Recently, the Government of India has referred the question, of examining the feasibility and desirability of introducing a common civil code in India, to the Law Commission of India. There are reports in media quoting Law Commission Chairman Justice B.S. Chauhan stating that the Law Commission has come across two major legal issues in this regard – the Muslim Personal Law (Shariat) Application Act, 1937, and a Bombay high court judgment that gave Muslims the freedom to opt for the said 1937 Act’s provisions which govern marriage rules, including polygamy. Justice Chauhan is reported to have stated that these two issues needed to be evaluated. Having examined these issues, for the reasons given in the ensuing paragraphs, I am of the considered opinion that these two issues should not come in the way of introducing a common civil code in India in general, and in respect of introducing certain gender-neutral provisions for personal laws in particular.
It is pertinent to point out that the Muslim Personal Law (Shariat) Application Act, 1937, was enacted in 1937 during the British rule and it came into force with effect from 7 October 1937 (much before the Constitution of India came into existence in 1950). Most relevant sections in this Act are sections 2 and 3. Section 2 of this Act provides as under:
“2. Application of Personal Law to Muslims.—Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
Section 3 of the said Act further lays down that any Muslim who resides in India and who is competent to contract (i.e., who is a major and is of sound mind and competent to contract under his personal law), may by filing a declaration before the prescribed authority, declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.
Thus, in effect, this Act basically lays down that the Muslim Personal Law, i.e., Shariat, will apply in the above mentioned matters of personal law to Muslims, notwithstanding any customs or usage to the contrary. So, the main objective of this Act is to apply Shariat to Muslims in place of any customs or usage in respect of the above matters relating to personal law.
It is pertinent to point out that the aforesaid Act, like any other Act of a legislature, is a codified law and is not a divine law. The Shariat has been applied to the Muslims by way of a specific law made by the competent legislature. It is a well established principle of law that if a legislature has the power to enact a law then it has the power to modify that law also. Here, we are not talking of a constitutional law, on the amendment of which certain limitations may be placed (such as, for example, for the amendment of Indian Constitution, the Supreme Court has invented the doctrine of basic structure or basic features). The aforesaid Act is an ordinary law made by the competent legislature and can be amended or even repealed by the competent legislature at any point of time in future. Though it is a pre-independence law, it can be amended or repealed by the competent legislature in India in accordance with the provisions of the Constitution of India, as per the distribution of legislative powers. Personal laws are included in the Concurrent List (List III) of Schedule VII to the Constitution of India, mainly in Entry No. 5 which is reproduced as under:
“5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”
In view of this, both the Parliament and the State legislatures have concurrent powers to amend or repeal the provisions of the said Act, subject to the provisions of Article 254 of the Constitution which deals with the situation when there is an inconsistency between laws made by Parliament and laws made by the Legislatures of States.
In fact, Article 372(1) of the Constitution specifically refers to the powers of a competent legislature to alter, repeal or amend all the laws in force in the territory of India immediately before the commencement of the Constitution:
“372. Continuance in force of existing laws and their adaptation.—(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”
Therefore, there is nothing unusual in the said Act being in existence and covering the field of Muslim personal law. The Parliament has the full powers to amend or repeal the said Act, like a large number of other Acts, which are amended or repealed by Parliament on regular basis.
In fact, there is another positive reason as to why the said Act can easily be amended or repealed. Article 44 of the Constitution specifically lays down a directive principle expecting the Parliament to enact a uniform civil code throughout the territory of India for all its citizens:
“44. Uniform civil code for the citizens.—The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
It is natural to presume that when the Constitution was drafted by the Constituted Assembly, it was well aware of the existence of the aforesaid Muslim Personal Law (Shariat) Application Act, 1937, and yet, the Constituent Assembly specifically laid down a directive principle in Article 44 for enactment of a uniform civil code for all citizens. Therefore, it is obvious that the Constituted Assembly clearly intended that the said Muslim Personal Law (Shariat) Application Act, 1937, would have to be repealed (at some point of time in future) to make way for a uniform civil code. Accordingly, the said Act cannot be said to be a stumbling block in the way of enactment of a uniform civil code in India.
