A Tug of war between Personal Laws and Fundamental Rights

Published On: 26th June, 2024

Authored By: Somya Singh
Jaipur National University

Abstract

Personal Laws are the set of rules and laws that govern the particular individual or we can say that these are the laws by which the person of a particular faith, religion, or culture is governed. For example, Hindu Law will govern the Hindus only; similarly, Muslim Law governs the Muslim community. The scope of the Personal Laws is wide and it covers matters like Marriage, Divorce, Succession, Inheritance, Minor and Guardianship, Property, Adoption, Maintenance, etc. In short, it governs the personal relations between individuals or within the family.

Fundamental Rights on the other hand are the rights that are enshrined under Part III of the Indian Constitution. These are the rights that are granted mostly to the citizens of the country by the constitution irrespective of their caste, creed, gender, race, sex, etc. It is specific and backed by legal sanction and punishment. They protect the citizens from any type of discrimination and exploitation and try to give them a free and safe environment. So they can express themselves without any fear and pressure. That is why the Fundamental Rights were termed as the Magna Carta as without this there can be no effective democracy. There are many fundamental rights some of them are the Right to Equality, the Right to Freedom, the Right to profess any religion, the Right to move to any part of the country, etc.

In spite of the fact, that the Fundamental Rights are the source for various laws including Personal Laws that means, although Personal Laws derived from the religious scriptures they got their sanctity and authority from the fundamental rights there are certain discrepancies between both. There were certain instances where the Personal Rights violated the fundamental rights and were challenged before the court and were struck down or declared void. But sometimes even if it violates Fundamental Rights, too much of a surprise they were not declared void. Why it happened, when the Personal Law became more authoritative than the Fundamental Rights these will be crux of this Article. [1]

Keywords: Personal Law, Fundamental Rights, Faith, Religion, Culture, Sanction, Magna Carta, Discrimination, Exploitation, Democracy

Introduction

If we trace back the origin of the rights we can see the existence of personal rights in the shastra or sutras or in Vedas or Quran or Ijma it is a kind of custom which were prevailed from time immemorial and continues to exist in our society and became the customary law. Slowly and gradually these customary laws got the sanction of the laws and legal rules and proceedings and became the act or the statute that became enforceable in the court of law and people started obeying them.

On the other hand, Fundamental Rights were borrowed by our constitutional makers from the constitutions of other countries and mould or modify it according to the circumstances and the situations of our country so that it well suited to the condition of the people of our country and they can relate themselves with these fundamental rights and don’t feel alienated. For e.g.: The right to equality is borrowed from the Constitution of the UK, Articles 12 to 32 are borrowed from the Constitution of the US, etc.

In spite of different origins there exists a tussle between the both as to which one will have the more authority and which one will prevail if there is any clash between them. Both are enforceable before the court of law and are backed by the sanction. Both protect the individual, and both ensure the maintenance of Law and Order, peace, and security. Both have the same aim to provide the safeguard against the wrong or grievances happening against them but still, there are some differences which make them the two sides of the river which runs parallel but never meet at a point. [2]

Contention

The main contention of the whole article is what is the tussle between the fundamental rights and the personal laws even though there were so many similarities between them? It is a debatable topic which never ever reached any conclusion because there is a very thin and blurs line that differentiates fundamental and personal rights. As we know people have followed customs and religion from time immemorial and they have become used to it and regard it as of utmost importance that’s why whenever there is a conflict between both people go with the customary laws and not the fundamental rights because they can relate them more with the personal laws because they are made according to their situations, conditions, circumstances, needs, and requirements unless Fundamental rights which are made for the general situation and not for the specific or special condition.

The point is very clear and understandable that the popular opinion of the people regarding the conflict is that the personal laws must always prevail as the people are more comfortable with them because it was made by some of them only who may be socially, and economically backward or from the low caste or who were in religious minority they mould the personal laws according to their demands that’s why one can see such large variation and state amendments in a single set of law but the fundamental rights were made by the privileged people who just cater to the needs and demands of the elite people and generally relatable to the well off people in the terms of assistance, procedure, financial provisions and not always relate to the particular individuals who are not even able to understand the meaning and nature of the fundamental rights and their technicalities. [3]

Difference between Fundamental Rights and Personal Laws

Before understanding the tussle between the two it’s important to understand the differences and similarities. So far, we have discussed the similarities between the two so let’s see the differences.

