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A Judicial Shift in Personal Law Paradigm in India

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A Judicial Shift in Personal Law Paradigm in India Journal of Critical Reviews ISSN- 2394-5125 Vol 6, Issue 6, 2019 A Judicial Shift in Personal Law Paradigm in India Saloni Kabra Research Scholar (LL.M.), Symbiosis Law School, Pune, Symbiosis International (Deemed University) Dr. Sapna Bansal, Assistant Professor, Symbiosis Law School, Pune, Symbiosis International (Deemed University) Richa Dwivedi Assistant Professor, Symbiosis Law School, Pune, Symbiosis International (Deemed University) Received: 26.08.2019 Revised: 25.09.2019 Accepted: 27.09.2019 ABSTRACT The Constitution of India is an organic and living document, which makes it a document alacritous to change and growth, according to the contemporary requirement and the needs of the present society. One such vital change that a society needs is regarding personal laws. Personal laws which are in force find its foundation in the recognition of very “right to practice” religion under Article 25 of the Constitution of India. The question which arises is how then some of personal laws being patriarchal, and on face discriminatory against the women and in violation of part III of the constitution can still exist and manage the scrutiny of fundamental rights? In the judgment delivered by the court in State of Bombay v. NarasuAppa Mali it was held that personal laws are not “laws in force” under the Article 13 of the Constitution of India as they are based on religious precepts and customary practices and the principles enshrined in the part III of the constitution cannot be applied. This research highlights how it is high time for the courts to revisit this judgments. The researcher focusing on the discriminatory matrimonial laws of different religion would like to discuss that personal laws should not fall outside the ambit of judicial scrutiny under article 13. For the purpose of this research problem researcher has adopted a doctrinal form of research and will be majorly analyzing the decisions rendered by the adjudicatory authorities and the relevant literature available on the said topic In this study after establishing the current position of law, the researcher will try to examine and scrutinize the legal reasoning and rationale behind the Bombay High Court decision in State of Bombay v. Narasu Appa Mali because of which even today, after 65 years of developed constitutional jurisprudence, some of the discriminatory personal laws continues to be in practice. KEY WORDS: Personal Laws, Constitution of India, Article 13, Religion © 2019 by Advance Scientific Research. This is an open-access article under the CC BY licens(http://creativecommons.org/licenses/by/4.0/ ) DOI: http://dx.doi.org/10.22159/jcr.06.06.26 INTRODUCTION Theoretically, there is no Constitutional restriction on the equal protection of laws culmination into the prohibition of legislative power of the State in respect of personal laws, the discrimination against any citizen on grounds only of policy of successive governments at the Centre has led to religion, race, caste, sex or place of birth [1] and (b) religious their continued exemption from direct interference. Thus, by and cultural freedom. “All laws in force” in India at the time virtue of the main provision of Article 372, those parts of of the commencement of the Constitution, if repugnant of to pre-Constitutional personal laws-both codified as well as these primary fundamental rights, have to cease to apply in uncodified and applicable to whichever community that any manner whatsoever. have not been touched by any “competent authority” remain Now, the questions that are raised are whether it is in force, as before. Apart from these laws, new personal laws permissible under the Constitution that the Muslims, Hindus, have been enacted by the Parliament for the majority Christians, Parsis, and Jews of India be governed by different community bringing the Hindus, Sikhs, Jain, and Buddhists sets of religion-based laws. Should personal laws not be under the umbrella of these new legislations. However, the tested on ground of being contrary tofundamental rights? traditional laws of all these communities not covered by The answer to these questions depends on whether the these new enactments are still applicable to them. phrase “all laws in force” used in Article 13(i) covers The moot question is whether the existence of various personal laws too or not. personal laws, full of conflicting features and applicable to Article 13 itself says that law “includes any Ordinance, order different religious communities, is in itself inconsistent with by-law, rule, regulation, notification, custom or usage having the fundamental rights enshrined in Part III of the in the territory of India the force of law”[2] It further Constitution. Or, are personal laws supra- fundamental mentions that “law in force” “includes laws passed made by a rights? The following discussion, in this section, throws light legislature or other competent authority in the territory of on these issues. Intended