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Personal Laws and the Constitution: Revisiting Narasu Appa Mali -Ashwani Malhotra*i

The Constitution of India Guarantees to its citizen the Freedom of Conscience and free profession, practice and propagation of religion, the freedom to manage its religious affairs under Part III i.e The Fundamental Rights chapter of the Indian Constitution. The same part III of the 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 religion, caste, sex etc, the right to liberty which includes within itself the right to live with dignity and let alone to mention that even article 25 which grants the freedom of religion is also subjected to the other fundamental rights and thus is not absolute. The question which arises is how then some of personal laws being patriarchal, and on face discriminatory against the women like which moves against the fundamental rights can still exist and manage the scrutiny of fundamental rights? In this paper after establishing the current position of law, I have tried to examine and scrutinize the legal reasoning and rational behind the Bombay High Court decision in State of Bombay v. Narasu Appa Mali where the court held that the personal laws are outside the ambit of judicial scrutiny under article 13 and because of which even today, after 65 years of developed constitutional jurisprudence, some of the discriminatory personal laws continues to be in practice.

Recently a bench of 5 judges of the supreme court heard the case of Shayara Bano v. Union of India & ors where among other things the petitioner challenged the validity of talaq-e-bid’a (Instant Triple Talaq) which allows the Husband to unilaterally and instantly divorce his wife. The issue was first raised before the smaller bench whereby the supreme court referred it to the bench of 5 judges. Earlier In Shamim Ara v. State of UP the apex has already held that the mere pronouncement of talaq in response to proceedings filed by the women for maintenance cannot be treated as a pronouncement of talaq. Similarly, In A.Yousuf Rawther v. Sowramma , Krishna Iyer J. observed that instant Triple Talaq practice is not part of Muslim Personal Law and therefore excluded from the Muslim Personal Law (Shairat) Application Act, 1937 and thereby held “in order to be valid, talaq has to be pronounced as per Quranic injunction, as such triple talaq is not a essential religious practice of Islam and is invalid.” Now when the issue was referred to the bench of 5 judges there was a ray of hope that the reopen the question

apex court of India will

whether personal laws qualify as "laws" for the purposes of Article 13,

since no other reason in the quite justifed the setting up of a constitution bench which requires a court to deal with a substantial question of law as to the interpretation of the constitution. The Supreme Court in its judgment in Shyra Bano has held by the majority of 3:2 that the pratice of instantaneous triple talaq / talaq–ul –biddat is unconstitutional. On one side Justice R F Nariman (writing for himself and Justice Lalit) and Justice Joseph supported the view that triple talaq is unconstitutional and on the other hand in minority Chief Justice Kehar, also writing for Justice Nazeer, upheld the practice of triple talaq and left it for the parliament to come up with the law.

Since the objective of this paper is not to dwell deep into the this particular cases decided by the apex court, I’ll only briefly deal with the ratio of the judgment with which we are concerned. Justice Nariman, also writing for Justice Lalit, held that after coming into force of Muslim Personal Law (Shariat) Application Act, the Muslim personal laws were accorded the statutory status and no more remained personal law. He rejected the argument that the said act is merely a non-obstinate and held that the it qualifies as “laws in force” under article 13, thereby holding that section 2 of the act till the extent it authorizes triple talaq is unconstitutional as being violative of article 14 right to equality. Having taken this path, it would have been unfair to expect from him to re-open the question of Narasu appa Mali as it became redundant in the present case. However he did doubted the correctness of the decision of Narasu and opined that it might be necessary to have a re-look at the judgment in some other case. Justice Joseph on the other hand rejected the contention that the 1937 Act is a legislation regulation triple talaq and thus held that the same cannot be tested under the constitution. He also refused to touch upon the issue whether the personal law are laws in force under article 13 and simply held that the practice of triple talaq is against the basic tenets of the holy Quran and thus violates Shariat. He ended by endorsing and re-iterating the law declared in Shamim Ara (discussed above) and concluded that the practice of tripal talaq is unconstitutional. Justice Kehar ,also writing for Justice Nazeer, held that the pratice of triple talaq is an integral part of the religion and is a part of personal law and thus constitutes an essential religious practice. Here the different views laid down by Justice Joseph and Justice Kehar on whether the practice constitutes essential part of Islam exposes the oscillating nature of the essential religious practice test. CJI went on and held that personal law has a constitutional protection which is being extended from article 25. He also held the 1937 act only negates the customs and usages from the personal laws and as such the act does not codify triple talaq. On question of Narasu appa mali on personal law being the law in force he held since the proposition has been earlier accepted by this court by constitution benches of 5 Judges it disqualifies them to revisit the proposition but acknowledged that a challenge to personal law can also be met under article 25 as the practice under article 25 has to be in line with others provisions of part 3. While doing so CJI held that this challenged can be invoked only against the legislative action whereas

personal laws don’t gets its authority from the same and thereby upheld the practice of triple talaq.

