Personal Laws vis-à-vis Fundamental Rights, Part III of the Constitution Analysing State of Bombay v. Narasu Appa Mali, 1951
19, Mar 2021 | Khushboo Dev
In India, personal laws deal with marriage and divorce, maintenance, guardianship and succession, joint family and partition etc. These are broadly be characterised as ‘family laws’. While India is a secular country otherwise; in the context of its personal laws, it is essentially pluralistic. Thus, while the Indian Constitution guarantees equality before the law, and equal protection of the law, India’s personal laws apply to individuals differently because they are effectuated based on the religion of such individual.
This is to say that, the Hindus, the majority community have their separate family laws; as do the Muslims, the largest minority community. Smaller minority communities, the Christians, Parsis and Jews, also have their own separate family laws.
Therefore, the Constitutional Rights of people, especially women, as affected by religion based personal laws, constitute a crucial symbolic battlefield on which conservative and progressive powers compete to realise their visions of the future. The most key of these “battles” is the one which concerns itself with the applicability of Article 13 of the Constitution of India on the Religious Personal laws. The reason why this subject matter has become a pressing issue today is because of the oppressive political stance taken by the present government compelling the Women and Minority Rights’ movements to be catapulted into the forefront.
The Law as it currently stands
The Narasu Appa Mali judgement, 1951
India being a common law country, the State of Bombay v. Narasu Appa Mali is currently the “good law” that determines the relationship between Article 13 and Personal Laws in India. This landmark judgement is the binding precedent which held that personal laws are immune from the application of Article 13 on two grounds :
- Personal laws are not “laws” under Article 13(3)(a) of the Constitution, and
- Personal laws are not “laws in force” under Article 13(3)(b) of the Constitution.
Article 13(3) of the Indian Constitution stipulates that – (3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”
Article 13 as debated in the Constituent Assembly
Current Article 13 of the Constitution (Draft Article 8), was inserted in the Constitution to declare any law inconsistent with Part III of the Constitution (Fundamental Rights) void.
Interestingly, during the Constituent Assembly debates, a motion for the amendment of the Article was passed to explicitly define the terms “laws” and “laws in force” in relation to “customs and usages”. Sir Naziruddin Ahmed contended that the words “The State shall not make any law”, read along with “law includes custom or usage having the force of law” would imply that it is the state, and not the people and the community, which creates custom.
It was clarified by Dr. BR Ambedkar that such implication is not viable, and second amendment to remove any doubts in its interpretation was moved. The words “unless the context otherwise” was added to rectify the ambiguity, and the amendment was accepted without debate.
Personal laws are not “laws”
As per Article 13(3)(a) of the Constitution, “law” includes any Ordinance… “custom or usage” having in the territory of India the force of law.
According to Justice Chagla, while the Personal laws referred to original scriptures and texts, Customs were more specific to the practices that were deviations from these scriptures and texts (Para 12). Thus, Personal Laws in India were not the same as “Customs and usages” as defined in the article.
To support his observation further, Justice Chagla laid emphasis on the language of Section 113 of the Government of India Act, 1915 – “That section deals with the law to be administered by the High Courts and provides that the High Court shall,… when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom, and when the parties are subject to different personal laws or customs having the force of law, decide according to the law or custom to which the defendant is subject.” He opined that it is clear from the wordings of this section that a clear distinction has been drawn between “the personal laws” and the “customs having the force of law”.
In this regard, Justice Chagla opined that, since the Constituent Assembly actively used the expression “Custom and usages” in the definition of “law” in Article 13, it intended for them to be tested against Part III of the Constitution. At the same time, however, the definition of Article 13 was purposely made to exclude “Personal Laws” so that immunity could be granted to these Personal laws from any Constitutional challenges.
