Legal systems all over the world have constantly grappled with the issue of the nature and content of laws. In a State governed by a written constitution, where laws of all kinds are subordinate to the Constitution, it is axiomatic that an inferior norm that qualifies as law must answer to the test of conformity with the provisions of the written constitution. In this background, it becomes important in a country like India to have a clear understanding as to the nature and character of personal laws. These may be broadly characterized as those laws which derive their validity and authority from the scriptural texts. The history of these laws pre-date the days of the British Raj, and go back to the days of the East India Company where Sudder Courts adjudicated disputes between Indians by applying the local laws and customs as interpreted from the scriptural texts of the respective religious communities.
The supremacy of the Indian legislature to legislate and thereby abrogate the existing state of personal law in British India remained undoubted. For instance, the Women's Right to Property Act, 1937 superseded Hindu personal law to confer property rights on women. It is, therefore, unsurprising that the Constitution has, under Entry 5 of List III of the Seventh Schedule, empowered the legislature to enact laws on matters relating to personal law.
The crucial question that requires focus in this article is as to whether such personal laws, by reason of their inconsistency with fundamental rights, could be declared invalid and repugnant to the provisions of the Constitution? The courts in India have grappled with this question with various High Courts returning conflicting views.
Before examining these decisions it needs to be noticed that Article 13 of the Constitution declares that laws inconsistent with or in derogation of the fundamental rights shall be void. Clauses (1) and (2) of this Article operate on different fields. While clause 1 invalidates all "laws in force" in the territory of India before the commencement of the Constitution, clause 2 contains a prospective restriction on the powers of the State to the effect that no "law" shall be made in contravention of the fundamental rights, and if so made, such a law would be void.
Clause 3 of Article 13 purports to define the expressions "law" and "laws in force" in the following terms
(3) In this article, unless the context otherwise requires
(a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law;
(b) laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
The question, therefore, is whether personal law falls within the purview of Article 13(1), and would, therefore, be open to attack on the ground of infraction of the fundamental rights?
This issue fell for determination before a Division Bench of the Bombay High Court in The State of Bombay v Narasu Appa Mali [AIR 1952 Bombay 84]. The constitutional validity of the Bombay Prevention of Bigamous Marriages Prohibition Act, 1946 was impugned as contravening Article 25(1) of the Constitution, in so far as it imposed a ban on bigamous marriages contacted by a Hindu. Chagla CJ, with whom Gajendragadkar, J agreed, held that personal law was not included within the scope of the expression "laws in force" used in Article 13 and was, therefore, outside the purview of Part III.
Jurisprudentially, there can be little doubt that personal laws are "laws" in the strict sense of the term. Kelsen, for instance, states that once the Courts are obliged to apply "customary law" in the decision making process, they are considered to be a law-creating fact just as legislation. He goes so far as to say that a custom "has to be, like legislation, a constitutional institution", and concludes that there can be no difference between a rule of customary law and rule of statutory law in their relationship with the law applying organ. It would, therefore, seem strange to speak of a law that is recognized and enforced by Courts functioning under the Constitution but could still be regarded as outside the sphere of fundamental rights. Keeping in mind the inclusive nature of the definition of law under Article 13(3)(a), the true test of what is or is not law must be answered with reference to whether or not the rule is enforceable as such by the organs of the State. This conclusion is reinforced by the expression "having in the territory of India the force of law" found in Article 13(3)(a). It is, therefore, abundantly clear that custom or usage is enforceable only on account of the fact that it is recognized to have the force of law within the territory of India. The rule that affords such recognition is the Constitution. If personal law is, therefore, recognized as law for the purpose of being enforced in Courts, there is little difficulty in holding that it answers the qualitative test stipulated under Article 13(3)(a).
In this connection it is also necessary to take note of the provisions of Article 372. This Article provides that "all the laws in force" in the territory of India immediately before the commencement of the Constitution shall continue to remain in force until altered or repealed by a competent legislature. More crucially, the operation of this Article is "subject to the provisions of the Constitution", meaning thereby that they would have to pass muster under Article 13. The explanation appended to Article 372 inclusively defines the expression "law in force", and this may be compared and contrasted with the definition of "existing law" under Article 366(10).
