Personal laws must be constitutionally compliant: Arun Jaitley on triple talaq

The issue with regard to the constitutional validity of "triple talaq" is distinct from the Uniform Civil Code.

The constitutional framers had expressed a hope in the Directive Principles of State Policy that the State would endeavour to have a Uniform Civil Law. On more than one occasion, the Supreme Court has enquired from the government its stand on the issue.

Governments have repeatedly told both the Court and Parliament that personal laws are ordinarily amended after detailed consultations with affected stakeholders. On the issue of the Uniform Civil Code, the Law Commission has initiated an academic exercise once again. This academic exercise by the Law Commission is only a continuation of the debate in this country ever since Constituent Assembly had expressed the hope that the State would endeavour to have a Uniform Civil Code.

Irrespective of whether the Uniform Civil Code is today possible or otherwise, a pertinent question arises with regard to reforms within the personal laws of various communities.

Pandit Jawaharlal Nehru’s government had brought about major reforms to the Hindu Personal Laws through legislative changes. Dr Manmohan Singh’s government brought further legislative changes with regard to gender equality in the Hindu Undivided Family. Shri Atal Bihari Vajpayee’s government, after active consultations with stakeholders, amended the provisions of marriage and divorce relating to the Christian community in order to bring about the gender equality.

Reforming the personal laws, even if there is no uniformity, is an ongoing process. With passage of time, several provisions became obsolete, archaic and even got rusted. Governments, legislatures and communities have to respond to the need for a change.

As communities have progressed, there is a greater realisation with regard to gender equality. Additionally, all citizens, more particularly women, have a right to live with dignity. Should personal laws which impact the life of every citizen be in conformity with these constitutional values of equality and the Right to Live with Dignity?

A conservative view found judicial support over six decades ago that personal laws could be inconsistent with personal guarantees. Today it may be difficult to sustain that proposition.

The government’s affidavit in the triple talaq case recognises this evolution. There is a fundamental distinction between religious practices, rituals and civil rights. Religious functions associated with birth, adoption, succession, marriage, death, can all be conducted through rituals and customs as per existing religious practices.

Should rights emanating from birth, adoption, succession, marriage, divorce and so on be guided by religion or by constitutional guarantees? Can there be inequality or compromise with human dignity in any of these matters?

Some people may hold a conservative, if not obsolete, view that personal laws need not be constitutionally compliant. The government’s view is clear. Personal laws have to be constitutionally compliant and the institution of triple talaq, therefore, will have to be judged on the yardstick of equality and the Right to Live with Dignity.

Needless to say that the same yardstick would be applicable to all other personal laws. As of today, the issue before the Supreme Court is only with regard to the constitutional validity of triple talaq. Governments in the past have shied from taking a categorical stand that personal laws must comply with Fundamental Rights.

The present government has taken a clear position. The academic debate with regard to the Uniform Civil Code can go on before the Law Commission. The question to be answered is that assuming that each community has its separate personal law, should not those personal laws be constitutionally compliant?

(This post first sppeared on Arun Jaitley's Facebook page.)

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