What Happened
- The Supreme Court is hearing a petition challenging the Muslim Personal Law (Shariat) Application Act, 1937, specifically Section 2, which applies Muslim personal law to intestate succession and inheritance.
- The petitioners argued that Section 2 discriminates against Muslim women by granting them a smaller share of inheritance than their male counterparts (typically half the male share under classical Islamic inheritance law).
- The petition alleged violation of Articles 14 (equality), 15 (non-discrimination), and 21 (right to life with dignity) of the Constitution.
- The Supreme Court observed that the Uniform Civil Code (Article 44) may be the answer to such personal law conflicts, and called for legislative action.
- The bench raised the concern of a "legal vacuum" — if Section 2 is struck down, there is no statutory law to govern Muslim inheritance in its absence; senior advocate Prashant Bhushan argued the Indian Succession Act, 1925 could fill the gap.
- The Court asked the petitioners to amend their plea to clarify the remedies sought if the Shariat inheritance provisions are invalidated.
- Separately, the Court sought reports from all states and UTs on whether they have framed rules to implement the Shariat Act.
Static Topic Bridges
Muslim Personal Law (Shariat) Application Act, 1937 — Provisions and Scope
The Muslim Personal Law (Shariat) Application Act, 1937 (Act 26 of 1937) is a pre-constitutional legislation enacted by the British Indian Legislature to formally apply Muslim personal law to Muslim litigants in India. It replaced various local customs that had crept into Muslim practice, particularly in property matters.
- Section 2 is the operative provision: it declares that in all questions (where parties are Muslim) regarding intestate succession, special property of females, marriage, dissolution of marriage (talaq, ila, zihar, lian, khula, mubaraat), maintenance, dower, guardianship, gifts, trusts/wakfs — the rule of decision shall be Muslim Personal Law (Shariat).
- Inheritance under Shariat: Female heirs (daughters, wives, mothers) receive prescribed shares — typically half the share of male heirs of the same class under classical Hanafi jurisprudence.
- The Act is a civil legislation but applies religious law — this is the civil vs. religious statute tension at the heart of the current challenge.
- States can frame rules under the Act — the Court's query about state rules implementation reveals uneven enforcement.
Connection to this news: The challenge frames Section 2's inheritance provisions as a civil law rule (capable of constitutional scrutiny) rather than an untouchable religious practice — a classification that determines whether Articles 14/15 can strike it down.
Article 25 — Freedom of Religion and the "Essential Religious Practices" Doctrine
Article 25 guarantees all persons the right to freely profess, practise, and propagate religion, subject to public order, morality, and health, and to other fundamental rights. Courts have developed the Essential Religious Practices (ERP) test to determine which religious practices receive constitutional protection.
- ERP test: Only those practices that are essential to the religion (i.e., the religion would fundamentally change without them) receive protection under Article 25. Peripheral or reformable customs do not.
- The petitioners in the Shariat Act case argue that inheritance distribution rules are a civil right, not an essential religious practice, and therefore fall outside Article 25 protection.
- Key cases on ERP: Commissioner of HRE v. LT Swamiar (1954) — SC first articulated ERP doctrine; Shirur Mutt case (1954) — distinguished religious denomination rights; Sabarimala case (2018, Indian Young Lawyers Assn v. State of Kerala) — SC struck down exclusion of women from temple on ERP grounds; SC (Majority, 4:1) held exclusion was not an essential practice.
- Triple Talaq case — Shayara Bano v. Union of India (2017): SC (3:2) held instantaneous triple talaq unconstitutional under Article 14 — established precedent that Muslim personal law practices can be tested against fundamental rights.
Connection to this news: The petitioners rely on the same reasoning as Shayara Bano — arguing that discriminatory inheritance provisions are not essential to Islam and can be tested against Articles 14, 15, and 21.
Article 44 — Uniform Civil Code (UCC) and Directive Principles
Article 44 is a Directive Principle of State Policy (DPSP) under Part IV of the Constitution: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." DPSPs are non-justiciable (Article 37) but are fundamental to governance.
- Article 44 was deliberately placed in DPSPs — not fundamental rights — reflecting the Constituent Assembly's recognition that the social conditions for UCC were not yet ripe at independence.
- The Law Commission of India has examined UCC three times (1835 Report by Lex Loci; 21st Law Commission Report 2018 — recommended against UCC; 22nd Law Commission 2023 — sought fresh public input).
- 21st Law Commission's 2018 report found UCC "neither necessary nor desirable at this stage" and instead recommended reforms within personal laws.
- Goa is the only state with a common civil code (Goa Civil Code, based on the Portuguese Civil Code of 1867) — applicable uniformly to all residents regardless of religion.
- SC has consistently urged Parliament to enact UCC: Shah Bano case (1985), Sarla Mudgal v. Union of India (1995), John Vallamattom v. Union of India (2003).
- The Court's latest UCC remark during the Shariat hearing continues this judicial nudge pattern.
Connection to this news: The Supreme Court's invocation of Article 44 signals that piecemeal judicial strikes on personal law provisions may be less preferable to a comprehensive legislative solution — but Parliament has not acted on the Court's repeated suggestions over four decades.
Indian Succession Act, 1925 — The Fallback Framework
The Indian Succession Act, 1925 is a codified law governing intestate and testamentary succession for Christians, Parsis, and some others. It is not currently applicable to Muslims or Hindus (who are governed by the Hindu Succession Act, 1956).
- If Section 2 of the Shariat Act is struck down without Parliament filling the gap, Muslim inheritance would have no governing statute — creating the "legal vacuum" the Court flagged.
- Senior Advocate Prashant Bhushan's suggestion: extend the Indian Succession Act, 1925 to Muslims as a secular fallback.
- Hindu Succession Act, 1956 (amended in 2005) — gives daughters equal coparcenary rights, a model of reform within community-specific personal law.
- Special Marriage Act, 1954: governs inter-religious marriages and applies Indian Succession Act to parties — a partial secular framework already in operation.
Connection to this news: The Court's concern about the legal vacuum if Section 2 is voided is a key reason why a legislative solution (UCC or targeted amendment) may be preferred over judicial invalidation.
Key Facts & Data
- Muslim Personal Law (Shariat) Application Act: Act 26 of 1937, pre-constitutional
- Section 2: Applies Shariat to intestate succession, marriage, divorce, guardianship, gifts, trusts, wakfs
- Shayara Bano v. Union of India (2017): Triple talaq declared unconstitutional (3:2 majority)
- Sabarimala case (2018): ERP doctrine applied; exclusion of women held not an essential practice (4:1)
- Article 44: DPSP — non-justiciable; directs State to endeavour to secure UCC
- Article 25: Right to freely profess, practise, propagate religion — subject to other fundamental rights
- Goa Civil Code: Only state with uniform civil code (applicable to all residents regardless of religion)
- 21st Law Commission (2018): Recommended against UCC, favoured reform within personal laws
- Hindu Succession (Amendment) Act, 2005: Gave daughters equal coparcenary rights