A throwback to 1907 -- Sardar Ajit Singh's peasant movement in Punjab

Sardar Ajit Singh 

Over the last two days, thousands of farmers from North India have begun a “Delhi Chalo” march, to protest against the farm law amendments passed by Parliament in September. The farmers continued their march despite facing water cannons and tear gas from the Haryana Police. Led by organizations such as the All India Kisan Sangharsh Coordination Committee, the farmers have shown fierce resistance to the Police forces and the barricades, making this among the most significant farmer movements we have witnessed in recent years.

This post aims to draw parallels with another farmer movement that took place 113 years ago, during the British Raj.

The ‘Pagdi Sambhal Jatta’ movement

In 1907, Sardar Ajit Singh, a freedom fighter and nationalist revolutionary, led a peasant movement in Punjab – which was popularly referred to as the ‘Pagdi Sambhal Jatta’ movement – to protest against the British Empire’s decision to pass the Punjab Colonisation Bill, 1907. The genesis of this Bill goes back to 1879, when the British constructed the Bari Doab Canal for drawing water from the Chenab River. This water was to be transported to Lyallpur, in Punjab (After the partition of Punjab in 1947, Lyallpur is now a part of Pakistan. It was renamed as Faisalabad in 1977).

The British requested peasants and servicemen from places such as Jalandhar and Amritsar to settle in Lyallpur, and promised to allot them free land for cultivation. The peasants settled in Lyallpur and toiled for more than a decade to make the land fertile for agriculture. In 1907, when the land had become fertile, the British proposed to enact the Punjab Colonisation Bill. This Bill took away the farmers’ right to own the lands that they had cultivated, and would transfer the ownership rights to the British Empire.

The farmers were reduced to the status of sharecroppers, and could not directly sell or purchase the land. If the farmers violated the provisions of the proposed Bill, they faced the prospect of being evicted from their lands. The Bill hence nullified the efforts that the farmers had put, to make this land fertile.

To oppose this Bill, Sardar Ajit Singh began the Pagdi Sambhal Jatta movement – which was also joined by retired Indian soldiers and other freedom fighters such as Lala Lajpat Rai. The movement witnessed mass rallies and protests, where calls were also made for a permanent end to colonial rule.

Lala Lajpat Rai

Along with mobilizing Punjabi farmers, Ajit Singh also gathered the support of serving Sikh soldiers. This popular support resulted in a situation where many serving Indian soldiers refused to open fire at the protesting peasants – and defied the orders of their British masters. However, the British continued to brutally repress the movement.

On 9^th May, 1907, Sardar Ajit Singh and Lala Lajpat Rai were deported to Mandalay jail in Myanmar. Despite the repression faced at the hands of the Empire, the movement was partially successful, as the Colonisation Bill was vetoed by the Governor-General, and ultimately withdrawn.

Interestingly, the name ‘Pagdi Sambhal Jatta’ was derived from a song introduced by Banke Dayal, who was the editor of the Jhang Syal newspaper. The words of the song -“Pagdi sambhal Jatta, Pagdi Sambhal oye” became so popular among the masses that it defined and symbolized the soul of this movement. 

Parallels to 2020

After the Indian Constitution came into force in 1950, Indians got the right to be citizens of their own country, and were no longer only the subjects of their British masters. The farmers, led by Ajit Singh, who protested during the Pagdi Sambhal Jatta movement were not Indian citizens, and were only subjects of the British Empire. Contrast this to the present march to Delhi, where the farmers facing repression at the hands of the Delhi and Haryana Police are Indian citizens – who have a fundamental right to assemble peacefully without arms under Article 19(1)(b) of the Constitution.

But, the ferocity with which the Police obstructed their movement with tear gas and water cannons makes one wonder whether fundamental rights such as Article 19(1)(b) continue to merely be freedoms that are available at the pleasure of the State. 71 years after our Constitution was adopted, as we witness fundamental rights trampled upon on a daily basis, it is time to question – is there any difference between 1907 and 2020?

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Postscript: After being released from Mandalay Jail, Sardar Ajit Singh faced yet another arrest warrant from the British. To evade arrest, he escaped to Iran in 1909, and subsequently went to Europe – to gather support for the Indian independence movement.

