Religious Law v. Fundamental Rights

Written by  //  September 4, 2010  //  Law & The Judiciary  //  7 Comments

The Indian Constitution guarantees special protection for the several religious and cultural minorities present in the country. However, within each of these communities there exist discriminatory practices that bind members of that community. For instance, women as well as members of some castes are prohibited from entering certain Hindu temples. Similarly Muslim personal law provides that Muslim men can have upto four wives (though they are obligated to treat all their wives equally), whereas there is an embargo restricting the number of husbands a Muslim woman can have to just one. Moreover Muslim men enjoy the right to divorce their wife by way of “triple talak”, i.e. by merely uttering the word “talak” thrice. The absence of a corresponding right for Muslim women seems to be prima facie discriminatory.

Such practices, when based on original religious texts, have escaped the scrutiny of Courts which have taken the view that while personal laws modified by custom are subject to judicial review, those in their pure form are not.

Judicial review under the Indian Constitution

Article 13 of the Indian Constitution- the main source of judicial review in the Indian context mandates that any “law” that violates a fundamental right (guaranteed by Part III of the Constitution) is void. This provision applies to both pre-Constitutional laws (laws in force prior to the coming into effect of the Indian Constitution) and post-Constitutional laws (laws enacted after the coming into effect of the Indian Constitution). The term ‘law’ “includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”.

The Bombay High Court, in State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84) (“Narasu”) distinguished personal laws from custom, and held that Article 13 would not cover personal laws in their unadulterated form.   

The Supreme Court in Shri Krishna Singh v. Mathura Ahir ((1981) 3 SCC 689) echoed this view wherein they succinctly laid down that Part III does not touch upon personal laws so long as they are not “altered by any usage or custom or is modified or abrogated by statute”.

Thus any provision in the religious texts, followed in its purity is beyond judicial scrutiny.

Rationale for decision

While the Supreme Court did not provide reasons for its conclusions, Chagla J, while delivering the judgment in Narasu explained his stand elaborately.

Narasu involved a challenge to the Hindu Bigamous Marriages Act which sought to render bigamous marriages void as well as criminalize the offence of bigamy. The Act, which did not apply to Muslims, was challenged on the ground that it resulted in discrimination of Hindus vis-à-vis Muslims. This was countered on the basis that Muslims constituted a separate class who ought to be treated differently because Muslim personal law permitted men to have four wives. The petitioner ingenuously argued that this provision in Muslim personal law was violative of fundamental rights as it discriminated against Muslim women who could have only one husband. Hence it was argued that this provision of Muslim personal law was void resulting in Hindus and Muslims being equally placed. Thus the impugned legislation resulted in an unequal treatment of the two communities equally placed resulting in a violation of the right to equality and also amounted to discrimination based solely on religion.

The fundamental premise of the argument therefore was that Muslim personal law was void as it violated the right to equality. The Bombay High Court rejected the argument on the grounds that Muslim personal laws could not be subjected to fundamental rights.

Firstly, the Court reasoned that despite knowledge of the dichotomy between personal laws and custom the drafters included custom within the definition of “law” and did not include personal laws, thereby implying the exclusion of personal laws.

This reason is based on the maxim expressio unius exclusio alterius i.e. the express mention of one rules out others. The Bombay High Court articulated that an express mention of “custom” in the definition of “law” excludes all other implications. This view ignores the judicial position that this rule is a ‘useful servant but a dangerous master’. In other words, this rule is not a reliable tool of interpretation and can be used at best as a subsidiary tool. The Court has applied this rule without noting the wide inclusive definition of “law”. It is submitted that the tenor of the language used rules out the applicability of the maxim in the present context.

Secondly, the Bombay High Court held that subjecting personal laws to fundamental rights would imply automatic invalidation of practices like untouchability, thereby not explaining the introduction of Article 17 (which abolishes untouchability).

In holding that Article 17 would be rendered redundant if personal laws were subject to fundamental rights, the Court has failed to recognise that some constitutional provisions were introduced by way of abundant caution. For instance the general equality provision impliedly prohibits discrimination based on caste; however additionally the Constitution contains a provision which expressly does so.

Thirdly Chagla J observed that Entry 5 List III, Schedule VII read with Article 246, grants the State power to abolish discriminatory personal laws.  This provision would be rendered redundant if such laws had already been abrogated.

