Issue of Fundamental Rights and View of the Court

On numerous occasions the issue of personal law and belief has been examined by the Supreme Court and other courts in India. In Minerva Mills,⁶⁸ the Supreme Court rightly held, “To destroy the guarantees given by Part III in order pur­portedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.” The apex courts observations have also come in the form of unnecessary obiter dicta.

Few examples need to be discussed to understand how the issue of personal law is intertwined with general fundamental rights of individuals and how these personal law issues are affected while formulating public policy issues. One such issue, very basic to Muslim religious practice, was discussed and decided by the Supreme Court in 1994. In a majority judgement of three judges in a five-judge bench⁷⁴ judgement, the Supreme Court of India gave a concept of ‘comparative significance’ in relation to the dispute on a piece of land on which Muslims and Hindus both claimed their rights for a mosque and Ram temple respectively.

In 1995, a three judge bench,⁷⁶ in an election petition, wrote that the word ‘Hinduism’ or ‘Hindutva’ cannot be confined only to Hindu religious practices unrelated to the culture and ethos of the people of India and it cannot be confined merely to persons practicing the Hindu religion as faith. The Supreme Court gave an institutionalised definition of Hindutva as ‘way of life’, without delving into its impact on other religious beliefs. It was, in a way, comparative signifi­cance of religious philosophy which itself is a flawed concept. The court gave a sense of supremacy to one religion by leaving out similar philosophy of other religions. Whatever may have been the logic and reason of these observations of the Supreme Court, it played a great role in shaping the Hindutva politics of the country as this observation of the Court was again used by politicians and other networks in the country to demonise other religious beliefs, mainly Islam.

Along the same lines, I find it relevant to point out another case⁷⁷ decided by the Supreme Court in relation to a Muslim man’s right to sport and maintain a beard to assert his right to profess and practice his religion. The rules of the Air Force⁷⁸ regulated the behavior of defense personnel by mandating to keep his face clean shaven and keep whiskers and moustaches, if worn, in a moderate length.

In effect, under certain circumstances a non-Sikh was permitted to sport a beard only if he can also add a moustache with beard, as well as the person hav­ing already had it at the time of entry into the service. While adjudicating this issue, the Supreme Court put a question as to whether Islam ‘prohibits the cutting of hair or shaving of facial hair’ and the Court finally concluded that no material was produced before the Court to indicate that the person professed a religious belief that would bring him within the ambit of the Regulation 425(b). The Supreme Court relied upon the terminology used in the regulation to confirm the finding that the appellant had no legal right to maintain a beard.

On earlier occasions, the Supreme Court⁷⁹ has stated that “No outside author­ity has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any man­ner they like under the guise of administering the trust estate.” Much prior to this view of the Supreme Court a judgment of the Bombay High Court stated in 1909⁸⁰ that “If this is the belief of the community...

In a case in1963,⁸¹ the Supreme Court stated that in the cases of conflicting evidence produced in relation to religious practices the Court will have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it and to the “conscience of the community” and “the tenets of its religion”. In 2004, while deciding Anandmargi,⁸² the Court proceeded to elaborate as to what is an “essential part or practice of religion”. To this question, the Court replied that

Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon.

While giving a separate dissenting opinion, one judge⁸³ stated that if the con­science of a particular community has treated a particular practice as an integral or essential part of religion, the same is protected by Articles 25 and 26 of the Constitution of India, 1950. It wrote:

Though the freedom of conscience and religious belief are absolute, the right to act in exercise of a man’s freedom of conscience and freedom of religion cannot override public interest and morals of the society and in that view it is competent for the State to suppress such religious activities which are prejudicial to public interest. That apart, any activity in further­ance of religious belief must be subordinate to the criminal laws of the country. It must be remembered that crime will not become less odious because it is sanctioned by what a particular sect may designate as religious. Thus polygamy or bigamy may be prohibited or made a ground of disquali­fication for the exercise of political rights, notwithstanding the fact that it is in accordance with the creed of a religious body.

In a claim of a religious group called Jehovah Witnesses,⁸⁴ asserting that while standing in the morning assembly of their school they shall not sing the National Anthem, the Supreme Court upheld the said claim of religious belief and stated that “whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrel­evant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein”.

If we apply this principle of essential practice in determining someone’s faith, like the case of a Sikh person sporting a beard, would it be prudent to negate his Sikh faith and belief of a person who has a clean shave or has cut his hair at some stage in his life. If the answer is no, there cannot be a question to ask a Muslim whether Islam “prohibits the cutting of hair or shaving of facial hair”.

More recently, the minority opinion of two judges⁸⁵ in the triple talaq judg- ment⁸⁶ records all the contentions of the claiming parties to reach its finding that ‘Talaq-e-Biddat’ has to be considered integral to a religious denomination, largely Sunnis belonging to the Hanafi school. In the majority judgment of three judges (again divided into 2:1 in their reasoning), two judges state that this type of talaq was ‘manifestly arbitrary’ and the last judge stated that ‘Triple Talaq is against the basic tenets of the Holy Quran and consequently, it violated Shariat' and also reiterated the law declared in an earlier judgment in Shamim Ara.⁸⁷ For this judgment the other two judges [who wrote the minority opinion] stated that the judgment in Shamim Ara did not debate the issue of Talaq-e-Biddat, hence the discussion of that case cannot be treated as the judgment on Talaq-e-Biddat. The net effect of the judgment was that the three talaqs pronounced in one sitting was set aside/ declared to be illegal. Relying upon this judgment, though wrongly, the legisla­ture acted hurriedly and passed a legislation criminalising the very same proce­dure of triple talaq covered under the Supreme Court Judgement. This new law goes much beyond the contemplated encroachment in personal law, touching on the basic fundamental issue of criminalising an action, which at best could be called a civil wrong.