During the Second World War, Ajit Singh was in Italy. After Italy’s defeat, he was arrested in May 1945 by the Allied Forces, and was moved across multiple jails in Germany and Italy. Prolonged incarceration in multiple jails had an adverse impact on his health. In 1946, when independence from colonial rule was on the horizon, he was released and sent back to India.

He breathed his last on 15^th August 1947 – the day India became independent.  

Historical origins of equal voting rights in US and India

This month, we have witnessed two closely fought elections – first in the United States, and then in Bihar. Both these elections saw significantly high voter turnouts, despite the difficulties brought about by the Covid-19 pandemic. In Bihar, women voter turnout was higher than men – in 166 out of 243 constituencies. In the US, there was a record voter turnout of 67% - which is the highest voting percentage in 120 years.

Such extensive democratic participation is possible only because both US and India have universal adult suffrage – which allows all adults to vote, and grants equal voting rights to both men and women. This parity in voting rights was not always present, and has been achieved after vigorous activism and debate. In this post, we shall revisit the historical origins of equal voting rights, in the US, and in India.

Historical origins of equal voting rights in the US

When the US Constitution was drafted in 1787, it did not envisage equal voting rights. The US Constitution legitimized the practice of slavery, where African-Americans (Blacks) were treated as the ‘property’ of their owners. Along with all African-Americans, even White women were denied the right to vote. In 1865, President Abraham Lincoln pioneered the 13^th Amendment to the US Constitution, which abolished the practice of slavery. 5 years later, in 1870, Black men were granted the right to vote, through the 15^th Amendment. While the 15^th Amendment permitted all men to vote, it still did not grant voting rights to American women.

It took 50 further years of struggle for all American women to receive the right to vote – via the 19^th Amendment to the US Constitution, ratified in 1920. The 19^th Amendment was brought before the US Senate for the first time in October, 1918. The Amendment would require a two-thirds majority to be passed i.e. 54 votes in its favor. Despite having the backing of then US President Woodrow Wilson, it failed to pass the Senate by a small margin of 2 votes.

The amendment was brought before the Senate once again in June 1919. This time, the Amendment was passed by the Senate with a vote of 56-25 (56 in favor and 25 in opposition). This was just 2 votes more than the minimum number of votes required! Even after equal voting rights were granted on paper, the Southern States of America (such as Alabama and Texas) would continue to discriminate against Black men and women, and would devise additional criteria for voter eligibility, that would disenfranchise the Black community.

This was done through methods such as arbitrary registration requirements, payment of poll taxes, and literacy tests. ‘Poll taxes’ were a fee that eligible voters would have to pay, before being allowed to cast their ballot. While this fee would be relatively small, it would still be unaffordable for a large segment of the Black community.

Under the garb of conducting ‘literacy tests’, electoral registration officials in Southern States would deliberately ask African-Americans to recite the entire Constitution, and explain complex provisions of State laws. Even a small error on their part would give the electoral officer a reason for refusing to add their name to the list of eligible voters. This was a travesty, where Blacks would have to recite the entire Constitution before being ‘eligible’ to gain access to their constitutional rights.

These practices prevailed during what is known as the “Jim Crow era” – where the Southern States of US enforced racial segregation through their local laws. These local laws mandated separate public facilities for Blacks and Whites. This meant that there would be separate restaurants, schools, buses, housing apartments etc for Blacks and Whites. The facilities accessible to White Americans were undoubtedly better. But, Blacks would not be able to access these public facilities, as they were exclusively reserved for Whites.

The era of ‘Jim Crow’ laws continued until 1964. In 1964, the Civil Rights Act was passed, which put an end to racial segregation of public facilities. Even after the end of the Jim Crow era, Southern States like Alabama continued to discriminate against the Black community, and suppressed their voting rights.

In 1965, with the goal of ending suppression of the Black vote, civil rights icon Dr. Martin Luther King Jr. began a movement for a national voting rights law – that would put an end to voter suppression methods such as literacy tests. Dr. King led three 54-mile marches in the State of Alabama. The first two marches were met with fierce resistance from State troops, as well as White supremacist groups. This left Dr. King with no choice but to retreat, as he feared large-scale violence.

Dr. Martin Luther King leads a march from Selma to Montgomery, Alabama - to demand the passage of the Voting Rights Act. 