This reason is based on the premise that Entry 5 List III, Schedule VII read with Article 246 (which provides the State the power to legislate on personal laws), only includes power to legislate to eliminate discriminatory personal laws. However, the scope of this power cannot be narrowed down in this manner and would extend to other circumstances as well. For instance this power may be used to enact laws legalising gay marriages.

Finally the Court held that if the founding fathers of the Constitution had intended to do away with the discriminatory personal laws straightaway, they would have incorporated a provision to that effect instead of providing for the enactment of a Uniform Civil Code in Article 44, which is a Directive Principle of State Policy. The existence of Article 44 implies that the drafters placed upon the Parliament the onus of eradicating such discriminatory religious practices by enacting a Uniform Civil Code. 

This view fails to take into account the nature of Directive Principles of State Policy which are meant to be determinative of the policy the Parliament is expected to adopt. Directive Principles of State Policy merely act as a guiding light for the Parliament but do not create a positive obligation upon the Parliament to act in a particular manner. Directive Principles can be looked at as laying down non-binding duties for the Parliament that are correlative to the fundamental rights contained in Part III. In that sense a number of Directive Principles duplicate obligations that would arise from fundamental rights themselves. For instance Article 39(d) directs the State to ensure equal pay for equal work, an obligation arising from Article 14 itself. Similarly, Article 39(a) mandates the State to protect the livelihood of workers, an obligation correlative to the right to life guaranteed by Article 21. It is therefore clear that Directive Principles are meant to be complimentary in nature to fundamental rights and it cannot be argued that the presence of Directive Principles should curtail the scope of fundamental rights or the scope of judicial review. 

Arguments in favour of a contrary view

The Constitution points towards the subjection of religious practices to fundamental rights.

The definition of “law” is wide and inclusive. When a definition contains an inclusive clause, the terms in the clause cannot be interpreted restrictively. The provision should be interpreted keeping in mind its objective, which seemingly was to subject all norms creating binding obligations like ordinances, bye-laws, customs, etc. to fundamental rights. The rationale is that any legally binding norm, whether State made or otherwise (as apparent from the inclusion of “custom” in Article 13), cannot be manifestly unjust. Thus an interpretation of Article 13 in this light would mean that personal laws, which create binding obligations, would be subject to judicial review.

Moreover, Article 13 is not the only source of judicial review. Illustratively, Article 245 which subjects legislative power to other parts of the Constitution and Article 372 which provides that the pre-constitutional laws shall stay in force, subject to other parts of the Constitution, may be alternative sources. The same power can be located for personal laws in Article 25, which unambiguously states that the right to practise one’s religion is subject to other provisions in Part III. This implies that one is free to practice his religion irrespective of whether it involves following a custom or something mentioned in the religious texts, as long as these practices do not violate any fundamental right.

During the time when the Constitution was drafted, Indian society was in a state of flux. India had just been partitioned and communal riots were the order of the day. The framers of Indian Constitution took it upon themselves to rid Indian society of discrimination within and between religious communities.

Article 44 was meant to send out a strong message to minimize discrimination arising from personal laws.  Article 25 was drafted in such a way so as to ensure that religious freedoms were subject to other fundamental rights like the right to equality.

In this context, the stance adopted by the judiciary has set Indian society back by multiple steps. A more activist stance in this regard would be needed to help curb the sprawling forms of discrimination and ensure the accomplishment of the constitutional ideals of equality and fraternity.

About the Author

Advocate, Madras High Court Trainee Solicitor, Clifford Chance LLP, London (2008-2010). Author, The Law of Reservation and Anti-discrimination, LexisNexis Butterworths Wadhwa Nagpur (2008). Chief-editor, Justice R.S.Bachawat's Law of Arbitration and Conciliation, 5th edition, LexisNexis Butterworths Wadhwa Nagpur (2010).

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7 Comments on "Religious Law v. Fundamental Rights"

  1. Niranjan September 5, 2010 at 2:04 pm ·

    Anirudh, wonderful post. But I disagree for three reasons.

