Uncodified personal laws and fundamental rights scrutiny: Revisiting Shayara Bano & Narasu Appa Mali

(In this piece, we will first briefly revisit the Shayara Bano decision. We will then shift focus to a decision which the Bombay High Court gave in 1951, in Narasu Appa Mali’s case. Even though it has been 69 years since this judgment was delivered, it has continued to act as a stumbling block while examining whether uncodified personal laws violate fundamental rights. It is one of those rare High Court judgments on a significant aspect of constitutional law, that has not yet been overruled for seven decades now). 

In Shayara Bano v. Union of India (August, 2017), a Constitution Bench of the Supreme Court invalidated the practice of ‘Triple Talaq’, which allowed a Muslim man to unilaterally divorce his wife by uttering the word ‘Talaq’ thrice. The Court invalidated this practice without settling the contentious question of whether uncodified personal laws fall within the ambit of Article 13 of the Constitution – and whether they can be challenged for violation of fundamental rights. The majority judges refused to re-examine the correctness of the Bombay High Court’s decision in Narasu Appa Mali - which exempted uncodified personal laws from the ambit of Article 13 of the Constitution, and effectively made them immune to judicial review.

The reasoning employed by the Apex Court to invalidate Triple Talaq

The practice of Triple Talaq was invalidated by a slender margin of 3:2. Two separate majority opinions were delivered by Justice Nariman and Justice Joseph. While Justice Nariman and Justice Joseph arrived at the same conclusion, their rationale for invalidating Triple Talaq was significantly different. Justice Nariman held that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 [“the 1937 Act”] provides legal sanction to the practice of Triple Talaq.

As the 1937 Act is a pre-constitutional law, it would fall within the ambit of Article 13(1) of the Constitution, and shall be void to the extent that it contravenes any fundamental right. Hence, according to Nariman J, the practice of Triple Talaq would be subject to scrutiny under Part III of the Constitution. After arriving at this conclusion, Justice Nariman invalidated Triple Talaq because it was manifestly arbitrary, and hence violative of Article 14.

On the other hand, Justice Joseph affirmed the law laid down in the Shamin Ara case (2002). In Shamin Ara, the Supreme Court held that arbitrary and unilateral talaq that was pronounced without reasonable cause and without any attempt at reconciliation between husband and wife was not permitted by the tenets of the Quran, and hence would not have legal sanctity. According to Justice Joseph, as triple talaq could be pronounced solely by the man without any prior attempt of reconciliation, such an arbitrary and unilateral form of talaq went against the basic tenets of the Quran, and could not receive any legal sanctity. As triple talaq went against the tenets of the Quran, Justice Joseph held that it could not be considered as a practice that was essential or integral to Islam.

Disagreeing with Justice Nariman, Justice Joseph held that the 1937 Act could not be tested under Part III, as it was not a legislation “regulating” talaq. He held that the 1937 Act only made the Shariat applicable to all Muslims, and did not in any way “regulate” or codify the practice of talaq. In his dissent, Justice Khehar followed the same line of thought and held that the 1937 Act did not codify triple talaq. Hence, three out of five judges held that the 1937 Act did not give legal sanction to Triple Talaq - and that the practice of Triple Talaq could not be subjected to Part III scrutiny.

Both Justices Nariman and Joseph refused to address the contentious question of whether uncodified personal laws fall within the ambit of Article 13. They refused to re-examine the correctness of the Bombay High Court’s decision in Narasu Appa Mali, which held that uncodified personal laws are exempted from the ambit of Article 13, and hence cannot be challenged for violation of fundamental rights.

Justice Nariman specifically noted that in the instant case, there was no need to re-examine the correctness of Narasu Appa Mali, and that this could be done in an appropriate future case. This was a missed opportunity, as the disagreement amongst the judges over the applicability of the 1937 Act could have been conclusively resolved by determining whether Narasu Appa Mali must be overruled.

Narasu Appa Mali was among the earliest constitutional cases heard by the Bombay High Court post-independence. The judgment was delivered on 24^th July 1951 – by a Division Bench of the High Court, consisting of Justice Chagla and Justice Gajendragadkar. Both the judges gave separate opinions, but arrived at the same final conclusion. As we shall discuss below, the decision in Narasu continues to be a stumbling block in subjecting personal laws to fundamental rights scrutiny, even 69 years after it was delivered. 