But, his movement had the requisite impact, and President Lyndon Johnson announced that he would be introducing a new voting rights legislation in Congress, that would outlaw practices such as literacy tests. During his nationwide address, Lyndon Johnson remarked –

“Their cause must be our cause too. Because it is not just Negros (i.e. Blacks), but really it is all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome”.

Dr. King followed this up with his third march across the State of Alabama, which further fortified his demands. Subsequently, in August 1965, the US Congress passed the Voting Rights Act, which provided for federal oversight of voter registration, and also prohibited practices like voter literary tests.

While the situation has improved considerably after the enactment of the Voting Rights Act, certain States continue to take advantage of America’s decentralized election system, to devise new ways of suppressing the Black vote. This is done through stricter Voter ID requirements, photographic identification procedures, and by placing curbs on voter registration drives. Hence, while the US has made significant progress to fructify equal voting rights, a lot more needs to be done to ensure that Blacks and minorities can vote without harassment.

Historical origins of universal adult suffrage and equal voting rights in India

Through Article 326 of our Constitution, the Indian Constituent Assembly guaranteed universal adult suffrage – which meant that everyone above the age of 21 was eligible to vote after the Indian Constitution came into force. [In 1988, this voting age was reduced from 21 to 18].

In the Constituent Assembly, some members did express concerns with respect to whether universal adult suffrage should be granted immediately – as around 85% of the Indian population was illiterate. The members also debated on whether it would be better to gradually give voting rights to different segments of the population. The Assembly ultimately agreed on granting universal adult franchise immediately upon the founding of the Republic - as parliamentary democracy would be meaningless if segments of the population lacked the right to elect their representatives. They also felt that illiteracy shall be eventually tackled through steps taken by the Government.

While the Constituent Assembly granted us universal adult franchise right from the founding of the Republic, demands were also made to secure equal voting rights for men and women, during the British Raj. During the British Raj, the right to vote in local and provincial elections could be availed only by those who owned property, and satisfied other criteria relating to educational qualifications, place of residence etc. Until 1921, women were not permitted to vote in these local and provincial elections. This made social reformers like Annie Besant and Sarojini Naidu push for equal voting rights for women.

In 1921, Madras became the first Legislature of British India to grant women the right to vote. The Bombay Legislature followed soon thereafter. Among the princely States, the Kingdom of Travancore was the first to grant voting rights to women. This voting right was not universal. Just like male voters, women could vote only after they fulfilled the qualification criteria laid down by the provinces - which were based on educational standards, place of residence, ownership of property etc.

Along with social reformers and activists, an Indian bureaucrat of the British Empire also made a significant contribution to secure equal voting rights. This bureaucrat was V.P. Menon – who later played a crucial role in integrating the princely States into the Indian Union, along with Sardar Vallabhai Patel.

V.P. Menon 

In 1935, as an Under-Secretary in the Reforms Department of the British Raj, V.P. Menon was tasked with implementing the provisions of the Government of India Act, 1935. Under this law, elections were scheduled to be held in 1937 – in provincial legislatures such as Bombay, Madras, and Bengal. V.P. Menon began work on constructing an electoral role, and also made a recommendation that the name of every adult women should be put on the electoral roles.[1] While this recommendation was not accepted in its entirety, the 1937 provincial legislature elections had significantly enlarged the size of the electorate.

Menon also got his superiors to approve a clause that allowed women whose marriages had been dissolved to retain their names on the electoral roles – deeming them eligible to vote.[2] While V.P. Menon’s contribution in integrating princely States such as Hyderabad, Kashmir and Junagarh has been well-documented, his contribution in expanding the scope of the right to vote has largely been forgotten.

While the Constituent Assembly granted us universal adult suffrage, the seeds of equal voting rights were sown during the final years of the British Raj itself – due to contributions made in different capacities by V.P. Menon, Sarojini Naidu, Annie Besant etc. These initial steps were taken forward by the Constituent Assembly, which agreed to make a specific provision in Article 326 of the Constitution, that would secure non-discriminatory access to voting.

The high percentage of women voter turnout that we witnessed in Bihar is a salute to this vision of our founders. This vision can now be taken forward, and sufficient steps must be taken to make the polling booth even more accessible to the Indian voter – irrespective of caste, gender and economic status.

