The country or state needs to be secular or non-religious head in order to guarantee fundamental rights for each person. For example, In India, where ‘personal law ‘is laws under Article 13 of the Constitution of India or if few indeed they are protected under Articles 25- 28, which has created the dispute of non-uniform civil code. However, the Indian Court of law and legislative have always made sure to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India. The same is not the case in the country which follow a religious head, such as Syria and Afghanistan. Yet countries such as Malaysia, UAE etc., have maintained human rights despite being the state that follows religious laws for families.
For a long time, there has been a tug-of-war between religious freedom and the right to equality. While the more fundamentalist elements of society have long argued for an absolute right to freedom of religion, which allows religious customs to be tested against even constitutional provisions, advocates of the right to equality argue that the law should be blind to cultural differences when it comes to human rights.
Both of these perspectives are not mutually exclusive, and in order to administer the law fairly, one must reconcile both religious freedom and the right to equality. Both of these rights are valuable and granted to all citizens of the country, and forcing women to choose between them is an unjust option. As a result, women’s religious freedom must be protected without jeopardising their right to equality. At this point, these rights can be harmonised by making incremental legal modifications as needed. Even codified or religion-neutral legislation, such as the Special Marriage Act of 1954, has flaws, implying that even codified or religion-neutral laws may not ensure absolute fairness. Simultaneously, while religious freedom and the right to not only practise but also spread religion must be vigorously preserved in the United States. It’s crucial to remember that a secular democracy has a lot of flaws.
Social problems, such as sati, slavery, devdasi, dowry, triple talaq, child marriage, and others, seek refuge in religious practices. It would be a major blunder to seek legal protection for them as “religion.” These behaviours do not comply with basic human rights principles and are not required by religion. While the fact that a practice is essential to religion should not justify its continuation if it is discriminatory, our consultations with women’s groups revealed that religious identity is important to women, and personal laws, along with language, culture, and other factors, often serve as a part of that identity and as an expression of religious freedom. On the other hand, the right to equality cannot be considered an absolute right. In a country like ours, where social inequities abound and economic inequality persists, it would be erroneous to assume that the right to equality benefits all residents equally. As a result, ‘equity’ rather than ‘equality’ would imply that preferred rights and protections are preserved for vulnerable or historically marginalised elements of society because treating unequal as equals is not equal. In this country, there are a variety of laws, affirmative action policies, and plans in place to bring all citizens together on important issues.
Different laws were codified over time for distinct communities to gradually match them with constitutional norms in family law as well. The task began with the declaration of independence. The constituent assembly decided that the unified civil code article should be treated as a directive concept rather than a basic right. In the years thereafter, a variety of interventions by the legislature, judiciary, and civil society organisations have sought to reform personal laws or establish a unified civil code. Mohd. Ahmed Khan v. Shah Bano Begu(AIR 1985 SC 945 ), Jordan Diengdeh v. S.S. Chopra(AIR 1985 SC 935), and Sarla Mudgal v. Union of India (AIR 1995 SC1531) were among the most prominent of these decisions. In Shah Bano, the Court stated,
“Article 44 of our Constitution has remained a dead letter.” There is no evidence of any governmental activity in the country to draught a unified civil code. A unified Civil Code will aid national unity by removing divergent loyalty to laws that have opposing ideas. It is the State that has been entrusted with the task of ensuring a consistent civil code for the country’s residents, and it has undoubtedly the legislative authority to do so. If the Constitution is to have any significance, it must start somewhere.”
The ruling, however, fails to reflect the country’s history of attempts to modify its family rules. The State is more of an ‘enabler’ of rights than an ‘initiator,’ especially in sensitive areas like personal religious legislation. At this point, it is safe to infer that the Commission’s proposal to reform family law is being driven by civil society organisations, educational institutions, and vulnerable parts of society themselves rather than by a legislative mandate.
