Prashant Padmanabhan (Advocate on Records, Supreme Court of India)
A comparison between Indian, Pakistani, and Bangladeshi legal frameworks vis-à-vis minorities and women.
A quick comparison of the rights of women belonging to minority faiths in the three major nations in South Asia— India, Pakistan, and Bangladesh— would be of interest.
These three nations were all part of the British empire once and inherited many legislations before becoming independent.
The Indian Constitution ensures equality before the law and equal protection of the laws through Article 14, non-discrimination on account of sex under Article 15, and equal opportunity in employment through Article 16.
Under the Constitution of Bangladesh, the corresponding provisions are 27, 28, and 29 respectively. Under the Constitution of Pakistan, the corresponding provisions are Articles 25 to 27.
The one distinguishing factor in the Indian Constitution is that it is openly secular and privileges no single religion.
The one distinguishing factor in the Indian Constitution is that it is openly secular and privileges no single religion. The word secular appears not just in its Preamble but also in Article 25 (2) (a) wherein the secular activities associated with religion are discussed.
The Article gives the State the power of “regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice”.
The Bangladesh Constitution also mentions the word ‘secular’ in the Preamble, in the fundamental principle of state policy (Article 8), and in Article 12 wherein secularism is explained as follows:
“12. The principle of secularism shall be realised by the elimination of:
(a) communalism in all its forms;
(b) the granting by the State of political status in favour of any religion;
(c) the abuse of religion for political purposes;
(d) any discrimination against, or persecution of, persons practicing a particular religion.”
The Bangladesh Constitution, however, starts in the name of Allah and mentions in the Preamble that “Article 2A: The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian, and other religions”.
It may be noticed that Article 2A was inserted in 2011 through the 15th Amendment to the Constitution.
The Islamic nation of Pakistan, on the other hand, nowhere even mentions the word ‘secular’.
Another distinguishing factor in the Indian Constitution, which is absent in both the other Constitutions, is the idea of a uniform civil code as a directive principle of State policy.
The provisions about equality in all three constitutions as explained above operate in the public sphere. In the private sphere such as marriage, adoption, custody, and succession, the minority Muslims in India are governed by Islamic law, i.e., Shariat by the Muslim Personal Law (Shariat) Application Act, 1937.
In the case of minority Hindus in Bangladesh, the Dayabhaga school of Hinduism, customs and judicial precedents govern them. The Hindu law has not been codified in Bangladesh post-Independence, unlike in India.
The Bangladesh Constitution also mentions the word ‘secular’ in the Preamble, in the fundamental principle of state policy (Article 8) and in Article 12.
In Pakistan, in 2017 for the first time, Hindus could register their marriage because of the landmark Bill that became law in Pakistan.
Equality and equal rights will be meaningful only when it is practised even in private life. In the words of Elenor Roosevelt, “Where after all do universal human rights begin? In small places, close to home— so close and so small that they cannot be seen on any map of the world.”
Hindu women in Bangladesh do not have the right to marry a person of their choice, nor does their consent matter, because they follow the uncodified Hindu law.
Further, in Bangladesh, polygamy is allowed for Hindu men but no polyandry for Hindu women. Intercaste marriage among Hindus is not permissible and there is no means to register Hindu marriage.
There is no concept of divorce, except where customs permit. Remarriage is not permissible as per the traditional Hindu law and if any Hindu woman claims a right under an old enactment of 1856 to remarry, she will lose her right over property derived from her previous marriage.
There are two types of property rights for Hindu women in Bangladesh, one is streedhan, where she has an absolute right, and the second, in the case of inheritance, she has a limited right over the property.
She cannot transfer the property inherited through gift or sale and after her death, it will go back to the reversioner. A Hindu daughter is entitled to inherit the property of her father only if she has a son.
All these discriminatory practices are followed among the minority Hindus in Bangladesh because of the absence of a codified law.
In Bangladesh, polygamy is allowed for Hindu men but no polyandry for Hindu women. Intercaste marriage among Hindus is not permissible and there is no means to register Hindu marriage.
Despite the passing of a Bill on marriage among Hindus in Pakistan, women face discrimination.
In India, Muslim women face discrimination in marriage, adoption and inheritance because of the application of Shariat law.
Hansa Mehta of India, who was instrumental in the change in Article 1 of the Universal Declaration of Human Rights (UDHR) and Begum Shaista Ikramullah of Pakistan who was instrumental in the enactment of Article 16 of the UDHR would be deeply disappointed on seeing the plight of minority women in their own nations after 77 years of Independence, thanks to the continued adaption of religious laws when it comes to personal law.
(This article was originally published in The Leaflet)
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