A comparison of the two provisions clearly leads to the conclusion that "existing law" is covered by the expression "law in force" under Article 372. What is also interesting is the fact that marginal note to Article 372 itself states "continuation in force of existing laws and their adaptation" although the word "existing law" is not used in the text of the Article. It would be erroneous, however, to conclude that the meaning of the word "laws in force" must be limited by the exclusive meaning given to "existing law" in Article 366(10), for the inclusive nature of the former cannot be whittled down by the exhaustive enumeration in the latter. The meaning assigned to existing law in Article 366(10) is, therefore, a subset of the definition contained in Explanation I to Article 372. That being the case, clause 1 of Article 372 read with the extended definition of "law in force" in Explanation I to Article 372 unambiguously leads to the conclusion that personal laws clearly fall within the expression "law in force" in Article 372. And finally, that other forms of uncodified law fell within the sweep of the expression "law in force" in Article 372 is now clear from the decision of the Supreme Court in The Stock Exchange, Bombay v V.S Kandalgaonkar [2014 7 MLJ 489] wherein it was held that uncodified common law-qua-crown debts continued to remain in force in India by virtue of Article 372.
The view of the Bombay High Court in Narasu Appa Mali, declaring personal laws to be outside the purview of Part III of the Constitution was elevated to the status of a binding precedent by the Supreme Court. It would, therefore, seem apposite to analyse the precise reasons given by the Division Bench in arriving at this conclusion.
In Narasu, Chagla CJ rejected the contention that the definition of law in clause 3(a) applied only to Article 13(2), noticing that to hold so would render otiose the words "custom and usage" in clause (3) (a), for it was evident that a State cannot make a custom. He concluded that the definition of "law" in that clause would, therefore, have to be construed with reference to clause 1 of Article 13, pointing out that the use of the expression laws in force was to emphasize the fact that even though a law may not be in operation at all or may be in operation in particular areas, it should be considered to be laws in force within the meaning of clause 1.
The learned Chief Justice was also right in noticing the subtle but often overlooked difference between a custom and personal law. Pointing out that it was erroneous to treat personal law as being synonymous with custom he concluded that custom and usages constituted a deviation from personal law, and were not, therefore, a part of personal law. But the definition of law, according to Chagla CJ, did not include the expression personal law for the following reasons; first, Section 112 of the Government of India Act, 1915 drew a clear distinction between personal law and custom, and the Act was a model before the Constitution makers who have advisedly used only the term custom and usage.
Secondly, if the expression did include personal laws within its sweep, and personal laws became void by reason of Article 13 then it was unnecessary to provide in Article 17 and 25(2)(b) which rendered void certain aspects of Hindu law.
Thirdly, the duty cast upon the State under Article 44 coupled with the power, to enforce it by way of legislation, to override personal laws under Entry 5 of List III, was a clear pointer to the fact that the scheme of the Constitution was such as to leave personal laws unaffected except in certain specific instances. And lastly, the Chagla, CJ held that expression laws in force used in Article 372(1) was restricted to laws made by the legislature for the reason that clause (2) of the said Article does not authorize the President to make adaptations or modifications in the personal law of any community.
In his concurring opinion, Gajendragadkar, J appears to have agreed with the learned Chief Justice on all of the aforesaid points. However, his conclusions on the inter-play between Articles 13(1) and 13(3) appear to differ from those of Chagla CJ. According to Gajendragadkar, J, there was no doubt that personal laws were laws in the general sense of the term. But the question, according to him, was whether the expression laws in force in Article 13(1) were used in that general sense. Negating this contention, he opined that the expression "laws in force" is restricted to those laws which may compendiously be described as statutory laws. Noticing that the term laws in force was defined in substantially the same terms in Article 372(1), the learned judge drew on clause (2) of Article 372 to drive home the point that the term "laws in force" only included statutory law.