  • Fundamental Rights are applicable to every individual irrespective of their religion, caste, gender, etc. while personal laws are made for the people who were bound together in a common faith and culture and every set of common faiths have their own laws and regulations.
  • In case of the violation of the Fundamental Rights, one can directly approach the High Court or the Supreme Court. In case of a violation of the personal Laws, one can approach the lower court first i.e.; District Court.
  • Fundamental Rights cannot be easily amended as they are part of the basic structure and need to follow a lofty procedure while amending the personal laws are easier and can be changed without much stress.
  • Fundamental Rights are either made by our constitutional makers according to the needs and the requirements of the individual or borrowed from other countries. While the latter was derived from the religious scriptures.
  • Fundamental Rights are authorized by the Constitution of India while Personal Laws are authorized by customary practices from the time immemorial.
  • Fundamental Rights were made with the view of the general public and their common needs and requirements while personal laws were made with the view of a specific set of people and their definite needs and requirements.

These are the certain differences between the both which makes them the point of debate as one has some loophole and the other has some if fundamental rights are of great importance for the entire humanity then personal laws are important because of their specific and relatable nature with the common set of people. No one can deny that both are important and choosing or prevailing one on the other is a very difficult task that’s why sometimes it becomes hard for the judges also to make the final decision.

The Real conflict between Fundamental Rights and Personal Law

Article 13 is regarded as a very important article of the Constitution as it is a weapon in the hand of the judiciary to review the laws, by-laws, orders, rules, regulations, etc whether it was intra vires to the Constitution or not and if it is not then declaring them as void and struck it down. But the most indispensable question which arises is whether the personal Laws also fall within this ambit of the scope of Article 13 or not because there are many instances where one can see that some provisions of personal laws are violation of Article 14(Right to Equality), Article 15(no discriminate only on the grounds of religion, sex, race, caste, etc.), Article 21(Right to Life and Personal Liberty) and even though found to be discriminatory but in spite of this, these provision remains to exists and not declared ultra vires.

For instance: in Polygamy in Muslim Law, the Widow doesn’t have the right to demand partition, and the concept of Triple Talaq gives more safeguards and provisions regarding the safety of women as compared to men, etc. where we can see that the personal law is holding more authority than the Fundamental Rights.

The court itself does not have a surety of the same as we can see that in some scenarios the opinion of the court is that the personal legislation or the religious sanctioned matters are out of the scope of the court and the constitution and the latter will not interfere it but at the same time, there were many provisions of the personal laws which were not only declared void but even struck down by the court as they were ultra vires to the fundamental rights.

When it comes to personal legislation, the Supreme Court has adopted varying opinions over time. It has ruled in several instances that the parties’ personal laws are not subject to the fundamental rights outlined in Part III of the. They cannot, therefore, be contested as violating fundamental rights, particularly those protected by Articles 14, 15, and 21 of the Indian Constitution.

However, the Supreme Court has also struck down or interpreted personal legislation in a number of other cases to make them consistent with basic rights after holding these laws up to the standard of fundamental rights. However, there are inconsistent rulings regarding the admissibility of challenges to personal legislation

There are many precedents, judgments, and case laws that try to resolve the tussle regarding the difference between fundamental rights and personal laws. [4]

Constitutional Stand on the conflict

  1. The State of Bombay vs. Narasu Appa Mali[1]

The initial question in this case concerned the legality of a state statute, specifically the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. First, it was argued that Articles 14, 15, and 25 of the Constitution were violated by the Act. Regarding this, the Court found that the State was within its rights to adopt the contested legislation for social welfare in accordance with Article 25(2)(b) and that there is no discrimination or arbitrariness in accordance with Articles 14 and 15. Subsequently, it was argued that Article 13 of the Constitution nullifies the practice of polygamy among Muslims and Hindus and that the contested legislation is thereby discriminatory because it only criminalizes polygamy with respect to Hindus and not Muslims. Thus, the Court was asked to interpret the Constitution’s Article 13 in relation to personal legislation. In response to this query, it was decided that while “custom or usage” is covered by Article 13 and must therefore be consistent with Fundamental Rights, Personal Law, which is distinct from “custom or usage,” is not covered by the definition of “laws in force” as stated in Article 13(1).

