Article 372 of the Constitution reads:

"372. Continuance in force of existing laws and their adaptation.: (1) Notwithstanding the repeal by this Constitution of enactments referred to in Article 395, but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority."

Personal Laws and Fundamental Rights

Thus any law in force at the time of coming into force of the Constitution of India or enacted after that which is in conflict with the chapter on fundamental rights will be void to that extent. In particular, if personal laws are covered by Articles 13 and 372 of the Constitution, they will be void to the extent that they are in contravention of Articles 14, 15 and 21 of the Constitution. Article 14 guarantees equality before law and equal protection of laws. Article 15 prescribes that no law can discriminate only on the grounds of sex, caste, etc. Article 21 is the fundamental right of life and personal liberty. Any personal law which discriminates against women would by its very nature be unequal and discriminatory and be on the face of it be in violation of Articles 14 and 15 of the Constitution, would also be in violation of the expanded meaning of right to life and personal liberty under Article 21 of the Constitution of India and to that extent be void.

The principle is simple and does not require much explanation. Any personal law which is challenged, if found discriminatory against women should have been struck down by the Courts. Women not being natural guardians, Talaq, polygamy, absence of coparcenary rights for women under Hindu undivided family, etc. should all have been declared as void by now as they all discriminate against women. But surprisingly that has not happened.

Over the years, the Supreme Court has taken differing views while dealing with personal laws. In a number of cases it has held that personal laws of parties are not susceptible to Part III of the Constitution dealing with fundamental rights. Therefore they cannot be challenged as being in violation of fundamental rights especially those guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other hand, in a number of other cases the Supreme Court has tested personal laws on the touchstone of fundamental rights and read down these laws or interpreted them so as to make them consistent with fundamental rights. There is however, no uniformity of decisions as to whether personal laws can be challenged on the touchstone of fundamental rights i.e. whether they are "laws" or "laws in force" under Article 13 of the Constitution of India. The following decisions hold that they cannot be so challenged:

(a) Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)
(b) Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713)
(c) Ahmedabad Women Action Group & Ors. v. Union of India (1997 3 SCC 573)

All these cases have effectively held that personal laws, whether codified or uncodified, whether in force at the time of coming into force of the Constitution or enacted thereafter, are not susceptible to the Chapter on fundamental rights and cannot be voided on the touchstone of Part III of the Constitution. However, a three-Judge Bench of the Supreme Court in the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525) has taken a contrary view and has held that personal laws to the extent that they are in violation of the fundamental rights are void.

Refusal of the Supreme Court to interfere

In Krishna Singh v. Mathura Ahir (AIR 1980 SC 707) a two judge Bench of the Supreme Court was considering weather a shudra could become a sanyasi. While holding that if the custom and usage permitted he could so become, the Court held that in the absence of such usage or custom he could not be so ordained. The High Court had held that any handicap suffered by a Shudra according to the personal law would be in violation of Articles 14 and 15 of the Constitution. It would be violative of the equality clause as also it would be discrimination on the basis of caste. Frowning upon this observation the Supreme Court stated,

" 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. In applying the personal laws of the parties, he (the High Court judge) could not introduce his own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of Hindu laws, i.e. Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or abrogated by statute."

In this case curiously there is no discussion whatsoever as to why Part III of the Constitution does not touch upon the personal laws of the parties. Personal laws are as much laws as any other laws. Just because they may be derived (at least at times) from some religion or the other they do not cease to be laws. In fact much of what passes as personal law does not even have any basis in religion.

In Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713) the Petition was filed under Article 32 of the Constitution seeking (a) enactment of the Uniform Civil Code; (b) for a declaration that Muslim Women (Protection of Rights on Divorce) Act, 1986 was void as being in violation of Articles 14 and 15 of the Constitution and (c) For a direction against the Respondents from enforcing the Shariat Act. The Petition was dismissed by a two-judge Bench of the Supreme Court with an observation that these are issues for the legislature. Again, there is no detailed reasoning provided even in this order. But effectively therefore the Supreme Court held that even codified personal law cannot be tested on the touchstone of fundamental rights. Of course subsequently in the case of Daniel Latifi, the Supreme Court did test the Muslim Women (Protection of Rights on Divorce) Act, 1986 on the touchstone of fundamental rights.

