J Cnlu LJ 9 2020 11

SCC Online Web Edition, Copyright © 2021
Page 1 Monday, June 21, 2021

Printed For: Sumohiotha V, National Law University Orissa
SCC Online Web Edition: http://www.scconline.com
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CNLU LJ (9) [2020] 11
Vulnerability of Human Rights Ensuing the Pitfall of Judicial Review in India!
VULNERABILITY OF HUMAN RIGHTS ENSUING THE PITFALL OF JUDICIAL REVIEW IN

INDIA!
by
Deeksha Sharma
ABSTRACT
Judicial review, a weapon in the hands of the Indian Judiciary to run a test in
order to analyse whether a law is valid or otherwise. The entire question of Article
13 and the purpose which it serves is rather questionable and there is urgency to
investigate whether or not the actuality of such an article currently in the Indian
Constitution is crucial or not. Whether Article 13's task of being an element of
“abundant caution”, assigned by the Constitution makers is fulfilled by it/or is it
failing miserably?
Personal laws which targets to protect domestic issues are designed to protect
interests of individual sections of the society but there are numerous laws which
unfortunately instead of leading on the positive front in turn end up contradicting
the entire purpose which indeed end up violating basic human rights of which
females majorly fall prey to.
Personal laws with focal point on domestic issues such as inheritance, adoption
and marriages which get away with no administration of scrutiny as they are well
protected off of any intervening by a constitutional functionary. Even in the
presence and functioning of Article 13 which promise to protect all the citizens from
any application of any transgressing law thereby enforces the belief that even in the
presence of Article 13 derogative laws remains untouched and do not cease to exist.
Furthermore, Article 13 brings in the age old concept of Historical School of
Jurisprudence. Thus becomes a barrier for the Indian Constitution to achieve its
transformative vision.
Page: 12
This article has established the irrelevance of article 13 and thus it needs to be
abolished or for the better be amended for the positive.
The Constitution was labelled as an impression to revolutions in time-honoured
conceptions by the eminent author D.E. Smith.1 Espying individual as the intrinsic unit
of the Constitution bespeaks what the Indian Constitution envisages for, thus
demanding laws and structures to be viewed via prism of individual dignity. But does
Article 13 of the Indian Constitution abide by it?
Speaking on the true purpose of liberty in the Indian Constitution, Dr B.R.
Ambedkar stated that:
“What are we having this liberty for? We are having this liberty in order
to reform our social system, which is so full of inequities, so full of
inequalities, discriminations and other things, which conflict with our
fundamental rights.”2
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But do we have this liberty in its true essence? Does every element of the Indian
Constitution abide by the same thing? No, it doesn't. In this article, we will see that
how Article 13 stands very problematic to the Indian Constitution and curbs its liberty
to eradicate the social equalities, thereby standing against its transformative vision.
And, also as to how Article 13 is extremely superfluous!
Article 13 renders all laws inconsistent and derogative of fundamental
rights as void.3 Chief Justice Kania in A.K. Gopalan v. State of Madras4 , reasoned its
insertion as a matter of “abundant caution”, and observed:
“In India it is the Constitution that is supreme, that a law to be valid must be in
all conformity with the constitutional requirements and it is for the judiciary to
decide whether any enactment is constitutional or not. The same result could be
achieved even without the aid of Article 13 and the laws transgressing any
fundamental rights would be declared void in its absence.”
Hence, Article 13 is not important, but was added to be extra careful in the
case of Fundamental Rights in India, considering their supreme importance.
Page: 13
This view has been supported by the notable Indian jurist and an authority on the
Indian Constitution, Mr. H.M. Seervai.5
Article 13(3)6 defines “Law”, but closes off Personal Laws from judicial scrutiny.
Personal Laws govern matters of family affairs, and have been a major hindrance in
the empowerment and dignity of the females in India.7 They deepen inequality and
discrimination not only within the religion between the genders but also between the
personal laws of different religions.8
India's colonial past roots the birth of personal laws. Hindu and Muslim personal
laws were weaponized for the protection of the private realm of individual households
from evils of the colonial states, laws which were largely retained by the constitution
at the hour of independence. Those which exist today are those that were
unfortunately favourable to the native patriarchy. Domestic issues such as adoption,
maintenance, divorce, marriage and inheritance are the focal points of such personal
laws. They are codified and non-codified, existing in custom and practice.9
I. Some Elements of Personal Laws Causing Violation of Women;
A. Islamic Personal Law
■ Muslim men are granted the legal recognition of multiple marriages
simultaneously.10
■ Nikah Halala is a concept which provides for a stoppage on a Muslim woman to
remarry the husband who has divorced her unless she marries another man and
consummates the marriage firstly.
■ Islamic criminal jurisprudence, entitles no punishment for a woman forced to
have sex.11
Page: 14
■ In case of succession, a brother's share of the inheritance is double than that of a

