Are Personal Laws Even A Law?

Source:LawColumn

Are personal laws a law as per article 13 of the Constitution, if yes, then they have to be in line with part 3 of the constitution which defines the fundamental rights. As per article 13(2), the definition of law is given and it says that law includes any ordinance, order byelaw, rule, regulation, notification, custom or usage having in the territory of India the force of law. So, it does not include the laws made by the parliament. Also, in a conflict between the Supreme Court of India and the Parliament, the Indira Gandhi government through an amendment has made it clear that constitutional amendments are not laws. Hence all these laws mentioned above are subordinate laws.

Laws in force includes, laws passed or made by the legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Article 372 says that notwithstanding the repeal of this constitution or the enactments referred to in article 395 but subject to other provisions of this constitution all 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of India immediately before the commencement of this constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.

Q) Are personal laws a law in force and had they been continued as per article 372 as valid law because they are not repealed?

Even the Supreme Court had said that if the parliament is making law using the ordinary legislative power then it is legislated law or ordinary law and if the parliament makes amendments in the constitution using the constituent power then it will not be termed as law. Hence it may or may not be consistent with a fundamental right.  

 

State of Bombay v Narsu Appa Mali, 1951

The Bombay High Court in this case examined the issue that whether personal law is a law or not. It was decided by Jts. Gajendra Gadkar (later also became the Chief justice of India) and chief Jts. Chagla (who actually later refused to become a judge at the Supreme Court of India). A law was made for Hindus which was prohibiting them from entering into a second marriage if the first marriage is subsisting. It was challenged on the ground that it is discriminating between Hindus and Muslims as Muslims and other religious people were allowed to marry more than once, hence a violation of article 14 ‘Right to Equality’ and article 15 ‘Prohibit Discrimination’. Till 1955 Hindus were having the right to keep an indefinite number of wives. Whereas in Islam, not more than 4 wives were allowed. Both the judges were of the view that personal laws are not law as per u/a 13 and uphold the legislation in order to bring reform in a stepwise manner in the society. The court held that if the legislature is of the view to reinforce these reforms first among the Hindus, we cannot stop them. Also if the principal object for allowing polygamy is to have a child, then the same can be achieved by way of adoption and it will have the same spiritual benefit under Hindu text as that of a natural child.

Personal law is not a law made by the parliament or legislature; such a law is in force for many years based on a juristic opinion. It has a different source and hence it is not the law in force. It is not expected from the President of India that he may adopt or modify such laws using the power of the Constitution, within a period of 3 years from the commencement of the Constitution u/a 372(3)(a). Hence, personal laws are not laws. Also in article 44, uniform civil code is being discussed and therefore the constituent assembly very well knew that there are two types of laws, one which is made by the parliament and another one is the personal laws, which are different. And as per this article, the state will endeavour to unform all such different laws. Entry number 5 of the concurrent list, both the union and state has been provided with the power to make laws with respect to personal laws. Hence, it shows that personal laws are not like any other ordinary law but rather a special body of law, a distinct category, which is been named especially in this entry. Now if the constituent assembly knew about this distinction between the two laws and had there been the intention of recognising personal laws as a law, then it must have been mentioned in article 13 in the definition of law. Also, if the constituent assembly had considered the personal laws as ordinary law then there would be no requirement of writing article 17 and 25.

Also, it would be wrong to understand personal law to be custom or usage that has the force of law in India because personal laws are not completely based on customs but rather these laws had either reformed or changed the already prevalent customs. They are mostly based upon the juristic opinion of the experts.

But it can be even strongly argued from the other side as well. It was argued that it would not be correct to say that all personal laws are non-statutory laws. Many personal laws are made by the legislature, which is covered u/a 372 and hence some parts of the personal laws are statutory law as well. So, now because most of the Hindu laws were codified and most of the Muslim laws were not codified, therefore the issue revolved around the Muslim personal laws and for their codification, in order to bring reforms.

 

Britishers were against the reforms in the personal laws.

There were 3 major regressive judgements that were not allowing the reform to take place. Abu Fatah (1894), Agah Mohammed v Kulsum bibi (1897) and Bakar Ali v Anjum Aara Begum (1902). Privy Council held in Abu Fatah that “the danger was pointed out of relying upon the ancient text of Mohammedan law and even precepts of the prophet himself of taking them literally and deducing from them new rules of law, especially when such proposed rules do not conduce to substantial justice that danger is equally great whether reliance be placed upon fresh text newly brought to light or upon the fresh logical inferences newly drawned from old and undisputed text, their lordship thinks that it would be extremely dangerous to accept as a general principle that new rules of law are to be introduced because they seem to lawyers of present-day to follow logically from ancient text, however authoritative when the ancient doctors of law have not themselves drawn those conclusions” – Lord Hobhouse.

This judgement and many others on the same line bought the rigidity in the Muslim personal law and was saying that what is written in the 9^th and 10^th centuries cannot be altered or changed.

 

Post-Independence

In the later judgements as well after the independence like in the case of Sri Krishna Singh v Mathura Ahir, 1979 where the Allahabad High Court had given a progressive judgement, on the other hand, the Supreme Court held that part 3 of the Constitution (fundamental rights) are not applicable on the personal laws. In the Sabarimala case, the judges discussed the same issue but was left undecided and also in the case of Sharaya Bano v Union of India (Triple Talaq case) the same issue arose but was again left undecided. Someday in the future, this issue will again arise in the Supreme Court, and I believe that the court will this time overrule the Narasu Appa Mali judgement and thereby all the personal laws which are in contravention to the fundamental rights will become void.

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