In this respect, the divergence of opinion between the two judges is clearly apparent. Whereas, Chagla CJ applies the definition of "law" in clause 3(a) of Article 13 to clause (1), the conclusion of Gajendragadkar, J invariably leads to the conclusion that he applied the expression "laws in force" in clause 3 (b) to clause (1) of Article 13.
In Krishna Singh v Mathur Ahir [AIR 1980 SC 707], a two judge Bench of the Supreme Court held, in one line, that "In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties." A perusal of the judgment reveals that the observations are a clear obiter given the fact that Supreme Court dismissed the appeal and confirmed the judgment of the High Court on other substantive grounds.
In AWAG v Union of India [1997 3 SCC 573], the three judge bench of the Hon'ble Supreme Court was invited to invalidate Muslim personal law in so far as it permitted the practice of polygamy. Dismissing the appeal, the Court contented itself with adopting the reasoning of Narasu without examining the legal and jurisprudential implications of its decision. In the end, the conclusion that personal laws are outside the purview of Article 13 is arrived at by extracting the reasoning in Narasu.
A Full Bench of the Andhra Pradesh High Court in Youth Welfare Federation v Union of India [1994 4 ALT 1138], where the reasoning in Narasu was approved to hold that personal laws were outside the purview of Part III of the Constitution.
The Kerala High court found it difficult to accept the ratio of Narasu in toto, and Assan Rawther v. Ammu Umma [1971 KLT 684] amply illustrates just that. The issue of whether personal law fell outside the purview of Part III came up for consideration before the Kerala High Court. Rejecting the ratio of Narasu, Krishna Iyer, J (as he then was) said
"In the Bombay case, the learned Judges went to the extent of laying down that personal law is not included in the expression "laws in force" used in Article 13(1). With great respect, I demur to the proposition and to the reasoning adopted in reaching this result. Personal law so-called is law by virtue of the sanction of the sovereign behind it and is, for that very reason, enforceable through court. Not Manu nor Muhammed but the monarch for the time makes 'personal law' enforceable. Article 13 (1) gives an inclusive and not exhaustive definition. And I respectfully venture the opinion that Hindu and Mohomedan laws are applied in courts because of old regulations and Acts charging the courts with the duty to administer the personal laws and not because the ancient lawgivers obligate the courts to enforce the texts."
A Division Bench of the Kerala High Court in Saumya Ann Thomas v The Union of India (W.P 20076 of 2010 dated 25.02.2010) expressly refused to follow Narasu Appa Mali holding that personal law must pass muster under Part III. R. Basant, J concluded as under:
24. All laws whether pre constitutional or post constitutional will have to pass the test of constitutionality. We find no reason, in a secular republic, to cull out "personal law" alone and exempt the same from the sweep of Art.13 and Part III of the Constitution. With great respect to the eminent Judges who decided Narasu Appa (supra), we feel that the decision requires reconsideration. A piece of personal law also binds citizens. It is as much a piece of enforceable law notwithstanding the fact that such principles of personal law may not be statutory law and may only have been accepted and enforced by the sovereign and acted upon by the courts for a long period of time. Art.13 assures the citizen that pre- constitutional or post-constitutional laws shall not be permitted to eat into space of fundamental rights reserved by 'we the people of India' in favour of themselves while giving unto themselves the constitution. In that view of the matter, we are certainly of the opinion that the decision in Narasu Appa (supra) which appears to have been endorsed in Mathew (supra) deserves re-consideration. Mathew (supra) does not appear to have delved deeper into question before endorsing Narasu Appa (supra). We are tempted to agree with the learned single Judge who opined in Re Smt. Amina (AIR 1992 Bombay 214) that the observations of the Supreme Court in Shri Krishna Singh (supra) extracted above cannot be reckoned as ratio. In an appropriate case, we shall certainly want the matter to be decided by a larger Bench.
