Finding a balance between constitutional and personal laws

taking into consideration the khatna case amongst the Dawoodi

Bohra women

By Akansha Chaudhary
 Introduction

The paper aims to find a solution for the conflict between the constitutional laws
and personal laws maintaining the basic framework of the constitution and to find
whether one is superior or can supersede the other. It will address the articles
which tend to perpetually clash with the religious practises taking into
consideration the current case on the practise of khatna or khafz. The paper also
focuses on the Fundamental Rights of the people pertaining to the religious
customs and how far can the formulation and application of Uniform Civil Code
and Judicial Activism provide a solution for establishing a balance between the
two conflicting aspects.

In a country as diverse as India with a population of 1.35 billion and nine

recognised religions, the presence of a state religion was impossible and therefore
a secular characteristic was essential to maintain peace and equality amongst all
the religious communities. The term secularism was incorporated in the Indian
Constitution by the 42nd Amendment,19761. The case of S R Bommai v. Union of
India (1994) 3 SSI 12 clearly stated secularism as a fundamental law and an
essential part of the basic structure of the Indian politics and governance.
Through this, the constitution provided the people the freedom to practice and
propagate any religion and various other provisions were given which are stated
in Article 25 to Article 28 of the constitution. The Indian constitution also
provides various religions such as Hindu, Muslim, Christian and Parsi with their
personal religious laws in matters pertaining to marriage, divorce, adoption and
succession. Under this the communities can formulate laws on the basis of their
ideologies, beliefs and traditions. However, various personal laws tend to have a
discriminatory notion attached to them due to the ancestral thoughts and ritual
and these laws coincide and have a conflict with the Constitutional laws mostly
on the basis of fundamental rights. The question that rises is which law shall
precede over the other, maintaining the characteristic of a secular state as well as
protecting the fundamental rights of the people?

1
The Constitution ( Forty Second Amendment) Act 1976 < http://legislative.gov.in/constitution-forty-second-
amendment-act-1976 > accessed 26 October 2018
2

AIR 1994 SC 1918

 Constitutional law and Personal law and the Articles affected:

The Constitutional law refers to a compilation of all enacted laws, case laws and
usages which determine the composition and the role of the governing body and
the scope of its powers. It lays down the political codes, procedures, structures
and powers of the governing body. These laws do not primarily refer to the
presence of a representative institution but provides a scope of legality which
prevents the governing body from becoming arbitrary and unlawful 3. The
constitutional laws also lay down the concepts of Fundamental Rights, Directive
Principles of State Policy and the Fundamental Duties of the citizens. The
Personal Religious Laws as stated above are laws for different religious
communities and faiths namely Hindu, Muslim, Christian and Parsi focusing on
family matters and pertaining to a relationship between two individuals. India has
two systems of laws, territorial and personal. For instance, the Special Marriage
Act is applicable to all the people in the territory of India. The fact that some
people are excluded from this act does not change its nature to personal. In the
similar manner, the Hindu Succession Act applies to Hindus and is considered as
personal law. Its application on the Indian territory does not make it a territorial
law4. The main issue of argument arises between the constitutional laws and
personal laws because like all the other laws with the exception of Articles 13 5
and 3726, personal laws are not struck down if found against the fundamental
rights of the citizens because they are generally not regarded as laws under
Articles 13 and 372. The basic Constitutional Laws which often coincide with

3
Journal of the Society of Comparative Legislation

Vol. 5, No. 1 (1903), pp. 90-99 (10 pages)

4
Christa Rautenbach, ‘Phenomenon of personal laws in India: Some lessons for South Africa. The Comparative
and International Law Journal of Southern Africa’ (2006) 39(2), 241-264
< http://www.jstor.org/stable/23252637 > accessed 25 October 2018.

5
Article 13 of the Constitution of India 1949.
6
Article 372 of the Constitution of India 1949.
 Personal laws are Articles 147 which refers to Equality before law, 158 which
refers to prohibition of discrimination on the grounds of religion, race, caste, sex
or place of birth as the personal laws tend to discriminate women and the
marginalized communities and 219 which refers to protection of life and personal
liberty. Due to this reason, the discriminatory religious laws and brutal practises
tend to end as backlogs because finding the basis to declare them as ultra vires
becomes difficult. The same scenario arises in the khatna or Female Genital
Mutilation case which is practiced by a minority group under Islam.