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woman in the same degree of relationship to the deceased. The quantum of
property inherited by a female heir is half of the property given to a male heir of
equivalent status. 12
II. Hindu Personal Law
■ Ignorance in the need for equal rights of guardianship of children is majorly
highlighted by Section 6(a) of the Hindu Minority and Guardianship Act which
gives a father the status of a natural guardian not the mother.
III. Parsi Personal Law
■ On marrying a non-Parsi, the children of the woman are not accepted as being
part of the Parsi community however there is exemption for males from such a
case.
■ Death of a Parsi man whose wife is a non-Parsi restricts such a wife from
inheriting the property of her widower, though the children are not faced by any
such restriction.13
IV. Christian Personal Law
■ Under the Christian personal law men are granted divorce in the case of a woman
committing adultery however at least two offences by the husband is a must to
be proved by the wife in case of adultery resulting in a divorce.14
Under some Personal laws, women are also coerced to marry their own
rapists instead of receiving legal penalty.
Hence Judicial Review as an indispensable15 and imperative feature of the Indian
Constitution is much under menace.
Hence, If these 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 one religious community and those belonging to
another religious community16 . Furthermore, not subjecting personal laws to Judicial
Scrutiny make fundamental rights of people,
Page: 15
especially women more vulnerable to exploitation. Article 13 supports the violation of

Articles 14 and 21 of the people of India, by inherently subjecting them to the social
morality, and thereby failing its duty miserably.
Justice Chandrachud had even highlighted in the Sabrimala judgment17 about the
inclusion of Personal Laws in “customs and usages” in Article 13, and how they have
been creating a menace by not being subjected to judicial review.
Even though in the recent times, codified personal laws, being “laws” under Article
13, have started been subject to Judicial Review, but the exception largely lies to non-
codified personal laws, like the Muslim Law largely, and even some parts of the Hindu
Personal Law. They cannot face the wrath of Judicial Scrutiny, because they are not
codified by the Legislature. Ultimately, submitting judicial review to the whims and
fancies of the legislature.
Now, the Federal Court in United Provinces v. Atiqa Begum18 observed that the
expression “law in force” in Section 292, Government of India Act, 193519 applies not
only to statutory enactments, but to all laws inclusive of even personal and customary
laws. In Article 372 the Indian Constituent Assembly re-enacts provisions of Section
292 Government of India Act, 1935. Article 372(1)20 talks about continuance of
existing laws subject to constitution which clearly indicates the intention of the
Constituent Assembly to include personal laws within its ambit. But, its scope is
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restricted by Article 13. This way Article 13, makes Article 372 meaningless and
useless.
Thenceforth Article 13 trims down judicial review, and transgresses
Fundamental Rights instead of providing protection largely. Thusly stands
problematic to the Indian Constitution, Equality and dignity of the females
in India.
It further upholds the Presumption of Constitutionality of Legislation, placing the
burden of proof on people contending that a particular law violates their fundamental
rights.”21 The Supreme Court of India however holds that the burden must shift from
the petitioner to the Legislature in “hard cases”, based on biological distinction
between sexes, and legislations discriminating on social class.22 These cases must be
strictly scrutinised by the courts. Hence, this Presumption must be taken away.
Page: 16
Also, the reasonability test propounded by the Indian Constitution becomes

unreasonable because it blinds itself to the by-product, failing to “balance” the State's
interests against the rights of affected persons, and whether the involvement of State
has a less onerous alternative.23 This application of Strict Scrutiny often generates
opposition against the courts for misusing its powers against the Legislature.
In our opinion, Strict Scrutiny must be constitutionally espoused in Articles 3224
and 22625 for fulfilling the task of “abundant caution” of Article 13, shielding Article
1526 and vulnerable classes. This would also help define circumstances in which this
doctrine can be used. It will be in complete conformity with Article 32 by granting the
Supreme Court of India, the power to protect fundamental rights in all circumstances;
hence conformity with the due process27 would be achieved. In addition, Article 13
should be repealed, so that personal laws come within Judicial Scrutiny through the
aid of Article 372.
Politically motivated addition of Article 13(4)28 , with the 24th amendment29 to
Indian Constitution, by the then Prime minister of India, Ms. Indira Gandhi to overrule
an Supreme Court judgment, further restricts the power of the Supreme Court of
India, to review amendments made by the legislature to fundamental rights. Thereby
making fundamental rights more vulnerable.
Furthermore, another point to be highlighted is that, Article 13 largely brings into
effect the Historical School of Jurisprudence, ultimately leaving the human rights to
the whims and fancies and much on the spell of people's consciousness. Ahmedabad
Women Action Group v. Union of India30 pronouncement further reiterated in the Triple
Talaq31 judgment, by Chief Justice Khehar held that, personal laws should be excluded
from the ambit of judicial review. They further held that,
“While examining issues falling in the realm of religious practices or “Personal
Law”, it is not for a court to make a choice of something which it considers as
forward-looking
Page: 17
or non-fundamentalist. The court does not decide whether a religious practice is