here is the determination of the India before the commencement of this Constitution and not relationship between fundamental rights and personal laws. previously repealed, notwithstanding that any such laws or any part, therefore, may not be then in operation either at all Testing Personal Laws under Article 13 or in particular area”[3] Personal law is not specified herein Article 13 of Part III of Constitution of India enunciated the this Article. Are, then, the words used in Article 13(3)(a)&(b) following general principle: wide enough to include personal laws; or was a reference to “All laws in force in the territory of India immediately before personal laws deliberately omitted? The use of the word the commencement of this Constitution, in so far as they are "includes" shows that the lists are not exhaustive and could inconsistent with the provisions of this part shall, to the extent extend to rules of conduct not specified in them. The history of such inconsistency, be void.” Clause (2) of the same Article of the enactment of this Article and of some other restraints the State from making any law which “takes away Constitutional provisions (Article 19, 25, 44) shows that the or abridges the Fundamental Rights”. The fundamental Constituent Assembly did not intend to exempt personal rights include, inter alia, (a) equality before the law and laws from the legislative competence of the State. So then, Journal of critical reviews 194 A Judicial Shift in Personal Law Paradigm in India the different personal laws become automatically void in existence of separate personal laws and applied them to terms of Article 13(1)? The answer to this question is not respective communities without questioning the legality or free from difficulty. the Constitutionality of the personal-law system. In the case of State of Bombay v. Narasu Appa Mali [5] a case The judicial opinion of the two great judges of the time under the Bombay Prevention of Hindu Bigamous Marriage namely late Justice M.C. Chagla and late Justice P.B. Act, 1946, it was argued before the Bombay High Court that Gajendragadkar in Narasu Appa‟s case, [14]has been the rule of Muslim personal law permitting bigamy had dissented from by the eminent scholars like D.D. Basu, [15] become void, after the commencement Constitution, by H.M. Seervai [16] and Mohammad Ghause [17], who are virtue of Articlei13(1), since it allowed Muslim men to have convinced that all personal laws including their non- more than one wife while the Bombay Act of 1946 forced statutory parts are hit by Article 13(1). The Chagla- Hindus to stick to monogamy. Chief Justice Chagla and Gajendragadkar verdict pronounced in 1952 has, however, Justice Gajendragadkar thereupon examined in detail if been followed, though often silently and without specific Article 13 (1) was applicable to personal laws, and they reference, by all the higher courts in the country. arrived at the negative finding. The following points were In its recent decision in Krishan Singh v. Mathura Ahir [18], stressed by the Chief Justice. the Supreme Court has categorically ruled that:“Part III of i. The words “custom and usage” used in Article 13 do the Constitution does not touch upon the personal laws.” [19] not include personal laws. “Custom or usage is a deviation This judgment has been vehemently criticized by Justice A.M. from personal law and not personal law itself”. Bhattacharjee in hisM.N. Bose Lectures of 1981[20]. It is, ii. Relisting the difference between customary law and however, submitted that this was the only way in which the personal law, The Constituent Assembly, in defining “law” various provisions of the Constitution relating to personal under Article 13 has expressly and advisedly used only the laws, apparently generating various kinds of tensions and expression custom or usage and has omitted personal law. conflicts, could have been reconciled by the Supreme Court. This is a “very clear pointer” to the intention of the Constitution-making body to exclude personal law from the Scrutiny of Personal Laws under Article 14 and 15 purview of Article 13. So far as the applicability of Part III of the Constitution to iii. There are other “pointers” as well. Article 17 abolishes non-statutory personal laws is concerned, the question that untouchability. Article 25(2)(b) enables the state to make has been particularly, raised is whether the religion and sex- laws for the purpose of throwing open of Hindu religious based diversities found in the fabric of any such laws would institutions of a public character of all classes and sections of be affected by the equality- clauses of the Constitution Hindus. Now, if Hindu personal laws became void by reason contained in Articles 14 and 15. It is alleged and all classical of Article 13 and by reason of its provisions contravening personal laws particularly those applicable to Hindus and any fundamental rights, then it was necessary specifically to Muslims – abound in discrimination between persons on the provide in Article 17 and Article 25(2) for certain aspects of basis of religion or sex.
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