The second Fundamental: Enlightened Secularism and Common Heritage continues..

The Supreme Court can no more wash its hands off Art. 44 on the ground that it is a Directive Principle which is not directly enforceable. [Jorden v. Chopra (1985) 3 S.C.C. 62]. Besides, some Supreme Court Judges had expressed their views to the same effect out of Court: Gajendragadkar, C.J., and Chairman, Law Commission, in his book – Secularism and the Constitution of India (1971), p. 126; Shelat, J., Secularism, Principles & Application (1972); Hedge, J., in the Law Institute, in January, 1972; Tulzapurkar, J., – article in A.I.R. 1987 Jours, 17; Beg. C.J., in his Motilal Nehru Lecture on ‘Impact of Secularism on Life and Law’. In numerous cases, even prior to Kuldip Singh, J., the Supreme Court has remedied the inaction of the Government re other clauses of the Directive Principles to implement various Directives, in Articles 38, 39, 39A, 41, 42 and 43 of the Constitution of India by issuing ‘directions’ which are mentioned in Art. 32(2) as legitimate instruments in the hands of the Court.

Even in the matter of Art. 44, previous Benches of the Supreme Court had commented upon the inaction of the Government and the need for an early implementation of the Article –
(a) A unanimous Constitution Bench in the Shah Bano case (para. 32).
(b) A Division Bench, speaking through Chinnappa Reddy, J., in Jorden’s case (cited above).

That the Shariat on personal law is not sacrosanct will appear from the following examples of Muslim majority countries which have superseded or modified polygamy.
Turkey: The Court can declare a second marriage as invalid on the ground that a spouse is living at the time of the second marriage [Turkish Civil Code, Art. 74].
Pakistan: A person cannot contract a second marriage without the permission of the Arbitration Council; and a wife can obtain divorce on the ground that the husband has married another wife.
Iran: A person cannot remarry without permission of the Court. Egypt, Jorden, Morocco, Syria: Similar restrictions on bigamy as in Iran and Pakistan have been imposed in Egypt, Jordan, Morocco and Syria.

to be continued..