Shariat Act 1937: Supreme Court Weighs Inheritance Law as Civil Statute vs Religious Instrument
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.
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.
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.
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.
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).
Key Details
- 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.
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.
- 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