Constitutional Considerations

The Shah Bano dilemma also raises key constitutional issues. The Indian Constitution is the longest in the world. It includes a section on Fundamental Rights, which is a bill of rights, as well as a section on Directive Principles, which are to guide state policies and actions. Perhaps inevitably in such a lengthy document, at times it seems to contradict itself; on the other hand, the level of detail can help to guide some decisions. Those writing the Indian constitution studied a variety of other constitutions; for example the source of article 14 on equality before the law, included below, is the American and Irish constitutions (Bakshi 1996, 15). The Preamble refers to justice, liberty, secularism, and equality. Defining and reconciling these ideals is one important aspect of the Shah Bano dilemma. The major relevant rights and directives are as follows:

Preamble

We, the People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HERBY ADOPT, ENACT AND GIVE OURSELVES THIS CONSTITUTION (Bakshi 1996, 1).

Fundamental Rights

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void” (Bakshi 1996, 14).

Article 14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. (Bakshi 1996, 15)

Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste sex, place of birth or any of them…. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (Bakshi 1996, 23)

Article 25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject of public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (Bakshi 1996, 47)

Directive Principles

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws” (Bakshi 1996, 69).

Article 39 Certain principles of policy to be followed by the State.—The State shall, in particular, direct its policy toward securing—

a) that the citizen, men and women equally, have the right to an adequate means of livelihood (Bakshi 70).

Article 44. Uniform civil code for the citizens.—The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. (Bakshi 72)

The directives are guides for judges and policy makers. According to one constitutional scholar, “Legislation enacted to implement the Directive principles should be upheld, as far as possible. In fact, where necessary, even constitutional provisions as to fundamental rights should be adjusted in their ambit so as to give effect to the Directive Principles;” on the other hand, they do not “confer any enforceable rights and their alleged breach does not invalidate a law” (Bakshi 69). How can these disparate parts of the constitution be reconciled? Rights trump directives, although even rights can be “adjusted” to fulfill directives. Even within the list of rights, the prohibition of sex discrimination and freedom of religion clash in the Shah Bano case. “Secular,” in the Preamble, is perhaps the most contested single word in the Indian constitution and a key issue in the Shah Bano dilemma. The state has no official religion, but beyond this what does secularism mean? Secularism can be taken to mean religious freedom, or noninterference in citizens’ private religious practices, but this interpretation is in tension with another notion of secularism as equality before the law of all citizens regardless of religion.