Towards equality in the eyes of law
22 Feb 2014 4:22 AM IST
The Supreme Court has taken a step in the right direction by ruling that prohibition in the personal law would not hinder a Muslim from adopting a child if s/he chose the secular Juvenile Justice (Care and Protection of Children) [JJ] Act method. This is clearly a spirited, albeit guarded, move, to push for the Constitutionally-advised Uniform Civil Code (UCC), despite huge resistance from religious minorities. Hitherto, the adoption laws, including the Hindu Adoption and Maintenance Act of 1956, the Guardians and Wards Act of 1890 and the JJ Act of 2000 (amended in 2006), nevertheless didn’t make way for allowing any Muslim person to legally adopt a child, given the clear precedence of a biological heir over the foster child in the Islamic Law Code of Shariat accredited by the All India Muslim Personal Law Board. However, the SC bench of chief justice P Sathasivam and Justices Ranjan Gogoi and S K Singh has decided that on secular and humanitarian grounds, the JJ Act could overrule the restrictions in the personal law, thereby paving way for prospective parents to legally taken in a child under their care. Quite rightly, the bench articulated the need for securing the Uniform Civil Code throughout the territory of India, as envisioned in article 44 of the Constitution, in order to prevent discrimination against persons on the ground of religio-legal limitations.
In fact, the nine-year-old plea by activist Shabnam Hashmi spells out how the proscriptions of the Muslim Personal Law Board have placed insurmountable hurdles before prospective and beleaguered parents and have stopped them from formally adopt children. This discrimination between the biological and the foster child, as dictated by the ‘kafla’ system of the Sharia, is, as observed by the apex court, doesn’t gel with the open, egalitarian and secular ideals enshrined in the Constitution and forming the premise of this democratic republic. Naturally, as residual ‘conflicting faiths and beliefs that are still active today’ clash head on with the powerfully realised need for freer, beneficent and non-discriminatory principles upon which to erect and strengthen legal and legislative amendments, expanding the ambit of law and the Constitution becomes a necessity. It then is imperative for fundamental institutions such as the judiciary to recreate and redesign the existing frameworks in step with the changing times, reflecting the pulse of the ever more connected and ideologically experimenting collective that is the globalising nation. In this light, the SC judgment – saying ‘an optional legislation (JJ Act) that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of Uniform Civil Code is achieved’ – is not only apt and timely, but also empowering for childless couples belonging to Islam, who would now have at least an option open before them.
In fact, the nine-year-old plea by activist Shabnam Hashmi spells out how the proscriptions of the Muslim Personal Law Board have placed insurmountable hurdles before prospective and beleaguered parents and have stopped them from formally adopt children. This discrimination between the biological and the foster child, as dictated by the ‘kafla’ system of the Sharia, is, as observed by the apex court, doesn’t gel with the open, egalitarian and secular ideals enshrined in the Constitution and forming the premise of this democratic republic. Naturally, as residual ‘conflicting faiths and beliefs that are still active today’ clash head on with the powerfully realised need for freer, beneficent and non-discriminatory principles upon which to erect and strengthen legal and legislative amendments, expanding the ambit of law and the Constitution becomes a necessity. It then is imperative for fundamental institutions such as the judiciary to recreate and redesign the existing frameworks in step with the changing times, reflecting the pulse of the ever more connected and ideologically experimenting collective that is the globalising nation. In this light, the SC judgment – saying ‘an optional legislation (JJ Act) that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of Uniform Civil Code is achieved’ – is not only apt and timely, but also empowering for childless couples belonging to Islam, who would now have at least an option open before them.
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