That is why it is necessary that, while giving interpretation to rights guar­anteed under Articles 25 and 26, religious faith and religious practice has to be understood with the perspective of the believer unless the said faith and practice is alien and unheard of to the said religion.

Recently, a Hindu seer, Swami Jeetendranand Saraswatee, filed a plea⁸⁸ in the Supreme Court ofIndia seeking directions to declare that Hindus, Jains, Buddhists, and Sikhs have similar rights to own, acquire, and administer movable-immovable properties of their religious places like Muslims, Christians, and Parsis. Someway or the other, it is a voice of a religious person of the majority community against the principle of essential religious practices, as carved out by the Supreme Court.

There are numerous occasions from 1985 onwards⁸⁹ when the Supreme Court has sought to remind the system as to how a Uniform Civil Code was the need of the hour. On many occasions such observations were neither needed nor desir­able. For instance in the case of Sarla Mudgal,⁹⁰ where four Hindu men converted to Islam to take second wives, instead of making observations on the conduct of the men abandoning their own religion just to have other women in their lives, the court demeaned Indian Muslims (and their dying practices in this case). The court went to the extent of making observations about two-nation theory, attributable only to the Muslims, which is a wrong historical statement. No doubt that the then Muslims were also party to such assertions but historically it cannot be attributed either to only the Muslims or to Muslims who preferred staying in the present- day India. Many Muslims of today’s India, like myself, would be aggrieved by such observations of the highest court of the land. Undoubtedly, in many other cases, the facts at issue required the Court to make such observations.

There are instances ofthe past, from 1981 onwards, where the indulgence ofthe Supreme Court was sought for enactment of Uniform Civil Code. In the AWAG case,⁹¹ in public interest, various reliefs were sought challenging the Muslim spe­cific legislations⁹²; a three-udge bench of the Supreme Court dismissed the peti­tion. On another occasion, a person called Maharishi Avadesh filed another PIL⁹³ specifically seeking directions from the Supreme Court against the government of India for considering the enactment of Common Civil Code for all the citizens of India. He also sought to challenge the Muslim specific legislations, similar to the AWAG case.⁹⁴ Again the Supreme Court dismissed the petition, stating that the Court cannot legislate into these matters.

On 30 November 2015, the Supreme Court of India on its own gave a direc­tion⁹⁵ for registration of a separate PIL — effectively a direction to reconsider the AWAG case,⁹⁶ by giving reference of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This direction ultimately resulted in the judge­ment commonly known as the Triple Talaq Judgment of the Supreme Court. At the same time, a BJP leader⁹⁷ again sought for the same direction as was sought by Maharishi Avadesh for enactment of Uniform Civil Code. This case was dis­missed as withdrawn.⁹⁸ The Court, while hearing on 07 December 2015, made oral observations stating that “If a Muslim woman victim of Triple talaq comes to the Court and questions the validity of the divorce procedure, we can surely examine the legality of Triple Talaq and find out whether it violated her funda­mental rights”⁹⁹

After dismissal of the petition on 07 December 2015 in the Supreme Court, the same BJP leader filed another PIL¹⁰⁰ by using different terminologies, seeking a direction against the Law Commission of India to consider civil laws within the spirit of Article 44 of the Constitution of India. While this 2018 petition remained pending in the Supreme Court, the same person filed another PIL¹⁰¹ in the Delhi High Court seeking directions against the Union of India to consti­tute a committee of legal experts to draft UCC in the spirit of Article 44 of the Constitution of India, 1950. Thereafter numerous other petitions were filed in the Delhi High Court seeking similar directions. All these petitions have remained pending since 2019. In the year 2020, the same leader filed a series of PIL’s in the Supreme Court of India relating to personal laws, specifically targeting the Muslim Community. He filed petitions seeking directions for ‘Uniform grounds of Divorce’,¹⁰² ‘Uniform grounds of Succession and Inheritance’,¹⁰³ ‘Uniform grounds of Maintenance and Alimony’,¹⁰⁴ and ‘Uniform Grounds of Adoption and Guardianship’.¹⁰⁵ In all these matters the Supreme Court has issued notices and all these matters are once again sub judice in the Supreme Court.

This flood of litigation by one person is not only a matter of abusing the pro­cess of the Court system who is fully into the politics of a mainstream political party, which is not only hostile to Muslims at large but has also used the issue of Uniform Civil Code in mobilising its vote bank in the entire country. When these petitions are entertained by the Court, be it the Supreme Court or the High Court, a large section of print and electronic media use such information as a bonanza for their TRP and make maximum use of it to create polarization of people at large in the process of serving their political ideologies.

This PIL man is the same person about whom, while hearing one of his PILs on 18 December 2018, the then-sitting Chief Justice of India¹⁰⁶ observed¹⁰⁷ that he filed a series of “meaningless” PILs; in this context the Court further observed that “the Court should ban certain people from filing PIL’s.” The above-noted PILs (of 2019 and 2020) of this gentleman have been entertained after these observa­tions and also after the -nine judges bench had formulated a question of law to be decided as to “ Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?” I cannot comprehend on what basis this person has the legitimacy to main­tain all these petitions.

The oral observations of the Court and the framing of this question of law will certainly not stop somebody from approaching the Court. However, I feel the Court may not have entertained a petition of such nature considering the overall facts and also for the reason that the indulgence of the Court on these matters was used to vilify a particular community, of which direct beneficiary is a particular political party to which this PIL man belonged.

VI.