prudent, progressive or even regressive. Personal laws and religion are for
interpretation as it is and must be accepted in faith of the followers. It is not for the
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determination by a self-proclaimed rationalist of the same faith. It is not for a court to
determine whether religious practices were prudent or progressive or regressive.
Religion and “Personal Law”, must be perceived, as it is accepted by the followers of
the faith. Article 25 obliges all constitutional courts to protect “Personal Laws” and not
to find fault therewith. Judicial examination is completely stricken off in the case of
assessing the validity of a personal law. Interference in matters of “Personal Law” is
clearly beyond judicial examination. The judiciary must, therefore, always exercise
absolute restraint, no matter how inviting, compelling and attractive the opportunity
to do societal good it may forecast.” This view of Chief Justice has been backed by the
Constitutional Assembly Debates, in which it was clearly mentioned by M.
Ananthasayanam Ayyangar that, there would be amendments in personal laws as and
when the members of that particular religion would like it.32
Similar is the view of the Historical School of Jurisprudence, which bases the
formulation of laws solely by the people, to the people, for the people. According to
them, Law should be according to the conscience of people which are being governed
by it. Nobody else can decide about it. “Law is formulated for the people and by the
people” means that the law should be according to the changing dynamics and needs
of the entire population. Savigny, the father of this school of jurisprudence announces
the consciousness of people as the major and main source of law.
But, should we keep waiting for the consciousness of people to change. Article 13
disregards the Positivist School of Jurisprudence, which is highly followed in India.
This school greatly believes in the black-letter law. Even though it has been held by
the Supreme Court in the case of C. Masilamani Mudaliar v. Sri Swaminathaswami,33
that Personal laws are within the Judicial Scrutiny, but because of Article 13 nobody is
following that. This is high disregard for the black letter law. Nevertheless, should we
let human rights to be highly violated by this? Or should we keep allowing Article 13
to disregard the Positive school of Jurisprudence, and go by people's conscience?
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The view of the Chief Justice Khehar in the triple talaq judgment shouldn't be taken
as correct as, Notable Indian Jurist H.M. Seervai34 is of the view that personal laws are
so inextricably connected to the entire network of law and therefore it would be
difficult to ascertain the residue of personal law outside them. Now, by virtue of this
statement personal laws gain protection under Article 25. But the Hon'ble Supreme
Court35 has pointed out that the personal law did not form part of any religion but
pertained to ‘secular practice associated with religion’. Now, Article 25 involves a
separation between religious activities, on the one hand, and secular and social
activities on the other, while the former are protected, the latter are not36 . So, the
article makes it clear that secular activity may be associated with religion, though the
guarantee of the article does not extend to such activity.37 Thereby, no protection of
personal laws under Article 25.
Apart from failing to achieve its given objective, restricting the ambit of judicial
scrutiny, and posing further threats to fundamental rights, Article 13 is also extremely
superfluous. It has rightly been held by the Hon'ble Supreme Court of U.S.A., (where
the Indian Judicial Review was largely borrowed from), in the landmark judgment of
Marbury v. Maddison38 that,
“with the establishment of a new Political Character, Institution and Constitution,
all pre-existing laws inconsistent therewith at once stand displaced and cease to be
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of any obligatory force without any declaration to that effect”, making 13(1)
useless.
Further, earlier “laws in force” continued under Art. 372(1) being subject to the
Constitution fails to the extent of any infringement or transgression, even without
Article 13(1).
Articles 245(1)39 , 2540 , makes, law made by the Indian Parliament, subject to the
Constitution, thus post-constitution laws would backslide regardless of Article 13(2)41 .
As rightly observed by D.D. Basu, a notable jurist, and an authority on the Indian
Constitution, that Judicial Review strings out to the entire length and breadth of the
Constitution. Potential of Judicial Review branches from the
Page: 19
Constitution hence Article 13's void will not hold back the court to invalidate a
detracting law. In India, it is not simply the formal allocation of powers but an
evolving constitutional jurisprudence that has enhanced the powers of judicial
review.42
It has been held by the Supreme Court in the landmark decision of State of
Rajasthan v. Union of India43 that,
The Supreme Court held a similar viewpoint that, “So long as a question, arises
whether an authority under the Constitution has acted within the limits of its power
or exceeded it, it can certainly be decided by the Court. Indeed it would be its
constitutional obligation to do so. It is for the Supreme Court to uphold the
constitutional values and to enforce the constitutional limitations. That is the
essence of the rule of law.”
The rule of law in its true essence spotlights the Supreme Court for invalidating
anything against the constitutional morals and enforcement of the constitutional
limitations. Court can and should rightfully intervene where there is manifest
infringement of Constitutional values. Power of judicial review is, thus, obvious in a
written constitution.44 Hence the power of Judicial Review is not limited to one article.
But, Article 13 acts as a barrier for the Court to freely exercise its judicial power, by
not including Personal laws in its ambit.
Also, Article 32 in no way restricts the Supreme Court in taking up cases related to
personal laws. Then why should we allow Article 13, to take away this power from the
court?
Moreover, the actuality of Article 13 in the Constitution is not paramount for the
question of Fundamental Rights and the degree it is sanctioned to be truncated by the
Constitution itself.”45
A. So, can Personal Laws be considered as laws without the aid of Article 13,
so that courts are able to judicially scrutinize it? Yes, they can.
Firstly, the court in United Provinces v. Atiqa Begum held that “laws in force” in
Article 13 contain even personal laws, at a time when the personal laws were highly
non-codified.
Page: 20
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Now, ‘Law is the body of principles recognized and applied by the state in the
administration of justice.’46 Hence, the answer to the question whether any rule of
conduct is law is to be found in the fact whether it is enforced by the courts of law.47
Personal Laws are rightly enforced by the Courts for solving matters of divorce,
succession, inheritance etc, of various religions. Therefore by the virtue of this
definition of Law by Salmond, Personal Laws should be considered as Laws. A piece of
personal law, although may not be a statutory law also binds citizens, if it has been
accepted and enforced by a sovereign, and acted upon by the courts for long.48
For upholding the Constitutional Morality, it is not important that any practice or
personal law should be codified. What is important is that it abides by the norms of
the Constitution. If it fails, then the judges should be able to test its constitutionality.
This practice could be done even without the aid of Article 13.
V. Certain, Better Alternatives To Article 13, In Other Constitutions.
■ Article 36 of the Switzerland Constitution49 :
Restrictions on fundamental rights must have a legal explanation, significantly
highlighted in a federal act. Such restrictions must be aligned with public interests
as well as the protection of fundamental rights of the rest. Putting a status of
sacrosanctity on fundamental rights.
This tells the situations in which fundamental rights can be infringed. It must have
a legal explanation. In India, mostly infringement of fundamental rights have a social
explanations, keeping in mind the morality of the society and not of the Constitution.
A similar clause must be imbibed in the Indian Constitution as well. This would serve
the purpose of the Constitution makers of giving “abundant caution” to the
fundamental rights.
■ Article 19 of the West German Constitution50 :
Page: 21
No case may render the essence of a basic right to be duly affected.

