Forging Identities: Gender, Communities, and the State

By Zoya Hasan | Go to book overview

The Constitution and
Muslim Personal Law

Kirti Singh

In this essay I seek first to briefly focus on the constitutional position vis-a-vis personal laws in India; I then discuss how fundamentalist and conservative forces have, over the last fifty years, sought to block attempts to reform Muslim personal law and how retrogressive amendments to the law of maintenance were introduced in 1973 and 1986; thereafter I discuss some of the debates around the reform of Muslim personal law, and finally, I examine the reaction of, both, women's groups and affected women to the Shah Bano judgement and the ongoing battle regarding the rights of Muslim women between these groups and fundamentalist, conservative forces, in the courts and outside.

It is interesting to note that, barring women's rights groups and others interested in the rights of women, few Muslim personal law reformers have found it necessary to argue for reform on the basis of the Constitution. Rather, fundamentalists have sought to justify the retention of Muslim personal law on the strength of the Freedom of Religion article which grants them freedom to practice religion as they wish. The fact that it is the individual's right to freedom to practice which has been guaranteed has also not been sufficiently discussed; as has been pointed out, "at no place does the Constitution suggest that a minority group can override the fundamental rights even of its own members in the name of religion or cultural freedom". 1 The State, the fundamentalists and some reformers, however, have completely ignored the Constitution with its various clauses dealing with equality and non-discrimination. Thus, the fact that Article 25, which defines the freedom of religion, is subject to other fundamental rights including the equality of individuals, or that the State under this Article can legislate on issues of social welfare and reform even if these infringe the right to freedom of religion,

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Forging Identities: Gender, Communities, and the State
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