Infusing Personal Laws with modern times: Reconsidering ‘Narasu Appa Mali’ case

In this blog post, I will be discussing the need to reconsider the 1951 judgment of Bombay High Court in State of Bombay v. Narasu Appa Mali (‘Narasu’) where justices Chagla and Gajendragadkar held that uncodified personal laws cannot be tested on the touchstone of fundamental rights guaranteed under Part III of the Indian Constitution. By doing so the Court protected the ‘regressive practices’ from the strict scrutiny and technically, the Court held that these personal laws are above the Constitution (as there cannot be any rights-based challenge) and above the enacted laws made by the democratically elected governments (which could be challenged under Article 13).

The Ghost of Narasu

Ms Indira Jaising, Sr. Advocate termed the judgment of Narasu as a Ghost which still haunts us till date, not for good reasons. In the case of Narasu, the court was considering the Hindu Bigamous Marriages Act 1951 as it was contended that it violates the fundamental rights of the citizens as it discriminates between Hindus and Muslims in cases of polygamy (as per the Law the Hindus were prohibited and criminalised from marrying more than one wife, whereas the Muslims were still allowed to do so). The law was upheld by the Court as it was a ‘liberal, progressive law’ which aimed to eradicate and punish the social evil. Justice Chagla observed in Paragraph 11:

The Hindu Bigamous Marriages Act is attempting to bring amount social reform is a community which has looked upon polygamy as not an evil institution, but fully justified by its religion. It is also introducing this measure of social reform in a community where the women have looked upon their husbands with reverence and respect.

The problem is not with the decision itself, but with the reasoning deployed by the Court in reaching the conclusion— by holding that all personal laws are protected from any challenge under Part III (Fundamental Rights), which in turn safeguarded the regressive religious practices indefinitely (unless a law is made by the Parliament). As Chintan Chandrachud states in his book: “if and when personal law was codified by the democratically elected legislature, that would be subjected to greater judicial scrutiny than uncodified personal law lacking democratic sanction”. The Court’s idea of ‘personal laws’ is based on colonial jurisprudence. Warren Hastings plan of 1772 (Article XXIII of the plan) provided that the Quran would apply to Muslims and Shastra(s) would apply to Hindus. This led to the rigidity of religious identities and led to polarisation. The Brahmins and Qazis were called to adjudicate the disputes and to interpret the holy texts which led to contradictory interpretations and in the words of Flavia Agnes (in Oxford Handbook on the Indian Constitution), it led to ‘Brahminisation and Islaminisation of laws’. The effect of the judgment can be seen in various cases it like the judgment of Shri Krishna Singh v. Mathura Ahir(1979) wherein the Court refused to permit a Dalit to become a sanyasi. The Court, unfortunately, held that personal laws cannot be infused with the concept of modern times but they are to be interpreted and enforced as inscribed in religious scriptures and commentaries (Paragraph 31).

Exorcism of Narasu

The Court got many opportunities to overrule the judgment of Narasu. But it has lost many chances and sometimes sidestepped from going into the decision. The court has done so ‘by holding that a practice claimed to be personal law has in fact been codified by statute’. The Court did so in Shayara Bano v. Union of India (2015) wherein the Court held Triple Talaq (Talaq-e-biddat) to be unconstitutional but refused to consider the practice as a part of uncodified ‘personal laws’. Instead of that Justice Nariman held that the practice has been codified in the Shariat Act which can be reviewed by the Court under Article 13. Although Justice Nariman doubted the decision of Narasu (Paragraph 71). The decision of Narasu undermines the Constitution’s transformative nature which aims to eradicate the social evils and transform the society. The liberty of the individuals must not be taken away in the garb of personal laws and it is important to note what Dr Ambedkar said in Parliament on true nature of liberty:

“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.”

After Shayara Bano, Justice Chandrachud in his exceptional judgment (Sabarimala Judgment) noted that personal laws either codified or not cannot detract ‘from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality’ (paragraph 101). If we treat personal laws (uncodified) different from the codified personal laws and make them immune from any rights-based challenge, then it undermines the supremacy of the Constitution. Any personal law which contravenes the equality clauses of the Constitution or any other provision must be ultra vires because in a Constitutional Democracy there is no space for regressive, constitutionally immoral and ancient laws. Interesting in 1996, in the case of Masilamani Mudaliar v. The Idol of Swaminathaswami Thirukoli the Supreme Court observed that any personal law which treats women as inferior is ‘anathema to equality’.

