Terming it impractical to wait for a full consensus on social reforms for gender-just laws, former Supreme Court judge Ruma Pal on Wednesday said courts should actively review discriminatory and unjust personal laws on the touchstone of constitutional principles of equality and non-discrimination.
Justice Pal said unlike the government, apolitical nature of courts gave them greater credibility in effecting reforms in personal laws. “If it’s activism, so be it,” she said.
Delivering the inaugural Vidhi Public Lecture on the Uniform Civil Code, Justice Pal said ideally reformative measures must be taken within each system of personal laws, instead for enforcing a common law for all religious communities as minorities viewed it with suspicion.
However, she said the gender bias in Muslim personal law must go. Either the discriminatory practices of triple talaq and polygamy be done away with or Muslim women also be given the same rights, she said.
While bring in uniform civil code multi-culturalism should not be disturbed and the law should ensure norms of equality and non-discrimination under Articles 14 and 15, and right to live with dignity guaranteed under Article 21 of the constitution, she added.
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu law has been overhauled to a great extent, activists have long argued that Muslim personal law, which has remained mostly unchanged, is tilted against women. To end the confusion over personal laws, the Supreme Court has been advocating a uniform civil code, a political hot potato.
But Article 44 says the state shall work towards securing a uniform civil code across the country replacing personal laws of various religious communities. The provision is a part of the Directive Principles of State Policy that are not enforceable by any court.
Law Commission of India recently took the initiative to invite public opinion on the issue. But many Muslim groups, including the All India Muslim Personal Law Board (AIMPLB) have opposed it.
Several Muslim women have moved the Supreme Court seeking to declare the practice of triple talaq, polygamy and nikah halaha unconstitutional. Under nikah halala, a woman can remarry a divorced partner only after she consummates a marriage with someone else.
Justice Pal highlighted how overlooking the cause of gender justice was not in tune with India’s obligations under the UN Charter and other international contentions and covenants.
Clarifying the meaning of the term “uniform”, she said it should be construed as meaning equality or sameness which need not be achieved by a single code.