The practise of Khatna or Khafz and the question of its legality

pertaining to Constitutional laws:

Khatna or Khafz refers to the practise of circumcising the hood of the clitoris or it
can also extend to cutting the inner or outer labia of young girls between the age
of six and before attaining puberty. It is popularly practised amongst the Dawoodi
Bhora community, a minority Shia sub-sect originating in India. The community
believes it to be a religious practise and as per them the evidence resides in
Hadith, words of God, in Daim-Ul-Islam and is not mentioned in the Quran. It
provides that this practise is conducted to subdue the sexual urges of the women
for maintaining their chastity and preventing them from cheating on their
husbands in the future. Some groups give the reason of maintaining a cultural
practise and some say that it is performed for increasing sexual desires. Khatna
comes under Female Genital Cutting type 1 according to the World Health
Organization.10 On July 9,2018, the Supreme Court questioned the practise of
khatna on the basis that it violated the bodily integrity of a girl child. The centre
represented by Attorney General KK Venugopal stated that it violates the
fundamental rights and can cause serious repercussions to the health of girls and

7
Article 14 of the Constitution of India 1949.
8
Article 15 of the Constitution of India 1949.
9
Article 21 of the Constitution of India 1949.

10
Koen Venden Brande, ‘Female Genital Mutilation/Cutting: Work of the Devil?’
(Shaiyo, 11 October 2018) < https://sahiyo.com/tag/khafz/ >accessed 20 November 2018.
 referred to Article 2511 which states that the freedom to follow any religion must
ensure that the public order, morality and health is not sacrificed in the process.
The bench headed by the Chief Justice Dipak Misra, Justice A M Khanwilkar and
Justice D Y Chandrachud raised the questions that how can someone else have a
control over another individual’s genital and how and why should the bodily
integrity be part of the religion and its rituals? Senior advocate A.M. Singhvi, for
the Muslim minority stated that same practise takes place for the boys and is
legalized in various countries therefore the similar religious practise can also take
place for the girls and asked for an adjournment. The court has now taken up the
Public Interest Litigation (PIL) which was issued by a Delhi based lawyer, Sunita
Tiwari to completely ban the inhuman practise of khatna or female genital
mutilation and has asked Kerala and Telangana to be parties to this PIL as these
places have also challenged the practise of khatna.12 Under the PIL, Sunita Tiwari
stated that Female Genital Mutilation has been declared illegal under the United
Nations Convention on the Rights of the Child 13 and United Nations Universal
Declaration of Human Rights which also consists India as a signatory and that
makes it imperative for India to support the ban against such practises. However,
the opposition said that the undertaking of this PIL can be questioned under the
right to privacy as it is intruding in the private matters of a community and raises
the question on the applicability of Article 14 of the Constitution which refers to
equality before law, the same practise of khatna for men or male circumcision is
permitted in every Muslim community whereas the same practice is being
questioned for women as it deprives them from an essential cultural practise. The
Dawoodi Bhora Women’s Association for Religious Freedom is also fighting in
leu of their essential religious practise. The association has also said that khatna is
justified and protected under Article 25 which talks about the freedom to
profession, practise and propagation of religion and Article 26 and the freedom to
manage religious affairs as it is stated in their Fatimid jurisprudence.14
11
Article 25 of the Constitution of India 1949.
12
PTI, ‘Supreme Court questions practise of female genital mutilation’
The Times Of India (India, 9 July 2018) < https://timesofindia.indiatimes.com/india/supreme-court-questions-
practice-of-female-genital-mutilation/articleshow/64922201.cms > accessed 20 October 2018.
13
United Nations Covention on the Rights of the Child 1989 < https://www.unicef.org/crc/ > accessed on 23
October 2018
14
Yesha kotak, ‘Mumbai’s Dawoodi Bhora women to SC: khatna is essential to our faith’
Hindustan times (India, 10 July 2018) < https://www.hindustantimes.com/mumbai-news/mumbai-s-dawoodi-
bohra-women-to-sc-khatna-is-essential-to-our-faith/story-0GuHQMSLbFvoEw6TJm1SPM.html > accessed 23
October 2018.
 Under what legislations can the practise be declared illegal:

Currently, the case can be tried as a crime under Section 324 15(causing voluntary
hurt through dangerous weapons or means), Section 32316(voluntarily causing
harm), Section 32517(punishment for voluntarily causing grievous hurt) of the
Indian Penal Code and under the Protection of Children from Sexual Offences
Act, 2012(POSCO)18 which protects the children from sexual harassment, sexual
abuse and pornography. Currently India does not have a specific law declaring
the Female Genital Mutilation illegal, however the practise of khatna is hazardous
to the health of the victims as the people performing it are not certified medical
experts and it can also cause excessive bleeding, burning sensations and the
application of an unhygienic tool can cause various infections. It also causes harm
to the mental health of the girls due to which they feel a sense of betrayal,
confusion and helplessness. The stories of all the victims state a similar scenario
where they are taken in a small room, asked to lay down and a painful incision is
made without their knowledge which in turn results in trauma. The main prospect
which should be taken into consideration is the fact that the victims of this
practise are minors in the eyes of the law and therefore it is the rights of the
parents to decide for the child. Their consent does not have any value which
indirectly causes an infringement to Article 21 of the constitution regarding the
victims. This case again raises the question of can a religious practise supersede
the constitutional laws?

The question of the validity of a religious practise infringing the

Fundamental Rights of an Individual:

The ambiguous and the contradictory status of the personal religious laws causes
a disruption in the working of the nation and raises the question of authority and
superiority of laws in the country. In the sphere of religious practices, the

15
Section 324 in the Indian Penal Code 1860.
16
Section 323 in the Indian Penal Code 1860.
17
Section 325 in the Indian Penal Code 1860.
18
Protection of Children from Sexual Offences Act 2012.
 Supreme Court had passed a judgement in the case of N. Adithyan v. Travancore
Devaswom Board & Ors19 which was concerned with an issue of a temple in
Kerala where only Bhramins were allowed to take the position of the priests. The
judgement stated that any custom or practise regardless of the presence of
evidence for its undertaking in the pre-constitutional era will be declared null and
void if it violates or is found against the fundamental rights, social equality,
dignity, the specific laws or decree of the constitution and the laws made by the
parliament. Any ritual or rite which is found derogatory and against the law of the
land or against the public policy and is regarded as indecent by the society will be
terminated and not hold any value in the courts of India. However, in earlier cases
the courts have adjourned matters pertaining to the unlawfulness of the personal
law by regarding it as a matter of legislative requirement. The reason for the
personal laws not being susceptible to Part 3 of the Constitution which refers to
the fundamental rights is still not independently stated.20 However, the
fundamental rights are the basic rights which are given to an individual to provide
a certain amount of space where one can assert their own views. These rights are
important for maintain the dignity of an individual and to maintain democracy
which is the government that works on the basis of the citizens.

Can the inclusion of Uniform Civil Code and Judicial Activism

resolve the disbalance between Constitutional Laws and Personal
Laws?

The government has taken various steps and has passed several judgements for
protecting the fundamental rights of the citizens which are violated by the
personal laws. For instance, the verdict on triple talaq to declare it
unconstitutional and illegal as it violated the right to equality of the Muslim
women was considered as one of the major steps in that sphere which stated that

19
MANU/SC/0862/2002

N. Adithayan vs. The Travancore Devaswom Board and Ors. (04.12.1995 - KERHC) : MANU/KE/0042/1996.
20
Kudrat, ‘Judicial Activism Under Article 21 and Personal Laws’
( Academike, 12 January 2015) < https://www.lawctopus.com/academike/judicial-activism-under-article-21-
and-personal-laws/ > accessed 24 October 2018.
 personal laws cannot override the constitutional rights21. However, the main
debate that takes place pertaining to the problem of finding a balance between
Constitutional laws and Personal laws is that of Uniform Civil Code (UCC). This
subject of universal law in a modern era to provide social stability in the state is
also proposed under Part IV of the constitution consisting of Directive Principle
of State Policy and has regenerated several times to provide a solution for the
discriminatory notion of Personal laws. The main purpose for the introduction of
UCC under Article 3522 is to bring about national integration and uniformity in
Personal laws for all the religions. It will provide a basic framework for
regulating a set of laws which are justified and impartial towards every religion
and minority thereby curbing the chances of religious riots and processions in the
country23. However, the implementation of a uniform law is not feasible as it will
go against the concept of secularism by restraining the various cultures of
different religions into one and it will be impossible to bring about a unanimous
agreement amongst all the religions as each one of them will demand for the
superiority of their customs and traditions. Every personal religious law for each
religion consists of different provisions in the matters of marriage, divorce,
adoption, inheritance and so on. For instance, in Muslim law the proposition of
inheritance and Mehr which refers to the money or any precious possession which
is given to the bride during the marriage and officially becomes her property is
better than the provisions for the same criteria under the Hindu Law but under the
Muslim law, the men can marry more than one woman given they are equally
dutiful towards each one of them which has been illegal under the Hindu
Marriage Law, 1995. Therefore, a Uniform Civil Code can have a positive as well
as a negative impact upon the country 24. This code is only feasible if the
legislation is willing to satisfy each religion within a universal framework which

