Author: Shristi, Student at RKDF University, Gandhi Nagar, Bhopal (M.P.), India
Abstract
The parallel existence of personal laws based on gender discrimination in an Indian Constitution that is based on equality and secularism is one of the most paradoxical aspects of the postcolonial legal order. There are personal laws in regard to marriage, divorce, inheritance, maintenance and guardianship that have been organized along religious lines since the colonial period, and that have consistently reinforced patriarchy, which is discriminatory against women and gender minorities, in all faith communities. This article conducts a doctrinal and critical constitutional analysis of how the clash between the equality guarantees of Articles 14 of the Indian Constitution, 15(1) of the Constitution and Article 21 of the Constitution and the competing religious autonomy claims of Article 25 and Article 26 of the Constitution unfolds. The article has traced the judicial journey from landmark cases to State of Bombay v. Narasu Appa Mali (1952) to Vineeta Sharma v. Rakesh Sharma (2020) and Supriyo v. Union of India (2023) by using the lex superior doctrine and the methodology of constitutionally conforming interpretation. It also probes the right and shortcomings of the Uniform Civil Code discussion in a rethinking of the same in the light of substantive equality and not formal uniformity. The article proposes that a personal law reform approach that is targeted and community participatory and is based on constitutional morality, rather than social morality, will be most constitutionally sound and most socially sustainable approach to gender justice in India’s plural legal landscape.
Keywords: Personal laws, Gender neutrality, Uniform Civil code, Constitutional Equality, Article 14, Religious freedom, LGBTQ+ rights, Uniform civil code, India, Judicial review, Substantive equality.