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[1] Narayani Basu, V.P. Menon – The Unsung Architect of Modern India, Simon & Schuster Publishers (2020), Pg. 97.

[2] V.P. Menon – The Unsung Architect of Modern India, at Pg. 120.

Remembering C.K. Daphtary - India's first Solicitor General

“The boy who wrote the best essay got the first prize”. Many of us would have come across this anecdote, where Chander Kishan Daphtary, India’s first Solicitor General, perfectly summarized the Indira Gandhi government’s decision to appoint Justice A.N. Ray as Chief Justice of India, by superseding 3 of the senior-most judges of the Supreme Court (Justices Shelat, Grover and Hegde). [A.N. Ray was rewarded for his ‘essays’, after he held in favor of the Government in the Keshavananda Bharathi case, and was also the only judge who upheld Indira Gandhi’s bank nationalization ordinance of 1969].

This is just one among the many sharp and memorable anecdotes from Daphtary’s career, where he served as independent India’s first Solicitor General (from 1950-1963), and succeeded M.C. Setalvad to serve as India’s second Attorney General from 1963-1968. After serving as Attorney General, he was also nominated to the Rajya Sabha in 1972. In fact, his one-line description of Justice A.N. Ray getting the ‘first prize’ for his ‘essay’ was made in the Rajya Sabha itself!

C.K. Daphtary, who was fondly known as Chandubhai, is still remembered for his sharp and witty one-liners in Court. Perhaps the most ‘savage’ of all his one-liners was when Daphtary was practicing in the Bombay High Court. Daphtary was appearing before a Bench headed by Justice Somjee, on a matter relating to stock exchange transactions. It was also well-known that Daphtary himself regularly dabbled in stocks.

Justice Somjee had refused to grant Daphtary permission to continue cross-examining a witness regarding a stock exchange transaction he had undertaken. When Daphtary persisted, Justice Somjee had remarked – ““Mr Daphtary, you will of course know all about stock exchange transactions”.

Daphtary did not react. A few moments later, a law report had to be passed by him to the Bench. As soon as the book was handed over, Justice Somjee remarked – “Mr. Daphtary, there is a bug in this book”. Daphtary immediately seized the opportunity and said – “My Lord, it is not the first time that a bug has travelled from the Bar to the Bench”. This was a sly remark at Justice Somjee himself, who had been elevated as a Judge from the Bar.

While there are many more witty anecdotes and one-liners, Mr. Daphtary’s memory lasts beyond his sharpness and sense of humour. He was also a man who stood by principles, some of which are relevant even today. Three such incidents from Daphtary’s journey bear utmost relevance even today.

A stern request asking Chief Justice Gajendragadkar to recuse

In 1965, two matters dealing with a cooperative housing society came before a Bench headed by Chief Justice Gajendragadkar. A bunch of intervenors from Bombay argued that Chief Justice Gajendragadkar should recuse himself, as he was a member of one of the cooperative housing societies, for which the Government of Bombay had acquired land. Initially, Justice Gajendragadkar stated that he would recuse himself only from one out of two matters, where he had an indirect interest. But, this was objected to C.K. Daphtary, who was then the Attorney General.

Daphtary categorically stated that Chief Justice Gajendragadkar should recuse himself from both matters, as he had a common indirect interest in them. The Bench was reconstituted the next day, and Justice Subba Rao was asked to preside. As Fali Nariman points out in his autobiography, Before Memory Fades, Daphtary stood up for principle and asked for Chief Justice Gajendragadkar’s recusal - even though there was a strong belief in the Bar that Chief Justice Gajendragadkar would decide in favor of the State, as his views on the legal questions involved were well-known.

Daphtary’s role in the constitution of the ADM Jabalpur bench

Daphtary also had an important role to play in the constitution of the bench that decided the ADM Jabalpur case in 1976, during the emergency. After Indira Gandhi’s proclamation of a national emergency in 1975, a number of political leaders and activists had been arrested under the infamous MISA – Maintenance of Internal Security Act, 1971.