In fact, on the other hand, there is further proof available in the Constitution itself that paves the way for amendment / repeal of the said Muslim Personal Law (Shariat) Application Act, 1937. Article 14 of the Constitution guarantees the fundamental right to equality before law and equal protection of the laws. Likewise, Article 15 of the Constitution prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. It is pertinent to point out that certain provisions of Muslim personal Law (such as the right of a Muslim male to unilaterally give triple talaq, and his right to polygamy, i.e., having 4 wives simultaneously) violate these fundamental rights. In this regard, it is germane to note that Article 13 of the Constitution clearly provides that any law which is inconsistent with the fundamental rights shall be void, and it applies equally to the laws existing prior to the coming into force of the Constitution as well as to the new laws being erected by a legislature. The relevant extract of Article 13 is reproduced below:
“13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”
In view of the provisions of Article 13, the aforesaid Muslim Personal Law (Shariat) Application Act, 1937, shall also be void to the extent its provisions are inconsistent with the fundamental rights, such as those guaranteed under Articles 14 and 15. Clearly, the rights of the Muslim male under the Muslim personal law, to polygamy and to give unilateral triple talaq, are inconsistent with the aforesaid fundamental rights, and therefore, the Muslim personal law is void, at least, to that extent. Therefore, the aforesaid 1937 Act shall be void at least to the above extent to which its provisions violate the fundamental rights.
In fact, it is quite clear from the definition of “law” in Article 13(3)(a), as reproduced above, that even custom or usage is covered within its definition, and therefore, if any custom or usage violates any fundamental rights, that would also be void to the extent of inconsistency. Therefore, even if a right is given to a Muslim male under the Shariat law for triple talaq or for polygamy, the same shall also be violative of the fundamental rights, and accordingly void and of no effect.
Sometimes, it is argued that the Muslim personal law is protected under Article 25 of the Constitution which gives the fundamental right of freedom of conscience and to profess, practice and propagate religion. However, such arguments are not valid. What Article 25 guarantees is the following:
“25. Freedom of conscience and free profession, practice and propagation of religion.—(1) 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.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
So, firstly, the right guaranteed under Article 25 is specifically made “subject” to the “other provisions of this Part”, which means this right is subject also, for example, to right to equality guaranteed under Article 14 and 15. Secondly, the right guaranteed under Article 25 is to profess, practice and propagate “religion”, and it does not relate to “personal law”. Thirdly, clause 2(a) of Article 25 clearly states that any secular activity associated with any religious practice can be regulated or restricted by the State by making law and the right guaranteed under Article 25 cannot affect any such law. In view of these reasons, it should be clear that personal laws are not covered under the right guaranteed in Article 25 of the Constitution.
In fact, it is surprising as to how such discriminatory practices under Muslim personal law have survived for about 66 years despite the fundamental rights having been guaranteed under Article 14 and 15 of the Constitution.
Therefore, it is perfectly within the powers of the Parliament to enact common civil code and to appropriately amend or repeal the aforesaid Muslim Personal Law (Shariat) Application Act, 1937, to the extent necessary. Since the Bombay high court judgement, referred to by Justice B.S. Chauhan, relates to the application of the provisions of the aforesaid 1937 Act, it cannot stand in the way of a common civil code as and when enacted by the Parliament (since the said 1937 Act itself can be amended or repealed). In any case, ever since the Constitution came into being, a large number of judgements, even of the Supreme Court, have been overruled by the Parliament by enacting new laws, and therefore there should not even be an iota of doubt that the Parliament has powers to overrule a judgement of a High Court, including the aforesaid Bombay high court judgement.
In view of the above, I am of the considered opinion that the aforesaid two issues listed by the Chairman of the Law Commission of India as being major legal issues in the way of common civil code, should not bother the Government or the Law Commission.