Clash in Fundamental rights and Religion

It’s a simply a turf war between two Fundamental rights :-

Right to equal - Articles 14, 15, 16, 17 and 18 of the constitution.
                                               &
Right to freedom of religion -  25, 26, 27 and 28, provides religious freedom to All Indian citizen
 

India is very diverse country , which have different religions , castes , states , languages etc.

Incredible India :-

India has a Hindu President Pranab Mukherjee, Muslim vice-president M. Hamid Ansari, a Sikh Prime Minister Manmohan Singh and an Atheist Defence Minister A. K. Antony.

The leader of the largest party, the Indian National Congress, Sonia Gandhi is a Catholic Christian, while the leader of the opposition is Sushma Swaraj, a Hindu. India's ex-President APJ Abdul Kalam was a Muslim.

Out of the 12 Presidents of India since Independence, three have been Muslims and one Sikh. India had a prominent former Defence Minister George Fernandes, a Christian. India's Air Force Chief, Fali H. Major, was a Zoroastrian.

In this situation it’s nearly impossible to implement uniform civil code .

Why Fundamental rights clash only when there is subject of religion ?

Constitution prohibited discriminate any of the Indian citizens on the basis of their caste, creed, color, sex, gender, religion or place of birthplace.

none of above (caste, creed, colour, sex, gender, birth place)  except religion have rules/procedures of implementation , where religion have classified rules/procedures and constitution also secure it by Right to freedom of religion -  25, 26, 27 and 28.

Different religions have different rules for marriages, divorce, property rites etc which is generally clash with Fundamental right of equality.


It’s important to understand difference in following 3 cases , For understanding properly : How the fundamental rights clash when subject of religion come ?

There is difference between the clash of   personal law vs fundamental rights AND The clash between act VS Fundamental rights AND    the clash between two fundamental Rights                                     

                                    (in following I write in brief )

Case 1 :- personal law VS fundamental rights :-

1.) Can  sudra become a sanyasi ? this is the clash of personal law and the right of equality and , a case of discrimation on the base of caste .

2.) Hindu succession act 1955 :-

 Up to 2005 , this act give priority to male in the parental property rights , after the amendment of 2005 son and daughter got equal tight in parental property.

In the time between 1955-2005 , this act constantly violate the Fundamental rights of woman ( Right to be equal )

Case 2 :- Act VS Fundamental Rights :-

1.) A case of chotanagapur land tenancy act : Sections 7, 8 and 76 of the Chotanagpur Tenancy Act do not permit tribal woman to own the land , which is the clash between the act and the fundamental right of equality.

Case 3:- Clash between two fundamental rights

According to Muslim sharia laws : Men can give instant divorce to woman  ( According to Muslim religion , Article 25-28) but on the other side woman can’t ( it’s a violation of Right to be equal ) it’s a clear cut decimation on the base of gender and our constitution do not allow this )

Root of problems :-

Different regions have different methods and rules of marriage , divorce , property rights etc

and our constitution give both – Right to be equal and right to follow relegions which is never possible.

There are number of such situations arise in case of property , divorces , inter cast marriage etc due to Family laws in India .

Like to start with one big and complex problem :-

 Dilemma of triple Talaq :- ( clash between two fundamental rights )

In current practice in india : Muslim man can give divorce by pronouncing talaq three times where quran do not allow this method .

Today , Muslim man give divorce though messages , mobile or through emails  ( some fatwa said : this method of divorce is forbidden in Islam )

The Koran has dealt with the issue of talaq at length in chapters 2, 4 and 65, namely, Al-Baqara, Al-Nisa and Al-Talaq.

1.Sort out differences

2. undergo temporary physical separation in the hope that this will encourage them to unite

3. Second try to explain to his wife the seriousness of the situation and try to bring about a reconciliation.

4. the husband may point out to his wife that if they do not resolve their differences soon enough, their dispute may go beyond the confines of their home and become a subject of gossip, which may not be in the interest of the family.

Than the process of Divorce start :-

Man can pronounce Talaq only two times in the period of iddat

third talaq can be prounce only after the iddat

( Iddat is time period classified as :-

-Three menstrual cycle ( in normal)
- 3 months for those have not menstrual cycle
- until delivery of baby in case of pregnant woman )

(The concept of Talaq in Quran: http://www.tolueislam.org/Parwez/skn/SK_04.htm )

Whose decision will be final ?

Supreme court is the guardian of constitution, court is bound to give judgment according to laws , Fundamental rights are the top priority to court .

When court give judgement to save fundamental right of to be equal than quazi rise question about sharia application act 1937 ( which is also a part of constitution) : it’s provide the rules for talaq, maintenance, gift,waqf etc to Muslim personal law .

As we know in case of khap panchayat in hariyana , darul quazas in muslim , nyaya peetha in karanataka etc want that : The interpretation of law should be done by religious leaders not by courts

so, there is frequent clash between two laws .

  Divorce and Maintenance :-

Under the Code of Criminal Procedure, 1973, (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claims of the wife, etc., however, depends on the husband having sufficient means.

but there no equality in the law , there are different acts and rules for different religions :-

Hindu Adoptions and Maintenance Act, 1956 :-It give woman right to maintenance , In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. Justifiable reasons are spelt out in the Act.

Muslim Women (Protection of Rights on Divorce) Act, 1986 :- It’s gives right to woman a maintenance guarantee for iddat period ( not for life time ) , the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law and to pay such reasonable and fair maintenance to her as he may determine fit and proper,

                   there is another act which give security to divorces Muslim woman : The Wakf Act, 1995, Magistrate can direct the waqf board to help the woman

Parsi Marriage and Divorce Act, 1936 :-  It recognises the right of wife to maintenance-both alimony pendent lite and permanent alimony.

Christian woman need to claim two ground for divorce where man need only one ground before 2001 amendment .


 Conclusion :-

Personal Laws and Fundamental Rights

Thus any law in force at the time of coming into force of the Constitution of India or enacted after that which is in conflict with the chapter on fundamental rights will be void to that extent. In particular, if personal laws are covered by Articles 13 and 372 of the Constitution, they will be void to the extent that they are in contravention of Articles 14, 15 and 21 of the Constitution.

Article 14 guarantees equality before law and equal protection of laws.
Article 15 prescribes that no law can discriminate only on the grounds of sex, caste, etc.
Article 21 is the fundamental right of life and personal liberty.

Any personal law which discriminates against women would by its very nature be unequal and discriminatory and be on the face of it be in violation of Articles 14 and 15 of the Constitution, would also be in violation of the expanded meaning of right to life and personal liberty under Article 21 of the Constitution of India and to that extent be void.

The principle is simple and does not require much explanation. Any personal law which is challenged, if found discriminatory against women should have been struck down by the Courts. Women not being natural guardians, Talaq, polygamy, absence of coparcenary rights for women under Hindu undivided family, etc. should all have been declared as void by now as they all discriminate against women. But surprisingly that has not happened.

( Flip-flop on personal laws : http://www.indiatogether.org/combatlaw/vol3/issue4/flipflop.htm)