Equality v. Religious laws

The common thread which cut across the presentations of the eminent speakers who debated the need for a Uniform Civil Code at “Lawgically Connect”, in Chennai on 1st November, was the need to ensure the eradication of discriminatory practices across all personal laws. It is reality that even though there is a clear constitutional mandate on the Legislature contained in Article 44 to bring into force a uniform civil code, even the mention of the phrase spurs a political controversy. That being so, the same object can to a large extent be achieved by the judiciary by reviewing the reasoning in a judgment which its author (Justice M.C. Chagla), in his autobiography states he had “reluctantly delivered”- State of Bombay v. Narasu Appa..Judicial review under the Indian Constitution.Article 13 of the Indian Constitution, the primary source of judicial review in the Indian context, mandates that any “law” that violates a fundamental right (guaranteed by Part III of the Constitution) is void. The term ‘law’ includes.“any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”..This definition has been held by Courts to apply to pre-constitutional “laws” as well..The Bombay High Court, as early as in 1952, in Narasu Appa’s case distinguished personal laws from custom or usage, and held that Article 13 would not cover personal laws in their unadulterated form. The Supreme Court subsequently echoed these views in Shri Krishna Singh v. Mathura Ahir and Sant Ram v. Labh Singh. Thus, any provision in the religious texts followed in its purity is beyond judicial scrutiny..Rationale for decision .While the Supreme Court did not provide reasons for its conclusions, the Bombay High Court reasoned thus:.Despite knowledge of the dichotomy between personal laws and custom, the framers of the constitution included custom within the definition of “law” and did not include personal laws, thereby implying the exclusion of personal laws.Subjecting personal laws to fundamental rights would imply automatic invalidation of practices like untouchability, thereby not explaining the introduction of Article 17 which abolishes untouchability.The Constitution expressly grants the State power to legislate on personal laws (Entry 5 List III, Schedule VII read with Article 246). This provision would be rendered redundant if discriminatory personal laws had already been abrogated by virtue of being subject to fundamental rights..Contrary view.These reasons may be questioned on the following grounds:.The first reason is based on the presumption that the express mention of “custom and usage” implies exclusion of other classes of a similar genre. This view ignores the judicial position that this rule is not a reliable tool of interpretation and can be used at best as a subsidiary tool. The wide inclusive definition of “law” and the tenor of the language used rules out the applicability of the maxim in the present context.In holding that Article 17 would be rendered redundant if personal laws were subject to fundamental rights, the Bombay High Court has failed to recognise that some constitutional provisions were introduced by way of abundant caution. For instance, the general equality provision impliedly prohibits discrimination based on caste; however, additionally, the Constitution contains a provision which expressly does so. Article 17 is one such provision which the framers of the constitution considered to be essential, that it had to be expressly spelt out.The third reason is based on the premise that the power to legislate on personal laws only includes power to legislate to eliminate discriminatory personal laws. However, the scope of this power cannot be narrowed down in this manner and would extend to other circumstances as well. Perhaps the Legislature might choose to introduce a provision which is not contrary to the religious texts of any religion and which might be in furtherance of a policy decision of the Legislature. For instance this power may be used to enact laws legalising gay marriages. Entry 5 List III, Schedule VII read with Article 246 would be the source for such legislation..Clear constitutional mandate.The Constitution points towards the subjection of religious practices to fundamental rights..The definition of “law” is wide and inclusive. When a definition contains an inclusive clause, the terms in the clause cannot be interpreted restrictively. The provision should be interpreted keeping in mind its objective, which seemingly was to subject all norms creating binding obligations like ordinances, bye-laws, customs, etc. to fundamental rights. The rationale is that any legally binding norm, whether State made or otherwise (as apparent from the inclusion of “custom” in Article 13), cannot be manifestly unjust. Thus an interpretation of Article 13 in this light would mean that personal laws, which create binding obligations, would be subject to judicial review..Further, Article 25 of the Constitution reads.“Subject to … other provisions of this Part, all persons are equally entitled to … the right freely to profess, practise and propagate religion.”.Article 25 is contained in Part III of the Constitution, which sets out all the fundamental rights including the right to equality. Clearly, therefore, one’s right to profess, practice and propagate religion is subject to the right to equality..The right to equality is contained in Article 14 of the Constitution which provides-.“The State shall not deny to any person equality before the law or the equal protection of the laws…”..Article 14 therefore prevents the State from denying the citizens of their right to equality. Such a denial may be overt or covert. In other words, the State cannot even impliedly support and recognize an act which is violative of Article 14..The necessary corollary of this argument is that since religious practices are subject to the right to equality and since the State cannot recognize any such practice, any act by the Executive recognizing a transaction in furtherance of a discriminatory personal law would amount to a contravention of Article 14 of the Constitution and a writ petition will lie, challenging such an action..ConclusionWhile there will still be certain discriminatory personal laws which may go under the radar as they may not require state recognition at any level, the interpretation of the Constitution as discussed above will to a large extent ensure that discriminatory personal laws are not given effect to. A review of the reasoning in Narasu Appa, when the opportunity arises, would help curb the sprawling forms of discrimination and ensure the accomplishment of the constitutional ideals of equality and fraternity..The author, an Advocate of the Madras High Court, has authored “The Law of Reservation and Anti-discrimination” published by Lexis Nexis Butterworths Wadhwa Nagpur and is the Chief Editor of the two-volume book titled “Justice R.S. Bachawat’s Law of Arbitration and Conciliation,” published by the same publisher. He can be contacted at anirudh@aklawchambers.com.