  1. Ahmedabad Women Action Group vs Union of India[2]

Where writ petitions were filed in the public interest, requesting
a proclamation that the customs of unilateral talaq and polygamy by
Men were not allowed in Muslim society since they violated Article 14.
and 15 of the Constitution. Numerous additional clauses in the legislation
concerning Christians and Hindus were also contested as
outside the Constitution. Drawing from multiple previous rulings, the court
refused to consider the writ petitions and look into the issue on
merits. It was decided that these difficulties are entirely state-related and don’t fall under the ambit of the judiciary.

  1. Shah Bano’s case[3]

In a case involving a significant legal issue, the Supreme Court decided against the principles of Muslim personal laws by allowing maintenance appeal under Section 125 of Cr.P.C. to a Muslim divorced woman, despite rejection under Muslim personal law. In granting Shah Bano’s appeal, which challenged the validity of his identity under Muslim personal law—which is prohibited by Article 44 of the Indian Constitution—the Supreme Court announced that Parliament would create the UCC. And with that call, the Muslim fundamentalists were scattered.

  1. Shayara bano v Union of India [4]

The practice of instant triple talaq was declared unlawful by the Supreme Court. Here, Shayara Bano spent fifteen years as Rizwan Ahmed’s wife. He instantly divorced her in 2016 by using triple talaq. She petitioned the Supreme Court in a Writ, requesting that it declare three customs—polygamy, nikah-halala, and talaq-e-biddat—unconstitutional on the grounds that they contravene Articles 14, 15, 21, and 25 of the Constitution.

Through these case laws we can understand how sometimes the personal law has more authority than Fundamental Rights and the court generally does not interfere in matters related to the states or the religion but by bringing the concept of UCC they try to give uniformity to the laws so that there will no clashes arise between the personal laws and fundamental rights.

Conclusion

There has always been a tension between personal laws and fundamental rights, even after the Constitution was enacted. The issue is with the definitions of “law” and “law in force” that are employed in Article 13 of the Constitution. The fundamental rights shall take precedence over personal laws if they fall within the scope of these provisions in Article 13. However, since the Constitution’s ambit is unclear, the courts have had to rely on the intentions of the document’s framers.

It was evident that the courts had refrained from making judgments on these sensitive, religiously-related issues in a number of rulings. However, in certain cases where a clear injustice was being committed, courts have overturned personal legislation. One such instance is the triple talaq case in India, where the Indian Supreme Court ruled that the practice was unconstitutional due to the injustice it caused to Muslim women.

The pursuit of security, freedom, and equality is critical in a setting where discrimination and exploitation are commonplace and affectionate praise is occasionally withheld. Part III’s implementation will guarantee an impartial and just legal relationship under various state laws. Rather than arguing over the idea of teaching with the same community code, this is preferable. The Uniform Civil Code will be simpler to understand once the ideas of justice and freedom are included in the field of human law.

Reference(s):

[1]https://www.legalserviceindia.com/legal/article-9760-the-tussle-between-personal-laws-and-fundamental-rights.html

[2]https://blog.ipleaders.in/personal-laws-part-iii-indian-constitution/#The_barriers_to_personal_law_and_Part_III_of_the_Indian_Constitution

[3]https://cjp.org.in/personal-laws-vis-a-vis-fundamental-rights-part-iii-of-the-constitution/

[4]https://ijcl.nalsar.ac.in/wp-content/uploads/2020/07/8IndianJConstL65_Raiz-Naushad.pdf

 

[1] AIR1952BOM84

[2] AIR 1997 SC 3614

[3] 985 AIR 945

[4] (2017) 9 SCC 1

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