Judicial opinion on personal laws needs review: Jaitley

Finance Minister Arun Jaitley on Friday expressed hope that the vintage judicial view that personal laws need not conform to Constitutional rights would be reviewed in the near future.

“In fact, a very surprising judicial opinion at that time — and that’s a judicial opinion that still holds up. Hopefully, it is reviewed in near future. When all laws must confine to the Constitutional rights themselves, personal laws need not. Because they were not laws for that purpose, so they were excluded,” Mr. Jaitley said at a FICCI Ladies Organisation (FLO) event.

Mr. Jaitley expressed his opinion at a time when a Constitution Bench of the Supreme Court is scheduled to hear a batch of petitions challenging whether personal law practices like triple talaq and polygamy violate the constitutional rights of Muslim women.

Article 13

The Centre has in that case sought the court to re-open the debate as to whether personal laws can be brought under the ambit of Article 13 (laws inconsistent with or in derogation of the fundamental rights) of the Constitution.

If the Supreme Court agrees that personal laws are to be included in the definition of laws under Article 13, the door would be opened wide for an aggrieved person to challenge in court a particular personal law of a religion as violative of the fundamental rights. In case the challenge succeeds in court, the personal law, to the extent of its inconsistency, shall become void.

Freedom of religion

The Centre has also asked the Supreme Court to determine whether the triple talaq, nikah halala and polygamy are protected under the freedom of religion under Article 25, and whether this Article is subject to fundamental rights, especially the right to life and freedom of speech and expression.

The Centre has argued in its latest written submissions that polygamy and triple talaq are not religious practices but social norms and customs which can be intervened on by the State if they are found to be violative of constitutional rights.

The batch of petitions includes a suo motu PIL instituted by the Supreme Court itself on whether personal law practices like triple talaq (talaq-e-bidat), niqah halala and polygamy violate dignity of Muslim women and promote gender bias.

The courts have in past made discordant notes about the immunity enjoyed by personal laws in meeting constitutional standards.

The Bombay High Court in State of Bombay versus Narasu Appa Mali had held that personal law is not ‘law’ under Article 13. However, in Ahmedabad Women Action Group versus Union of India, the Supreme Court was asked to consider if unilateral divorce by talaq and polygamy were violative of Articles 14 and 15. The court rejected the claim, saying it was for the legislature to determine. However, in December 2016, the Allahabad High Court had observed in a case that triple talaq was “cruel” and judicial conscience was “disturbed.”

Lagging behind

Conceding that India was still lagging behind on issues of gender parity, Mr. Jaitley said the country’s current willingness to embrace reforms and change mindsets offers an opportunity to correct the picture in the coming years.

“In a society, which conventionally was loaded against [gender] parity and equality, there has been a conscious attempt to cover up the lags which we must honestly confess still exist,” Mr. Jaitley said.

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Printable version | Nov 22, 2020 9:15:01 PM |

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