Exclusion of uncodified personal laws from Article 13: The need to conclusively overrule Narasu Appa Mali

Personal laws govern an individual’s rights and privileges with respect to marriage, divorce, succession and other family relations. Personal laws may exist in either codified or uncodified forms. Codified versions of personal law include legislations such as the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. These legislations provide a statutory basis for Hindu personal law, which had largely existed in an uncodified form during the British Raj.

Also, various codified personal laws such as the Indian Succession Act, 1925 and the Indian Christian Marriage Act, 1872 are pre-constitutional in nature, and continue to operate by virtue of Article 13(1) and Article 372(1) of the Constitution. Provisions of such pre-constitutional personal laws have also been successfully challenged in Court. For instance, in John Vallamattom, the Apex Court struck down Section 118 of the Indian Succession Act, on grounds of violation of Article 14.

Uncodified personal laws such as the Shariat are a set of traditional laws that derive their legitimacy from the scriptures, tenets and the customs of a particular religion. An individual is bound to follow such uncodified personal laws by virtue of his association to a particular religion.Although they are not enacted by the State - even uncodified personal laws receive legal recognition, as they are enforced by Indian Courts for matters governing family relations such as marriage and divorce. For instance, the set of rules prescribed in the Shariat (Muslim personal law) are enforced by Indian Courts – to resolve disputes relating to marriage, divorce, succession etc.

Under Article 13(3)(a) of the Constitution, the definition of ‘law’ includes any ordinance, order, bye-law, rule, regulation, notification, and any ‘custom or usage’ that has the force of law within the territory of India. While a ‘custom or usage’ that has the force of law falls within the ambit of Article 13(3)(a), personal laws have not been specifically included.

In Narasu Appa Mali, the Bombay High Court had to determine the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. One of the arguments made here by the petitioner was that the Act was discriminatory, as it penalized polygamy only among Hindus, and did not outlaw polygamy amongst Muslims, which was authorized under Muslim personal law.

While addressing this contention, Justice Chagla stated that uncodified personal laws have been specifically excluded from the purview of Article 13, and hence cannot be challenged for violation of fundamental rights. Although this is only a decision of the Bombay High Court, it has dominated judicial discourse on whether personal laws can be challenged for violation of fundamental rights.

In his judgment, Justice Chagla held that ‘personal laws’ are distinct from ‘customs and usages’ that have the force of law, and are not ‘laws in force’ within the meaning of Article 13(3)(b). He stated that it was the specific intention of the Constituent Assembly to exclude personal laws from judicial scrutiny, so that they may be reformed at an appropriate time by the Legislature. This, according to him, was corroborated by the presence of constitutional provisions such as Article 17 (abolition of untouchability), Article 25(2)(b) (Hindu social reform legislations) and Article 44 (uniform civil code). In effect, the Bench held that only a ‘custom or usage’ that does not form part of a personal law falls within the ambit of Article 13.

While the principles of Narasu Appa Mali has been affirmed by the Supreme Court on certain occasions, there have also been decisions where the Apex Court has taken a different view. For instance, in Sant Ram v. Labh Singh, Justice Gajendragadkar took a different view, even  though he did not make any reference to his earlier decision in Narasu. This decision was delivered in 1964, after Justice Gajendragadkar had been elevated to the Supreme Court.

Speaking on behalf of a Constitution Bench, he held that the definition of the word ‘law’ as mentioned in Article 13(3)(a) can be read into the term ‘laws in force’ mentioned in Article 13(3)(b). Accordingly, the term ‘laws in force’ in Article 13(3)(b) must include all those categories of ‘law’ mentioned in Article 13(3)(a). This was based on the premise that the terms ‘law’ and ‘laws in force’ are inclusive in nature, and cannot be interpreted in a restrictive manner.

After arriving at this conclusion, he held that a ‘custom or usage’ that existed prior to the commencement of the Constitution shall fall within the definition of ‘laws in force’ under Article 13(3)(b), and shall be void to the extent that it contravenes any fundamental right. While Justice Gajendragadkar did not refer to the view he took in Narasu, he nevertheless adopted an interpretation that overruled one of the premises on which the Narasu decision was founded on.

