WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES

CONSTITUTION LAW II
WINTER SEMESTER 2019-20

DHRUV GUPTA

2ND YEAR SECTION A

ID- 218018

WORD COUNT (TEXT): 2732 (EXCLUDING FOOTNOTES)

PERSONAL LAWS AND THEIR FUNDAMENTAL RIGHTS SCRUTINY

 Contents

Introduction...........................................................................................................4

Judgements in favour of Fundamental Rights scrutiny on personal laws............5

Judgements against the Fundamental Rights scrutiny of personal laws...............7

Scrutiny of personal laws in foreign Jurisdictions................................................9

Conclusion..........................................................................................................11
 Introduction

Taking the Constitution in its wider sense, it can be seen as not only a documentation of rules
and norms that limit the government in its actions but also as an incorporation of the morals
and values that represent the people of this country and is thus something that makes up the
constitution which is indicated by the words “we the people” give to ourselves this
constitution. However, the constitution is not the only thing which reflects these values and
norms. Religion being a very important aspect of the people’s lives in India, religious
scriptures, customs evolved from religious practices, prolonged societal functioning, etc. are
also essential parts of people’s lives and sometimes so integral that people are willing to die
for it. Harmonising these two sources is both a legal and a political conundrum. Courts are
often forced to do this while judging such norms in the light of the constitution and that is
where the problem arises.

Personal laws do not have a universally accepted singular definition. These are generally laws
that relate to adoption, succession, inheritance, wills, marriage, divorce, guardianship, joint
family, partition, etc.1 India has multiple religions and people of different religions are
governed by different laws. These ‘personal laws’ have been derived from scriptures, actual
practice and beliefs, customs, etc.

The power of ‘judicial review’ is available with the Indian courts granted to them by the
Constitution of India and enables them to strike down a law not in consonance with part III of
the Constitution. ‘Laws’ refer to both pre and post constitutional laws. Article 13(3)(a) 2
defines the term law while Article 13(3)(b) 3 defines the term ‘law in force’. A very
controversial issue ever since the enactment of constitution has been whether personal issues
are subject to a scrutiny under the constitution and if so, which prevails. The court’s decision
in this regard has not been uniform and remains an un-settled issue today. There can be
observed largely a reluctance on the part of the Indian Courts to pass a negative judgement on
the validity of a long standing personal law. This reluctance can be traced out in history. For
the larger time in history, personal laws have not been meddled with by legislators. This can
be seen even in India’s colonial history.

1
The Constitution of India, Entry 5, List III, Schedule VII.
2
The Constitution of India, Art. 13(3)(a)
3
The Constitution of India, Art. 13(3)(b).
British’s legislations did not include us in the Mayor’s courts’ jurisdiction. 4 The Viceroys and
governor generals then, like Warren Hastings, also used to state that the Hindus and Muslims
would be governed by the Shastras and Quran respectively. Even if a judgement as delivered
by a competent judge was in contravention of the rules of Islam, the same was positively
rectified by the legislation so as to not be inconsistent with the religious law. 5 The British’s
policy had always been to divide and rule. This policy had crept in a lot of communal tension
in the masses where each community feared for the survival and prosperity of their religion.
The newly formed Government post-independence had to take swift actions to uplift the
minorities and gain their confidence and ensure that they do not feel supressed. Therefore, the
reluctance to not interfere in the minorities’ personal matters. Moreover, the Government
enacted measures such as Articles 25, 26 of the Constitution to protect the minorities’
practices.

This paper aims at analysing the Court’s judgements and providing insight of the same along
with foreign jurisprudence on the same.

Judgements in favour of Fundamental Rights scrutiny on

personal laws

The codification of the right of a Muslim woman to maintenance through the ‘Muslim
Women Act, 1986’ was done after the landmark judgement of Shah Bano.6 In this case, the
court scrutinised Muslim women’s right to get maintenance post-divorce which was against
the personal laws of the community. The judgement held that Muslim women also have a
right under section 125 of the CRPC7 even if it conflicts with personal laws. The same was
challenged as being in violation of the articles on equality8 but the courts held the same to
not violate any such laws9 even though in an earlier judgement it had refused to scrutinise the
law on such grounds.10

