This article is written by Sonia Balhara from Sushant University, Gurgaon. This article deals with the scope of personal laws in the Indian Constitution.

Introduction

The Constitution of India guarantees to its citizens the right to freedom of conscience and free profession, practice, and propagation of religion, under Part III i.e the fundamental rights chapter of the Indian Constitution. The Part III of the Indian Constitution also guarantees to its citizens the right to equality before the law or equal protection of the laws, the prohibition of discrimination on grounds of faith, caste, sex, etc, the liberty which has within itself the correct to measure with dignity and coupled with to mention that even Article 25 which grants the liberty of faith is additionally subjected to the opposite fundamental rights and thus is not absolute. 

Personal laws

Personal laws are a set of laws that govern and regulate relations arising out of certain factors connecting two persons or over two persons. These factors are marriage, blood, and affinity. Moreover, personal law governs and regulates subjects or areas of a private sphere such as marriage, divorce, maintenance, succession, minority, and guardianship, etc. barring few, most of the non-public laws in India are supported scriptural laws which are divided and supported by religions. They supply norms of governing personal relations within the family founded. Over time, these norms got statutory recognition with several enactments within the area of marriage, divorce, maintenance, inheritance and succession, guardianship, and custody matters. Importance of non-public law is often seen by its very nature, composition, and person and relations to which it’s being applied. Personal laws occupy a novel position in today’s age and it plays a significant role to keep the society within the city bounds. There are few areas in some communities, which are yet to run a legislative shape. It is the political environment hampering the reform in a few personal laws of the country. 

Personal laws as in force

Justice Gajendragadkar’s argument is based on the subsequent definition of Article 13.

The phrase ‘laws in force’ relate to the unspecified definition of statutory rules. There is no doubt that the laws which are enacted in this phrase must have been passed or created by the legislature or any other accountable authority, it would not be legal to include the exception of examination in this phrase the laws of the individual as administered by the courts in India.

Now, to understand the extent of the laws in force under Article 13(1), we must first look at the Article 13(3)(b), which describes the term strict rules include laws passed by or enacted by the legislating or other competent authority in the territory of India proper to the commencement of this Constitution and which have not been repealed before unless such legislation or any part, therefore, shall not apply at that time or in certain jurisdictions.

Courteously, J. Gajendragadkar is in direct conflict with the words in Article 13(3)(b), as it uses the word ‘include’ in the definition of the laws in force, therefore expanding its extent. J. Agarwal, in P. Kasilingam v. PSG College of Technology, opined that the word ‘insert’ enhances the understanding of the defined meaning to understand not only such things as those he signified in terms of genetic import but also things like the clause says they will include. Recently, J.Jain in Bharat Cooperative Bank (Mumbai) v. The Union agreed on Kasilingam’s judgment, holding that ‘include’ makes the meaning more meaningful, as the defined term will eventually have its specific meaning but its size will be an extension to bring into it the importance, which may or may not include its general meaning. 

Applying this to the idea of the definition of laws in force under Article 13(3)(b), the introduction of the word ‘normal’ or ‘natural’ must be made. According to its dictionary definition, laws in force is any source to which parties are legally bound, and that can be relied upon by the court to resolve disputes.

Yet, it is not clear what the word ‘general’ is for, in this context, and there is no compelling reason why he keeps the information to Article 13. This interpretation is not supported by the application of Article 13(3)(b) and his ethics of the general definition of laws in force. 

The evolution of personal laws in India 

We ought to not be guided by Hindu law, which may be a new introduction of our own.’ 

Mountstuart Elphinstone, this discussion is described throughout a study of how personal law came to be explained by the religious tradition within the colonial period. The British government took upon itself the duty of both explaining and adjudging personal law. For this purpose, courts, the council especially, revealed a three-step test to work out what organized religious tradition that any principle must be ancient, invariable and supported by clear evidence this made the establishment of any custom invariably difficult resulting in the greater homogenization and enforcement of Brahmanical law by courts regardless of the varied religious learnings of parties to a dispute nation emphasis on accuracy truth and definiteness was alien to Hindu and Islamic traditions whose traditions and custom was not of nature in holds the strict rules commanded by British solicitors. 

The establishing of the high courts in India in 1864 also stated the valueless status of law officers like shastras and maulvis who were liable for allowing textual statements and ideas as per personal law. This process also replaced the thoughts that socio-religious policies supported changing beliefs and faith with the authority instead granted to objective experts like courts to spot fixed beliefs determined at the time of the origins of such polity. As an example, the Aga khan case, High court of Bombay 1866 treated the Khoja community as Muslim and also the Pushtimarg as Hindu rather than them being considered as independent policies within these larger faiths.

The consequences of this war clear politics that previously determined their idea of the religious traditions during which they engaged were now subjected to the western conception of Hinduism and jurisprudence. Therefore, the thought that religious/personal laws exist because it was written within the Smiriti or the Quran ignores the intricate system of contractual governance within religious sects that enabled them to re-interpret text in light of adjusting societal norms. By confiscating the flexibility of those local collective structures to create decisions for themselves, these structures were compelled to surrender all decision-making, concerning personal laws, among other things, to the imperial government which made decisions in light of international or a collective mode of logic-vastly different from those followed at a local level. 