At long last, the Indian Jurisprudence should fathom the cataclysmic nature of
Article 13 and repeal it, in order to fundamentally shield the pillars of human rights
and dignity of females in India. The importance of Article 372 will then be recognized.
———
1 D.E. Smith, India As a Secular State (1963).
2
Parliament of India, Constituent Assembly Debates, Vol. VII, at p. 781.
3 Indian Constitution, Art.13.
4 AIR 1950 SC 27.
5 H.M. Seervai, Constitutional Law of India 677-678 (1991).
6 Indian Constitution, Art.13, Cl. 3.
7
Prabhash K. Dutta, “Beyond Triple Talaq : How Judiciary has Dealt with Personal Laws against Fundamental
Rights”, India Today (May 11, 2017, 2.44 p.m.), <https : //www.indiatoday.in/india/story/triple-talaq-supreme-
court-976439-2017-05-11>.
8 Ashok Wadje, “Judicial Review of Personal Laws vis-à-vis Constitutional Validity of Personal Laws”, 2 South
Asian Journal of Multidisciplinary Studies.
9 “Personal Laws v. Gender Justice : Will a Uniform Civil Code Solve the Problem?”, Economic and Political Weekly
(June 15, 2019, 5.30 p.m.), <https : //www.epw.in/engage/article/personal-laws-versus-gender-justice-uniform-
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civil-code-solution?0=ip_login_no_cache%3Ddcdf84fb57ee400b01b7bb595f775965>.
10 Khursheed Ahmad Khan v. State of U.P., (2015) 8 SCC 439.
11 Vol. 10, “Beirut : Dar al-Kitab al-Arabi n.d.”, (June 10, 2019, 2.50 p.m.),
<http://www.geo.tv/zs/Zina_article_Final.pdf>.
12 The Muslim Personal Law (Shariat) Application Act, 1937, S. 40.
13 The Parsi Marriage and Divorce Act, 1936, No. 6, Acts of Parliament, 1936 (India).
14 Divorce Act, S. 22, No. 4, Acts of Parliament, 1869 (India).
15
L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
16
Ajai Kumar, Uniform Civil Code : Challenges and Constraints (1st edn., 2012).
17 Indian Young Lawyers Assn. v. Union of India, (2019) 11 SCC 1 : 2018 SCC OnLine SC 1690.
18
1940 SCC OnLine FC 11 : AIR 1941 FC 16.
19
Government of India Act, 1935, S. 292.
20 Indian Constitution, Art. 372, Cl.1.
21 Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746 : AIR 1971 SC 2486.
22
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1.
23Karan Lahiri, “Difficult Conversations : On Why the Supreme Court's Judgment in the Kerala Liquor Ban Case
Represents a Lost Opportunity to Examine Tough Questions on Discrimination”, Indian Constitutional Law and
Philosophy (January 12, 2016), <https : //indconlawphil.wordpress.com/tag/strict-scrutiny/>.
24 Indian Constitution, Art. 32; (Gives Power of Judicial Review to the Hon'ble Supreme Court of India.)
25 Indian Constitution, Art. 226; (Gives Power of Judicial Review to the Hon'ble High Courts in India.)
26
Indian Constitution, Art. 15.
27
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
28 Indian Constitution, Art. 13, Cl. 4.
29 24th Amendment Act, 1971.
30 (1997) 3 SCC 573.