4
The Charter Act, 1753.
5
Rassomoyodhar chaudhary v. Abdul Fatah (1894
6
Md. Ahmed Khan v. Sah Bano Begum 1985 AIR 945.
7
The Code of Criminal Procedure, 1973, section 125.
8
The Constitution of India, Art. 14, 15.
9
Daniel Latif v. UOI 2001 7 SCC 740.
10
Maharshi Awadhesh v. UOI 1994 SCC (1) 713.
The reluctance of the courts was yet again seen in certain judgements where the court did not
go into the discussion of article 13 and personal laws but instead resorted to reading down the
provisions to make them consistent with fundamental rights. In the case of Githa
Hariharan,11 section 6 of the HMG,12 which deals with the fact that a father is the ‘natural
guardian’ of a minor and not a mother, was challenged for its constitutional validity under the
right to equality. The court changed the interpretation of the phrase “after” to mean “in the
absence of” as opposed to its literal meaning, “after the death of”. The reason behind the
court’s deviance from literal interpretation was to save the provision from being struck down
as violative of the right to equality. In Madhu Kishwar’s case13 certain provisions of the
CTA14 was challenged on the basis of gender discrimination but the court interpreted the
provisions in such a way which harmonised them with the fundamental rights.

The position adopted by the Court in the Narasu Appa15 case came under judicial scrutiny in
the Shayara Bano Case before the Supreme Court of India where the constitutionality of the
practice of ‘talaq-ul-bidat’ was challenged.16 By a historic verdict, the Supreme Court, by a
majority held the practice of ‘talaq-ul-bidat’ to be unconstitutional. However, on the question
of relationship between personal laws and fundamental rights, the Supreme Court judgements
revealed no common position. The judgement authored by Rohinton Nariman J and UU Lalit
J held that the practice of talaq-ul-bidat had been codified under the provisions of the 1937
Shariat Act and was therefore subject to judiciary scrutiny. However, such a position did not
clarify the relationship between uncodified personal laws and fundamental rights.

Joseph J however, differed with Lalit and Nariman J and held that talaq-ul bidat hd not been
codified under the Shariat Application Act of 1937. However, he held that this practice did
not constitute an essential religious practice which needed to be protected under Article 25 of
the Constitution and could therefore, be subject to reform. However, this does not address the
pivotal question with respect to the relationship between fundamental rights and personal
laws clearly.  

The dissenting judgements, by Kehar J on the other hand held that talaq-ul-bidat not having

been codified in the Shariat Application Act was not subject to a Fundamental Rights test in
11
Gita Hariharan v. Reserve Bank of India.
12
Hindu Minority and Guardianship Act, 1956, section 6.
13
Madhu Kishwar v. State of Bihar.
14
Chotanagpur Tenancy Act, 1908.
15
State of Bombay v. Narasu Appa Mali AIR 1952 Bom.
16
Shayara Bano v. UOI & Ors. Writ Petition (C) No. 118, 2016.
accordance with the dictum of the Narasu Appa case.17 Moreover, the judgement also held
that talaq constituted an essential religious practice of Islam and was therefore protected
under Article 25 of the Constitution. Moreover, the Court held that fundamental rights were
only applicable as a negative obligation on the State, i.e, the State should not infringe directly
upon the fundamental rights of citizens. However, such a position clearly does not take into
consideration the rapidly developing jurisprudence, exemplified by the liquor ban case 18,
where the State has been imposed a positive obligation to prevent fundamental rights
violations.  

Therefore, in total, there doesn’t seem to be a common position which can be adopted from
the Shayaro Bano case insofar as the question of interaction of personal laws and
fundamental rights is concerned.

Judgements against the Fundamental Rights scrutiny of personal

laws

One of the oldest, most cited and most controversial judgement pertaining to this topic is the
case of Narasu Appa19 where there was a challenge to the BPBHMA20 on the basis that it
violated the Right to Equality 21 and the right to freely practice religion. 22 The court held that
such personal laws as contested here do not fall under Art 1323 and are therefore not subject to
a fundamental right scrutiny. However, the reasoning for the same as advanced by the two
judges was different and it becomes important to analyse each separately.