In Conclusion the Bench with the majority of 3:2 held that the 1937 Act doesn’t codify the triple talaq, and with different majority of 3:2 held that the practice of triple talaq is not a essential religious practice to Islam under article 25 and is thus unconstitutional. Finally on the fundamental question of weather the personal law are ‘laws in force’ under article 13, the question which was highly important to radically subject other discriminatory practice of personal laws to the constitution, the judgment of Nariman and Lalit JJ and

Joseph J. remained

silent, whereas Kehar and Nazeer JJ held that the same cannot be tested against the part 3 and hence regrettably the elephant of Narasu Appa Mali remains Intact in the room. Though All India Muslim Personal Law board lost the case but arguably they are taking a strong precedence home as Judgement of Justice Kehar and Nazeer along with the judgement of Justice Joseph elevated the status of personal law to a fundamental right under article 25.

Below I’ve tried to deal specifically with the judgment of Bombay High Court in the case of Narasu Appa Malli which held the personal law, which as majority in Sharya Bano has held not been codified under the statue, are outside the scope of judicial scrutiny under article 13.

Article 13 of the constitution provides for the judicial review under the Indian constitution which enable the courts to strike down laws which goes contrary to the fundamental right. Article 13 reads: 13. Laws inconsistent with or in derogation of the fundamental rights

(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;law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by 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 Right of Equality

In State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84, The Hindu Bigamous Marriages Act, which under section 4 rendered the bigamous marriage void among Hindus after the coming into force of the act and section 5 which made the bigamy punishable with maximum 7 years of imprisonment etc, was challenged on the ground of article 25, 14 and 15.

On Article 25 court rejecting the challenge held that even assuming Bigamy constituted the part of religion, the right of the state to legislate on question relating to marriage cannot be disputed as article 25 in clause (2) sub clause (b) provides for social welfare and reform of Hindu religion. The petitioner then challenged the act of the ground of article 14 and 15 as the act did not apply to the muslims, as such it discriminated among the two religion and treated them unequally as muslim have the right to marry 4 women and Hindus don't. Not countering the argument on the

ground of being sexist alone and court held institution of marriage is differently looked upon by the Hindus and The Muslims, and that the Muslims constituted a separate class who should be treated differently as per their own personal laws which permitted them to have 4 wives.

The Petitioner then argued that the Muslim personal law has become void by the virtue of article 13 as it discriminated against the muslim women who could have only one husband and as such violated the right to equality. Now article 13 clearly says that all Laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with provision of part 3, shall to that extent become void. By the virtue of that the court should have examined the vires of personal law against article 14 and 15(1) but before doing that the court chose to examine that whether the expression 'all laws in force' includes within it's ambit "Personal laws?" Both the Judges i.e. Chagla J. And Gajendragadkar J. gave their separate judgments and reached the same conclusion that the Personal laws doesn't come under the definition of 'Law in Force' under article 13 and therefore cannot be subjected to the Judicial Review under the Indian Constitution.

Justice Gajendragadkar gave the following reasoning in para 19 and 20 to support his point " Article 13(1) provides that 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 Part. III, shall, to the extent of such inconsistency, be void. The expression "laws in force" is thus defined by Art, is (3) (b):-- 'Laws is 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..." he further held

' There can be no doubt that the personal laws are in

force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview. But 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 compendious be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India. Article 372 which provides for the continuance in force of existing laws and their adaptation uses the expression "all the law in force" and defines it in terms substantially similar to those of Article 13(3)(b).' and concluded that it is the statutory law which is intended to be included in the expression "laws in force' in Article 13(1) and since the personal laws do not derive their validity on ground of being made by the legislature, they cannot be included under the expression 'Law in force' in art 13(1).

