This Article has been authored by Akshita Aggarwal and Srishti Gupta, second year law students at Jindal Global Law School, Haryana.
“Debate on inheritance personal laws: Should inheritance laws reflect its community’s customs and tradition, concerning socio-economic justice simultaneously?”
India pursues a system of legal pluralism, permitting disparate religious communities to be governed under their respective codes of personal laws. Fundamental unity and religious autonomy constitute the core ethos of the Indian Constitution which is seen to protect discrete religious identities and safeguard their right to profess their prerogative beliefs. Sustaining these guarantees exerts many religious practices to afflict inequality and discrimination, suppressing the disadvantaged. Hence, propelling a debate to amalgamate personal laws into a uniform civil code owing to gender biases and suppression envisioned in Article 44, Part IV of the Constitution. Contrarily, the guaranteed religious autonomy and diversity would be compromised owing to such an imposition.
Further, a question of whether such a merger could sustain the diversity of the nation by not neglecting the community’s religious identities and sentiments, arises. This paper focuses on the importance of not distressing the religious diversity of the country by highlighting inheritance laws.
Does amalgamation of the personal laws governing religious communities conceivable to enact a Uniform Civil Code?
Indian constitution in Art.44-part IV ordains a vision to establish UCC enumerating equable laws governing the areas of maintenance, divorce, inheritance, marriage, adoption, and guardianship by the state. Directive Principles of state policy according to Art.37, perches to be non-enforceable yet indispensable in governance. Therefore, its scepticism remains vivacious when the supporters of personal laws claim discrete religious autonomy and immunity from any form of state-imposed legislation. Another altercation encircling UCC focuses on the purview of ‘essential religious practices’ versus ‘secular practices’ where the state could only adjudicate over secular practices.
The Constitution under Art.25-28 guarantees religious communities the right to enjoy their personal affairs with sovereignty, thus, India envisions a secular nation, with a diverse set of traditions, culture and religious beliefs. A nine-judge bench in S. R. Bommai v. Union of India observed that following unsecular practices acts contrary to the basic doctrine of the Constitution. And hence, religion and state cannot endure simultaneously in its jurisdictions. The imposition of a uniform civil code would hinder a salient part of the constitution by destroying the cultural choice of the citizens in personal matters of inheritance.
How can there be any distress of losing religious identities when the Right to Freedom of Religion and Culture is guaranteed by Part III of the constitution?
The Constitution under its horizon splits religion between what encompasses ‘belief’ and what encompasses ‘custom’, where the preceding term is protected under Art.25-26 as a fundamental right of faith and worship, while the latter is manifested as personal law transpired to be immune from fundamental rights as it does not fall under the ambit of Art.13.
Further, personal laws should not be subjected to Art.13(4), part III-IC, for as much it does not include the word ‘personal laws.’
The Constitution drafters while elaborating the said provision [Art.25(1)] sought to differentiate between religion and other secular practices associated with religious operations which could be termed as non-essential. It was further elucidated that these non-essential religious practices which do not form the essence of any religious faith and appear to oppose societal well-being, could potentially be reformed if required and amended if necessitated. Therefore, certain essential practices which contrast from the inessential ones are hence protected by the Fundamental Right of Religion. In Nikhil Soni v. Union of India, the court again clarified that all practices which are written and obeyed cannot be said to be essential for any religions extant.
The Hindu conceptualization of inheritance is steered by Mitakshara School which unfolds property transfers descending through patrilineal regimes. Prior to the amendment made in 2005, the males of the family used to follow the pattern of inheritance and inherited rights upon birth over their ancestral land. Whilst the women did not possess any right over the natal land. The Supreme Court (SC) in its mandate of Hindu Succession Act, 1956 (HSA) explained that the notion of the patrilineal regime is a ‘non-essential’ practice under Hinduism and has developed over the years like a tradition. This practice was further concluded by the court to be violative of gender equality under Art.14 and 15of the constitution and hence was terminated.
