Monday, October 10, 2016

Personal laws cannot be allowed to violate the constitutionally guaranteed fundamental rights

- Seema Sapra 

In my opinion, personal laws have to be subject to the guaranteed fundamental rights in part III of the Constitution and a larger Supreme Court Bench needs to correct course on this issue. How can personal law be exempt from scrutiny for violating fundamental rights? The triple talaq, Sabarimala and Haji Ali cases presently before the Supreme Court of India present the perfect opportunity for the Supreme Court to declare that fundamental rights are supreme and personal laws that violate fundamental rights of citizens will not be enforced by the Indian State. But the Center’s submission before the Supreme Court of India that triple talaq violates the equality and dignity of women and is an undesirable practice is cursory and not very creative. The Court should in its judgment discuss in detail exactly how and why triple talaq violates the fundamental rights of Muslim women.

Narasu Appa Mali is only a Bombay High Court decision so it is not precedent for the Supreme Court.

The Supreme Court in Sant Ram versus Labh Singh did not decide the issue as to whether or not personal laws are subject to Part III.

In Shri Krishna Singh versus Mathura Ahir, this issue is cursorily mentioned and disposed off in a single paragraph which states:
“It would be convenient, at the outset, to deal with the view expressed by the High Court that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution. In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu law, i.e., Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute.”

The Supreme Court in Shri Krishna Singh does not even discuss this crucial constitutional issue, no reasons are given, and it simply states (incorrectly in my view) that Part III of the Constitution does not affect personal laws.

So it would appear as if the issue as to whether or not personal laws are subject to scrutiny under all of Part III for violation of fundamental rights is not in any way settled law and the issue is still open for the Supreme Court to decide. I might be missing some relevant judgments, but in any case, the only correct thing would be for a larger Supreme Court Bench to unambiguously clarify that all personal laws are subject to the constitutionally guaranteed fundamental rights in Part III.

Perhaps this was too sensitive a topic in the 1950s and 1960s and our Judges then were not progressive enough, but such a declaration will not be controversial today. Most importantly the language and spirit of Part III makes this the only correct position in law. This will also be in line with modern conceptions of human rights. Religious scriptures written and religious practices developed centuries ago when there was no concept of basic human rights, and when it was culturally appropriate to treat so-called lower castes and women as lesser human beings, cannot be allowed to be used to continue to violate the fundamental human rights guaranteed by Part III of the Constitution of India merely by calling them personal laws.

No comments:

Post a Comment