The third and latest decision on this issue is a decision of a three judge Bench given in Ahmedabad Women Action Group & Ors. v. Union of India (1997 3 SCC 573). Different organisations had challenged through various Petitions a number of discriminatory aspects of personal laws - both codified and uncodified across religions. The Court, relying on the earlier decisions held that the matters pertained to legislative action and the Court could not interfere. Again, in this case no independent reasons were given as to why personal laws could not be susceptible to Part 3 of the Constitution. The Court relied on the following judgments while dismissing the Petitions:

(a) Maharshi Avdhesh v. Union of India (already discussed above)

(b) Reynold Rajamani v. Union of India (1982 2 SCC 474).The excerpts of this judgment on which reliance was placed upon by the Supreme Court in the AWAG case pertain to prayers by the parties to increase the grounds available for divorce under the Indian Divorce Act. It was also argued in that Petition that divorce by mutual consent should be available even under the Indian Divorce Act. It was in this context that the Supreme Court observed that adding provisions to a Statute was a legislative act. The case did not deal with challenge to personal laws as being discriminatory to women.

(c) Pannalal Pitti v. State of A.P. (1996 2 SCC 498). This case dealt with validity of provisions of A.P. Charitable Hindu Religious and Endowments Act, 1987 and the argument was that laws should be made which are uniformly applicable to all religious or charitable endowments run by persons professing all religions. It was in this context that the Supreme Court observed that in a pluralistic society like ours making uniform laws cutting across religions could only be achieved in a phased manner and it was inappropriate to think "all laws have to be made uniformly applicable to all people in one go."

(d) Krishna Singh v. Mathura Ahir (already discussed above).

(e) Anil Kumar Mhasi v. Union of India (1994 5 SCC 704). In this case, additional grounds given to a woman for claiming divorce under the Indian Divorce Act were challenged as being discriminatory towards men. The challenge was rebuffed by holding that women did require special protection. What is significant about this judgment is that the Supreme Court did test the validity of some sections of the Indian Divorce Act (a personal law for Christians) on the touch stone of fundamental rights but on merits found the challenge to be unsustainable.

The approach of the Supreme Court is clearly wrong and flies in the face of the Constitution.

The Contrary View

On the other hand, in the following decisions the Supreme Court has tested aspects of personal laws on the touchstone of fundamental rights.

(a) Anil Kumar Mhasi v. Union of India (1994 5 SCC 704). (Discussed above).

(b) Madhu Kishwar V. State of Bihar (1996 5 SCC 125). Certain provisions of Chotanagpur Tenancy Act, 1908 were challenged as being discriminatory towards women. While Court in this case refused to declare tribal customs en masse offending fundamental rights it kept the doors of such challenge open by holding, "..under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the court."

In this case, the Court went into the Constitutionality of the law and read down the provisions so as to bring them in line with womens' right to livelihood under Article 21 of the Constitution.

(c) Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228) a three judge Bench of the Supreme Court was considering the Constitutional validity of S. 6 of the Hindu Minority and Guardianship Act. The challenge was on the basis that the section discriminates against women, as the father is the natural guardian of a minor and not the mother. The Court did not reject the Petition on the ground that it could not go into Constitutional validity of personal law. Instead it read down S.6 so as to bring it in consonance with Articles 14 and 15. The Court observed in para 9,

Is that the correct way of understanding the section and does the word 'after' in the section only mean 'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e. six years after the Constitution. Did the Parliament intend to transgress the Constitutional limits and ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion - no.

"Similarly S. 19(b) of the Guardians and Wards Act would also have to be construed in the same manner in which we have construed Section 6(a) Supra)."

Of course, the decision is not very satisfactory as the Constitutional mandate required the Supreme Court to hold that irrespective of whether the father was unfit or not the mother should also be given equal rights as a natural guardian.

