This Article is written by Diksha Vohra students of UILS, PANJAB UNIVERSITY CHANDIGARH.
Personal Law is a law which applies to a certain class or group of people based on religion, faith, culture and customs. For example Hindu law, Persian law, Christian Law, Muslim law etc.
From where did Personal Law emerge?
With the evolution of a civilized society from the Stone Lithic Age and with the growth of civilization, there was an expeditious need to impose a social order in the society. That is from where the concept of religion emerged i.e., the supernatural power that could control the social order. Even the traces of religion could be found in the Indus Valley civilization in the way of Sumeria and Mesopotamia.
The earliest religion which can be expressly looked upon is the Vedas in the Hindu Law and also evidence of other written religions can be traced back in the Historic period, which governed the various matters of personal relationship (marriage, divorce, maintenance etc.) and personal property (will, gifts, testament).
It was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. So, it can be called out that personal laws are not religious laws per se, rather the scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to socio-political reasons rather than religious reasons.
Territorial laws override Personal Laws
Territorial Law is the Law of Land, belonging to a territory. All the persons residing in such territory are subject to such law irrespective of their religion, caste, creed, sex etc. For example the IPC, CPC, CRPC, Specific Relief Act, Constitutional Law etc. Therefore, territorial law is a secular law thus, overrides the personal law.
Can we have both?
Article 44 of the Constitution of India, is the Directive Principle which empowers the State to provide a Uniform Civil Code in the country irrespective of the prevailing personal laws.
But why is it difficult to remove personal laws and not have only a Uniform Civil Code?
Fundamental Right to Religion: Article 25 of the Constitution gives the freedom of practice and propagation of religion.
A custom acquires force of law.
If shrouded in antiquity it becomes a custom – SC
The effect or force of law of custom is more effective than force of legislative law, because a custom is the law of society enforced by the society. Personal law is a much wider term than customary law. Custom acquires the force of law, if used for an indefinite period of time and is based as per the needs of the society. Therefore, customary law prevails over personal law. The basic object of a custom in force of law is to ensure a social order, to ensure the flourishment and development of the society. Any customary law which violates social order will die natural death or otherwise, the sovereign will extinguish such custom. For example sati pratha, devadasis, etc.
Does the Constitution recognize Custom as a Law?
The Constitution is the mother of law and thus any law cannot be ultra-vires to the provisions of the Constitution or against the ethos of the Constitution.
- Custom as a Law, u/A.13(3)
Article 13(3) of the Constitution provides that custom and usages have a force of law.
But does the Constitution override Personal/Customary law?
Article 372 expressly provides about the laws in force and thus, says that notwithstanding the laws repealed by Article 395 of the Constitution (repealed two major laws, the Government of India Act 1935 and Indian Independence Act 1947), all the other laws prevailing before 1950, shall remain in force till altered or repealed or amended by a competent legislature or authority.
Now, whether Customary law is a law in force?
In Re Amina, the question before the Court was whether all the laws in force under Article 372 include all personal laws also?
It was held that it includes all legislative laws but also all personal laws.
Article 13 says custom is a law therefore, the customs which are violative or against the Constitution are void ab initio. But the question is there are many elements in different personal laws which must be against the Fundamental Rights. For eg, polyandry, polygamy,etc. So, whether these personal laws, which are violative of the Constitution, can remain in force of law? A personal law prescribes a code of conduct and is not static. India is a diverse country with a plethora of personal laws.
Why are personal laws not subject to judicial scrutiny?
This is the result of the decision of Narasu Appa Mali which was a turning point in Constitutional history. The Court interpreted the inclusion of law under Article 13(3) and laws in force under Article 13(1) to exclude personal laws which in turn made personal laws immune from judicial review. Article 13 renders all laws consistent and derogative of fundamental rights as void.
Hence, if these personal laws are allowed to be followed without judicial scrutiny then there will not only be sexual inequality between men and women of one community but also inequality between women of different religious communities. Furthermore, it will make Fundamental Rights of citizens of the country more vulnerable to exploitation.
Justice Chandrachud in the Sabarimala Judgement said that the definition of law under Article 13(3) is an inclusive definition and it would be inappropriate to put a restrictive interpretation upon terms of denotation. Going by scriptural texts, he decided on the inclusion of personal laws in customs and usages under Article 13 and how they have been creating a menace by not being subjected to judicial review for years.
In Collector of Madurai v. Muthu Ramlinga, under the Hindu system of law, clear proof of usage or custom will outweigh the written text of law. Sacred law becomes subservient to customary law.
Any law which infringes our Fundamental Rights is void, for example in Ancient law the system of widow remarriage, practice of polygamy. As a lot of personal laws directly infringe the fundamental rights or may be definitely violative of the Constitution.
