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HomeOpinionsKing’s Sceptre and Bishop's Crook: The personal law conflict under Article 13

King’s Sceptre and Bishop’s Crook: The personal law conflict under Article 13

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Introduction: What is Personal Law?

When human society first developed on an appreciable scale, the concept of a well-organized and efficient State exercising the tools of civil, political, and coercive power was not as well-developed as it is today. The political machinery we are so accustomed to seeing today existed perhaps only in the form of loose tribal hierarchies of clans and chiefs vying for dominance. Thus, the influence of the ‘government’ and, by extension, public law, was limited in day-to-day life.

The traditional role of the law, thus, in acting as the arbiter between persons, was taken over by an institution far more pervasive and powerful: religion. Religious scholars and documents acted as a guidebook for people to learn social mores from, provided ways of appeasing the gods for sins real or perceived, prescribed rules of procedure and punishment, and acted as the moral anchor for society and public life.

Even as governance institutions became more and more powerful, they continued to rely on religious bodies for granting legitimacy and support to their rule: even under the all-powerful feudal monarchy, the Church was the one who affirmed the king’s right to rule by interpreting the authority of God. And they did not walk away from it unenriched either: the Church controlled vast estates through its many parishes and monasteries, and enjoyed near-exclusive jurisdiction over many matters of civil law such as marriage, census, incest, childcare, and financial crime. The papacy could even excommunicate rulers who acted against its interests by disclaiming them of the legal right to rule.

This symbolically freed the people from their oaths of fealty to him: a dangerous proposition for a king at the mercy of a deeply religious populace. It is no coincidence that a cementing of State power correlated with a concerted effort worldwide to regulate or remove the powers wielded by traditional religious institutions. Yet it was impossible to fully remove religious consciousness and solidarity from society, ingrained as they were in the morality, culture, values, and rituals of social life. Societal expectations and habits had formed up under eons of religious supervision. Therefore, a need was felt to maintain some form of continuity.

Many countries elected to adopt their societal views on civil affairs into a single unified code of civil law covering personal matters such as marriage, inheritance, adoption, and guardianship, apparently an unbiased rational-legal code to govern all disparate populaces under their rule by the same standards. Others, India included, adopted a more non-assimilatory approach, creating separate personal law codes for the major communities present within their population so they may continue to enjoy the same inter-personal dynamics that they had enjoyed uninterrupted for so many years.

This was intended to avoid the abrupt disruption caused by a unifying law, but lawmakers remained cognizant of the eventual need for a ‘one nation, one civil code’ paradigm. Whether in a uniform or community-centric form, this body of law governing personal dynamics, predominantly within family structures, came to be known as personal law.

Article 13 and Personal Law: The Conflict

Article 13 of the Constitution of India states as follows:

“(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(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.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”

Thus, this Article lays down the requirement upon the State to keep the Fundamental Rights contained in the constitution unmolested while legislating. Any law made that contravenes the provisions contained in this Part of the constitution are ultra vires and void. Amendment or abridgement of Fundamental Rights can only be done through an amendment to the Constitution itself; the power to do so is granted to the Parliament of India. However, the quarrel arises in the case of personal law, as the majority of it is not codified as a legislative enactment, but contained in scattered form across a wide variety of sources, including:

  • Sacred texts and manuals;
  • Customs and Usages;
  • Commentaries by religious scholars;
  • Royal or priestly edicts;
  • Parables and legends;
  • Equitable principles.

In such a situation, it becomes difficult to determine whether the bar in Article 13 should apply to such uncodified laws as well; even where the statute mentions customs and usages in its purview, it is unclear if the ordinary customs of the land have ‘the force of law’ required to attract this Article. Reframed, the question stands as follows:

Are personal laws obligated to respect Fundamental Rights?

Judicial Position

The first opportunity for the judiciary to examine this question came up in 1952 with the case of The State of Bombay v. Narasu Appa Mali. Here, the petitioner challenged the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946, on the grounds that it violated the fundamental rights of Hindus to equal treatment by the State and freedom to practice their religion. The Bombay High Court rejected this argument as the expression ‘law in force’ in Article 13 could not be construed to contain personal law within its ambit.

