The Supreme Court’s verdict declaring that Islamic courts have no legal or constitutional basis and Muslims cannot be forced to follow their fatwas has once again brought to the fore the sensitive issue of relations between law and religion in India.
First, the conflict is natural because the space occupied by law today was once solely in religion’s domain. The vice-like grip the Church had over the lives of commoners and the King in pre-renaissance Europe is a reminder of the tyranny of religion.
But it was not just the Church in Europe. In India too, religion has been a guiding force in an individual’s life. During the British rule the role of religion in public life was curtailed to a great extent as the Raj tried to enforce its own laws.
Second, religious laws have had inherent gender bias in them. But after India adopted a Constitution guaranteeing fundamental rights to all — irrespective of gender — the discriminatory religious practices must cease to operate.
Third, as society evolves, laws change accordingly. However, religious leaders and institutions have traditionally resisted change. The laws governing Hindus have been amended to a great extent, despite stiff opposition from various Hindu groups and the then president Rajendra Prasad and the process is still on. Even last year certain changes were introduced in the personal laws governing Hindus.
Unfortunately, no such reform has happened in Muslim Personal Law due to vehement opposition from the community. Even judicial interventions are not welcome. The Shah Bano case (1985) is an example. The Rajiv Gandhi government bowed down to the diktats of Muslim leaders and reversed a progressive verdict of the SC that had ordered alimony for the mother of five.
Article 44 of the Constitution that talks about uniform civil code has remained a dead letter, despite the SC occasionally reminding the government of its duty to achieve it. It remains to be seen whether BJP would be able to live up to its poll promise on this issue.
An ideal situation would be where religion operates in personal sphere and law governs the public space. In case of a conflict, the latter based on constitutional principles of freedom, equality and democracy must prevail. One cannot disagree with the SC that “Religion cannot be allowed to be merciless...Faith cannot be used as a dehumanising force.”