(d) Daniel Latifi v. Union of India (2001 7 SCC 740). A Constitutional Bench of this Court gave a categorical finding that in view of their interpretation of the Muslim Women (Protection of Rights on Divorce) Act, 1986 the provisions of this Act were not in violation of Articles 14 & 21 of the Constitution.

(e) In the case of N. Adithyan v. Travancore Devaswom Board & Ors. (2002 8 SCC 106) the Supreme Court was concerned with the issue whether in respect of certain temple in Kerala only Brahmins could be ordained as priests. Longstanding usage and custom was cited in support of this claim. The Court negatived the plea and observed:

"Any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country."

(f) In John Vallamattom v. Union of India (2003 6 SCC 611) a three Judge Bench of the Supreme Court was considering the Constitutional validity of S. 118 of the Indian Succession Act, 1925, a pre Constitutional personal law applicable essentially to Christians and Parsis. In light of Ahmedabad Women's Action Group (Supra) and other Judgments, the Supreme Court could have very easily dismissed the matter by simply holding that this law, being a personal law and being a pre Constitutional law was not "law in force" as per Article 13 of the Constitution of India and thus not susceptible to challenges on grounds of violation of fundamental rights. But instead, the Court went into its Constitutional validity and struck it down as being violative of Article 14 of the Constitution. To begin with, the Court held,

"It is neither in doubt nor in dispute that clause (1) of Article 13 of the Constitution of India in no uncertain terms states that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Parts III thereof shall to the extent of such inconsistency be void. Keeping in view the fact that the Act is a pre Constitution enactment, the question as regards its Constitutionality will, therefore have to be judged as being law in force at the commencement of the Constitution of India. By reason of clause (1) of Article 13 of the Constitution of India perforce does not make a pre Constitution statutory provision constitutional. It merely makes a provision for the applicability and enforceability of pre constitution laws subject of course to the provisions of the Constitution and until they are altered, repealed or amended by a competent legislature or other competent authorities."

In this matter the Court even went further and held:

"In any view of the matter even if a provision was not unconstitutional on the day on which it was enacted or the Constitution came into force, by reason of facts emerging out thereafter, the same may be rendered unconstitutional. The world has witnessed a sea change. The right of equality of women vis a vis their male counterparts is accepted worldwide. It will be immoral to discriminate a woman on the ground of sex. It is forbidden both in our domestic law as also in international law." " It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation that brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation....."

Mudaliar Case

Thus, while on the one hand the Supreme Court has held that personal laws are not susceptible to provisions of Part III of the Constitution, on the other hand the Supreme Court has tested these very personal laws on the touchstone of fundamental rights and at times even struck them down. The strongest indicator of this is the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525). The observations of the three judge Bench are worth reproducing extensively:

"The basic structure permeates equality of status and opportunity. 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 become void under Article 13 if they violate fundamental rights.

"The General Assembly of the United Nations adopted a declaration on 4.12.1986 on "The Right to Development" in which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and fundamental freedoms are invisible and interdependent. All Nation States are concerned at the existence of serious obstacles to development and complete fulfillment of human beings, denial of civil, political, economic social and cultural rights. In order to promote development equal attention should be given to the implementation, promotion and protection of civil, political economic, social and political rights.

"Article 1, (1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised. Article 6 (1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub- article (2) rejoins that ... equal attention and urgent consideration should be Sub-Article (2) enjoins that ... equal attention and urgent consideration should be given to implement, promotion and protection of civil, political, economic, social and political rights. Sub-article ( 3) thereof enjoins that:-

" State should take steps to eliminate obstacle to development, resulting from failure to observe civil and political rights as well as economic, social and economic rights. Article 8 casts duty on the State to undertake...necessary measures for the reaslisation of right to development and ensure, inter alia, equality of opportunity for all in their access to basis resources ... and distribution of income. "The human rights for women, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth culturally, socially and economically. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights.

"Article 15 (3) of the Constitution of India positively protects such Acts or actions. Article 21 of the Constitution of India reinforces " right to life". Equality dignity of person and right to development are inherent rights in every human being. Life in is expanded horizon includes all that give meaning to a person's life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) (j) of the Constitution of India, facilities and opportunities not only are to be provided for, but also for all forms of gender-based discrimination should be eliminated.

