by Anirudh Krishnan
* Cite as: (2006) PL November 9
The current controversy regarding the entry barrier imposed on women into the Sabarimala temple has prompted one to look at the subjection of religious practices and freedoms which form part of personal laws to fundamental rights even though the practice at the Sabarimala temple has been held to be a usage1 and therefore implicitly subjected to Article 13. This article, however, focuses on the larger issue at hand and seeks to build an argument to extend the power of judicial review to personal laws in all forms.
Power of judicial review and Article 13
Article 13 per se provides for the power of judicial review of laws, the term “law”, including within its ambit “any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”2. The constitutional mandate in Article 13(2) is that “[t]he State shall not make any law which takes away or abridges the rights conferred by this Part [Part III]….”3 Thus Article 13(2) makes a reference to post-constitutional laws, which are enacted by the legislatures.
Furthermore, all “laws in force” which were pre-constitutional, “insofar as they are inconsistent with the provisions of this Part [Part III], shall, to the extent of such inconsistency, be void”4. This definition, which does not include expressly “customs or usage” is applicable to judicial review of pre constitutional laws as provided for by Article 13(1). The two definitions of “law” and “laws in force”, on a bare perusal may seem to be mutually exclusive of each other, however, the Bombay High Court in State of Bombay v. Narasu Appa Mali5 negatived this proposition and held that the definition of “law” cannot be restricted to Article 13(2) alone and therefore “laws in force” would include “customs or usage, having the force of law”. A restrictive interpretation would render the terms “custom and usage” as found in the definition of “law” useless, as Article 13(2) refers only to State enacted laws and the State cannot enact customs and usages.6 “Custom and usage” would thus have to necessarily be read with “laws in force”.
The Supreme Court in Sant Ram v. Labh Singh7 concurred with the Bombay High Court and further held that if such an interpretation as mentioned above was not given, pre-constitutional ordinances, bye-laws, notifications, etc. mentioned in the definition of “law” would also not be subject to fundamental rights.
However, the Bombay High Court, in State of Bombay v. Narasu Appa Mali5 went on to hold that even though customs and usage would fall within the scope of the definition of “laws in force”, there was a distinction between custom and personal laws, and that Article 13 would not cover personal laws.
The Supreme Court echoed these views in Shri Krishna Singh v. Mathura Ahir8 wherein they succinctly laid down that Part III does not touch upon personal laws so long as they are not “altered by any usage or custom or is modified or abrogated by statute”. Thus any provision in the religious texts, which are followed in their pristine purity and which drastically violate fundamental rights cannot be questioned.
Narasu Appa Mali case5, which has resulted in establishing this position of law, relies very largely on gathering the intention of the Constitution framers in the absence of support from the Constitutional Assembly Debates. The risks of this are discussed in the next section of this article.
Narasu Appa Mali case—Legislative intent and associated risks
The reasons given by the Bombay High Court to reach the conclusions it did, were as follows:
- In spite of being aware of the dichotomy between personal laws and custom the drafters included custom and usage within the definition of “law”, thereby implying the exclusion of personal laws.
- Subjection of personal laws to fundamental rights like Article 14 would imply automatic invalidation of practices like untouchability, thereby not explaining the introduction of Article 179.
- Entry 5 List III, Schedule VII read with Article 246, granted the State power to abolish discriminatory personal laws. An exercise of such a power could be possible only if such laws had not already been abrogated. Furthermore, if the Founding Fathers of the Constitution had intended to do away with the personal laws straightaway, they would have incorporated a provision to that effect instead of providing for the enactment of a Uniform Civil Code in Article 44.
These reasons constituted the ratio decidendi of the judgment. Each of these shall be analysed individually.
The first reason mentioned above is based on the Latin maxim expressio unius exclusion alterius10 i.e. that the express mention of something rules out all implications. Thus the Bombay High Court has taken the view that an express mention of “custom and usage” in the definition of “law” excludes all other implications. However, the Bombay High Court has failed to take into account the prevailing view that this rule is a useful servant but a dangerous master and since it is not a very reliable tool of interpretation, it can be used at best as a subsidiary tool.11 The Court has applied this rule without taking into account the significance of the wide inclusive definition of “law” in Article 13(3)(a).12 The tenor of the language used rules out the applicability of the maxim in the present context.
Reason 2 looks at the possibility of Article 17 being rendered redundant if personal laws are held to be subject to fundamental rights. The Hon’ble Judges have, however, failed to recognise the fact that a number of constitutional provisions are there by way of abundant caution13 and Article 17 is one such provision.14
Reason 3 is based on gleaning of legislative intent from the existence of certain constitutional provisions. The Court has articulated that the power derived from Entry 5 List III of the 7th Schedule read with Article 246 should be used only to eliminate religious practices that harm society, thereby implying that these practices do not stand abolished by the Constitution. Such a presumption cannot be drawn from a mere grant of power to enact legislation dealing with personal laws. The scope of this power cannot be restricted to merely abolishing anti-social practices, but would extend to other circumstances as well.15 Thus the scope of the said power precludes conclusions regarding judicial review of personal laws. The inferences gathered from the existence of Article 44 with respect to it being in lieu of a provision directly abolishing personal laws is also erroneous as the prevailing social conditions and the communal unrests during the period of the framing of the Constitution must have been the reason behind its enactment. The existence of Article 44 is clear mandate to eradicate discriminatory religious practices.
Religious law and judicial review
Constitutional pointers towards the subjection of religious practices in their pure form to fundamental rights, however, do exist. First and foremost is the wide inclusive definition of laws in Article 13(3)(a). When a definition contains an inclusive clause, it is a well laid down proposition that the terms in the clause cannot be treated in a restrictive sense.16 The terms covered by the definition should be interpreted in such a manner keeping in mind the aim, scope and object of the provision/Act.17 Article 13 was enacted primarily to subject all norms creating binding obligations like ordinances, bye-laws, notifications, customs, etc. to fundamental rights. Therefore the premise is that any legally binding norm cannot be manifestly unjust. Thus an interpretation in the light of this objective of Article 13 would definitely mean that personal laws, which create binding obligations fall within the realm of norms subject to judicial review.
Even assuming that Article 13 does not include within its ambit personal laws in their pure form, it must be kept in mind that Article 13 is not the only source of judicial review. In A.K. Gopalan v. State of Madras18 it was held that Article 13 was there by way of abundant caution and even in the absence of Article 13, judicial review would have been possible due to the very nature of the Constitution.19 Judicial review is thus an inherent concept and can also be read into Article 24520 with respect to post-constitutional laws and Article 37221 for pre-constitutional laws. The same power can be located for personal laws in Article 25(1), which unambiguously states that the right to practise one’s religion is subject to other provisions in Part III23. This implies that one is free to practice his religion irrespective of whether it involves following a custom or something mentioned in the religious texts, as long as these practices do not violate any fundamental right.
The language used in Articles 13 and 25(2) clearly suggest that personal laws, in all forms should be subject to fundamental rights . In a welfare State like India, it is the duty of the judiciary to take an activist stance in order to eradicate social evils. Only such an approach can curb the sprawling forms of discrimination in India and thereby ensure the accomplishment of the constitutional ideals of equality and fraternity.