    First, while I think you are right that each of Chagla J’s reasons may be explained, I think the reasons taken together make a strong case for his view. I will concede that it is perhaps inapposite to apply expressio unius to Article 13. But I think his second point is strong and his third point unanswerable. Art. 17 that bans untouchability may, as you say, be a provision inserted in abundant caution, but the presumption in law usually is to the contrary – that each word inserted by the legislature carries meaning. For example, Entry 24 of List II speaks of “industries”, and Entry 25 of “Gas and gas works”. Although gas and gas works are no doubt industries, the Supreme Court took the view that this effectively makes Entry 25 “redundant” and held that industry in Entry 24 does not include gas and gas works. Now one could argue that Entry 25 is in the nature of abundant caution, but there isn’t anything compelling in the context to indicate that – nor is there anything in Art. 13 in which case the theory of abundant caution must yield to the presumption that every word carries meaning.

    Secondly, I think the above is even stronger with reference to Chagla J’s analysis of Entry 5. Art. 13(2) provides that any law that contravenes Part III is void to the extent of contravention – and applies to existing laws. There is no doubt that discrimination per se offends Art. 14, even if we assume that in 1950 Art. 14 was not intended to cover arbitrariness (and that Royappa is wrong). As a result, the very act of inserting Entry 5 shows that it is a field of legislation that allows Parliament (read with Art. 246) to achieve a result that it otherwise cannot – which contradicts the theory that discriminatory personal laws are unconstitutional. The broader explanation is that the drafters of the Constitution left the controversial question of personal laws to Parliament rather than to the judiciary. Thirdly, while you are of course right that the DPSPs are not enforceable, I don’t think that’s Chagla J’s point. Like with Entry 5 above, if discriminatory personal laws are per se unconstitutional, what is the need for Art. 51 at all? It could be that non-discriminatory laws require uniformity, of course, but that doesn’t detract from the way Chagla J. uses Art. 51.

    Thirdly, and I think this is perhaps the most important reason to support Narasu Appa Mali, s. 113 of the Government of India Act, 1915 used the words “custom and usage” in addition to “personal law”, indicating that the drafters envisaged a distinction. This was before the Constituent Assembly, and the present Constitution’s use of only “custom” surely indicates that the intention was to exclude personal laws – especially when read with the above.

  2. Anirudh Krishnan September 9, 2010 at 9:19 am ·

    1. While it is arguable that Article 17 was not introduced merely by way of abundant caution, the discussions in the Constituent Assembly (I must admit I did not have access to the Constituent Assembly Debates and hence referred to Shiv Rao’s book on Framing of the Constitution of India which provides a useful summary of the CAD’s) seem to suggest that the only purpose of Article 17 is to criminalize untouchability. The first part of Article 17 is there by way of abundant caution with the primary purpose of making the second sentence readable.
    2. Entry 5 merely provides the Parliament the power to make laws with respect to “Marriage and divorce; infants and minors; adoption; wills, intestacy
    and succession; joint family and partition; all matters in respect of which
    parties in judicial proceedings were immediately before the commencement
    of this Constitution subject to their personal law.” The power extends far beyond enacting laws to eradicate discriminatory practices. My argument is that Entry 5 does not even provide this power to eradicate discriminatory personal laws as there is no need for such a power to exist (because discriminatory personal laws do not exist as they are unconstitutional). Entry 5 provides a wide range of powers like for instance enacting a Uniform civil code making the non-discriminatory personal laws uniform (this would also be the reason for introducing Article 44 as well).
    3. I agree that the Government of India Act, 1915 did use the term “personal laws”. The Government of India Act, 1935 also used the term “personal laws” along with custom. However, while drafting Article 13, the fundamental rights sub-committee removed the term “custom” which was later reintroduced. The draft that the Constituent Assembly started with was therefore very different from the provisions in the Government of India Act,1915. It does not seem that the Constituent Assembly consciously considered the wording of the Government of India Act, 1915 and then decided to leave out “personal law”.

  3. Niranjan September 10, 2010 at 7:07 am ·


    (1) You may be right about this. But I think the point has significance in connection with (2) and (3) below.