The Kerala High Court appears to have consistently taken the view that personal laws are not outside the purview of Article 13.Furthermore, it is interesting to note that a three judge bench of the Supreme Court in Masilamani Mudaliar v The Idol of Sriswamninathaswamy Thirukoil [AIR 1997 SC 1697], has taken the following view:
"The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they became void under Article 13 if they violated fundamental rights."
The decision in Masilamani Mudaliar's case was not brought to the notice of the three judge bench in AWAG v Union of India. The issue of whether personal laws were amenable to review under Part III of the Constitution and whether the practice of triple talaq were statutorily recognized and enforced by the Muslim Personal Laws (Shariat) Act, 1937 came up for consideration before a Constitution Bench in Shayara Bano v. Union of India. Five judges delivered three separate judgments. Chief Justice Khehar (for himself and Abdul Nazeer, J) rejected the contention that the Shariat Act, 1937 statutorily enforced the practice of talaq. On the question of the reviewability of personal laws, Khehar CJ held
"336. It seems to us that the position expressed by the Bombay High Court, as has been extracted above, deserves to be considered as the presently declared position of law, more particularly, because it was conceded on behalf of the learned Attorney General for India that the judgment rendered by the Bombay High Court in Narasu Appa Mali case [State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72 : AIR 1952 Bom 84 : 1952 Cri LJ 354] , has been upheld by the Court in Krishna Singh case [Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689] and Maharshi Avadhesh case [Maharshi Avadhesh v. Union of India, 1994 Supp (1) SCC 713] , wherein, this Court had tested the "Personal Laws" on the touchstone of fundamental rights in the cases of Mohd. Ahmed Khan v. Shah Bano Begum [Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : 1985 SCC (Cri) 245] (by a five-Judge Constitution Bench), Danial Latifi v. Union of India [Danial Latifi v. Union of India, (2001) 7 SCC 740 : (2007) 3 SCC (Cri) 266] (by a five-Judge Constitution Bench), and in John Vallamattom case [John Vallamattom v. Union of India, (2003) 6 SCC 611] , (by a three-Judge Division Bench). An extract of the written submissions placed on the record of the case, on behalf of the Union of India, has been reproduced verbatim in para 226 above."
It appears that Khehar, CJ's acceptance of the decision in Narasu Appa Mali was largely on account of the concession made by the Attorney General. This is clear from the following observations
"337. The fair concession made at the hands of the learned Attorney General is reason enough for us to accept the proposition and the legal position expressed by the Bombay High Court, relevant part whereof has been extracted above."
Khehar, CJ finally concluded as under
"383.5. The contention of the petitioners that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be "Personal Law", and got transformed into "statutory law", cannot be accepted, and is accordingly rejected."
Justice Kurian Joseph concurred with the Chief Justice and observed as under
"4. After the 1937 Act, in respect of the enumerated subjects under Section 2 regarding "marriage, dissolution of marriage, including talaq", the law that is applicable to Muslims shall be only their Personal Law, namely, Shariat. Nothing more, nothing less. It is not a legislation regulating talaq. In contradistinction, the Dissolution of Muslim Marriages Act, 1939 provides for the grounds for dissolution of marriage. So is the case with the Hindu Marriage Act, 1955. The 1937 Act simply makes Shariat applicable as the rule of decision in the matters enumerated in Section 2. Therefore, while talaq is governed by Shariat, the specific grounds and procedure for talaq have not been codified in the 1937 Act.
5. In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating Triple Talaq and hence, the same can be tested on the anvil of Article 14."
On the other hand, R.F Nariman, J (for himself and U.U Lalit, J) formulated the issues in the following manner :
"32. The question, therefore, posed before this Court is finally in a very narrow compass. Triple Talaq alone is the subject-matter of challenge—other forms of talaq are not. The neat question that arises before this Court is, therefore, whether the 1937 Act can be said to recognise and enforce Triple Talaq as a rule of law to be followed by the courts in India and if not whether Narasu Appa [State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72 : AIR 1952 Bom 84 : 1952 Cri LJ 354] which states that Personal Laws are outside Article 13(1) of the Constitution is correct in law."