On personal laws, eminent jurist HM Seervai in his commentary on Constitutional Law notes that:

“There is no difference between the expression “existing law” and “law in force” and consequently, personal law would be “existing law” and “law in forcecustom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them.

Any law whether statutory, uncodified or codified personal law which treats any individual as inferior dilutes the bridge between the rights guaranteed by the Constitution and the self-realisation of those rights by the individuals. As per Justice Chandrachud in Sabarimala, the individual liberties must be recognised as ‘the basic unit of the Constitution’ and this requires that ‘existing structures and laws be viewed from the prism of individual dignity’ (paragraph 100). But even after casting a doubt on the ‘legality’ on Narasu in the Sabarimala case, the Court did not overrule the Narasu judgment explicitly and it remains good in law (symbolically and legally). One category of law, uncodified personal law, is effectively above the Constitution- unfortunately- and the victim(s) of such laws does not have any recourse whatsoever despite having guaranteed rights.

Hope for overruling Narasu

The reasons for overruling Narasu are compelling. The Constitution is a transformative document made for the revival of the society from the various clutches that hold it back. Many times, these personal laws infringe upon the rights of the individuals, in turn holding them from better opportunities which allow an individual to attain liberation (from the oppression of society) and live a dignified life with ‘positive social relationships’.

The Court has observed in Navtej Singh Johar v. Union of India in Paragraph 95: “the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.” The Constitution is structured in a manner wherein it becomes important to realise the needs of changing society to keep itself practical, dynamic and vibrant. The Indian Constitution emerged in the light of historical struggle based on polarisation, discrimination, unequal treatment, lack of opportunities and undemocratic societal setup. Hence, it becomes the task of the Courts to interpret the ‘laws’, whether personal or codified, in a way which cherishes the dignity of all citizens and in the light of the fundamental values enshrined in the Constitution because these personal laws/custom/values of the society affect individual behaviour. Immunising these personal laws from judicial scrutiny will undermine the authority of the Constitution (J. Chandrachud in Sabarimala in Paragraph 99). There is a desideratum to recognise the importance to bring forth these changes and it requires judicial wisdom and political appetite.

 The judgment of Narasu was decided at a time (1951) when the societal conditions were different and it must only be read in the context of that time. But legally, interpretation of the Bombay High Court is wrong and it still haunts us today! To conclude, in the words of Chintan Chandrachud,

Even the most distinguished judges are prone to error. The greater error lies in the failure to make course corrections despite ample opportunity.” (Page 146)

Therefore, for the reasons stated above, the State of Bombay v. Narasu Appa Mali must be overruled.

Executive Aggrandisement and Democratic Backsliding in India: A Conceptual Analysis

In the starting of the year 2020, there was a headline that “India falls to 51st position in Democratic Index” by a survey done by the Economist’s Intelligence Unit. Further back in 2018, the Indian National Congress, the main opposition party in the Parliament, launched a campaign called “Save the Constitution”. There are many incidents and events wherein the People claim that democracy is dying. Is democracy really crumbling?

The Constitution of India is based on democratic principles and the very democracy has been jeopardised by the elected government in the past (as well). But now it is not like the 20th century when we saw Mrs Gandhi’s emergency of 1975 and military coup in Pakistan (coup d’état by Musharraf), which shattered the democracy and the democratic principles of India and her adjoining neighbour. But how is the situation in 2020 different from 1975?  What we are witnessing now is not ‘shattering’ of the democracy, it is more like a gradual erosion. A democratic decay.

The Indian Constitution has established three organs of the state: Judiciary, legislature and executive, each of them are assigned a definitive sphere of powers and functions. To check upon these institutions, we have the idea of “Constitutionalism”— which is, various sorts of accountability demand to keep a check on the powers of the organs of the state in the form of rights against the state, limiting the scope of the authority of the organs among various other checks. Herein, a question arises, despite all these checks then how is the democracy backsliding or decaying in India in 2020?

