Judicial Review of Personal Laws under the Indian Constitution


Vatsala Khandelwal

B.A., LL.B. (Hons.) – 2014



Post-independence, an explicit provision in the Indian Constitution enabling judicial review, was considered quite significant for its presupposition of the prevalence of rule of law. Article 13(2) clearly states that any law abridging the rights of an individual, as conferred by Part III of the Constitution, shall be void to the extent of that contravention. The power of the judiciary, to strike down a law inconsistent with the aspirations and objects of the Constitution, in essence acts as a safeguard for individual rights. The underlying object of protecting and enforcing Fundamental Rights is of utmost importin the power of the judiciary to judge the constitutionality of legislative and administrative actions and even judge the legislative competence of certain laws. Judicial review over administrative action has evolved on the lines of common law doctrines such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice.[1]

Article 13(3) goes on to define the meaning of laws and laws in force for the purposes of determining the extent and scope of judicial review. Although by definition Personal Laws are not excluded explicitly under the Article, such exclusion has been established through various case laws in the past few decades. Personal Laws came into being long before the Indian Constitution did, in order to regulate and govern subjects of personal sphere, like marriage, succession, divorce, maintenance and guardianship.These laws largely include codified norms based on cultural practices and multiple religious texts and scriptures, in addition to the uncodified religious practices, customs and usages recognized by the law.There has been a great sense of apprehension in intervening and re-interpreting these laws for their very nature and composition. Personal laws have held a very unique position in India having vast implications and affecting a large, but diverse set of communities, to which cultural and religious matters are of paramount centrality.

The Judiciary’s reluctance in reviewing the constitutionality of the varied set of personal laws has largely stemmed from the framers’ position of ensuring the protection of the usages and customs of the minorities, as a manner of guaranteeing the right to freedom of religion, as enshrined in Article 25 of the Constitution. This could be seen as somewhat reasonable, considering the socio-historical context of the birth of the Indian Constitution. Maintaining civil bounds in post-independent India was a real challenge, bearing in mind the highly politicised environment driven by religious and cultural differences, which continue to possess the prospect of similar implications even in the present context. These laws, having some form of semblance with the ancient systems of law, may often be found inconsistent or incompatible with the fundamental rights, partly if not completely.In my opinion, despite the evolution and expansion of judicial interpretation and review with the kind of legitimacy that this phenomenonhas gained, it has nothad a relative bearing on the personal laws and their re-interpretation, in the manner that it should have.

The case of Kesavananda Bharati v. State of Kerala,[2]emphasized on the importance of judicial review by stating that judicial review is an integral part of our Constitutional system. As long as fundamental rights exist and are part of the Constitution, the power of judicial review has to be exercised with a view to guaranteethat these rights are not contravened. Further, in Minerva Mills Ltd. v. Union of India,[3] it was observed that it is the function of the judges to pronounce upon the validity of laws. In the absence of such powers with the judiciary, the fundamental rights conferred on the people will become a mere adornment because rights cannot be without remedies.Accordingly, I believe that the judiciary cannot continue to simply remain blind to the large-scale infringement of fundamental rights that regularly takes place with respect to matters that hold immense significance in the routine lives of people, as a result of the provisions of the different personal laws going unchecked.

Several features of these laws have been challenged on the grounds of being unconstitutional time and again. However, the attitude of the courts, over the decades,has remained evasive in responding to such questions, owing to their policy of non-interference. For instance, the Supreme Court in Shri Krishna Singh v. Mathura Ahir[4] neatly laid down that Part III cannot touch upon personal laws so long as they are not “altered by any usage or custom or is modified or abrogated by statute”. The stance of the Courts toward the question of constitutionality of personal laws remained unchanged a couple of years later, in another Supreme Court case[5], where a public interest litigation was filed to declare the Muslim personal law void for its practice of polygamy. Again, the Court simply refused to take cognizance of the matter by stating that the issues brought forward were matters of state policy with which the Court could not concern itself and that the remedy was to be sought from the legislature instead. Later, the Kerala High Court refused to take a stand on a provision of the Indian Divorce Act, on similar grounds in another case[6]. Even in a case[7] as recent as that of 2015, the same reluctance was visible in deciding the constitutional validity of the Shariat law by the Kerala High Court, as it was stated that only a competent legislative authority would be capable of addressing this issue.

In my opinion, these have been gravely erroneous judgements since they have callously resorted to an escape route by taking apathetic, passive positions on what continues to be a source of vexing, unanswered questions and a topic of raging debate till date. The courts have simply shrugged off their responsibilities by shifting the burden on the legislature entirely. There has been a very weakattempt at fulfilling the objects of the judiciary across these judgements, as they fail to reinterpret the law so as to deliver justice in the best interest of the concerned minorities.

In the case of State of Bombay v. Narasu Appa Malli,[8] the Court was faced with the question of the constitutionality of the Bombay Prohibition of Bigamous Marriage Act, 1946, and whether an alteration in the personal law of one community, without similar alterations in that of the other communities, violates equality. The Bombay High Court held that personal laws are not ‘laws in force’ as under Article 13(3), since they are based on religious precepts and accordingly are not subjected to review for violation of fundamental rights. Further, the Court stated that the Act was not an alteration of the personal law, but an exercise of the State’s prerogative of introducing social reforms.

This reason is based on the maxim, expressio unius exclusio alterius, i.e., the express mention of one, rules out others. The Court has applied this rule without noting the wide, inclusive connotations of “law”, thus, concluding that any provision in the religious texts, followed in its purity is beyond judicial scrutiny.