Justice Chagla further elaborated that this intention of the Legislature to exclude Personal Laws from the scope of Article 13 of the Constitution is also clear from the fact that the Legislature specifically included other provisions such as Article 17, 25, 26 and 372 in the Constitution (Para 13). Justice Chagla reasoned that if Personal laws were assumed to be included in the definition of “laws” in India and Article 13 were to apply to these personal laws and invalidate them, then that would leave Articles 17, 25, 26, and 372 redundant. In other words, Justice Chagla argued that it is clear that the Constituent Assembly had intended to test personal laws under Part III of the Constitution, it would not have specifically inserted Articles 17 and 25(a)(b) to prohibit or invalidate some facets of Hindu Personal laws for being violative of Articles 14, and 15 etc.
In his last observation, Justice Chagla argued that Article 44 of the Constitution highlights the existence of separate Personal laws in India. In this regard, Entry 5 of the Concurrent List that vests with the Legislatures the power to enact laws is a specific provision that empowers the Legislatures to amend the Personal laws when necessary and ultimately establish the Uniform Civil Code. According to Justice Chagla, the scheme of the Constitution on the subject of Personal laws is thus clear, which seems to be to “leave personal law unaffected except where specific provision is made with regard to it and leave it to the Legislatures in future to modify and improve it and ultimately to pub on the statute book a common and uniform Code.”. In the end, Justice Chagla also lays emphasis on Article 372(1) and (2) holding that the expression “laws in force” in this article does not include Personal laws as Article 373(2) empowers the President to amend or repeal the law-in-force and it cannot be concluded that the Constituent Assembly intended to authorise the President to amend or alter the Personal Laws of any Community.
Therefore, in Justice Chagla’s opinion in the Narsu Appa Malli judgement, Personal Laws are thus excluded from the definition of “laws” under Article 13 of the Constitution. In his opinion, Personal Laws fall outside the scope of Part III of the Constitution accordingly.
Personal laws are not “laws in force”
A similar interpretation of Article 13 was carried out by Justice Gajendragadkar in his opinion. According to him, the expression “laws in force” under Article 13 has not been used in the “general sense”, and specifically refers to statutory laws. He asserted that only those laws fell under the expression “laws in force” under Article 13, that have been passed by the Legislature or other competent authority and until the Personal laws satisfy this test, they could not be included in the definition of “laws in force” under Article 13.
Thus, in other word, he argued that since Personal laws in India cannot be considered as “statutory laws”, they could not be tested against Fundamental Rights under Article 13 of the Constitution. The Personal laws, thus, were outside the scope of Part III of the Constitution.
Legal Scenario post Narasu Appa Malli Judgement
Even though the Narasu Appa Malli judgement is still considered to be the “good law” on the applicability of Article 13 on Religious Personal laws, over the years the Courts have however, continued to give diverging, and at times, contradictory views on the judgement.
While on one hand, the Courts have adopted the “non-interference approach” in cases such as Krishna Singh v. Mathura Ahir, 1980 Reynold Rajamani v. UOI etc., wherein it has asserted that Part III cannot have an effect on personal laws. By following this approach, the courts have refused to test the Personal laws against Fundamental Rights guaranteed in the Constitution. These judgements are thus, in line with the judgement pronounced in the landmark case of State of Bombay vs. Narasu Appa Mali.
On the other hand, in the more recent cases such as Mary Roy v. State of Kerala, 1986 and Danial Latifi v. UOI, 2001 etc., the courts have followed the “scrutinising approach”, and tested the Personal laws on the touchstone of Fundamental Rights. These judgements have thus taken a shift from the judgement pronounced State of Bombay vs. Narasu Appa Mali.
The Non-Interference Approach
Krishna Singh v. Mathura Ahir, 1980*
In this case, the Supreme Court was to adjudicate upon the question – “Whether a Shudra could become a Sanyasi yati through a religious order and subsequently be appointed as a Mahant of the Garwaghat Math?” Before this appeal came up in the Supreme Court, the Allahabad High Court had held that “the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution.”
While overruling the decision of the High Court, the Supreme Court opined that the High Court had “failed” to appreciate that Part III of the Constitution does not apply to the Personal laws in India.
In this regard, the Supreme Court held that in case of Religious personal laws, “the recognized and authoritative sources of Hindu laws… as interpreted in the judgments of various High Courts, except, where such law is altered by any usage or custom or abrogated by a statute” should be applied. It was thus held that the judges could not introduce their own “modern understanding” of the law and consequently apply Part III of the Constitution on the Personal laws.