The movement to bring local people into the general public sphere was thus not an organic one and was in deep trouble. Thus J. Gajendragadkar’s opinion of a clear and complex connection between religious themes and private law is intensely an ancient and mainly a colonial construct, because it rejects only the crucial role performed by common law at the local level in improving this law, and consequently forming its utilization.

The barriers to personal law and Part III of the Indian Constitution 

Ever since the inception of the Indian Constitution to date, the higher judiciary of India including the Supreme Court of India is facing the dilemma of sorting out a satisfactory compromise between two extremes: personal laws which support religious practices and Part III of the Indian Constitution i.e. chapter on fundamental rights. In this connection, it warrants mentioning two important judicial decisions that can throw some light on the dilemma of the interrelation of private law and Part III. The primary such case is of the judgment delivered by Bombay High Court in The State of Bombay vs. Narasu Appa Mali. This case is per the Bombay prohibition of Hindu Bigamous Marriage Act, 1946,’ the Constitutional validity of which was challenged on the idea of Articles 14, 15 and 25 of the Constitution of India. Two major issues were involved in this case:

• Whether the non-public laws of Hindus or the other community is law within the meaning of Article 13 (3) and (b) and Article 372(3). Explanation?
• Whether an alteration of the private law of one community without an identical alteration in that of others, violates equality?

Bombay supreme court in considering the validity of the Bombay Prevention of the Hindu Bigamous Marriages Act, 1946, said that private law wasn’t included within the law as under Article 13(3) and wasn’t the law in force saved by Article 372(3) it had been also declared that Bombay Prevention of Hindu Bigamous Marriage Act, 1946 isn’t violative of Article 14 because the state was free to start social reforms bit by bit. Bombay tribunal during this case ruled that:

• Personal laws don’t seem to be laws in force under Article 13 of the Constitution  as they are supported religious precepts and customary practice; and 
• The principles enshrined within Part III of the Constitution can not be applied to the personal laws.

It is pertinent that the Bombay tribunal has said a sharp distinction must be drawn between religious faith and belief and spiritual practices. In keeping with the court, what the state protects is religious faith and belief. If religious practices run counter to public order, morality, health, or policy of welfare upon which has embarked, then the religious practices must settle before the great process of the state as a full. 

The constitutional validity of personal laws: judicial review

In the context of personal laws, the doctrine of the reviewing was always surrounded by the constitutional objectives i.e. Uniform Civil Code (UCC). The courts while managing the constitutional validity of personal laws, and being concerned for Uniform Civil Code (UCC) couldn’t refrain itself from discussing it. Moreover, during this context, there are other areas where either the constitutionality or rationality of some laws are being questioned. Those issues are always a challenge for the judiciary to strike a balance between religious-based personal laws and concerns of gender justice and fairness of the law. It is pertinent to mention Shah Bano’s case which has ushered a replacement era of interpretation in personal laws which were, till the apex court had pronounced its judgment therein case, considered as a sensitive area of laws.  

Shah Bano’s case a watershed of review in personal law

This is possibly the start of the origin of the review in personal laws where the apex court of India had to travel against real personal laws and require certain temporary and secular perspectives. This can be considered as a landmark within the journey of the development of non-public laws. 

The Supreme Court of India in Md. Ahmed Khan v. Shah Bano Begum, ruled against the beliefs of Muslim personal laws by granting maintenance appeal to a Muslim divorced lady under Section 125 of Cr.P.C, despite refusal under Muslim personal law. Shah Bano, a Muslim woman, had been divorced by her husband. She had then filed a suit for maintenance under Section 125 of Cr.P.C. When the case was before the Magistrate Court, the difficulty was regarding the right of a divorced Muslim woman to assert maintenance from her husband under the secular legal provision, Section 125 of Cr.P.C, which the court have given an order for maintenance of a sum not surpassing Rs. 500/-. But when the matter was transferred to the Supreme Court of India, the case involved a considerable question of law. By supporting the appeal of Shah Bano, refuses for the identity under Muslim personal law, as forbidden under Article 44 of the Constitution of India, the Supreme Court declared that Parliament would take steps to establish UCC. The Muslim fundamentalists were distributed by that call. 

There are several such cases where personal laws or legal provisions were disputed for the above-mentioned issues. In some cases, courts without satisfying the subject of the constitutionality of personal laws, made it point to prescribe to the Union of India to make UCC as an element of the system. 

Conclusion

Concerning the personal laws of the law enacted after the enactment of the Constitution, the course of justice in recent times is to examine them in the light of the various provisions of Part III without going into the technical question of whether the personal law is the law. Concerning the desire to use the provision of Part III to learn personal rules, there will be no reasonable argument. The goal of equality, freedom, and security is paramount in an environment where exploitation and discrimination persist and loving commendation is sometimes denied. The application of Part III will ensure a fair and impartial legal relationship under different individual laws. This is more desirable than quarrelling the concept of teaching with the same community code. Once the concepts of justice and freedom are incorporated into the field of human law, the Uniform Civil Code will be easier to follow.

References

• http://www.indiatogether.org/combatlaw/vol3/issue4/flipflop.htm#:~:text=Personal%20Laws%20are%20Laws&text=Article%2013(3)%20as%20well,India%20the%20force%20of%20law%22
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201090
• https://indconlawphil.wordpress.com/tag/personal-law/
• https://ilg2.org/2018/10/03/a-transformative-approach-to-personal-laws/

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