Executive Aggrandisement and democratic backsliding

Democratic backsliding, as Bermeo says, is “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy”, which basically means that when the state eliminates or dismantles the aforementioned “checks” on its powers to sustain themselves in power. Backsliding happens precisely where oppositions are already incapacitated by electoral failures and other internal divisions like lack of leadership. In parliamentary democracies, like India, the political executive is discerned as the “sole repository” of the democratic mandate, which is the Modi-led-Cabinet in India (as the Executive’s political party, i.e. the BJP is mostly in majority in the legislature). In the book, “Constitutional Democracy in Crisis?”, Elkins states that “most, if not all, of the concerns regarding constitutional democracy, has to do with an executive”. When this executive weakens the checks on executive power by a series of institutional changes that hamper the power of opposition (accountability seeking) forces to challenge executive preferences, this ‘kind of’ democratic backsliding is called “Executive Aggrandisement”. The values of constitutionalism and democracy are hampered by the aggrandisement of the executive; institutional accountability is the key and inseparable from the “efficient institutional design”. The change brought by the democratically elected executive in weakening the checks upon itself is often done by labelling independent checking institutions as “anti-establishment/anti-government” or by “packing them with the cadre of their political party”, as reflected by Professor Khaitan of Oxford University. When there is a crisis of executive accountability, we can witness gradual erosion of accountability-seeking mechanisms such as 1. Electoral accountability (there is always fear and probability of electoral fraud and tampering, see here and here); 2. Accountability by the judiciary (power of judicial review, see Article 13) and legislature (see Article 74 and read here); and 3. Accountability to civil societies, media and the academics (read here and here).

The accountability to the legislature is mostly done away it, as the majority party-led by the Executive always controls the House and there is a little scope for the opposition to come forward and create pressure on the executive. Furthermore, in India, accountability to the “upper house or the Rajya Sabha” is also overridden by introducing important bills as ‘money bills’ (see Aadhar Act). The judiciary is already restricted due to many reasons such as it gets to ‘review’ the orders of the executive ex-post facto, it may be inefficient or be overworked and surprisingly, the Apex Court has become an “Executive Court” in India already, as Bhatia calls it. Hence, the final check on the Executive must come from the electorate, media, civil societies and academics as they are neither appointed nor elected by the executive. These external checks are really necessary to occlude the executive from backsliding democracy. However, the executive tends to tempt the electorates by showing them (illusory) short term promises and ‘cheaper methods’ like caste and communal politics, reservation etc to coax the voters to vote for their political party.

How is ‘executive aggrandisement’ done?

The most visible democratic backsliding can be seen when there is an attempt to side-line the right to free speech and expression (such as filing FIRs against journalists and activists) and judicial autonomy (such as transfers of the constitutional court’s judges who pass orders ‘against’ the executive and further, the ‘micro-assaults’ of the executive cannot be assessed individually by the Judiciary). Other ways are also brought in force such as blocking websites (read here and here), discouraging dissent, and enactment of draconian laws (which are usually against the principle of ‘innocent until proven guilty’). Most bizarre and not-so-open way of democratic backsliding lies where when the ‘big media outlets’ are often owned (through holding companies) by those businesses which are dependent on government contracts. Hence, there rises a conundrum for the journalist between freedom of speech and expression (and) a job, basically a Hobbesian choice.

There are certainly other ways in which backsliding is done and the amusing thing about these particular ways is that these issues seem is to be ‘normal’, when seen individually, for any mass protests and any individual or collective dissent. Those who speak against the executive, either any former judge or any opposition party member, is framed as a person having “special interests” or in general anti-national, a common term in India. Those who work for the disadvantaged groups and question the executive for its actions are banned and booked under state-made draconian laws. Many times, there remains a lack of collective action towards the ‘ill-actions’ of the government and the majority of the population is lost in the trance (of government’s short-sighted actions like the building of various religious congregations).

Furthermore, the “democratically” elected executive tends to make laws (which are usually passed without debates and discussions) which goes against the very basic human rights of the individuals, but challenging such laws is “highly risky” as the person who challenges may face many barriers such as, first, she is called a ‘foreign element’ for challenging or raising the voice against the “law”, second, attributing ‘nefarious purpose’ to the law is often difficult (as the intention of the Parliament cannot be brought under Judicial scrutiny) and third, all the changes made by the law has some ambiguous justification ( as the “intention” is to deepen the democracy, instead of destroying it). The “rules” of law are a major setback for those who want to come together and raise their voices against the actions taken by the executive. The laws framed to govern and protect the individuals are used against those very individuals.