Maharshi Avadhesh v. Union of India, 1994
Herein, the court while dismissing a petition under Article 32 of the Constitution, held that Personal laws were a “subject matter of State policy and consideration and the courts do not have any concern in this matter.” The judgement of the Court is as follows-
“This is a petition by a party in person under Article 32 of the Constitution. The prayers are two-fold. The first prayer is to issue a writ of mandamus to the respondents to consider the question of enacting a common Civil Code for all citizens of India. The second prayer is to declare Muslim Women (Protection of Right on Divorce) Act, 1986 as void being arbitrary and discriminatory and in violation of Articles 14 and 15, Fundamental Rights and Articles 44 38 39 and 39-A of the Constitution of India. The third prayer is to direct the respondents not to enact Shariat Act in respect of those adversely affecting the dignity and right of Muslim Women and against their protection. These are all matters for legislature. The Court cannot legislate in these matters. The Writ petition is dismissed.”
Reynold Rajamani and Anr. v. Union of India, 1982
Similar to the judgement pronounced in Maharishi Avadhesh, in Reynold Rajamani v. Union of India too, the Supreme court refused to interfere in the matter relating to the constitutionality of Sections 7 and 10 of the Indian Divorce Act, 1869.
The petitioner had moved the Court on the ground that the option of Divorce by Mutual Consent should be available to every married couple, irrespective of the religion to which they belong. It was argued that since this option of Divorce by Mutual Consent was available under Section 28 of the Special Marriage Act 1954, Section 13B of the Hindu Marriage Act 1955 as well as Section 2(ix) of the Dissolution of Muslim Marriage Act 1939, but was not included in the Indian Divorce Act; it resulted in the violation of Article 14 of the Indian Constitution.
The Court, however, dismissing the Appeal, held that, – “whether a provision for divorce by mutual consent should be included in the Indian Divorce Act is a matter of legislative policy. The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there.”
Thus, the Court again refused to test the Personal Law against the Fundamental Rights guaranteed in the Constitution, holding that it was for the Legislature and not the Judiciary to consider whether the Indian Divorce Act should include the provision for divorce by Mutual Consent.
Pannalal Bansilal and Ors. v. State of A.P, 1996.
In this case, the Supreme Court again refused to test Personal Laws on the touchstone of Part III of the Constitution.
However, this time the basis of the judgement was divergent from the previous judgements of the Court. This time the Court opined that Part III of the Constitution does not apply to Personal laws simply because “India is a pluralistic society, and in a society like India, in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their offshoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or Sub-sections in the society speaking different languages and dialects in different regions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualise diversity and attempted to foster uniformity among people of different faiths. A uniform law, though it might desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.”
The Scrutinising Approach
C Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil, 1996
In this case, the Court while citing various international as well as domestic statutes and principles, observed that the objective behind the enactment of Article 14 of the Constitution is to, inter alia, remove the pre-existing inequalities and disabilities based on gender such as the right to property of a Hindu female.
According to the Court, “The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution least they became void under Article 13 if they violated fundamental rights. Right to equality is a fundamental right……..Parliament, therefore, has enacted Section 14 to remove pre-existing disabilities fastened on the Hindu female limiting her right to property without full ownership thereof. The discrimination is sought to be remedied by Section 14(1) enlarging the scope of acquisition of the property by a Hindu female appending an explanation with it.”
John Vallamattom and Ors. v. Union of India (UOI), 2003
In this case, while holding that Section 118 of the Indian Succession Act, 1925 was unconstitutional for being violative of Articles 14, 15, 25 and 26 of the Constitution, observed that – “The right of equality of women vis-a-vis their male counterpart is accepted worldwide. It will be immoral to discriminate a woman on the ground of sex. It is forbidden both in our domestic law as also international law. Even right of women to derive interest in a property by way of inheritance, gift or bequeath is statutorily accepted by reason of Hindu Succession Act, 1956 and other enactments. This court, therefore, while considering constitutionality of Section 118 of the Indian Succession Act, is entitled to take those facts also into consideration.”