21
Shreeja Sen, ‘Personal Laws cannot override the constitutional rights: Allahabad HC’
( Livemint, 9 December 2016 ) < https://www.livemint.com/Politics/muvob4vEpxg14ANhP5F1WO/Personal-
laws-cannot-override-constitutional-rights-Allahab.html > accessed 25 October 2018.
MANU/SC/1031/2017.
22
Article 35 of the Constitution of India 1949
23
Mohd.Shakeel Ahmed, ‘Uniform Civil Code: problems and prospects’
( Shodganga, 17 October 2015) < http://shodhganga.inflibnet.ac.in:8080/jspui/handle/10603/52367 > accessed
25 October 2018.
24
Nivedita Menon, ‘A Uniform Civil Code in India: The State of the Debate in 2014’ (2014) Feminist
Studies, 40(2), 480-486 < http://www.jstor.org/stable/10.15767/feministstudies.40.2.480 > accessed 25 October
2018.
 is unanimously agreed upon protecting the rights of the minorities and the
religious freedom of the people. Another aspect which is believed to provide a
solution for finding a balance between personal and constitutional law is judicial
activism. It allows the judges to make the final decisions on the basis of their
opinions rather than the legislations or on the basis of precedents. Through this
the judgement in certain cases takes place on the basis of morality and sentiment
rather than the stated laws in the constitution. This provision can also lead to
partiality or prejudice verdicts as per the ideals and the ideologies of a particular
judge and therefore the decision-making is supposed to be just, fair and impartial
to have a concrete and positive effect.

Conclusion

A concrete resolution for this situation will only exist when the legislation and the
citizens decide whether the integrity and the rights of an individual is more
essential or the implementation of religious customs and practises? It is also
imperative for us to keep in mind that no pre-colonial law, post-colonial law or
executive action can violate Part 3 of the Indian constitution. Finding a balance
between personal laws and constitutional laws is a controversial and a sensitive
issue which causes stagnation in the development of the society when the
question of superiority arises. It is not an issue which can be simply resolved by
amending the stated legislations as both aspects play a major role in our country
and due to the existence of several communities and ideologies. However, we
need to take into consideration the constitutional rights do play a major role in the
life of an individual rather than religious laws which serve the purpose of a
community. Currently, one of the major solutions for finding balance is the
introduction of Uniform Civil Code stated under Article 44 of the Indian
Constitution referring to the Directive Principle of State Policy which is not
unanimously supported but provides a scope of uniformity in the laws of all
religions and the aspect of unity under nationality. 25 Another solution that can
provide a balance is if the religious rituals maintaining the core value are also
subjected to amendments as the laws under the Constitution of India with the
25
Mohd.Shakeel Ahmed, ‘Uniform civil code: problems and prospects’ Chapter 11 (Shodganga, 17 October
2015) < http://shodhganga.inflibnet.ac.in:8080/jspui/handle/10603/52367 > accessed on 26 October 2018
change and development in the society. The personal religious laws consist of
certain customs which could only be permitted during the ancient times such as
discriminating women and the backward classes and considering them as the
weaker section of the society. These ideologies are universally disregarded in the
21st century thereby creating a gap between the fundamental rights and the
application of these laws. India can only break free from hazardous religious
practises such as khatna when the personal religious laws do not forcefully inflict
their rituals on another individual and develop with the change in society.
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