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Jahnavi Sahu
The judiciary stands as the paramount institution within any state, primarily tasked with the interpretation of laws and the resolution of disputes between various parties. Acting as the ultimate interpreter, protector, and guardian of constitutional supremacy, the courts ensure that all branches of authority—legislative, executive, administrative, judicial, or quasi-judicial—operate within legal confines. Empowered to scrutinize governmental actions, the judiciary determines their adherence to constitutional principles and validly enacted laws. However, despite the judiciary's oversight, personal laws, though not explicitly addressed in the Indian Constitution, raise questions regarding their jurisdictional scope.
Historically, courts hesitated to intervene in matters of religion, but gradually shifted their stance, interpreting and scrutinizing personal laws. This article endeavours to analyse both the historical and evolving approaches adopted by the Indian Judiciary, illustrating their considerable impact on society and the delivery of justice to vulnerable populations. The paper aims to define personal laws and examine the judiciary's response to challenges to their
constitutionality, offering readers a comprehensive understanding of personal laws and judicial interventions.
INTRODUCTION
In the pursuit of justice, laws must sometimes yield to ensure fairness to aggrieved parties. Consequently, the judiciary assumes the critical task of assessing the constitutionality of laws—whether pre- or postconstitutional, codified or uncodified. The clash between the right to equality and non-discrimination enshrined in the Indian Constitution and the existence of gender-discriminatory personal laws underscores a fundamental tension between individual rights and communal prerogatives within democracy.
Article 25[i] grants citizens the freedom to practice, propagate, and profess any religion, constituting a fundamental right and an integral aspect of the basic constitutional framework. However, preconstitutional personal laws, often discriminatory, conflict with the principles of equality enshrined in Article 14[ii]. While Article 13(1)[iii] nullifies laws inconsistent with Part 3 of the Constitution, the validation of pluralistic traditions within Articles 25-30 complicates this process.
PERSONAL LAWS
During the colonial epoch, the rich tapestry of customary practices observed by diverse sects and communities underwent a transformation into religion-based personal laws, particularly in civil disputes. Courts adjudicated conflicts between Hindus and Muslims under civil law, applying their respective personal legal systems. The British administration accorded Hindus and Muslims the liberty to adhere to their religious laws, with the proviso that British intervention would only occur upon both parties consenting to the jurisdiction of British courts.
Subsequently, each religious community embarked on codifying its distinct personal laws, which govern individuals in matters pertaining to marriage, maintenance, adoption, succession, inheritance, and guardianship. The Indian Constitution, under Article 25[iv], guarantees the right to religious practice, thereby endowing personal laws with constitutional authority.
India's diverse social fabric gives rise to a multiplicity of personal laws, which often encroach upon fundamental rights, particularly concerning the clash of rights between different groups, such as women's rights. The ramifications of deficiencies in numerous personal laws have fostered a burgeoning multiculturalism within Indian society. Yet, the entrenched authority of these laws, stemming from religious origins, deems them immutable.
Inherent discrimination characterizes many personal laws, despite historical efforts to rectify gender disparities. This disparity is a recurring theme across various personal laws. For instance, Parsi daughters marrying outside their faith forfeit property rights, while Muslim daughters inherit only half the property bequeathed to sons. Many prevailing personal laws unjustly deny women their rights to dignity and equality. Initially, Indian courts adopted a noninterventionist stance when confronted with these issues.
NON-INTERVENTIONIST APPROACH
The judicial stance regarding personal laws hinged upon the interpretation of Article 13[v], which did not explicitly mention such laws, leading courts to assert their exclusion from constitutional challenges. Justice Chagla contended that the deliberate omission of "personal laws" from Article 13[vi] afforded them immunity from constitutional scrutiny. The judiciary, therefore, maintained that personal laws, being distinct from statutory laws, fell beyond the purview of Article 13's scrutiny of fundamental rights. This perspective was entrenched in the case of State of Bombay v. Narasu Appa Mali[vii], where the court, adopting a non-interventionist stance, failed to distinguish between codified and uncodified laws. Despite criticism from scholars, subsequent cases like Harvinder Kaur v. Harmander Singh Chaudhary[viii] upheld the immunity of personal laws from constitutional examination, affirming their validity and constitutionality.
In the aftermath of cases such as Saroj Rani v. Sudarshan Kumar Chadha[ix], the Supreme Court affirmed the validity of personal laws, citing their role in providing social welfare. The case of Krishna Singh v. Matura Ahir[x] cemented the notion that Part 3 of the Indian Constitution did not extend to personal laws, precluding judges from imposing modern interpretations on them. Even when challenged, as in Madhur Kishwar v. State of Bihar[xi], where tribal customs were scrutinized for their impact on inheritance rights, the Supreme Court refrained from deeming them violative of fundamental rights.