    (2) Entry 5 does indeed “extend beyond the power to eradicate discriminatory practices”. But you will notice that the various subjects in Entry 5 are separated by a SEMICOLON, not a comma. The Supreme Court held in Jamshed Guzdar, Pleasantime Products v. CCE (and other cases) that the use of a semicolon as opposed to a comma implies that the subjects address distinct subject matters. Which in turn implies that the part on personal law in Entry 5 must be viewed as a separate and self-contained item in itself. That suggests that the drafters of the Constitution envisaged a distinction between “laws” and “personal laws”, first because both expressions are used, and secondly, that the latter was made a separate subject matter in Entry 5 – and placed in the Concurrent List.
    (3) You are right – it does not in itself necessarily suggest that the drafters were aware of this distinction. But it appears from the CAD that the GoI 1915 was one of the models specifically considered by the Constituent Assembly – and taken together with the distinction between laws and personal laws, it appears more reasonable to conclude that the distinction was conscious.

    This is undoubtedly a close point – because the question essentially boils down to whether the provisions of the Constitution and CAD that you and I are now citing necessarily suggest that the distinction between the two was conscious. I think two points may perhaps tip the balance in favour of the view that Chalga J took – first, the reference to a UCC in Art. 44 seems to be a recognition of the state of affairs then – that parties were governed by their personal laws, and the act of placing it in Chapter IV seems to be an admission that it continues to be legal until the State legislates in respect of it; and secondly, in light of the background then and the significant role religion played, it is not unreasonable to suppose that this was committed to the legislature rather than to the judiciary.

  4. Alok September 10, 2010 at 6:20 pm ·

    I think Shah Bano and the furore thereafter has shown us why “judicial activism” in this regard may not be the best option.

    I doubt if the Constitution makers ever intended giving judges the power to dictate how people should lead their religious lives. Personal laws in India are not just a mere extension of religious practices, but in a good number of cases, essential to and part of such religious practices. For instance, adoption is not a measure for childless couples to have heirs but for son-less parents to have someone who will ensure their spiritual passage to the next world. No doubt all these laws also have utilitarian purposes, but in a society as deeply religious as ours, it isn’t wise to ignore religious sentiment casually.

    A lot of deliberation, compromise and argument is needed before any serious change is brought about in personal laws. This was as true when Henry VIII decided to follow his policy of “chop and change” as it is of the gay marriage debate in the US and closer home, of the enactment of the Hindu Code. When the change brought about, no matter how wise, rational and human rights sensitive it seems from a distance is sudden and imposed from above, the reaction is hardly going to be placid acceptance. Solutions to problematic areas of personal law have to be well thought and all views taken on board before enacted and implemented.

    Even then, the changes made may not have any immediate effect (think introduction of divorce in India), and indeed might have the opposite effect (think enactment of Muslim Women’s Protection of Rights on Divorce Act enacted following Shah Bano).

    It is difficult to translate the above misgivings into cogent and acceptable legal principles broadly applicable by courts. These are necessarily practical considerations which limit the scope of solutions which can address the problem of “unconstitutional” personal laws.

  5. Anirudh Krishnan September 14, 2010 at 4:17 am ·

    I agree it is possible to argue that the framers of the Constitution chose not to include “personal laws” within the definition of “law”. However, it is also possible that they chose not to expressly include “personal laws” within “laws” because they were of the opinion that the definition of laws was already wide enough to include personal laws. I agree there is no proof in Shiv Rao’s summary of the CAD’s to support either of these views. However, the intention of the framers seems to be clear from the wording of Article 25. The “right freely to profess, practise and propagate religion” would in my view include within its ambit the right to follow practices like triple talak and systems like the caste system. Such practices are specifically made “subject to….the other provisions of this Part”.
    As regards Article 44, my view is that Article 44 was meant only to come up with a common code for non-discriminatory personal laws. Also, “in light of the background then and the significant role religion played” and the religious riots that was happening during that time, it is highly unlikely that such reform could have been carried out by the Legislature as it would have led to a further uproar in the country.
    But I agree that this is a close one and is arguable both ways.

    There is no doubt there will be a number of practical consequences if what I have argued is actually implemented. This is largely because we have also got used to living in a country where such discriminatory practices have become so common that we take them to be a necessary evil. Had the Indian Courts adopted a different approach before this “taking for granted” feeling set in, perhaps reactions may have been different. “A lot of deliberation, compromise and argument is needed before any serious change is brought about in personal laws”- agreed. But I see no reason why the solution cannot be reached by the judiciary. Infact the judiciary, without being pressurized by lobbies, will be in a better position to take a neutral stand.
    But note that I am not saying there won’t be political ramifications. There may be legislative enactments that overrule the decision of the Courts. However this does not mean that the Courts should not adopt the stand I have suggested.

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