Different High Courts had taken contrary views on whether fundamental rights (including the right to life under Article 21) can be suspended when a national emergency was declared. This was crucial, as if fundamental rights stood suspended during an emergency, anyone who had been detained would have no right to challenge his detention before the High Courts and the Supreme Court.

As 9 High Courts had held against the Indira Gandhi Government, the Government filed an appeal in the Supreme Court. There was a growing suspicion in the Supreme Court Bar that Chief Justice A.N. Ray (the boy who wrote the best essay and got the first prize) would constitute a bench of judges who would without doubt give their decision in favor of the Government. Daphtary, who was then the President of the Bar Association, approached Chief Justice Ray and suggested that as there was some concern in the Supreme Court Bar, a bench consisting of the 5 senior-most judges of the Supreme Court should be constituted.

Chief Justice Ray retorted - and asked whether there was ever an occasion where suggestions were made to the Chief Justice of India regarding whom to put on a bench. Daphtary was quick to the task, and responded that he does recall a previous occasion where Chief Justice S.R. Das was told about concerns regarding the composition of a bench, and S.R. Das never took it in the wrong spirit.

This struck the right nerve with CJI A.N. Ray, as S.R. Das happened to be his mentor! CJI A.N. Ray then went on to constitute a Bench with the 5 senior-most judges of the Supreme Court. However, Daphtary’s efforts obviously went in vain, as 4 out of 5 judges held in favor of the Government.

It was only Justice H.R. Khanna who dissented and held that even during a national emergency, fundamental rights cannot be suspended. This ‘essay’ also cost him the post of Chief Justice of India, as the Government superseded him and appointed Justice Beg. In an era where serious questions have been raised regarding composition of benches and assignment of politically sensitive cases to certain judges, even A.N. Ray’s reluctant approval of Daphtary’s request seems to look bright.

Daphtary’s views on the UAPA

Daphtary’s views on the UAPA are most relevant today, when the law is being used to muzzle political dissent. In October 1967, a Joint Parliamentary Committee was set-up to examine the Unlawful Activities (Prevention) Bill, 1967 (UAPA). This was the original draft of the UAPA, which did not deal with terrorist activities, and only penalized ‘unlawful activities’ that affected India’s territorial integrity and sovereignty. As Daphtary was the Attorney General, he was asked to depose before the Joint Parliamentary Committee.

Taking into account the overbroad definition of ‘unlawful activity’ that could be penalised, Daphtary noted that “these are drastic powers”, and that “the law was going as far as one could go”. In his view, the UAPA Bill was constitutional, but not ‘perfectly constitutional’. He also stated that while we may assume that powers granted by the UAPA would be exercised honestly and properly, we cannot say whether that shall always be the case.

Although Daphtary was to a certain extent ambiguous in his opinion, he has been proven correct in hindsight – as the UAPA today is only used against activists and protesters, who disagree with the ruling establishment. Even though the UAPA has been substantially amended since 1967 and terrorist activities have also been brought within its ambit, Daphtary’s views highlight how the law always had the potential to be misused – in the manner that we are witnessing today.

Along with his sharpness and wit, Daphary’s commitment towards rights and freedoms was also steadfast. In June 1975, after Indira Gandhi imposed the emergency, Daphtary was pained to see how High Court judges who decided against the Government were arbitrarily transferred. He told Fali Nariman – “Fali, what we need now is a Subba Rao”.

In fact, Fali Nariman has stated in his autobiography that the most important advice he ever received was from Daphtary, who told him – “Always remember, Fali, it is better to spend more time thinking about a case than merely reading the brief”. All of his words and actions continue to stand the test of time.

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.]

Revisiting Bank Nationalization and the R.C. Cooper case

(This post takes you through the story behind Indira Gandhi's bank nationalization decision, and the litigation that followed)

19^th July marked exactly 51 years since Indira Gandhi’s bank nationalization ordinance. Indira Gandhi’s decision to nationalize 14 commercial banks was brought about on 19^th July 1969, which was a Saturday. Nationalizing 14 commercial banks through this ordinance brought more than 75% of India’s banking sector under direct State control. All assets, liabilities and paid-up capital of the 14 commercial banks were to vest directly with the Central Government. The ordinance was promulgated on a Saturday even though Parliament was scheduled to reconvene on Monday, 21^st July 1969 – which was less than 48 hours away.