However, over time, the influence of the Narasu Appa Mali case[xii] waned as courts increasingly subjected personal laws to scrutiny through the lens of fundamental rights. This shift marked a departure from the earlier non-interventionist approach, signaling a more discerning examination of personal laws' compatibility with constitutional principles.
SCRUTINIZING APPROACH
The approach undertaken either entailed a reinterpretation of personal laws in alignment with Part 3 of the Constitution or the striking down of objectionable provisions. A proactive judicial stance was embraced to transform the Constitution into a dynamic document capable of dismantling the entrenched injustices and discriminatory practices veiled within personal laws, many of which have become obsolete. This strategy aimed to eradicate the systemic discrimination inherent in personal laws, which perpetuated exploitation against the marginalized and deprived them of justice.
Nariman J articulated, "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 was deemed a pivotal step in this endeavor.
This paradigm shift commenced with the landmark case of Mary Roy v. State of Kerala[xiii], which focused on granting Christian women equal inheritance rights. The court, in this instance, asserted that no personal laws could supersede India’s Constitution, and any aspect of personal law conflicting with the Constitution would be rendered unenforceable.
In the case of T Sareetha v. Venkata Subbaiah[xiv], the court invalidated Section 9[xv] of the Hindu Marriage Act, 1955, deeming it degrading to force individuals into sexual acts against their will, and found it in violation of Articles 14, 19, and 21.
Furthermore, in a seminal judgment, Ammini EJ v. Union of India[xvi], the Kerala High Court struck down Section 10 of the Indian Divorce Act, 1869, as violative of Article 21[xvii]. Subsequently, this decision was echoed by the High Courts of Bombay, Delhi, and Karnataka, leading to the amendment of the Act in 2001.
The issue of the rights of divorced Muslim women to claim maintenance came to the fore in the Shah Bano case[xviii], igniting a nationwide discourse on women’s rights and gender equality and underscoring the imperative for reforms in personal laws. The judgment emphasized that the Code of Criminal Procedure would supersede personal laws and apply to all citizens of India, irrespective of their religion.
More recently, in the pivotal case of Shayara Bano v. Union of India[xix] under family laws, a Muslim woman challenged the validity of triple talaq, polygamy, and nikah halala, asserting their infringement upon fundamental rights. The Supreme Court, in this instance, deemed the practices violative of Part 3 of the Constitution and directed the legislature to enact measures to prevent abuse against women.
While Article 25[xx] guarantees citizens the right to practice and propagate any religion, this right is not absolute and is subject to various restrictions.
CONCLUSION
The adoption of a Uniform Civil Code would address the flaws in personal laws, ensuring equal treatment for all citizens, regardless of religion. Despite numerous amendments, these laws still contain social evils. Women were not involved in the drafting of personal laws, which were codified by men in power. India's ongoing reforms show a commitment to providing equal platforms for all citizens. Opposition to the Uniform Code must be addressed, as all personal laws discriminate against women and do not legalize gender bias. India must address the daily problems faced by disadvantaged individuals due to discriminatory laws.
REFERENCES
[i] Article 25 of Constitution of India, 1950
[ii] Article 14 of Constitution of India, 1950
[iii] Article 13(1) of Constitution of India,1950
[iv] Article 25 of Constitution of India, 1950
[v] Article 13 of Constitution of India, 1950
[vi] Article 13 of Constitution of india,1950
[vii] State of Bombay V. Narasu Appa Mali AIR 1952 Bom 84, ILR 1951 Bom 775
[viii] Harvinder Kaur v. Harmander Singh Chaudhary AIR 1984 Delhi 66, 1984 RLR 187
[ix] Saroj Rani v. Sudarshan Kumar Chadha
[x] Krishna Singh v. Matura Ahir
[xi] Madhur Kishwar v. State of Bihar 1996 AIR 1864, 1996 SCC (5) 125
[xii] State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84, ILR 1951 Bom 775
[xiii] Mary Roy v. State of Kerela 1986 AIR 1011, 1986 SCR (1) 371
[xiv] AIR 1983 AP 356
[xv] Section 9, Act no. 25 of 1955, HMA,1955
[xvi] AIR 1995 Ker 252
[xvii] Article 21 of Constitution of India, 1950
[xviii] Mohd. Ahmed Khan v. Shah Bano Begum 1985 (3) SCR 844, AIR 1985 SC 945
[xix] Shayara Bano v. Union of India (2017) 9 SCC 1
[xx] Article 25 of Constitution of India, 1950
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