ABSTRACT
Judiciary is the most important organ of any state, the main function of which is to interpret laws and settle disputes between parties. The courts act as supreme interpreter, protector and guardian of supremacy of the constitution by keeping all authorities- legislative, executive, administrative, judicial or quasi- judicial- within legal bounds. The judiciary has the power to scrutinise all the governmental actions in order to access whether or not they conform with the constitution and the valid laws made thereunder. But when it comes to personal laws, they are nowhere mentioned in the Indian Constitution. So, the question arises whether they are in purview of judiciary or not. Earlier the courts were reluctant to enter into religious domain but gradually this approach changed and personal laws started being interpretated. This research paper attempts to scrutinize both the approaches adopted by Indian Judiciary and explain how these have made a considerable change in the society and served justice to the vulnerable section. The scholar attempts to define personal laws and examine how the courts have dealt with the challenges to the constitutionality of personal laws. This paper attempts to provide a holistic view of personal laws and judicial intervention to its readers.
KEYWORDS
Personal laws, judiciary, fundamental rights, non-interventionist approach, scrutinizing approach, codified and uncodified laws
INTRODUCTION
In some cases, the laws have to step back to let justice prevail. So, in order to do complete justice to the aggrieved parties, the law has to be struck down. This task of deciding the constitutionality of the laws, whether pre-constitutional or post-constitutional, whether codified or uncodified, is done by the judiciary. The conflict between right to equality and non-discrimination enshrined in the Indian Constitution and the prevalence of gender-discriminatory personal laws has led to a contestation between individuals claims to the equality and the right of religious communities as collective units of democracy.
The Article 25[1] entitles citizen to freely practice, propagate and profess any religion and this entitlement is a fundamental right and part of basic structure which cannot be infringed by anyone. The religious communities had framed personal laws before the commencement of the constitution and follow these personal laws in order to practice right given under Article 25. But many of these personal laws are discriminatory especially to women and propagate inequality which is violate of Article 14[2].
As per Article 13(1)[3], all laws in force in the territory of India before the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part 3 of the Constitution be declared void. But another contention is that Part 3 of the Constitution itself validates these pluralistic traditions, minority cultures within Article 25- Article 30.
There had been apprehensions on the part of judiciary to challenge personal laws but now a new trend has emerged which questions the validity of personal laws in order to provide justice and equality which are basic values enshrined in the Indian Constitution.
This research paper tries to acquaint the readers with the developments in domain of personal laws and figure out how the judiciary has intervened in these matters by testing personal laws on the touchstone of fundamental rights and tried to struck them down as violative of basic structure.
RESEARCH METHODOLOGY
This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of personal laws and how judiciary intervened time to time to serve justice. Secondary sources like books, newspapers, journals and websites are used for research.
PERSONAL LAWS
During the colonial era, the diverse customary traditions followed by the various sects and communities were converted into religion based personal laws in case of civil disputes. All disputes between Hindus and Muslims were decided by the courts under civil law by applying to them their own personal laws. The British gave both Hindus and Muslims freedom to practice their own religious laws and it was clearly established that British would not interfere unless both the parties submitted to the jurisdiction of the British courts.
Hence, thereafter every religious community started codifying their respective personal laws. Personal law is the law by which an individual is governed in respect of various matters such as principles relating to marriage, maintenance, adoption, succession, inheritance, guardianship etc. The Indian Constitution guaranteed the right to practice religion under Article 25[4]. So, the personal laws derived their authority from Constitution itself.
But in India, we have diverse society and therefore a variety of personal laws in force. Personal laws often pose a threat to fundamental rights, especially when rights of one group are placed against the rights of other, for example women’s rights. The consequences of flaws in numerous personal laws have led to an upsurge in multiculturalism in the Indian society. But they are deemed unchangeable since their authority originates from the religion itself.
The personal laws are discriminatory in nature and efforts were made throughout the history to address the inequality inherent in these laws but gender equality remained a far-fetched goal. This is a factor which is common among all the personal laws. For instance, Parsi daughters who marry outside their religion are denied property rights; under Muslim law, the quantum of property inherited by daughter is half of a property given to a son etc. Most to the prevalent personal laws are unjust deny women right to dignity and equality. When these issues were first raised in Indian courts, they adopted a non-interventionist approach.
NON-INTERVENTIONIST APPROACH
The courts believed that personal laws are not laws as per Article 13[5] as there is no specific mention of personal laws. So, the personal laws could not be challenged on the grounds of constitutionality. Justice Chagla opined that definition of Article 13[6] was purposely made to exclude “personal laws” so that immunity could be granted to these personal laws from any constitutional challenges.
The judiciary back then argued that personal laws in India cannot be considered as statutory laws, they could not be tested against fundamental rights under Article 13 of Indian Constitution. The personal laws were thus considered outside the scope of Part 3 of Indian Constitution in case of STATE OF BOMBAY V. NARASU APPA MALI[7]. The judgement made no distinction between codified and uncodified laws and took a non-interventionist stand. Several scholars have been critical of this judgement and provide contrary views.
The personal laws were also challenged in a case HARVINDER KAUR V. HARMANDER SINGH CHAUDHARY[8], where a wife challenged Section 9 [9]of Hindu Marriage Act, 1955 and contended that it violated Article 14, 19 and 21. But the court held Section 9[10] to be valid and constitutional and invoked the legal dictum that personal laws are immune to the test of Part 3 of Indian Constitution.