The ordinance was also drafted in utmost secrecy. Only Indira Gandhi’s trusted officers were aware about the plan, and even the Cabinet Ministers were not kept in the loop. As Granville Austin notes in his book - Working a Democratic Constitution, Indira Gandhi’s Cabinet colleagues heard about the ordinance only once they arrived at the Cabinet Meeting, which was called to give rubber-stamp approval to the ordinance.[1] Even copies of the ordinance that had been circulated during the meeting were taken back, so that there were no leaks in advance.

After the Cabinet Meeting, the ordinance was taken to Acting President V.V. Giri for his assent. Interestingly, V.V. Giri, who was then the Acting President after the death of President Zakir Hussain, was going to demit office the next day. This was because he was contesting as a candidate in the upcoming Presidential elections.

Indira Gandhi announced her decision to the public through a radio broadcast in the evening. She stated that this decision was necessary for a larger social purpose, and was done to make banking facilities more accessible in rural areas. This was the first among many measures that Indira Gandhi undertook to facilitate greater State control over different sectors of the economy.

The events of 19^th July 1969 have an eerie resemblance with 8^th November 2016, when Narendra Modi shocked us all by announcing demonetization through a televised address. Akin to the bank nationalization decision, Modi’s Cabinet Ministers were informed about demonetization only in the Cabinet meeting that took place before the announcement. In fact, to prevent any leakage of information, the Cabinet Ministers were also prevented from bringing in their cellphones, and were not allowed to leave the meeting venue until Modi ended his television speech!

Be that as it may, there is one other common factor between demonetization and bank nationalization. Both were undertaken keeping in mind political considerations, along with other economic and social factors. In Indira Gandhi’s case, bank nationalization was a move that would establish her supremacy within the Congress, and prevent challengers like Morarji Desai from taking control of her party or Government. It is for precisely this reason that Morarji Desai was sacked as Finance Minister on 17^th July, which was two days prior to the promulgation of the bank nationalization ordinance.

The bank nationalization ordinance was severely criticized by other smaller political parties like the Swatantra Party and the Jan Sangh. They argued that bringing more than three-fourths of the banking sector under direct State control would cripple its growth in the long-run, and shall also lead to losses, corruption and red-tapism. While this was debated, preparations were already underway for challenging the ordinance before the Supreme Court. On Sunday, 20^th July 1969 (one day after the ordinance was promulgated), the legendary Nani Palkhivala took a flight to Delhi.

As Soli Sorabjee and Arvind Datar write in Nani Palkhivala: The Courtroom Genius, the writ petition to challenge the ordinance was drafted and finalized by Palkhivala a few hours after his arrival.[2] It was filed in the Supreme Court on Monday, 21^st July 1969, which was less than 48 hours after the ordinance had been promulgated. The petitioner before the Supreme Court was Rustom Cavasjee Cooper. 

R.C. Cooper was a Director and shareholder in the Central Bank of India. He was also a shareholder in Bank of Baroda and Bank of India Ltd. All of these 3 banks had been nationalized under the ordinance. The Supreme Court granted an interim order on Tuesday, 22^nd July, and restrained the Government from removing the Chairmen of all the banks which had been nationalized.

As the Supreme Court was seized of this petition, the ordinance was replaced by the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 (‘the Nationalization Act’) - which was passed in Parliament on 8^th August. The Supreme Court subsequently began hearing arguments on the unconstitutionality of the Nationalization Act, and the ordinance which preceded it. While Palkhivala advanced several arguments, let us briefly discuss two of his main arguments. Palkhivala first contended that the compensation that was being paid to erstwhile shareholders of the 14 banks was severely inadequate.

He argued that this was in violation of Article 31, under which the State had an obligation to pay full and adequate compensation while acquiring property. He also contended that the Nationalization Act violated Article 19(1)(f), which had conferred the right to acquire, hold and dispose off property. (Both Article 31 and 19(1)(f) were subsequently repealed through the 44^th Amendment in 1978).

Palkhivala’s other key argument was based on Article 14, where he contended that there was hostile discrimination against these 14 banks - as they were prevented from carrying on banking business after being nationalized. He argued that other banks which had not been nationalized were not subjected to this disqualification, and even foreign banks were allowed to carry on banking business.