Justice Gajendragadkar stated that “the expression “laws in force” is, in my opinion, used in Article 13(1) not in that general sense. This expression refers to what may compendiously be described as statutory laws”. This ratio has never been challenged insofar as it extends to uncodified law. In fact, in Krishna Singh v. Mathura Ahir, the Supreme Court stated that “Part III of the Constitution does not touch upon the personal laws of the parties”, and that personal laws shall not be measured by the touchstone of modern conceptions but by those of authoritative Hindu law. The same was reiterated in Maharshi Avadhesh v. Union of India, wherein the Supreme Court rejected a writ petition praying for the introduction of a Uniform Civil Code (UCC), stating that the matter of personal laws was one of legislative policy and not for the judiciary to decide.

However, in Sant Ram v. Labh Singh, the Supreme Court held that where a custom or usage has been used in furtherance of a legal end, such custom acquires the force of law within the meaning of Article 13(3)(a) and is thus subject to the restrictions of Fundamental Rights. Similarly, in John Vallamattom & Anr. v. Union of India, the Supreme Court held that codified personal laws were ‘laws’ within the meaning of Article 13 and could be challenged on the grounds of Fundamental Rights.

The first real anticipation that the court was willing to take another look at the Narasu judgement was kindled when Shayara Bano v. Union of India was heard on the issue of declaring triple talaq unconstitutional. However, the bench took a different route. Justice Nariman and Justice Lalit, penning the majority opinion, held that by the Shariat Act of 1937, all forms of talaq permitted under Muslim law was given a place in codified statute, and thus would be amenable to judicial review as per the ratio in previous rulings such as John Vallamattom.

Justice Joseph, while agreeing with the majority, avoided the constitutional issue entirely by judging Talaq-i-Biddat as unsound in Muslim law itself. He relied on the commentaries of Islamic law and legal scholars to pronounce that it was religiously disapproved and thus not unamenable to judicial restriction.

On the other hand, Justice Khehar, writing the opinion for the two-judge minority, stuck to the Narasu ratio and proclaimed that the issue was beyond the mandate of the court as it was uncodified personal law. While this attracted harsh criticism from many reformist quarters, the Supreme Court upheld its self-censorship and refused to wade into the muddy waters of personal law.

Recently, however, the Court took perhaps a step too far in the judgement of India Young Lawyers’ Association v. State of Kerala, better known as the ‘Sabarimala case’, where it decided to bring the customary religious practices of the Sabarimala temple into the ambit of Article 13. The reasoning of the majority judgement indicated that the Supreme Court is now amenable to questioning the Narasu ratio.

Criticizing Justice Gajendragadkar’s approach of excluding custom and usage from Article 13, Justice Chandrachud stated that “custom or usage cannot be excluded from ‘laws in force’. The decision in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution”.

Additionally, while he steadfastly refused to consider the issue of whether Narasu was good law, Justice Nariman expressed doubts as to its correctness, stating that “in a suitable case, it may be necessary to have a relook at this judgment in that the definition of “law and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law”.

Conclusion

In this author’s submission, the pre-Sabarimala case position of law is the appropriate one: uncodified personal law is not enacted by the State but is contained in the lives and practices of the people. No organ of the government has any power to abridge or ameliorate them, as religious authority is not derived from their statutory mandate. Only by an act of codification and legislative enactment can an issue of personal law come under the ambit and oversight of State power, and in such a case this law shall be and should be subject to the same tests as any ordinary law of the legislature. Beyond that, the religious practices of the people are under no obligation to conform to any rational-legal understanding of rights and duties, guided as they are by the morality of, and solely of, their scriptures and holy sources of law.

Secular logic cannot be applied to inherently religious activities and sites, such as temples, as doing so is a denial of their right to live by the rules prescribed by their own religion and constitutes the government forcibly soiling the practice of their prescribed rites. In the modern world, it is undeniable that the State occupies a position of superior power over the Temple; however, this power must be exercised by using the political tools given to it to appropriately control and regulate the lives of the populace. Strongarming religion by the might of the royal baton is an unnecessary victimization.

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