Justice Gajendragadkar justified his stance saying that the court’s job with respect to personal
laws was limited to the court ascertaining the receipt of the personal law by the community,
its authenticity in the personal law and not its validity based on Constitutional principles. By
giving this logic he forwarded the age long reasoning of personal laws deriving their
authority from scriptures and other religious sources and therefore being accountable to them
and not to the constitution of the state.
17
State of Bombay v. Narasu Appa Mali AIR 1952 Bom.
18
Arrive Safe Society of Chandigarh v. The Union Territory of Chandigarh and Ors.
19
State of Bombay v. Narasu Appa Mali AIR 1952 Bom.
20
Bombay Prevention of Bigamous Hindu Marriages Act, 1946.
21
The Constitution of India, Art. 14, 15.
22
The Constitution of India, Art. 25.
23
The Constitution of India, Art. 13.
In India’s modern history, there are various examples where courts were involved in
differentiating customs as legal and social customs.24 In the case of Aga Khan25 the court had
held that ‘Pushtimargis’ were a part of Hindus whereas ‘Khojas’ were part of the Muslims.
The courts had appointed religious officials such as Maulvis; and ‘Shastris’ as the court’s
officials to interpret religious texts and scriptures. This is how they came to decisions like the
Aga Khan judgement.26 This showcases that even though the British were reluctant in
interfering in Indians’ personal laws, the legislation of that time along with the judiciary were
playing an important role in the interpretation and evolution of personal laws.
Gajendragadkar’s reliance on the fact that personal laws are accountable only to their
religious scriptures is flawed to the extent that he ignores the role of the legislation and the
judiciary in interpreting them in good faith.

Justice Chagla’s reasoning was that the inclusion of customs in the wordings of article 13 27
and the absence of the word ‘personal laws’ was a deliberate action of the constituent
assembly and he derived this reasoning from the fact that customs are deviant from personal
laws. For this, he placed reliance on the GOIA,28 where personal laws and customs both had
an explicit mention and the constitution by excluding personal laws, was making a deliberate
attempt at keeping them away from scrutiny. However, what was ignored by Chagla was the
fact that custom and personal laws are so intrinsically linked that making sense of one
without the other is almost impossible.29

There is a general observation that the word ‘includes’ is used to expand the existing ambit
and scope of a legal provision or an expression to include widely the meaning of general stuff
as expressed in the expression along with the literal meaning of the phrase. 30 This renders the
justification of the fact that Art 1331 should be narrowly construed untenable. The argument
that Art 1732 would be rendered futile by personal laws being tried under fundamental rights
also seems to be inherently flawed when viewed with the accepted fact that certain practices

24
“The Government of Social Life in Colonial India” by Rachel Sturman, (2012).
25
“The Aga Khan Case: Religion and Identity in Colonial India,” by Teena Purohit.
26
“Personal laws and the Constitution: Why the Triple Talaq Bench should Overrule State of Bombay v. Narasu
Appa Mali” by Praharsh Johorey.
27
The Constitution of India, Art. 13.
28
Government of India Act, 1915.
29
Constitutional law of India: A critical Commentary, 678.
30
Bharat Cooperative Bank v. Employees Union.
31
The Constitution of India, Art. 13.
32
The Constitution of India, Art. 17.
require abundant caution.33 When one views this with the fact that the Supreme Court has
itself decided that the very inclusion of Article 13 34 was for the required abundant caution, the
whole argument falls.35 Therefore, this judgement over the period of time has become highly
criticised and controversial.

In the case of Ahemdabad Women Action Group36 the Court refused to do a fundamental
rights test over various contended discriminatory practices along religions that had been
clubbed to form this suit. For this the court relied on its own previous cases. 37 In the case of
Krishna Singh38 the point to be decided was whether a ‘shudra’ could be given the status of a
‘sanyasi’. The personal laws were clear in prohibiting the grant of such status to a ‘shudra’
but the High Court had struck this down as being inconsistent with the Right to Equality. The
Supreme Court, however, held that the application of any personal law derives its authority
from its source, which was the ‘Smriti’ in this case, and resort to something other than that
would be possible only if the rule had been changed by way of usage or practice. It therefore
held that the personal law prevails since the contended rule had not been altered by any such
custom or regular change in practice. There have been various other cases where the courts, if
not explicitly but impliedly, have refused to perform a fundamental rights test on personal
laws39 which is why the issue still remains an unsettled and controversial one.