31 Shayara Bano v. Union of India, (2017) 9 SCC 1.
32 Parliament of India, Constituent Assembly Debates, Vol. VII.
33 (1996) 8 SCC 525.
34
1 H.M. Seervai, Constitutional Law of India : A Critical Commentary 677-678 (4th edn., Universal Law
Publishers, 1991).
35 Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 : AIR 1985 SC 935.
36 Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689 : AIR 1980 SC 707.
37 S.P. Mittal v. Union of India, (1983) 1 SCC 51 : AIR 1983 SC 1.
38
2 L.Ed. 60 : 5 US 137 (1803).
39 Indian Constitution, Art.245, Cl.1.
40 Indian Constitution, Art.25.
41 Indian Constitution, Art.13, Cl.2.
42
Shodhganga, “Policy Making in India, Judiciary v. Parliament”,
<https : //shodhganga.inflibnet.ac.in/bitstream/10603/95978/2/11_chapter2.pdf>.
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43
State of Rajasthan v. Union of India, (1977) 3 SCC 592.
44 A.K. Kaul v. Union of India, (1995) 4 SCC 73 : (1995) 30 ATC 174.
45
Rudul Sah v. State of Bihar, (1983) 4 SCC 141.
46
P.J. Fitzgerald, Salmond on Jurisprudence, 40 (12th edn.).
47 Raj Kumar Narsingh Pratap Singh Deo v. State of Orissa, AIR 1964 SC 1793.
48
Mithan Lal v. State of Delhi, AIR 1958 SC 682.
49 Switzerland Constitution, Art. 32.
50 West German Constitution, Art. 19.
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Page 1 Monday, June 21, 2021

CNLU LJ (9) [2020] 11

Vulnerability of Human Rights Ensuing the Pitfall of Judicial Review in India!

VULNERABILITY OF HUMAN RIGHTS ENSUING THE PITFALL OF JUDICIAL REVIEW IN

■ In case of succession, a brother's share of the inheritance is double than that of a

especially women more vulnerable to exploitation. Article 13 supports the violation of

Also, the reasonability test propounded by the Indian Constitution becomes

or non-fundamentalist. The court does not decide whether a religious practice is

No case may render the essence of a basic right to be duly affected.

30 (1997) 3 SCC 573.

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