"But the right to equality, removing handicaps and discrimination against a Hindu female by reason of operation of existing law should be in conformity with the right to equality enshrined in the Constitution and the personal law also needs to be in conformity with the Constitutional goal."

Narsu Appa Mali

Wittingly or unwittingly, while refusing to look into the Constitutional validity of personal laws the Supreme Court seems to have been guided by an extremely well argued but - according to me - a wrong decision of the Bombay High Court given in the case of Narsu Appa Mali. In this case, the Bombay High Court held that personal laws are not susceptible to the Chapter on fundamental rights for the following reasons:

- Personal laws are not 'laws' under Articles 13 and 372 of the Constitution
- Personal laws are not 'laws in force' under Articles 13 and 372 of the Constitution

Personal Laws are Laws

a. Article 13(3) as well as Article 372 of the Constitution define "law" to include "any Ordinance, order, by law, rule, regulation, notification, custom or usage having in the territory of India the force of law".

i. "Personal laws" include both codified and uncodified laws. To the extent that personal laws include codified laws there cannot be any dispute that such laws are "laws" under Articles 13 and 372. Whether before or after the Constitution, such laws have been enacted by the then existing sovereign and they continue to be in force even on the change of the sovereign unless they are repealed or treated as void under Articles 13 of the Constitution.

b. In Bajya v. Gopikabai (AIR 1978 SC 793) the Supreme Court held that even the enacted Hindu Laws including the four laws passed during 1955-56 were part of the personal laws.

c. Personal laws are laws as defined under Article 13 of the Constitution. In the case of Narsingh Pratap Deo v. State of Orissa (AIR 1964 SC 1793) the Supreme Court has observed that "though theorists may not find it easy to define a law" "the main features and characteristics of law are well recognized" and that "stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognized by courts."

d. Even in respect of customary laws, in the case of Sant Ram v. Labh Singh (AIR 1965 SC 314) a Constitutional Bench of this Court observed: "The reasons given by the Supreme Court to hold statute law void apply equally to a custom. Custom as such is affected by Part III of the Constitution dealing with fundamental rights..."

e. In the same case the court further observed: "Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force."

Personal Laws as Laws in Force

Once personal laws are recognised as "laws" under Article 13 of the Constitution of India at least those codified laws which have come into existence after 1950 would in any way be subject to fundamental rights like any other law. The only other question would be regarding those personal laws which have existed prior to the coming into force of the Constitution. If personal laws are 'laws' as commonly defined there is no justification for treating them as not "laws in force" merely because they were in existence at the time of coming into force of the Constitution.

Prior to the enactment of the Constitution Hindus were governed by their own personal law and so was the case with Muslims, Christians , Parsis and certain other communities. These laws were essentially based on customs and usage and were recognized as such by the courts in India as having force of law. The rights and obligations enforceable in Court of law were derived from these personal laws and in matters of family disputes the court essentially took cognisance of only the personal laws of the parties.

Thus for all practical purposes these laws were laws in force in the territory of India immediately before the commencement of this constitution. Consequently to the extent that they were inconsistent with the provisions of Part III of the Constitution they were to be treated as void.

Conclusion

A combined reading of Articles 14, 15 and 21 of the Constitution of India categorically provides that no law can be made or can be applied which discriminates against women.

There are a large number of provisions of both codified and uncodified personal laws which are discriminatory towards women. Most of them are not sanctified by any religion. Even if they are, they would still not be protected by the fundamental right of religion guaranteed under Part III. Article 25 which guarantees freedom to practice religion itself provides that the fundamental right of religion is subject to other provisions of Part III. Thus looked at from any angle the discriminatory measures have to be struck down as being unconstitutional.

Mihir Desai
Combat Law, Volume 3, Issue 4
November-December 2004
(published February 2005 in India Together)

Mihir Desai is an advocate practising in the Supreme Court and Bombay High Court and joint editor of Combat Law.