Shayara Bano v. Union of India, 2017
A Lost Opportunity
In the recent case of Shayara Bano v. Union of India, the dispute between Part III of the Constitution and the Religious Personal Laws was raised again. It was seen by many as a golden opportunity for resolving the conflict between the religious Personal Laws and Constitutional Rights. Although the Court held that triple talaq was unconstitutional by examining it in accordance with Part III of the Constitution and that the Narasu Appa Mali judgement needed reconsideration, the Supreme and Fundamental dispute in law was left completely unresolved.
Legal Analysis of the Narasu Appa Mali Judgement
Evidently, while the Narasu Appa Mali judgement appears to be a well-established precedent on the interaction between Article 13 and Personal laws in India; its application remains, in effect, completely Disparate and Arbitrary. The reasoning of the Narasu Appa Mali judgement is challenged on various grounds :
- Firstly, In Narsingh Pratap Deo v. State of Orissa, the Supreme court defined law as “rules that govern legal rights and obligations” (Para 8). In United Provinces v. Antiqua Begum, the Federal Court held that customary laws were “laws in force”.
Thus, in as much the personal laws are formulated, they govern legal rights and duties, and are very much “in force”. Therefore, their exclusion from Article 13 is arbitrary.
- Secondly, In Sant Ram v. Labh Singh (Para 4), and Indian Young Lawyers Association v. State of Kerala (the Sabarimala judgement – Para 278), the court held that the definition of “laws” in Article 13 is not exhaustive, and includes similar legislations.
In this regard, since customs fall under Section 13, it is absurd that Personal laws are not placed similarly, especially when personal laws have been derived from the customs itself.
- Thirdly, personal laws include codified as well as uncodified laws. The judgement fails to make this differentiation.
It is erroneous that codified laws legislated by the Parliament itself, are given immunity from Article 13 of the Constitution.
- Fourthly, the argument put forward in the Narasu Appa Malli judgement that Personal laws have been excluded from Article 13 to protect Articles 17 and 25 from being redundant is also flawed as ever since the case of RC Cooper v. Union Of India in 1971, the idea of overlap between different articles has been recognised and accepted in the Indian Jurisprudence.
- Fifthly, it is manifestly unjustified that while, the state continues to intervene in Personal laws to enforce civil rights such as Succession and Inherence Rights etc. on one hand, it simply refuses to interfere in cases of violations of Constitutional provisions on the other.
Firstly, there is evidently significant incertitude, and contradictions regarding the applicability of the Narasu Appa Mali judgment. Secondly, while the Narasu Appa Mali judgement was pronounced after careful examination of constitutional provisions and jurisprudence, multiple inaccuracies and contradictions that are present in the judgement itself need to be re-visited and clarified.
Furthermore, it is also argued that even though the preservation of personal laws is essential for the plurality and diversity of India, they cannot override the Constitutional provisions as the Constitution is the supreme law of the country. Finally, with the Judiciary gradually moving towards the scrutinising approach, it is imperative that the Narasu Appa Mali judgement is reconsidered, and personal laws are placed well within Article 13 to ensure that further judicial errors and contradictions are avoided.
(The author, a law student, interned with cjp.org.in)
Sources and references:
 Ahmedabad Women Action Group v. Union of India, 1997 (AIR 1997 SC 3614), Maharshi Avadhesh v. Union of India, 1994(Supp) 1 SCC 713, Reynold Rajamani v. Union of India, (1982) 2 SCC 474 : (AIR 1982 SC 1261), Pannalal Bansilal v. State of A.P., 1996 (I) JT (SC) 516 : (AIR 1996 SC 1023), Krishna Singh v. Mathura Ahir, AIR 1980 SC 707 : (1980 All LJ 299), Saria Mudgat v. Union of India (1995) 3 SCC 635) : (AIR 1995 SC 1531), Madhu Kishwar v. State of Bihar, 1996 (4) JT (SC) 379 : (AIR 1996 SC 1864) and Anil Kumar Mansi v. Union of India, 1994 (4) JT (SC) 409