Taking this inclusive interpretation forward, it can be argued that uncodified personal laws must also fall within the definition of ‘law’ and ‘laws in force’. Such a conclusion can be further buttressed by referring to the views of Seervai, who pointed out that personal law and ‘customs and usages’ are inextricably mixed up, and it becomes extremely difficult to make a clear distinction between the two. Such a distinction is in any case only fictional in nature, as uncodified personal laws derive their authority solely from the customs and tenets of the religion itself.

Also, the mere presence of constitutional provisions such as Article 17, Article 25(2)(b) and Article 44 does not justify making uncodified personal laws immune from judicial scrutiny. Prior to any kind of reform, personal laws such as the Shariat continue to have binding force, and have always been applied by Indian Courts in disputes relating to family relations such as marriage and divorce. Provisions that permit future reform of personal laws cannot be used to interpret personal laws in a way that would make them immune to judicial review, in their present form.

Such an interpretation also leads to an anomaly where uncodified personal laws shall be immune from judicial review, but as soon as they are codified through a statute, the statute shall then be subject to the provisions of Part III. For instance, according to this interpretation, uncodified Hindu personal law shall be exempt from Article 13. But, as soon as Hindu personal law is codified through statutes such as the HMA, the statute shall fall within the ambit of Part III.

Such a distinction is fictional, as both uncodified Hindu personal law and statutes such as the HMA are applied and enforced by Indian Courts for matters governing family relations. For these reasons, uncodified personal laws and codified personal laws should be placed at the same pedestal, and must be subject to similar standards of judicial review under Part III. This can be achieved by conclusively overruling Narasu Appa Mali. The Bench in Shayara Bano missed an opportunity to do precisely this.

While it is now 69 years since Narasu continues to hold fort, it has far outlived its expiry date.

Note: In the Sabarimala judgment, Justice Chandrachud had also discussed the need to overrule Narasu. He stopped short of overruling it as the case was not directly relevant to the issues argued before the Bench in Sabarimala.

Implications of subjecting uncodified personal laws to judicial review

Once practices associated with personal laws and customs are subjected to judicial review, they can be invalidated or read down for violation of any of the fundamental rights conferred by Part III of the Constitution. Legal commentators have expressed apprehensions that subjecting personal laws to judicial review may lead to social reform through the judiciary – which does not have the expertise to determine complex questions associated with religion.

It has also been argued that matters associated with personal law should not be scrutinized by Courts – and that personal law reform should be left solely to the Legislature, and to the leaders of the religious community. However, such a view is incorrect, as leaders of religious communities have always been inimical towards reforming personal law, and making it more gender neutral. Also, due to political considerations, even the Legislatures have been inimical towards reform, and have tended to cater to the wishes of religious leaders.  

The most significant example of this is the reaction that followed the Shah Bano verdict, where the Supreme Court had enhanced the quantum of maintenance that could be availed by divorced Muslim women. Under pressure from the Muslim clergy and Muslim conservatives, the Rajiv Gandhi Government enacted legislation to overturn the Supreme Court verdict. Invoking the power of judicial review to invalidate or read down aspects of personal law that violate the mandate of gender equality and dignity is hence necessary, and the buck cannot simply be passed to the Legislature.

Also, progressive interventions into uncodified personal law have been successfully made in the past. For instance, in Vishwa Lochan Madan, the Apex Court held that fatwas and other decisions of Sharia Courts have no legally binding force even on the parties that approach these forums – and that such fatwas cannot be used to perpetrate gender inequality. This approach needs to be taken forward – and aspects of personal law that violate fundamental rights must either be invalidated or read down.

[Postscript: Before I let you go, here is a small snippet on Justice M.C Chagla. Justice Chagla was the first Indian Chief Justice of the Bombay High Court, and was formerly a junior in the chambers of Muhammad Ali Jinnah. When he was Chief Justice of the Bombay High Court, he had declined an offer to be elevated to the Supreme Court. This was because in those days, being Chief Justice of the Bombay High Court was considered more prestigious than serving in the Supreme Court! How much have the tables turned.]