Here it explains that the amendments analogous to those made in HSA form the discretionary power of the SC in altering the rights that are unconstitutional and non-essential in nature and therefore cannot not be interpreted as a violation of secularism or any other fundamental right but a situation where social and economic justice is upheld.
Inheritance laws governing their respective religions should reflect their customs and traditions, as otherwise, the minorities would confront a major customary identity crisis. Part III of the Constitution imputes an assurance regarding certain specific rights to the minorities too. These rights provide freedom to profess, practice and propagate their religion. Moreover, India’s signatory authorisation in International Covenant on Civil and Political Rights established in its Article 27 that, the states where minorities, either linguistic or religious, should not be denied the right to enjoy their cultural and religious beliefs.
With the imposition of UCC, these constitutionally guaranteed rights extended to minority groups will get suppressed under a uniform code and would threaten the sanctity of their religious identity. Minorities accuse UCC of being a ‘dominant narrative’ and an attempt to homogenize them and would further scrape off their identity.
Smaller communities viz. Parsi Zoroastrians, around the world, have rights respecting their personal laws. For instance, beliefs held by the Parsi Community do not adopt and hence do not legally transfer inheritance rights to their child. Implementing UCC would subsequently fade away the authenticity and beliefs of their community. Similarly, other minorities in India fear the same, where All India Muslim Personal Law Board asserts UCC to be an isolating regulation that would lead to social unrest. The argument that the right governing varied personal laws rightfully lies under the ambit of Article 25 and would certainly be violative if UCC comes into existence.
Can personal laws, by virtue of being enacted as laws, be ‘codified’ without confuting the Religious Versatility or the general principles of the Constitution?
The Law Commission of India report 2018 highlights the ambiguities in the debate revolving around UCC and personal laws aforestated that the cultural diversity within personal laws must be preserved while ensuring that they do not contradict the rights proffered by the Constitution. It further suggested that the personal laws must be codified, and “piecemeal changes” be made where it does not hamper the religious beliefs but simultaneously helps to remove unconstitutional provisions and strikes a balance.
The Commission asserted that the Freedom of Religion and Equality, both must be safeguarded, and pointed out the paradox in making women choose between these rights, which seems unfair. The distinction between genuine religious practices and stereotypes followed must be realised in order to coherently strike down the ones which contradict basic human rights.
Inheritance and succession laws have been inherently gendered biased, and reforms are mandatory for smooth functioning of society which kicks in the need of amendments but by not changing the contexts of religious laws and their religious practices. This preserves meaningful cultural differences within personal laws and weeds out inequality to the greatest possible extent.
Reforms and adaptations to already made community laws are essential to dispense gender just inheritance and to make sure that this grind smoothly within society to promote social and economic righteousness. Therefore, shaping such amends does not necessitate entirely change or discontinue these laws. In the Parsi community, inheritance rights are not extended to the women section among them only if they choose to marry outside their community. Such enactments are general practices of community and do form the gist of their religion. Likewise, among Hindus illegitimate children do not have the right to inheritance.
The personal laws under Islamism, Christianity and Parsi submits that an adopted child does not use the family name and hence are not entitled to rights in inheritance. Within the Islamic code, adopted children do not possess rights equivalent to biological ones. The Court, in Mohammed Allahdad Khan v. Mohammad Ismail, preceded that the Mohammedan Law does not hold similar beliefs considering adoption when it is compared to the Hindu system. In Islam, a person can take a child only as its guardian and the child continues to ensue as a descendant to his biological family.
In lieu of demolishing customary observances of all religions, secular laws could be made accessible to those who do not prefer to accept religious regulations. Such arrangements would not only safeguard the much-promised diversity of the nation but would also open an option to those who desire it otherwise. One such paradigm is the Juvenile Justice (CAPC) Act, 2015 which confers a position of a parent and child between the adoptive parent and its adopted child rather than as a guardian and a ward.
Therefore, rather than imposing a uniform code on the entire nation, special provisions are required to be created and implemented in the form of different acts which would facilitate access to different forms of rights. Hence, economic and social justice can be made compatible with religious customs and practices.