Amongst bigger states, after Karnataka and Madhya Pradesh, the Maharashtra post-poll alliance named Maha-Vikas Aghadi between Shiv Sena, Nationalist Congress Party (NCP) and the Congress has fell prey to defection. Shiv Sena won 55 seats in the 2019 Legislative Assembly elections in Maharashtra and formed a post-poll alliance with the NCP and the Congress to form the government under the leadership of Shiv Sena party supremo, Uddhav Thackeray. However, after an internal rift, senior Shiv Sena party leader Eknath Shinde along with 40 MLA’s split from the Shiv Sena and formed the government with the Bhartiya Janata Party (BJP)—with which Shiv Sena had a pre-poll alliance, and Eknath Shinde took oath as the Chief Minister of Maharashtra on 30th June 2022 by winning the vote of confidence of 164 MLA’s out of 288 in the floor test.Continue reading “Guest Post: Maharashtra Political Crises, Anti-Defection Law and the Supreme Court”
“The constitutional theory of checks and balances is a part of the basic structure of the Indian constitution.”
The absolute authority of the Collegium system in matters relating to appointment and transfer of judges of constitutional courts has been debated and questioned for long. The collegium consists of the Chief justice of India (hereinafter CJI) and his four senior-most colleagues, who regulate the matters of judicial appointments to the Supreme Court (or two senior-most colleagues in case of appointment or transfer to High Courts along with the senior-most judge having the concerned High court as his parent court).Continue reading “Guest Post: Five Years of Striking NJAC: The Conundrum of Independence of Judiciary”
[Editor’s Note: The Central Government revised its policy on 7th May 2021 wherein the Prime Minister announced that the Central Government will procure the vaccines on behalf of the States (75% of the vaccines) and it will be free for everyone above 18 years of age. The change in the policy came after the Supreme Court’s 31st May order*.]
In mid-January 2020, the Government of India planned the vaccination drive in different phases; for example, in the first phase of the vaccination drive the focus was on the Front-line workers (doctors, paramedics, etc.) as they are at higher risk. The second phase of vaccination was further divided into two parts, firstly, to all the individuals above 60 years of age and then everyone above 45 years of age. Then, in the beginning of May, that is, in the third phase, the Government has allowed everyone above 18 years of age to get vaccinated. As India marked the beginning of its third phase of vaccination, the country is facing a huge vaccine shortage (it has been reported here, here and here and in various other news channels and reports). To tackle this shortage the central government asked the states to float the global tender. But the question arises is it the State Government’s responsibility to enter into foreign trade, or is it a central government duty to import the vaccines and distribute them among the states?Continue reading “Guest Post: Global Tenders of Vaccines by State Governments and the Centre-State Relations”
Apart from other executive powers, the Governors and the President have legislative powers with which they can meet certain emergencies. These are laid down separately in two articles of the Constitution that give the President (Article 123) and the Governors (Article 213) the power to promulgate Ordinances when the legislature is not in session. Generally speaking, the power at both levels is the same: Governors and the President, facing the need for ‘immediate action’, may promulgate Ordinances having the force of legislative Acts, but central or state executive must lay Ordinances before the legislature when it reassembles. Unless approved by both houses, the Ordinance expires six weeks after reassembly. The technique of issuing an ordinance has been devised to enable the executive to meet a sudden situation arising in the country when the Parliament is not in session, and which cannot be dealt with under the ordinary law. (Ambedkar, VIII CAD, page 213) The executive does not need to expound the reasons for promulgating an ordinance and a declaration to that effect in the preamble of the ordinance is sufficient. The executive of England or the USA enjoys no such power.Continue reading “Explained: What is the Ordinance making power of the President?”
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.