Personal laws
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This article is written by Ronika Tater, a student of University of Petroleum and Energy Studies, School of Law. In this article, she discusses a comparative analysis of personal law with reference to India, various cases and provisions in relation to the transformative approach of personal laws.

Introduction

In India Young Lawyers Association v. State of Kerala (“Sabrimala Temple case”), Justice D.Y. Chandrachud observed that the rationale used by the Bombay High Court in the State of Bombay v. Narasu Appa Mali, which held that personal laws are inconsistent with the fundamental rights, Justice D.Y. Chandrachud overrules the ratio of Narasu on the point that customs are not subject to fundamental rights.

For a law to be valid, it should be in consonance with the Constitution of India otherwise the aim drafted by the Constituent drafter will be in vain. With time various judicial precedent has seen a transformative change regarding the question whether personal law comes within the ambit of Part III of the Constitution or can be counted as law, thereby leading to various discussion and debates.

What are the personal laws

The Personal Laws of Hindus and Muslims find their fundamental source respectively from the Hindu and Muslim scriptural texts in India. There was a time when every aspect of human conduct revolves around them. Because of their religious origin, they were untenable by any legislation. However, during the colonial era, a separate space came into existence for certain religious laws governing family matters such as succession, inheritance, guardianship, marriage, adoption and divorce came into being due to socio-political rather than religious reasons. ‘Personal laws’ derive their validity from the state rather than religion. In the colonial state male elites of each religious community shaped personal laws.  

Historically speaking many contexts of the Hindu and Muslim laws have remained untouched due to socio-economic upheavals and political vicissitudes. However, Independent India implements drastic amendments to Hindu Personal Law by considering the followers of Buddhists, Jains, Christians, Parsi and Sikhs. Although the Muslim personal laws are unaffected in comparison with Hindu personal laws. Considering the present scenario many personal laws are made to promote the subordination of women and other minorities. It is important to view from the constitutional aspect, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ stated in Article 13 of the Constitution.

Personal laws and fundamental rights

The idea of personal laws consistent with the fundamental rights is cited by the Supreme Court in various landmark cases in the coming part of the article.

Personal laws inconsistent with the fundamental rights

In State of Bombay v. Narasu Appa Mali,1952, the petitioner challenged the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946, which states that bigamous marriages void and criminalize bigamy among Hindus. The judgement was pronounced by the rationale of the two-judge bench which stated that personal law is beyond the scope of Part III of the Constitution. While deciding the case the court had to look into various issues below-mention:

  1. Whether personal law comes into the ambit of Article 13 of the constitution of India?
  2. Whether there is any reasonable basis for creating the Muslims as a separate class to which the State law is not applicable?
  3. Whether it is for the Legislature to decide what constitutes social reform?

While determining the fact that Muslim polygamy is valid, the court applied the principle of ‘Expressio Unius Exclusio Alterius’ which states that the expression of one excludes the other, and its present application. The court relied on Article 112, which states that personal laws cannot be defined as laws under Article 13, and also various State-regulated provisions in the Constitution that relate to personal law as under Article 17 which abolishes untouchability, Article 25 which guarantee freedom of religion to its citizen the constitution drafters where redundant to include personal laws within the definition of under Article 13. Further Article 44, which implements the state to build a Uniform Civil Code and Entry V of the Concurrent list suggest that the drafter intent was to give the power to different personal laws to the legislation and not the judiciary.

It is a historic fact that both the Muslims and Hindus’ personal laws are derived from their respective religious texts embodied with their own distinctiveness and backgrounds. However, Article 44 of the Constitution recognises separate and distinctive personal laws irrespective of race or religion consequently the legislature has the power to introduce a social reform in respect of a particular community having its own personal law, in this case, the Hindus Bigamous Marriages Act. The State plays an important role in considering the institution of marriage, divorce and educational reforms of the two communities. As per Article 14, the State may rightly bring social reform at different stages, territorial or community-wise. Hence, the Hindus Bigamous Marriages Act does not follow any discrimination against the Hindus on the ground of religion or race. Although the act is not uniform it is not arbitrary or capricious, there is a reasonable basis for creating a separate class for Muslims. 

Marriage is a social institution and the State of Bombay is vitally interested to compel Hindus to become monogamists as a measure of social reform for the welfare of the state. The State inherits this power under Article 25(2)(b) which states the right of a citizen to freedom of religion. In a democracy, the legislature is constituted by the will of the people and responsible for the welfare of the state and lays down the policy to achieve the objective inherent in it. Hence, the legislation in its wisdom decides the social reform and not the court of law.

