Opinion: What Happens When Personal Laws Violate Crucial Legislation Like POCSO? A Key Question For UCC

The issue around what happens when personal laws of different communities come into conflict with criminal laws continues to pose several questions. Representational image.

Source : PTI

The importance of Uniform Civil Code in India cannot be overstated. During the Constituent Assembly debates, about 76 years ago, the then Article 35 — which mentioned the Uniform Civil Code — was discussed on November 23, 1948. The debate ended with an authoritative statement by Dr B.R. Ambedkar, who said, “We have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. 

“We have the Law of Transfer of property, which deals with property relations, and which is operative throughout the country. Then there are the Negotiable Instruments Acts, and I can cite innumerable enactments, which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country.”

The Uniform Civil Code has been the focal point of discourse on personal laws, and is part of the liberal intellectual subset of Directive Principles of State Policy. The debate around Uniform Civil Code has been simmering for a long time, and has once again resurfaced among the body politic, more recently when the Prime Minister, in his Independence Day speech, emphasised the importance of a Secular Civil Code. 

For a nation like India, which hosts multiple religious denominations — each of them divided into various sections with their own unique customs — it is very important to consider each one holistically to frame one personal law in the form of a Uniform Civil Code. The bearing of a Uniform Civil Code on women belonging to minority communities — specifically the Muslim community, from where a good chunk of the apprehension and pushback against a UCC originates — needs to be analysed and addressed appropriately. 

Personal Law Vs Fundamental Rights

Currently, there are three comprehensive sets of criminal laws that are applicable to all the citizens regardless of race, caste, or community. However, marriage, succession, adoption, maintenance etc. are governed by civil laws or, more specifically, personal laws, which vary by community. Hindus are governed by codified Hindu personal laws. Muslims, meanwhile, are governed by the Shariat in line with the Muslim Personal (Shariat) Application Act, 1937. 

Differences in the laws of all the religions have time and again created turmoil for the administration and the courts, due to which a Special Marriage Act came into force to deal with inter-religion marriage. But the issue around what happens when personal laws come into conflict with criminal laws continues to pose several questions. 

One example of this is the Protection of Children from Sexual Offences Act, which governs sexual offences against minors. It provides the definition of child as anyone below the age of 18 years. This means that sexual offences against anyone under the age of 18 years would come under the purview of the POCSO Act.

However, the Supreme Court in Independent Thought v. Union of India established that POCSO does not have supremacy over personal laws. It is, therefore, made clear that the UCC has to be framed to fill this vacuum. Penalising every man who marries a teenage girl or lowering the consent age to 16 without taking the ability for consent into account are impractical solutions. A well-considered legislative adjustment is needed to ensure that minors affected by POCSO are not made even more vulnerable by extending the possible protections provided by various provisions of personal laws to the accused. 

While marital rape itself remains unrecognised in India due to Section 63, Exception 2, of the Bharatiya Nyaya Sanhita, 2023, the Supreme Court in Independent Thought held that sexual intercourse between husband and wife would amount to rape if the wife is under the age of 18. This landmark judgment also had the positive consequence of penalising child marriage. According to Muslim personal law, the minimum age for marriage in females is when she attains puberty. This begs the question: What happens when a marriage with a minor Muslim woman is consummated?

In Fija v. State, the Delhi High Court held that sexual intercourse between a (Muslim) husband and his (Muslim) wife, who is below the age of 18, would not amount to rape and could not be tried under the provisions of the POCSO Act. However, the Karnataka High Court in Aleem Pasha held that the POCSO Act would override the protections provided to the accused in the specific case under the provisions of the Muslim personal law.

Personal laws, thus, may render moot special laws like POCSO, aimed at providing protection to minors against sexual offences. Exceptions made in the application of such laws based on the community of the accused violate the fundamental right to equality. Moreover, it may also provide protections against the social evils of child marriage and smother the hopes of justice that girls coerced into child marriage may hold.

In the Sabarimala judgment, the Supreme Court set a precedent where it held that personal laws may be challenged if they violate the fundamental rights enshrined in the Constitution. A Uniform Civil Code, at this stage, is a long way away, but the process to devise it must uphold this ideal of equality and inclusivity for all stakeholders involved. For this is the ideal that the Constitution-makers held when they enshrined the code in the Directive Principles to the State — equality and uniformity in the implementation of laws and administration of justice in terms of race, caste, class, gender and community.

Shabnoor Rahman is a public servant in Assam, and Kumar Kartikeya is a legal researcher.

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