Scrutiny of personal laws in foreign Jurisdictions

German System
The German Constitutional System is marked by an absolute predominance of fundamental
rights over personal laws, in so far as a conflict between the two is concerned. This is because
of the primary emphasis placed in Germany with respect to fundamental rights. These
fundamental rights in Germany do not only act as a bar against State inference but act as a

33
“Religious Law v. Fundamental Rights” by Anirudh Krishnan.
34
The Constitution of India, Art. 13.
35
A.K. Gopalan v. State of Madras 1950 AIR 27.
36
Ahemdabad Women Action Group & Ors. v. UOI 1997 3 SCC 573.
37
Maharshi Awadhesh v. UOI 1994 SCC (1) 713.
38
Krishna Singh v. Mathura Ahir AIR 1980 SC 707.
39
Pannalal Pitti v. State of AP 1996 2 SCC 474; Reynold Rajamani v. UOI 1982 2 SCC 474.
uniform set of values which no law or practice in the country can derogate from. 40 These
principles culminated in the enunciation of the Luth Doctrine which expressly stipulated that
personal laws of the country could not conflict with the fundamental rights enshrined in the
Constitution. The absolute supremacy of the German Constitution and the fundamental rights
enshrined therein with respect to all other laws and values is further demonstrated by the
existence of German Constitutional Court as the foremost judicial institution in the country. 

The German Constitutional Court, in the Handelsvertreter Case41, further reaffirmed the

value and primacy of the fundamental rights laid down in the Constitution over other laws,
including personal laws. The Court held that the State had the duty to ensure that the personal
laws of the country did not interfere with the fundamental rights of the country. The emphasis
placed by the German Courts in protecting fundamental rights has indeed enabled them to
expansively interpret ambiguous statutes in order to ensure the utmost protection of
fundamental rights.  Though the Court has made such observations in the context of private
law issues such as contracts, there is no reason as to why the rationale behind such judicial
decision making should not be adopted in the field of personal laws as well.  

 Dutch System

The Dutch Courts, in complete contrast, to the position adopted by the German Courts has
not created such a system of priority of fundamental rights over personal laws. The lower
emphasis on fundamental rights is demonstrated by the lack of existence of a judicial
institution such as the German Constitutional Court as the apex court whose only task would
be to regulate matters concerning the Constitution of the country. The apex court of
Netherlands has a much broader jurisdiction. Till date, the Dutch Courts have not held that
there is a hierarchy between private law and fundamental rights, and that fundamental rights
would prevail over such personal rights. The Dutch Courts have justified such a stance on the
basis that the personal liberty and autonomy of individuals necessitates providing them with a
free choice in so far as matters of private and personal law are concerned.  

While the discussion in the above 2 countries has primarily been in the context of the effect
of fundamental rights on private law transactions, they play a useful role in determining the

40
Luth Case, 1948, BVerfGGE 7, p. 186.
41
Handelsvertreter Case, 1991, BVerfGGE 80, 241.
supremacy and the importance placed on fundamental right in such judicial systems. India
needs to decide which way it wants to interpret the fundamental rights enshrined in its
Constitution to determine the interaction between personal law and fundamental rights.  

Conclusion

The trajectory of cases explored by the author clearly shows that despite there being
judgements which did scrutinise personal laws with respect to fundamental rights, there is no
consensus on the fact whether uncodified personal laws can be brought under the ambit of
article 13 so as to perform a fundamental rights scrutiny on them. There exists a necessity to
arrive at a clear stance on this and it is the duty of the judiciary and the legislative to clear the
ambiguity that this has lead to.

The aim and objective of Article 1342 was to subject every usage, practice, custom, etc, which
had the force of law, to a fundamental rights test to uphold the principles of the
Constitution.43 In my opinion, both codified and uncodified personal laws should be made
subject to fundamental right scrutiny since the ambit of article 13 is wide enough to include
personal laws which are ‘in force’. Moreover, viewed from a social perspective, it is
imperative that various age old customs and practices be subject to fundamental rights test
since a lot of them are discriminatory in nature. Furthermore, even the test under Article 25, 44
i.e. the ‘essential religious practice’ test leads to discrimination a lot of times which would be
limited if personal laws are subject to fundamental rights scrutiny.

42
The Constitution of India, Art. 13.
43
S.R. Bommai v. UOI (1995) 1 SCC.
44
The Constitution of India, Art. 25.