Transformative approach towards personal laws

The ratio of Narasu Appa Mali case has never been challenged in the Supreme Court as it extends to uncodified religious law which has not been modified by either customs or usage. However, the previous decision by the Supreme Court in Sant Ram v. Labh Singh, where it was held that customs are subject to fundamental rights and the decision in John Vallamottam v. Union of India, subjecting personal laws to fundamental rights only dealt with codified personal law.

While re-evaluating the Narasu Appa Mali case, some literature provide contrary views such as Article 13(3)(a) does not use the word “common law” yet it is subjected to fundamental rights. While drafting Article 17 the constituent drafter considering the pervasive nature of caste discrimination prevailing in the society incorporate a specific article prohibiting untouchability to leave no stone unturned. Further, the scope of Article 25 is broader than personal laws as it protects an individual’s right to practice her religion rather than protecting norms or rules. Article 44 comes as stated in Part IV of the Constitution casting no positive obligation on the citizen as it is non-enforceable in the court of law.

However, it should be read as a transformative document to value constitutional morality over societal morality. The observation on the importance of personal laws is subjected to fundamental rights is made by Justice D.Y Chandrachud in the Sabrimala Temple Case-

Customs, usages and personal laws have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny is to deny the primacy of the Constitution.”

Subjecting personal laws to constitutional scrutiny is an important step in the direction of constitutional vision. Hence, the decision in Narasu Appa Mali case, concerning immunisation uncodified personal laws and distinctive customs and usage should be reconsidered in an appropriate case in the future.

Landmark judgements

In India Young Lawyers Association v. State of Kerala (“Sabrimala Temple case”), the Supreme Court held the Sabarimala Temple’s custom of prohibiting women in their menstruating years from entering to be unconstitutional and violative of female worshippers right to equality under Article 14 of the Constitution and freedom of religion under Article 25 of the Constitution. However, the learned judges, in this case, differs from the Narasu case on whether the expression “laws in force” in Article 13(1) read with Article 13(3)(b) includes “custom or usages” by taking a closer look on the dissent adopted by Justice Rohinton Fazi Nariman in the case of A.K. Gopalan v. State of Madras, 1950, which dealt with the constitutionality of the Preventive Detention Act, 1950. The fundamental rights are not isolated, and separate but they are protected by a common thread of liberty and freedom. Hence, Article 19,20, 21 and 20 do not overlap each other.

The dissent opinion of Justice Fazi Ali was endorsed in the case of Rustom Cavasjee Cooper(Bank Nationalization) v. Union of India, 1970 holding the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, and the Banking Companies (Acquisition and Transfer of Undertakings) Act, to be unconstitutional as it is against Article 14, 19 and 31 of the Constitution. These rights are protected by one thread to seek to protect the rights of the individual or groups of individuals within specific limits. Similarly, in the case of Maneka Gandhi v. Union of India, 1978, while challenging the Section 10(3)(c) of the Passports Act, 1967 violating Article 14 held that freedom to move freely cannot be carved out of personal liberty as they have many attributes found in Article 19.

In the case of Shayara Bano v. Union of India, 2017, a Constitutional Bench in a 3:2 verdict ruled that talaq-ul-biddat or triple talaq is not legally valid and the Muslim Personal Law (Shariat) Application Act, 1937 is a law made by the legislation before the Constitution and it falls within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) as the practice of triple talaq is against the provision of Part III of the Constitution. Further, it was concluded that the rights guaranteed under Part III of the Constitution have the common thread of individual dignity and protection, even if a degree of overlap in the Articles of the Constitution must be read in the widest sense possible recognising fundamental human freedom. All the Articles in Part III of the Constitution share an inseparable connection and it is in their coexistence that the vision of dignity, liberty and equality is realised.

Required changes

Considering the various landmark cases by the Supreme Court, the judgement in the Narasu Appa Mali case is necessary to relook and redefine the definition of “law” and “laws in force” as it is not a good law. In Syedna Taher Saifuddin Saheb v. State of Bombay, 1962, the court has laid down that a practice implemented on an obnoxious social rule or practice maybe with the ambit of social reform that the legislation may carry out. The legislation should aim to bring social reform by placing constitutional morality over societal morality and to carefully scrutinise claims to deny constitutional protection in the name of religion. It is the duty of the legislation to strike at the heart of the social evil and provide protection of the fundamental right of every person to freedom of religion under Section 25.

Conclusion 

The role of the constitution as a document is for social transformation and not merely based on socio-political or religious reasons. At the heart of transformative constitutionalism is a vision and potential to change considering personal laws to be consistent with fundamental rights by acknowledging minorities like women and lower castes as equal members of the society. The feasible nature of the constitution and the dynamic and ever-growing change in society, the idea of constitutionalism is redefining through judicial precedents. The idea of courts is to transform society by placing individual dignity at the forefront and value constitutional morality over societal morality and hoping whenever the challenge to personal laws are raised these grounds will be considered. 

References


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