All this is worrisome because of the reason that these changes came into force by the democratically elected government with a strong majority in the Parliament and the popular support of the masses. In a Democracy, where the executive doesn’t have any check is more likely to erode the very principles of democracy by taking one piece at a time from the “collage of institutions”.

A way forward?

This aggrandisement happens due to lack of devout action plan, nor any consensus, within the opposition party, media, academia and the citizens, to impart cohesion. The separation of opinion amidst the checkers of the executive lead to the point where democracy stands alone in a lonely corner. There needs to be a collective voice against the actions of the executive to prevent backsliding. As Sunil Khilnani (The Idea of India) says fasts, silences, penances are just techniques of an eccentric parent but are not designed to nourish the accountability of a democratic institution. In the absence of any institutional challenges to the executive, we [as citizens] should take lessons from the pre-independence Congress party wherein the mass organisation of people became the key to establish the democratic constitution. It shall be successful, as we already have seen how mass mobilisation of The People have also helped in reversing the most erroneous decisions of the Supreme Court (For example Mathura Rape Case).

There must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny. Other institutions which are not tied to the executive through the umbilical cord (political party) can work efficiently to hold the executive accountable for its actions and they must inform citizens about the actions of the executive in an unbiased way. As professor Khaitan says the reason for informing citizens will help the voters, as “they [voters] cannot exercise their function of holding governments to account at the ballot box unless they are properly informed”.

There needs to be scrutiny and review of every action of the government as ‘the very rules of the game are being changed’ now. We the People of India need to come together to “retrieve and build constitutionalism without the courts”, as the Constitution is so much more than just the Courts (as we all see it as). To conclude, as said by professor Khaitan said,

“Democracy is being killed by a thousand cuts—incrementally to avoid the noise and mess of big guns—but systemically. These mortal cuts are being inflicted by democrats themselves, who are justifying their expediency in the name of democracy itself (as surgery, rather than assault)”

[Note: If would like to read more extensive on this topic, then kindly proceed to Constitution Database page (Under the heading: Constitutionalism)]

Indian Constitution and Constitutionalism: Transformative Application

[This is a post by Minnah AbrahamContributing Editor]

Often, the questions, with regard to the formation of the State, persists in the mind of the man right from the beginning, since the emergence of civilization:

What is the best form of Government”

The answer to the above question brought the emergence of the idea to the origin of constitutionalism and constitutional law, which paved the road to structure and organizing the State, in the form of rules and regulations, requiring the need of law and governance. It was best described by Robert M MacIver“When we speak of the estate, we mean the organization of which government is the administrative organ. Even an organization must have a focus of the administration, an agency by which its policies are given specific character and translated into action. But the organization is greater than the organ. In this sense, the state is greater and more inclusive than its government. A state has a constitution, a code of laws, a way of setting up its government, a body of citizens…when we think of this whole structure, we think of the state… Under these endlessly varied circumstances the habits pertaining to government, which at first were centred in the family and kin-circle, found a locus in the inclusive community”

Contrastingly the two terms, constitutional law and constitutionalism differ where the former enshrines the coded form of rules and regulation, determining the principle functions, accepted as binding by all concerned in the Government, while latter explicitly accord specific limitations on general administrational powers to keep a check on the exercise of arbitrary decision-making or powers in the hands of the few. ‘Limited Governance’ is what is presupposed of Constitutionalism, incorporating the element of checks and balance within the constitutional law. From this, arose the fundamental rights and guaranteed remedies, Judiciary acting as the impartial arbiter with independent powers apart from legislative check on the executive. Within these fundamental systems, emerged the concept of judicial review, separation of powers, rule of law, the fundamental right to equality and quality of life, universal franchise transparent executive, ensuring the responsibility to keep an eye on anarchy and the wide possibility of misuse and exploitation of freedom guaranteed by means of reasonable restrictions inserted.

