Category: Article 13

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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 force …custom, 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.

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The ‘Essentiality’ of the Essential Religious Practice Test: A Constitutional Paradox?

[This is a post by Panya Mathur, Contributing Editor]

In my previous article on this blog, I discussed the conflict between the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India (here). In this article, I will be discussing the ‘Doctrine of Essential Religious Practices’ and its evolution through the various judgements of the Supreme Court of India in the last decade. I will also be discussing the relevance and applicability of the doctrine with respect to Article 13 and Article 17 of the Constitution of India. 

Understanding the Essential Religious Practice Test

The Essential religious practice test is a contentious doctrine that has been evolved by the Apex court of our country to protect and preserve only such religious practices which were essential and integral to the founding beliefs of any religion. However, it is pertinent to point out that the concept of Essential Religious Practice Test (“ERP Test”) is not expressly mentioned in the Constitution of India, but has been developed as a result of judicial activism which was necessitated by the changing perceptions and beliefs of the citizens. Irrespective of having a well-defined provision on freedom of religion under Article 25 of the Constitution of India which is only subject to the exceptions of public order, health and morality, the judicial development of the ERP adds a certain amount of subjectivity and ambiguity to the interpretation of freedom of religion. 

Whether a practice is essential to a religion or not must be said about that religion and not what the Court opines. This is because in a question with relation to religious practices, it may not be open to the court to resolve the dispute by blindly applying some religious formula. Even though in certain cases the Court might be the final authority formalising the said practice as essential, it has to place a deep enquiry into the very tenets of the religion and must ensure that the Constitutional Fabric that exists in the country protecting religions is maintained.

In the words of the renowned legal scholar Dr. Ronojoy Sen,

“The role of the Court in determining what constitutes a religion and essential religious practice has remained undiminished since the formative years of this doctrine. Subsequent rulings have built on case law but hardly ever reconsidered the doctrine of essential practices.”

The doctrine of “essentiality” was primarily invented by a seven-judge Bench of the Supreme Court of India, in the case of Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt (‘Shirur Mutt’) in 1954 to clarify the Court’s position in this aspect. The Court, in this case, held that the term “religion” must cover all rituals and practices that are “integral” to any religion, and the court went a step further and took upon itself the responsibility of determining the essential and non-essential practices of the religion as well as its ambit.  The same year, Justice Mukherjee in the case of Ratilal Panachand v. State of Bombay, firmly held that the religious groups that have been given protection under Article 26(b) have autonomy in matters of religion and that no secular authority, even the Apex Court does not possess the right to declare a practice as a non-essential part of religion. Interestingly enough, in 1953 i.e. prior to the Shirur Mutt case and the Ratilal case, the Supreme Court in Saraswathi Ammal and Another v. Rajgopal Ammal made a starkly anachronistic comment in this respect,

“To the extent that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. The heads of religious purposes determined by a belief in the acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.”

This debate was once again revived after nearly 4 decades, in the public discourse when the Rajasthan High Court, in a widely criticized and desisted judgment, pronounced a religious practice of the Jain community as illegal and immoral, as the Bench strongly believed that the practice amounted to an act of self-destruction by the followers of the religion. The case, Nikhil Soni vs. Union of India , examined the Jain practice of Santhara or Sallekhana which involves a fast until death, traditionally undertaken at a time when the body of the said individual is unable to serve the purpose of life and is unable to cope with the responsibilities that come with being alive, in order to attain Moksha or salvation. 

Sabarimala Judgment and ERP Test

After the Judgement in Nikhil Soni by Rajasthan High Court, the Supreme Court intended to settle the debate once and for all in the case of Indian Young Lawyers Association v. the State of Kerala, popularly known as the Sabrimala Judgement, but only confused the citizens further. The ERP Test, in this case, however, has been consistently applied by the Supreme Court in a very inconsistent and spurn manner. The phrase “essential religious practice” rather than being construed objectively,  was determined at the whims and fancies of the Bench.

However, in this respect, it is pertinent to note that as per Article 13(3) of the Constitution of India, the term “law” includes “customs and usages having the force of law”. Justice Chandrachud, while refuting judgement of Narasu Appa Mali in the Sabrimala judgment, firmly stated that the definition of “law” under Article 13(3) is an inclusive definition in its true sense and it would be insensitive to put a rigid and restrictive interpretation upon terms of wider denotation. The definition of the term “custom” according to Hindu Law has been “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law…in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.” Since a religious practice is essentially one that has to be held in faith, any restriction placed on religious practice, is primarily not absolute in nature and is done so to protect the character and nature of the religion therein, due to continuous practice since times immemorial and thus, the same has gained the qualities of custom and falls under the Exception given under Article 13.

 It has been noted by this very Court in the case of Durgah Committee, Ajmer v. Sayed Hussain Ali, that,

“To strike a note of caution, in order that the practice in question should be treated as part of religion, capable of being protected under Art. 26, it must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practises though religious may have sprung from merely superstitious belief and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”

On the other hand, Article 17 of the Constitution of India, states that “‘Untouchability‘ is abolished and its practice is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.”  In the book Competing Equalities- Law of backward classes in India , the learned author states that,

“The courts have indicated that Untouchability does not include all instances in which a person is treated unclean and is a source of pollution. It does not include such temporary and explicable states of pollution suffered by e.g. women on child birth, menstruating women, moaners, persons with contagious diseases, person who eat forbidden food or violate prescribed cleanliness…Nor does it refer to situational or relative purity such as that between ordinary worshipper or priest or temple attendant…Thus, untouchability is confined to disabilities imposed upon groups commonly regarded as “untouchables” and its meaning is to be determined by reference to those who have seen no easier definition for untouchables than to define untouchability.”

However, in the case of Sri Venkataramana Devaru v. State of Mysore, the Hon’ble court held that a fundamental difference between excluding persons from temples open for purposes of worship of the Hindu public in general on the ground that they belong to excluded communities and excluding persons from denominational temples on the ground that they are not objects within the benefit of the foundation of the temple. Thus, the former shall be hit by Article 17 and the latter shall be protected by Article 26, which can be construed to mean that an Essential Religious Practice cannot be brought under the ambit of the Article 17 of the Constitution of India, unless it’s a glaring violation of the same. The Hon’ble Supreme Court of India through the course of its judgements over the past decade seems to have intertwined multiple constitutional values and concepts to accommodate the facts of each case.

However, this has led to confusion and a lack of uniformity in the application of the Essential Religious Practices Doctrine. While it was widely contested whether the court had the mandate to interpret religious practices, the Supreme Court of India has held that  irrespective of a religious practice being essential or not, the constitutional values will and should prevail over essential and certain aspects of religion and the constitutional scheme should remain intact.