench of Justices V M Kanade and Revati Mohite Dere held that the prohibition was violative of the Fundamental Rights of the Petitioners as provided under Article 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them) and Article 25 (Freedom of conscience and free profession, practice and propagation of religion : Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion).

There is nothing in any of the verses in Quran which demonstrate that entry into a dargah/mosque, is prohibited. It cannot be said that the preclusion is a crucial and vital piece of Islam and essential to take after the religious belief, and taking without end that part of the practice would bring about a basic change in the character of that religion or its belief. The Haji Ali Dargah Trust is a public beneficent trust, open for all individuals everywhere throughout the world. Thus, cannot legitimise its choice exclusively taking into account a misreading of Article 26 (Freedom to manage religious affairs). The trust is dependably at liberty to find a way to counteract lewd behaviour against the women, not by banning their entrance in the sanctum sanctorum, however by making successful strides and arrangements for their well-being and security, as by having separate queues for men and ladies, as was done prior. Advocate Shoaib Memon, presented the case on the behalf of respondent, contended that Islam demoralises free blending amongst men and ladies and that the aim of the confinement is to keep this collaboration at an unobtrusive level which can also taken care of without the discriminatory provision of the Charitable Trust.

Article 13 of the Indian Constitution- Judicial Review says that any “law” that abuses a basic right (ensured by Part III of the Constitution) is void. This provision applies to both pre-Constitutional and post-Constitutional. The expression “law” “incorporates any statute, request, bye-law, principle, direction, warning, custom or notification having in the domain of India the power of law”. The fundamental reason of the contention consequently was that Muslim Personal law was void as it disregarded the privilege to uniformity. The Bombay High Court dismisses the prohibition in light of the fact that Muslim Personal laws void as it disregarded the privilege to uniformity. The forefathers of the Constitution had intended to get rid of the biased Personal laws straightaway. The presence of Article 44 infers that the drafters put upon the Parliament the onus of destroying such prejudicial religious practices by instituting a Uniform Civil Code.

 

AUTHOR

YashKriti Ratan

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