On the point that the expression 'Law In Force' in 13(1) must include the terms included in the expression 'law' under 13(3) he held " I feel considerable difficulty in accepting this argument. If custom or usage having the force of law was really included in the expression 'laws in force', I am unable to see why it was necessary to provide for the abolition of untouchability expressly and specifically by Article 17." In others words such an interpretation will render the article 17 redundant because if it was included in the expression 'laws in force", it would have been void under Article 15(1). In that view it would have been wholly unnecessary to provide for its abolition by Article 17. Apart from this the court also made the mention of Article 44 which provides for Uniform Civil Code, The government of India act 1915 which expressly used the word Personal Laws, Entry 5 of concurrent list in the constitution to further support its argument. In the paragraph below I've tried to examine each of the ground reached by the court on its legal merits and have argued that the conclusion reached by the court was wrong.

The First point of the argument of Gajendragadkar J. that Laws which are included in this expression 'law in force' must have been passed or made by a legislature goes against the wording of the article itself.

The article 13(3) reads 'unless the context otherwise requires,-......' laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, not withstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.'

The word 'include' used here shall not be interpreted narrowly and in the exhaustive sense but rather in the inclusive sense. To make the point clear let's take an example of section 125 of CrPC which talks about maintenance, The explanation of the section says that the term 'Wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Now according to the above method of interpretation adopted by the court the wife shall then not include any other person except the one who has divorced her husband, and certainly not someone who is still married to her husband, but the 60 years of jurisprudence suggest otherwise.

The word 'Includes', rather than narrowing down the scope of the definition, enhances the definition of the expression defined to comprehend not only such things as they signify according to their natural import, but also things as the clause says they shall include. In P. Kasilingam V. PSG College Of Technology1 the court accepted this notion and held that words "means and includes" has been used to indicate that the definition is inclusive in nature and also covers categories which are not expressly mentioned therein.

1(1981) 1 SCC 405: AIR 1981 SC 789

However, things doesn't end here. It might be argued that the article 13(3) starts with the heading 'unless the context otherwise requires' which prohibits us from using the term include in the exhaustive sense, since the phrase is meant to prevent a person from falling into the whirlpool of definitions and to use the definition that is given in the definition clause unless the context requires otherwise.

However, this is not the only way of interpret the term ‘Include’ when succeeded by the phrase 'Unless the context otherwise require'. In Apar Private Limited and others v. U.O. I2 the court was confronted with the similar issue, where section 2 clause 27 of the Customs act, 1962 stated 'India includes its territorial water', succeeded by the words 'Unless the context otherwise

requires'

at

the beginning of

section

2.

The

court

while

upholding

its previous precedence of S.k gutta v. K. P Jain held " Where in a definition clause, the word 'include' is used, it is so done in order to enlarge the meaning of the words or phrases occurring in the body of the statute and when it is so used, these words or phrases must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include". "Wherein a word is defined to mean a certain thing, wherever that word is used in that statute, it shall mean that as is stated in the definitions unless the context otherwise requires. But where the definition is an inclusive definition, the word not only bears its ordinary, popular and natural sense whenever that would be applicable but it also bears its extended statutory meaning." That is to say the word Include will continue to be inclusive and apart from natural and ordinary meaning of the word it will also include things which are stated in the definition clause unless the context requires not to include them.

Even Justice Chagla contended that the definition of 'law in force' is an inclusive one. He pointed out that article 13(2) deals with prospective laws (the wordings state shall not...) and provides

21986 (1) BomCR 196

that any law made in contravention of fundamental right be void. Article 13(3) defines the term 'law' (Used in article 13(2)) as including custom and usage but clearly, as J. Chagla noted, the state cannot make any custom or usage and thus it will have no meaning if were applied to expression 'law' in article 13(2), therefore, he held, the part of definition will apply to expression 'law' thus pointing out to the inclusive nature of the expression 'law in force'. Once it's accepted that the definition of 'law in force' is an inclusive one then the general sense of the word is ought to include the personal laws within it's frame, as even Gajendragadakar J. noted that 'There can be no doubt that the personal laws are law in force in a general sense'.

But even if one were to accept that word 'includes' is used in the exhaustive sense, for the Narasu appa mali dictum to withstand scrutiny it must be established that there exists a difference between law under article 13 (which as Gajendragadkar J. interpreted to include only one that is passed by legislature or competent authority) and personal laws. To establish that difference Justice Gajendragadkar said "It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahommedan laws are their respective scriptural texts." i.e the personal law don't owe their allegiance to legislature but to the spiritual text and non-state body of enforcement. However, this view is not entirely true. The question that there never existed a domain of personal law which has its source in scriptures purely is not alien to the history of these Personal laws; that time and again the personal laws were intersected by the politics and the state. When...