Simultaneously, it is critical to support local initiatives that are bringing about incremental change. The efforts of non-governmental organisations (NGOs) aiming to raise awareness have had encouraging outcomes. As the Commission has already stated, the discourse on the unified civil code will focus on family laws of all religions and the diversity of customary practises, rather than the plurality of laws, to address social inequality. Historically, India has been proud of its diversity. Conversations about secularism12 and multiculturalism13 have piqued the interest of not only philosophers, political scientists, and historians but also ordinary Indians. Any sort of ‘different,’ not just religious but also regional, does not become submerged under the louder voice of the majority, and no discriminating behaviour hides under the guise of religion to obtain legitimacy. The Supreme Court observed in the Sarla Mudgal case that no religion defends discrimination or permits deliberate deception. India is a diverse country, and women’s issues are frequently divided by class, caste, and community.
In Madhu Kishwar & Ors v. the State of Bihar14, the Court stated that:
“In the face of these divisions and visible barricades erected by sensitive tribal people who value their own customs, traditions, and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist or equality principle, by judicial activism, is a difficult and mind-boggling effort.
…it is not desirable to declare tribal inhabitants’ customs to be in violation of Articles 14, 15, and 21 of the Constitution, and each case must be evaluated once all circumstances have been presented to the Court.”
Individual rights and freedoms are often harmed by state-enforced personal status rules, which create systemic imbalances by applying distinct sets of standards to different sexes and people of different ethno-religious origins.
The presence of millet-like institutions in today’s modern democracies, according to many liberal and communitarian theorists, raises numerous fundamental questions: To what extent should a democratic government allow, let alone integrate and actively enforce religious norms that put certain constraints and limitations on individuals under its jurisdiction’s rights and freedoms? Can democracies tolerate millet-style personal status structures, to put it another way? Some argue that democratic regimes can sustain multicultural pluralist legal frameworks if individual community members are granted freedom of leave and association, as well as a variety of other institutional and normative prerequisites. People would argue that the laws enacted give Indian citizens the “right to exit,” but the question now is “whether the laws enacted give Indian citizens the type of exit that scholars articulated?”
This subject was addressed in the well-known Shah Bano case. “One of the most serious dangers ever posed to Muslim identity in India was the Supreme Court’s Shah Bano case, which tampered with the sacred laws of Islam and sought for their elimination by way of establishing a UCC,” according to certain Muslim leaders.
Finally, in the 1990s and early 2000s, the Shah Bano dispute, the demolition of the Babri Masjid, the Gujarat pogroms, and the rise of the BJP and its allies drastically changed the Indian political landscape, indelibly linking the UCC arguments to right-wing politics. All actors, from political parties to the judiciary, women’s organisations to Islamists, have felt a pressing need to realign their policies and methods in line with the ideological transformations that have shook Indian politics since 1986.
State-enforced religious personal laws have had comparable impacts on Indian citizens’ fundamental rights and liberties as state-enforced religious personal laws have had on citizens of Israel and Egypt. Women’s rights to inheritance and property were particularly affected by state-enforced religious laws in the Hindu community (despite legislative changes), and women’s rights to divorce and post-nuptial maintenance were particularly affected in the Muslim community – at least until the Supreme Court’s landmark decision in 2001. For fear of further antagonising the Muslim minority, particularly conservative male elements within it, the Indian state has systematically avoided interfering with Muslim marital laws, similar to the Egyptian and Israeli governments, which have long avoided substantive reforms in Muslim personal law.
HOW CAN STATE-ENFORCED RELIGIOUS LAWS PROTECT RIGHTS?
State-enacted personal status regulations have imposed limits and prohibitions on fundamental freedoms and rights. Furthermore, none of the countries appear to have found a solution to the dilemma of how to best protect persons’ rights under personal status systems, or the amount to which they should allow religious rules that are non-human-rights compatible to be imposed.
The right of exit can only be relevant if the community in question willingly provides such freedom to its individual members, and if there is a broader society outside that promotes liberal ideals and is willing to welcome and protect the person after she has abandoned her normative group.
Human rights defenders and policymakers believe that individuals should be informed about their rights and liberties under secular and religious law through various legal literacy and awareness-raising activities. During these awareness-raising initiatives, human rights defenders should educate individuals, particularly about their rights that already exist under present state-enforced religion regulations. To put it another way, human rights supporters should make sure that the rights that already exist under religious or secular legislation are fully effective before introducing “new” ones.
Human rights defenders must adapt and adjust their techniques as a result of this acknowledgment. Accept all available means without bias and work until every single human being – regardless of location – is allowed to fully exercise their fundamental rights and liberties under the law.
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