"47. It is, therefore, clear that all forms of talaq recognised and enforced by Muslim Personal Law are recognised and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim Personal Law applicable to Sunnis in India. Therefore, it is very difficult to accept the argument on behalf of the Muslim Personal Board that Section 2 does not recognise or enforce Triple Talaq. It clearly and obviously does both, because the section makes Triple Talaq "the rule of decision in cases where the parties are Muslims".
48. As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression "laws in force" in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.
50. It is thus clear that it is this view of the law which the 1937 Act both recognises and enforces so as to come within the purview of Article 13(1) of the Constitution."
Having held so, Nariman, J found it unnecessary to answer the second issue identified by him in paragraph 32, leaving it open with the following observations:
"51. In this view of the matter, it is unnecessary for us to decide whether the judgment in Narasu Appa [State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72 : AIR 1952 Bom 84 : 1952 Cri LJ 354] is good law. However, in a suitable case, it may be necessary to have a relook at this judgment in that the definition of "law" and "laws in force" are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J. (para 26), in which the learned Judge opines that the expression "law" cannot be read into the expression "laws in force" in Article 13(3) is itself no longer good law—See Sant Ram v. Labh Singh [Sant Ram v. Labh Singh, (1964) 7 SCR 756 : AIR 1965 SC 314] , AIR p. 315, para 4."
The noted constitutional law scholar Seervai while disagreeing with the dictum in Narasu states as follows :
" There is no difference between the expression existing law and law in force and consequently personal law would be existing law and law in force. This conclusion is strengthened by the constitution that custom, usage and statutory law are so inextricably mixed up with personal law and it would be difficult to ascertain the residue of personal law outside them. It was therefore necessary to treat the whole of personal law as law in force under Art 372 and to continue it subject to the provisions of the Constitution ".
The nature of personal laws which derive their validity and authority from the scriptural texts, is more in the nature of Religious rights. Therefore even if this right is traced to be a fundamental right Under Art 25 of the constitution of India, it is clearly subject to public order, morality and health and to the other provisions of Part III of the Constitution of India. The moment it is brought within the preview of Art 13, such personal laws also must necessarily pass muster under Part III. Art 51 A (a) categorically declares that it is the fundamental duty of every citizen of India to abide by the Constitution and respect its ideals. For every Indian citizen, the Constitution is the Gita, Bible and Koran and therefore personal laws should not be given a status above the Constitution of India. Clarity on this issue therefore assumes a lot of significance. Ultimately constitutional morality must reign supreme.
A review of jurisprudence would, therefore, reveal that the reasons adduced for keeping personal laws outside the purview of Article 13 are hardly convincing. The attempt to pass off personal laws as "private laws" is a an attempt to fuel an unconvincing cause. Even if this argument is taken at face value, there appears to be no normative justification to place personal laws in a pedestal that is above the Constitution. For, it would be legalising injustice to allow a flagrant violation of a fundamental right to go unchecked on the sole basis that the law complained of was purely the personal law of parties. More importantly, personal law is not law because the individuals recognize it as such. It is solely on account of the fact that recognition is afforded by the State and its enforcement is guaranteed in its courts. It would be utterly meaningless, therefore, to say that such a law is private in nature.
If Article 13 means what it says, the inescapable conclusion is that personal laws are amenable to Part III. There was a golden opportunity for the Constitution bench of the Hon'ble Supreme Court to have categorically stated so in Shayara Bano v. Union of India. It would have given a lot of certainty with regard to the status of personal laws qua Art 13 of the Constitution. An opportunity like this knocks the doors of the Hon'ble Supreme Court only once in a while and we must remain optimistic that such an opportunity will surface very soon and the Hon'ble Supreme Court will settle the law once and for all.
Views Are Personal Only
(Author is Judge At Madras High Court)
 See also the observations of R.F Nariman, J on the ratio of AWAG v Union of India in Shayara Bano v Union of India 2017 9 SCC 1, at paragraphs 59 and 60.