Thirty years after the Supreme Court urged the government to frame a uniform civil code to “help in the cause of national integration” in the Shah Bano case, a two-judge Bench of the court has suo motu ordered registration of a public interest litigation petition and asked the Chief Justice to set up a Special Bench to consider gender discrimination suffered by Muslim women owing to “arbitrary divorce and second marriage of their husbands during the currency of their first marriage”.
Justices Anil R. Dave and Adarsh Kumar Goel issued notice to the Attorney-General and the National Legal Services Authority of India to reply, on November 23, whether “gender discrimination” suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants. The October 16 verdict refers to dozens of its judgments since the 1990s to record the court’s growing realisation that gender discrimination violated the constitutional rights of women.
They have been asked whether “gender discrimination” suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants.
The verdict, dated October 16, refers to dozens of its own judgments since the 1990s in order to record the Supreme Court’s growing realisation that gender discrimination is a violation of the constitutional rights of women.
Considering the strong pitch made by the Supreme Court recently for a common civil code, this judgment is significant as this is the first time that the court itself has shed its self-imposed restraint by suo motu ordering the registration of a PIL petition.
Even in the 1985 Shah Bano case, the court had only reminded the government of the lack of “evidence of any official activity for framing a common civil code for the country.” It had said a “common civil code will help in the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”
Justice Goel wrote that the decision to “consider” the rights of Muslim women came up during discussions with lawyers on gender discrimination at the hearing of a batch of civil appeals on the issue of a daughter’s right to equal shares in ancestral property under the Hindu succession law.
“An important issue of gender discrimination which, though not directly involved in this appeal, has been raised by some of the learned counsel for the parties which concerns rights to Muslim women. Discussions on gender discrimination led to this issue also. It was pointed out that in spite of guarantee of the Constitution, Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during the currency of the first marriage, resulting in denial of dignity and security to her,” the judgment recorded.
“It is pointed out that the matter needs consideration by this court as the issue relates not merely to a policy matter but to fundamental rights of women under Articles 14, 15 and 21 [of the Constitution] and international conventions and covenants,” Justice Goel wrote of the discussions the Bench had during the court hearings.
Justice Goel wrote how even in the Danial Latifi judgment of 2001, the Supreme Court’s Constitution Bench had not addressed the issue of gender discrimination, though it held that “Article 21 included right to live with dignity which supports the plea that a Muslim woman could invoke fundamental rights in such matters.”
In the Latifi case, the court attempted to uphold the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by extending the right of a Muslim woman to get maintenance till she re-marries. This Act had diluted the Shah Bano judgment and reduced the period of maintenance to the completion of iddat.
Justice Goel refers to several judgments of the past to show how the court stopped short of a judicial debate on the uniform civil code, fearing it would then take on an “activist role.”
Changing stance
But Justice Goel points to recent SC judgments, like Javed vs. State of Haryana in 2003 in which a three-judge Bench intervened in personal law to uphold the dignity of women, to show the change in attitude.
In the Javed case, the court held that “polygamy is injurious to public morals and can be superseded by the State just as practice of ‘Sati’.”
Again, Justice Goel referred to the John Vallamattom case judgment of 2003, which said “laws dealing with marriage and succession are not part of religion.” Finally, Justice Goel refers to the 2015 judgment in the Charu Khurana case, in which the court struck against gender discrimination shown to women make-up artists in the film industry.