A literal and positivist reading of Article 13(3) has led to several courts agreeing and concluding that customs must yield to fundamental rights, since the clause explicitly includes ‘customs and usages’ within the meaning of laws for the purposes of judicial review, as was also held in the case of Gazula Dasaratha Rama Rao v. State of Andhra Pradesh[9]. This dichotomy between customs and personal laws prima facie seems unreasonable as there is no reason to not subject personal laws to fundamental rights if customs can be subjected to them. However, despite customs explicitly coming in the purview of judicial review, the Supreme Court has been slightly escapist in its approach to questions of their constitutionality.For instance, in Madhu Kishwar v. State of Bihar,[10] women were given inheritance rights going against their customary practices, not on the grounds of them being unconstitutional on account of being discriminatory on the basis of sex, but on the grounds of ‘justice, equity and good conscience’. The courts have repeatedly adopted a policy approach instead of a legalistic approach with respect to the private sphere of the citizens’ religious and customary practices and the laws governing them.[11]

This demarcation of the private sphere as opposed to the political public sphere, in itself embodies ages of colonial thinking. There was reasonable resistance against any and all attempts at regulating the private matters of families under colonial rule, since it was perceived as unwarranted interference. However, the birth of the constitution in the post-independence context has had a resounding impact on a plethora of socio-legal dimensions pervasive in the Indian society. The personal laws regulating the religious practices of the citizens, in my opinion, should no longer be “othered” and looked at as something that must be out of bounds for the State to intervene in, despite the violations of fundamental rights, especially that of equality, being as common and wide-spread as they are.

There has been a small, but significant development in this area as the case of Md. Ahmed Khan v. Shah Bano Begum[12]ushered in a new era of judicial review. This is a landmark in the journey of development of personal laws, whereby the Supreme Court for the first time ruled against the tenets of Muslim personal law by recognizing the disadvantaged position of women and granting a maintenance claim to a Muslim divorced lady under Section 125 of Cr.P.C.Although the judgement did not render the Shariat law unconstitutional, it did succeed in protecting the fundamental right to equality by allowing Muslim women to seek relief under a secular, uniform code. It also led to the codification of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which granted women utter clarity on several rights, unlike the uncodified Shariat law.  The objects, effects and implications of this Act were further clarified as its constitutional validity was upheld in the case of Danial Latifi v. Union of India,[13] wherein it was stated that Muslim women are no longer barred from seeking a remedy outside their personal law and that it was at their option whether to claim rights under the said Act or under the CrPC.

There have been far more attempts at amending the various Acts pertaining to Hindu laws ever since their codification, many of which have been a result of progressive judicial interpretations. However, they still have not been completely successful in achieving a position free from violations of fundamental rights considering its inadequacy of a gender-neutral tone. For instance, a 1984 judgement[14] upholding restitution of conjugal rights continues to be a good law, in-spite of the concept being prima facie in violation of Articles 14 and 21, as it is capable of compelling a wife to cohabit and perform matrimonial obligations after having expressed her desire for separation. Additionally, there continue to be several discrepancies in the inheritance rights as well as the manner of devolution of properties of women under the Hindu Succession Act, 1956.

Further, in the case of Ammini E. J. v. Union of India,[15] the constitutional validity of Section 10 of Indian Divorce Act was challenged on the ground of dual burden on the part of wife to prove two grounds at the same time in a petition for divorce. This was found to be arbitrary and discriminatory, and hence struck down by the Kerala High Court. Subsequently, the legislature amended the section, such that it provides common grounds to both the parties to the marriage. In another case[16] the provisions of the Christian Succession Acts of Travancore and Cochin were found to be discriminatory against daughters and were accordingly held to be unconstitutional as per Articles 14 and 15.

Undoubtedly, there has been an increasing engagement of the courts with the question of the constitutionality of personal laws. I believe that it is crucial for the extent and scope of judicial review to expand so as to formally subject personal laws to fundamental rights. Creating special powers of the judiciary to scrutinize legislations was a manner of the Constitution of coherently responding to the plurality of opinions and the recognition of the impracticality of a blanket consistency. A certain degree of checks on the legislature was considered imperative to ensure that the loopholes were accurately addressed and not taken advantage of. Judicial scrutiny, thus, could be looked at as a reflection of constitutional morality flowing from the idea of constitutionalism, since it is an assurance of adherence to basic constitutional values.

[1] Address by Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India, Trinity College, Dublin, October 2009. http://supremecourtofindia.nic.in/speeches/speeches_2009/judicial_activism_tcd_dublin_14-10-09.pdf

[2](1973) AIR SC 1461.

[3](1980) AIR SC 1789.

[4] (1981) 3 SCC 689.

[5]Ahmedabad Women Action Group v. Union of India, AIR 1997 SC 3614.

[6]P.E. Mathew v. Union of India, AIR 1999 Ker 345.

[7]Khuran Sunnath Society and others v. Union of India,MANU/KE/0906/2015.

[8] AIR 1952 Bom 84.

[9] AIR 1961 SC 564.

[10]AIR 1996 SC 1864.

[11] M.P. Jain, Indian Constitutional Law, LexisNexis, Seventh Edition 2014, pp – 869.

[12] AIR (1985) SC 945.

[13](2001) 7 SCC 740.

[14]Saroj Rani v. Sudarshan Chaddha, AIR (1984) SC 1562.

[15] AIR [1995] Ker. 252.

[16]Mary Roy v. State of Kerala, AIR (1986) SC 1011.

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