Whether personal laws should be brought within the ambit of Article 13?
The SC has not been steadfast in this. There has been an inconsistent approach of HCs and SC.
In Sant Ram v. Labh Singh, the grounds on which we will declare statutory law or provisions void on the same grounds a custom or customary law will be applied and declared to be void. Therefore, the same yardsticks will be applied in declaring a custom void as hat of statute law.
The judgment of the case of State of Bombay v. Narasu Appa Mali,was one of the path-breaking judgments, where it was held that all personal laws fall outside the ambit of Part III of the Constitution and thus need not conform Fundamental Rights.
Also, the SC in the case of Krishna Singh v. Mathura Ahir, held that even if personal law infringes Fundamental Rights, it is valid because it is not a legislative law. A personal law is a scripture law and thus, not equivalent to legislative law therefore does not come u/A.13.
In the case of Ahmedabad Women Action Group and Others v. UOI, the validity of Muslim law was challenged for the first time as violative of Constitution. But again the SC dealt with the Narasu Appa Mali judgement and held that it is the legislative power, it is for the parliament to make laws and not the Court. A judicial legislation is not permissible in India.
It was observed that personal laws should be excluded from the ambit of judicial review and it is not for a court to make a choice of something which it considers forward looking. Personal laws and religion are for interpretation as it is and must be accepted in the faith of followers.
As the legislature codified the Hindu Laws into different legislations such as HMA. But the codification of Muslim law is not possible due to its divinity, as it’s a divine law directly perceived from Sunna and Allah.
A LOST OPPORTUNITY
The recent case of Shayara Bano v. UOI was the first ever Revolt of SC against why we are delaying the application of Article 44 i.e a Uniform Civil Code. In this case the dispute between Part III of the Constitution and the Personal laws was raised again. To negate this Muslim Women Protection Rights Act, 1986 was passed which was further challenged in the case of Daniel Latifi v. Union of India.
The SC slowly attempted and tried to bring personal laws within the ambit of Article 13 so as to enable its judicial scrutiny. It was seen by many as a golden opportunity for resolving the between personal laws and constitutional rights. Although the Court held Triple Talaq unconstitutional and that Narasu Appa Mali needed reconsideration, the supreme and fundamental dispute in law was left completely unresolved.
THE LAW COMMISSION REPORT, 2018
Any personal law which is codified or being codified cannot violate the Fundamental Rights, the Constitution.
Even the Indian Jurist, H.M Seervai is of the view that personal laws are inextricably connected to the entire network of law. Therefore, it would be difficult to ascertain the residual effects of personal law outside them. But it is crucial to understand that Article 13 contradicts this and creates a distinction between state law and non-state law, thereby giving much less importance to the latter, which is eventually left out of the real law of the state and thus out of the judicial scrutiny.
Narasu Appa Mali is a bad precedent not because it places personal law equal to the Fundamental rights, but because it curtails the rule of law in a society where the constitution is paramount.if the basic structure of our constitution is the rule of law then Narasu Appa Mali should have been jettisoned.
The SC can be witnessed now favouring Fundamental Rights with Personal law. Though not explicitly negating them. Hence, there has been no crystallized opinion of SC regarding the impugned issue, but the weightage is towards Fundamental Rights. Justice Chandrachud, in the Sabarimala Judgement observed that the rationale used by the Bombay HC in Narasu Appa Mali case, which held that personal laws should not be subject to Fundamental Rights, is not sustainable, however only overrules Narasu on the point that customs are not subject to Fundamental Rights. The ratio of Narasu Appa Mali only extended to uncodified religious law which has not been modified by either custom or usage. There are still so many cases pending in the Court on the issue of different practices such as halala, illegitimate child as coparcener etc. The wait is for finally having a settled position of law whether personal laws are subject to judicial scrutiny and the much awaited Uniform Civil Code in our country.
- Shubhangi Agarwalla, A Transformative Approach to Personal Laws,3 October 2018, https://ilg2.org/2018/10/03/a-transformative-approach-to-personal-laws/
- Deeksha Sharma & Tushar Behl, Article 13: A Bete Noire in the Indian Constitution?, 30 April 2020, Jurist, https://www.jurist.org/commentary/2020/04/sharma-behl-indian-constitution-article-13/
- Shreenath A. Khemka, Can courts reform personal laws, The Tribune, 29 March 2018
- Re: Amina 1992 BOM HC
- Collector of Madurai v. Muthu Ramlinga 1868 PC
- Sant Ram v. Labh Singh 1965 SC
- State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84)
- Krishna Singh v. Mathura Ahir (1980 AIR 707, 1980 SCR (2) 660)
- Ahmedabad Women Action Group and Others v. UOI (AIR 1997, 3 SCC 573)
- Daniel Latifi v. Union of India (2001 7 SCC 740)