Later in case of SAROJ RANI V. SUDARSHAN KUMAR CHADHA[11], the affirmed same ruling and held Section 9 of Hindu Marriage Act, 1955 to be valid and justified it as providing social aid.
The supreme court in matter of KRISHNA SINGH V. MATURA AHIR[12] ruled that Part 3 of Indian constitution does not apply to the personal laws in India. It was held that the judges could not introduce their own modern understanding of the laws and consequently apply Part 3 to personal laws.
In case of MADHUR KISHWAR V. STATE OF BIHAR[13], the constitutionality of Chhota Nagpur Tenancy Act 1908 was challenged which disentitled tribal women from inheritance rights. But Supreme Court refused to declare tribal customs as offending fundamental rights.
But gradually we could see that influence of NARASU APPA MALI CASE[14] faded out, with courts increasingly testing personal laws against the touchstone of fundamental rights and adopting a scrutinizing approach.
SCRUTINIZING APPROACH
The approach thus adopted either reinterpreted the personal laws in harmony with the Part 3 of the Constitution or struck down the offending section. A more pro-active judicial approach was adopted to make the Constitution a transformative document that could undo the evils of exploitation and discrimination couched under the grab of personal laws, most of which are outdated. This approach was considered to help in wiping out the rotten system of discriminatory personal laws which exploited the underprivileged and award justice.
Nariman J quoted that “The court must seek to recognize and transform the underlying social and legal structures that perpetuate practices against the Constitutional vision – Subjecting personal laws to constitutional scrutiny is an important step in this direction”.
This started with a landmark case named MARY ROY V. STATE OF KERALA[15], which concerned granting Christian women equal inheritance rights. The court ruled in this particular case that no personal laws can supersede India’s Constitution and any part of personal law that contravenes the Constitution will be declared unenforceable.
In a case T SAREETHA V. VENKATA SUBBAIAH[16], the court declared Section 9 [17]of HMA,1955 to be invalid and ruled that nothing can be more degrading than forcing individual to engage in sexual act against will and declared this provision to be against Article 14, 19 and 21.
Also, in a landmark judgment, AMMINI EJ V. UNION OF INDIA[18], Kerala HC struck down Section 10 of Indian Divorce Act, 1869 to be violative of Article 21[19]. Later same decision was adopted by Bombay, Delhi, Karnataka High Courts and in 2001, the act was itself amended.
Then a major issue arose regarding the rights of divorced Muslim women to claim maintenance. The SHAH BANO CASE [20]sparked a nationwide debate on women’s rights and gender equality and emphasized the need for reforms in personal laws. Judgement was passed stating that CrPC would prevail over personal laws and it applies to all citizens of India, irrespective of their religion.
Later, in a very recent and important case under family laws which is SHAYARA BANO V. UNION OF INDIA[21], a Muslim women challenged the validity of triple talaq, polygamy, nikah halala claiming it to be against fundamental rights. The Supreme Court in this case held the practice to be violative of Part 3 of Constitution and directed legislature to take measures against it in order to stop abuse against women.
Article 25[22] guarantees its citizens the right to practice and propagate any religion but this right is not absolute and subject to a number of restrictions.
SUGGESTIONS AND CONCLUSION
The adoption of Uniform Civil Code under which all the matters of civil laws would be governed under defined set of laws and would apply equally to everyone, irrespective of their religion would be an ideal and incremental approach to deal with the flaws of the personal laws. Despite several amendments brought into these personal laws, these are still not free of social evils.
It needs to be noted that women had no role to play while drafting personal laws and were codified by men in power. But the reforms carried out in India from time to time are a positive indication of will to give an equal platform for all citizens. The opposition to Uniform code must go away with a realization that all personal laws discriminate women and there is a need for common code where these issues are addressed and which does not give any legal sanctity to gender bias.
If India as a country wants to progress and become inclusive, it needs to address problems faced by disadvantaged on daily basis as a result of discriminatory laws in the name of religion.
Taniya Garg
National Law University, Jodhpur
[1] Article 25 of Constitution of India,1950
[2] Article 14 of Constitution of India,1950
[3] Article 13(1) of Constitution of India,1950
[4] Article 25 of Constitution of India,1950
[5] Article 13 of Constitution of India,1950
[6] Id.
[7] State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84, ILR 1951 Bom 775
[8] Harvinder Kaur V. Harmander Singh Chaudhary AIR 1984 Delhi 66, 1984 RLR 187
[9] Section 9, Act No. 25 of 1955, Hindu Marriage Act, 1955
[10] Id.
[11] Saroj Rani V. Sudarshan Kumar Chadha
[12] Krishna Singh V. Matura Ahir
[13] Madhur Kishwar V. State of Bihar 1996 AIR 1864, 1996 SCC (5) 125
[14] State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84, ILR 1951 Bom 775
[15] Mary Roy V. State of Kerala 1986 AIR 1011, 1986 SCR (1) 371
[16] T Sareetha V. T. Venkata Subbaiah AIR 1983 AP 356
[17] Section 9, Act No. 25 of 1955, Hindu Marriage Act, 1955
[18] Ammini EJ V. Union of India AIR 1995 Ker 252
[19] Article 19 of Constitution of India,1950
[20] Mohd. Ahmed Khan v. Shah Bano Begum 1985 (3) SCR 844, AIR 1985 SC 945
[21] Shayara Bano V. Union of India (2017) 9 SCC 1
[22] Article 25 of Constitution of India,1950