Did You Know That Indian Minorities Were Not Allowed To Adopt? This SC Judgement Changes That

Posted on March 4, 2014 in Society, Specials

By Saanya Gulati:

The preamble of the Indian Constitution enshrines the values of ‘justice, liberty, equality, and fraternity.’ In keeping with the ‘secular’ nature of the Indian state, also declared in the Constitutions’ preamble, these values take on a culturally neutral meaning. Compare this to our South Asian neighbor, Pakistan, whose constitution also alludes to similar values of ‘freedom, equality, and justice,’ but with the qualifier, ‘as enunciated by Islam.’

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The adoption of human rights in India has been free from religious distinctions for the most part, owing to the core value of secularism, as well as Article 14 of the constitution, which guarantees ‘equality before the law to all persons.’ However, one exception to this rule has been in the realm of family law.

In matters pertaining to the family, India allows for personal laws for different religious groups. The legal provisions, customs and norms, thus differ according to one’s religion. Naturally, secularism in India is contested on the grounds that personal laws discriminate between religious identities. However, this argument requires a more profound understanding of secularism in the Indian context.

The Indian version of secularism is best understood in Article 25 of the Constitution, which grants citizens the ‘right to freely profess, practice, and propagate religion.’ The Indian state has never sought to abolish the existence of religion in public life; if anything, it has encouraged the co-existence of different religious communities, customs, and practices. This is starkly different from the concept of ‘laïcité’ in France, where the state is strongly against the display of religion in public life. This was evident in its infamous burqa-banning incident of 2010.

Appreciating ‘Indian secularism’ enables one to understand why personal religious laws continue to prevail in society. Religious communities have traditionally been granted the right to manage their own affairs, especially in matters where religious customs have a part to play. However, this same variant of secularism, which in theory advocates the ‘unity in diversity’ philosophy, has proven problematic in practice. I will narrate two significant incidents here.

The first is a very recent Supreme Court judgment, which extended the ‘right to adopt a child,’ to Muslims, Christians, Jews, and Parsis. Previously, the stated religious groups possessed the right of guardianship over a child till s/he becomes an adult. During this period, the child’s biological parents can legally interfere.

The second of these is a well-known Supreme Court case of Shah Bano, which occurred in 1985. The question at hand was whether a divorced Muslim woman was entitled to maintenance from her husband. Though Shah Bano appealed to the court for maintenance under Section 125 of the Civil Code of Criminal Procedure (CrPC), which is a ‘secular’ law, the courts questioned her right on the basis that Muslim personal laws do not impose an obligation on the husband to provide maintenance after the iddat or ‘waiting period’ of three months. Ultimately, the Supreme Court ruled in her favour, but the judgment was reversed due to pressure from religious groups.

The aftermath of both these episodes saw a surge of support for a Uniform Civil Code in India, which will replace personal religious laws. Adopting this code will also fulfill Article 44 of India’s constitution, which places a moral obligation on the state to ‘endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ However, this provision falls under the Directive State Principles of State Policy, which are not legally enforceable provisions of the constitution.

The challenge presented in the cases of Shah Bano, and adoption rights, is this – of ensuring adequate legal protections when it comes to the extension of basic individual rights to all groups, irrespective of social identities. While a Uniform Civil Code may legally extend these rights to all groups, we cannot ignore the social backlash that such a move may spark. To balance the conflicting prerogatives confronting the Indian state, the underlying question is this – ‘where does the ‘right to follow one’s religious customs,’ begin to conflict with an individual’s basic rights?’ Till we try to answer this question, a Uniform Civil Code is a shortsighted solution to a problem with much deeper roots.

What is promising in the more recent case over adoption rights is that the judiciary has given clear precedence to socially progressive laws, such as the Juvenile Justice (Care and Protection of Children) Act, 2000, which grants all individuals the ‘right to adopt.’ The logic here is that personal religious laws are acceptable insofar as they govern basic customs, and do not infringe upon an individual’s basic rights. If this trend continues, it can have positive implications for both ‘secularism’ and equality before the law in India.

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