After the Assam Government has recently constituted an expert committee to study the legislative competence of the Assembly to enact a law banning polygamy in the state, the committee has submitted its report to the chief minister recommending that the state legislature is competent to enact a law to ban polygamy.
As per the expert committee’s report, the Indian Constitution grants the Union and the States the authority to enact legislation on certain subjects. ‘Marriage’ falls under the Concurrent list, enabling both the centre and the states to pass laws on it. The Doctrine of Repugnancy (Article 254) stipulates that if a state legislation contradicts central legislation, the state law will be overridden unless it received the prior assent of the President of India, said the committee in the report.
It also stated that under the Articles 25 and 26 of the Constitution provide freedom of conscience and the right to practice religion. However, these rights are not absolute and are subject to public order, morality, health and legislative provisions for social welfare and reform. The courts have clarified that religious practices must be essential and integral to the religion to receive protection.
“With respect to Islam, the courts have held that having more than one wife is not an essential part of the religion. Legislation limiting the number of wives does not interfere with the right to practice religion and is within the scope of “social welfare and reform”. Hence, laws favouring monogamy do not violate Article 25,” said the committee in the report.
Thus, considering these principles, the committee suggested that the state of Assam would have the legislative competence to enact a state legislature to end Polygamy.
The committee further urged the Members of the public to send their suggestions on the proposed law to ban polygamy in Assam.
The suggestions can be sent by August 30, 2023 through email to lawonpolygamy@assam.gov.in or submitted to Principal Secretary to the Government of Assam, either through post or through email to home.assam@gov.in