Constitutionalism has become as important an issue which deals with intricacies of good governance, constituting a supreme document that governs the legitimacy of the government’s state actions, implying something beyond the idea of legality requiring official conduct to be in conformity with pre-fixed legal rules. Constitutionalism as the concept that drives through the constitutional law ensures, to effectively check whether the act of a government is in accordance with the laws of the State. This further seeks to effectively regulate the State actions and ensure to adopt the changes in the societal evolution, promising to protect the citizens from the very restrictions and rigidity of the law and order.

As Justice H.R Khanna stated,

“The framing of a Constitution calls for the highest statecraft. Those entrusted with it have to realize the practical needs of the government and have, at the same time, to keep in view the ideals, which have inspired the nation. They have to be men of vision, yet they cannot forget the grassroots.”

Notwithstanding the constant changes in the global trend, the modern application of constitutionalism is increasingly under strain, where more recent turns of events seem to provoke profound changes, forcing a transition towards modern constitutionalism. In what was considered to be most celebrated of the judgements, Navtej Singh Johar vs. Union of India, was the one where the real purpose of the constitution was defined in modern terms, to guide the Nation to a transformation from medieval and hierarchical strata to an egalitarian democracy to enclasp the ideals embedded in the Preamble of the Constitution. It was the modern constitutional interpretation, which chose to protect its very own people from the humiliation and discrimination, rather than follow the static interpretation of the rights of liberty and equality, which were applicable in the yesteryears.

The laws are constantly changing, recall the 73rd and 74th amendments of the Indian Constitution in 1992, which create a fortified third tier of the governance i.e. Panchayats and Municipalities, thereby creating a stronger federal decentralisation within the country. Besides these, the dynamic politics and pressure groups, which reflect the diversity of interests so much so that brought to the point where the power centre has to take heed to the opinion emerging from a relatively small community, which had the power to pull down the government. Triple talaq, the case of Sabarimala, Aadhaar project, LGBTIQ+ Rights, judicial activism forcing to fathom deeper into constitutional interpretation to deliver right justice in order to address the broader societal implications and much more witnessed since the last decade. Shifting the focus to a generation of millennials in this decade, causing issues of collective identity, cultural plurality and multi-cultural society in constitutional democracies and the inherent struggle for recognition and demand for sub-national government. The major hindrance is that the strong accord of modern constitutionalism with an idea of ‘national identity’ has become challenging, to sustain/uphold in an increasingly diverse democratic society. It goes to say, “human experience must be decontextualized, and diverse identities extirpated in order to create a single national identity for each State.” In the unstable cultural-sociological, the rushing of the liberal idea of State neutrality forces the explicit recognition of common cultural identity, which seems impossible for the modern laws to be integrative. Thus, a need ensued for the rethinking of modern constitutionalism and uniform laws, in the current scenario, in which demands for recognition of cultural plurality and sub-state demands, are ever more prominent.

Antonio Negri believed, the ‘ethic’ of constitutional insurgencies is also ‘ethics of transformation’, signifying the power, strength, and movement of the multitude toward contradictions of constitutionalism’s, characterizing life under constitutional code. Constitutionalism needs to stress on,

“the freedom of the members of an open society to change the constitutional rules of mutual recognition and association from time to time as their identities change.”

Justice evolves around the language of communication through constitutional morality, the ‘morality’ as seen as the justification in the eyes of Lord Macaulay for the enactment of Section 377, which changed when read down by the judges, by turning the, then morality upside down, stating that constitutional morality calls for the values that the right to form intimate relationships to be protected as equal and freedom from persecution and humiliation by the law.

The founding fathers of India, BR Ambedkar and Jawaharlal Nehru, explicitly focused on the notion towards aiming for inclusivity in the post-independent India, the profound concept that discrimination against any minority community/population is antithetical to the ethics of constitution and disrespectful to the very people, who have already suffered/oppressed enough.

Although the concept of modern constitutionalism is a long way from the transformation, citing the ambiguous interpretations of the Constitutional law in the daily lives of a common man, eradication the age-old casteism, discriminatory treatment of a large number of diverse sections of Indian society, be it indigenous, women, disabled or on religious sect and building the culture of unity and inclusivity still remains a continuing challenge in India. However, with the recent event of developments on widening the scope of freedom of speech and expression, 2019 being the year of piercing the age-old concepts, for gender recognition and equality, recognition of women promise a change toward India refocusing towards political advocacy and possible reformed legislative amendments.