After hearing arguments, the Court delivered its verdict on 10^th February 1970, which was less than 7 months after Indira Gandhi’s decision to promulgate an ordinance on a Saturday.[3] The majority opinion was delivered by Justice J.C. Shah. While Justice Shah upheld Parliament’s legislative power to nationalize banks as a whole, he concluded that the Nationalization Act failed to pass constitutional scrutiny.

He accepted Palkhivala’s argument on violation of Article 14, 19(1)(f) and 31. Significantly, the Court also overruled two principles laid down in A.K. Gopalan v. State of Madras (1950). In A.K. Gopalan, the majority led by Chief Justice Kania held that each fundamental right was mutually exclusive, and had to be looked at independently from other fundamental rights.

The majority also held that while determining whether a law violated any fundamental right under Part III of the Constitution, the Court would have to examine the object of the law, and not the effect that the law has on fundamental rights. Justice Fazal Ali did not agree with the majority, and took the view that every fundamental right is not a separate compartment, and that all fundamental rights are mutually interdependent. Justice Fazal Ali’s dissenting view was upheld 20 years later by the majority in R.C. Cooper.

The majority in R.C. Cooper overruled Chief Justice Kania’s view and conclusively held that fundamental rights were mutually interdependent, and not mutually exclusive. In other words, a law that was challenged as violative of 31 could also be violative of Article 19(1)(f), or Article 14, as none of these rights should be looked at as isolated compartments.

The majority also held that while examining whether a law violates fundamental rights, the Court shall have to scrutinize the effect that the law has on fundamental rights, and not the object that the State sought to achieve. Hence, two aspects of the Chief Justice Kania’s decision in A.K. Gopalan were overruled 20 years later, and the fundamental rights chapter was made permanently stronger.

This judgment laid down the foundation stone for Justice Bhagwati’s opinion in Maneka Gandhi v. Union of India,  where it was held that Article 14,19 and 21 formed a golden trinity, and that any law which is challenged under Article 21 should also meet the tests reasonableness under Article 14 and 19. This also paved the way for reading in unenumerated rights into Part III, such as the right to privacy and the right to food. Justice Fazal Ali’s dissent hence became the starting point for a more progressive interpretation of the fundamental rights chapter.

The decision in R.C. Cooper was however not unanimous. Justice A.N. Ray dissented from the majority and upheld the Nationalization Act. Ironically, three years later, Justice A.N. Ray was appointed as the Chief Justice of India by superseding Justices Shelat, Grover and Hegde, who were above him in the order of seniority. This was after Justice Ray held in favor of the Government in the Keshavananda Bharati case, and was the first instance where senior judges were superseded for the post of Chief Justice of India.

Following the decision in R.C. Cooper, the Central Government was forced to pass a fresh bank nationalization legislation in Parliament. This acquisition of the ownership of 14 banks has not been undone until today, despite severe criticism of the corruption and inefficiency that plagues the public sector banking system. Even the Modi Government does not seem to have any plan to undo all of the changes brought about in 1969, despite enjoying a majority in Parliament. Bank nationalization has hence effectively acquired a level of permanence in our economic polity.  

Another significant aspect to note here is the duration within which this judgment was delivered – which was less than seven months after Indira Gandhi decided to take the ordinance route. This can be contrasted with the situation we have in the Supreme Court as of today. The petitions challenging the constitutionality of the Citizenship Amendment Act, which was passed in December 2019, has not even been listed for a hearing. Even the challenge to the Article 370 amendment and the Jammu & Kashmir Reorganization Act, 2019 has met a similar fate, almost one year after they were passed in Parliament on 5^th August 2019.

While R.C. Cooper’s overruling of A.K. Gopalan still forms the pillar of our fundamental rights chapter, the speed and alacrity with which significant constitutional cases must be heard and adjudicated is another takeaway that we should remember. 

[1] Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Pg. 215.  

[2] Soli Sorabjee and Arvind Datar, Nani Palkhivala: The Courtroom Genius, Pg.60.

[3] The then Chief Justice of India, M Hidayatullah, could not be a part of the Bench as he was sworn in as the Acting President of India on 20^th July 1969. This was after V.V Giri demitted office as Acting President - to contest as a candidate in the upcoming Presidential elections.