The beginning of the end of 67-year-old Narasu Appa Mali and a tale of two judges

Murali Krishnan September 28 2018
narasu appa mali

The Sabarimala judgment delivered by the Supreme Court today is making news for a number of reasons, including the impact it could have in the political arena.

However, one significant take away from the judgment is, without doubt, Justice DY Chandrachud’s exposition on the 66-year-old Bombay High Court verdict in the case of The State of Bombay v. Narasu Appa Mali [AIR 1952 Bom 84].

This 1951 judgment is a crucial ruling that lays down the extent to which personal laws can be subject to fundamental rights. It involves the question of whether personal laws can be considered 'law' within the meaning of Article 13 of the Constitution.

This case was decided by a Bench of Chief Justice MC Chagla and Justice PB Gajendragadkar.

In this case, the High Court held that “personal law” is not included in the expression “laws in force” used in Article 13(1) of the Constitution.

Effectively, it meant that personal laws need not undergo the test of Part III of the Constitution or in other words, personal laws are not subject to fundamental rights.

However, the two judges differed with respect to one aspect.

While Chief Justice Chagla held that ‘custom or usage’ would be included in the definition of ‘laws in force’ in Article 13(1) and could, therefore, be tested for violation of fundamental rights, Justice Gajendragadkar ruled that ‘custom or usage’ does not fall within the expression ‘laws in force’ in Article 13(1).

For arriving at such a conclusion, Justice Gajendragadkar resorted to Article 17 of the Constitution which seeks to abolish the practice of untouchability. The Judge opined that the practice of untouchability owed its origins to custom and usage. If it was intended to include ‘custom or usage’ in the definition of ‘laws in force’ in Article 13(3)(b), the custom of untouchability would offend the non-discrimination guarantee under Article 15 and be void under Article 13(1). He concluded that this would render Article 17 obsolete and it was thus not intended to include ‘custom or usage’ within the ambit of ‘laws in force’ in Article 13(1) read with Article 13(3)(b).

The judgment of Narasu Appa Mali is yet to be overruled and holds the field as far as protection of personal laws from the test of Constitutionality is concerned.

Justice DY Chandrachud

Justice Chandrachud has proceeded to discuss Narasu Appa Mali and its unsustainability in detail in his judgment today in Sabarimala case.

The discussion is under the head “The ghost of Narasu”.

Justice Chandrachud relies on a catena of judgments of the Supreme Court including AK Gopalan v. State of Madras, RC Cooper v. Union of India, Maneka Gandhi v. Union of India, Special Courts Bill Reference and the Privacy judgment in Puttaswamy to assert “degree of overlap in the Articles of the Constitution” and the “common thread of individual dignity” running through the rights guaranteed under Part III.

Repelling the reasoning advanced by Justice Gajendragadkar which is founded on the presence of Article 17, Chandrachud J says,

“The introduction of Article 17 reflects the transformative role and vision of the Constitution. It brings focus upon centuries of discrimination in the social structure and posits the role of the Constitution to bring justice to the oppressed and marginalized. The penumbra of a particular article in Part III which deals with a specific facet of freedom may exist elsewhere in Part III. That is because all freedoms share an inseparable connect. They exist together and it is in their co-existence that the vision of dignity, liberty and equality is realized. As noted in Puttaswamy, “the Constituent Assembly thought it fit that some aspects of liberty require a more emphatic declaration so as to restrict the authority of the State to abridge or curtail them”.

Thus, he holds that rationale adopted by Justice Gajendragadkar in Narasu for excluding custom and usage from ‘laws in force’ under Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinally and from the perspective of the precedent of the Supreme Court.

Likewise, the judge also goes on to address the more crucial aspect of “personal law” being excluded from the ambit of Article 13 by Narasu.

Both judges in Narasu relied on the phraseology of Section 112 of the Government of India Act 1915 to exclude “personal law” from the ambit of Article 13.

The 1915 Act used the term “personal law” something which is absent in Article 13. Chief Justice Chagla had opined that despite the legislative precedent of the 1915 Act, the Constituent Assembly deliberately omitted a reference to ‘personal law’ in Article 13. This, he held was a very clear pointer to the intention of the Constitution making body to exclude personal law from the purview of Article 13.

Justice Gajendragadkar had held that ‘laws in force’ in Article 13(1) is a compendious expression for statutory laws.

Dissecting the definitions of “law” and “laws in force” as used in Article 13(3)(a) and 13(3)(b), Chandrachud J. opined that the judges overlooked the wide ambit that was to be attributed to the term ‘laws in force’, by reason of the inclusive definition.

The use of the term ‘includes’ in the definition of the expression ‘law’ and ‘laws in force’ imports a wide meaning to both. Practices having the force of law in the territory of India are comprehended within “laws in force.”

He then proceeded to cite the judgment of Justice Rohinton Nariman in Triple Talaq case wherein Justice Nariman had held that the practice of Triple Talaq was codified by the Muslim Personal Law (Shariat) Application Act, 1937. This 1937 Act, Justice Nariman had held, fell within the ambit of “laws in force” under Article 13 thereby making it subject to Part III.

Holding that the Indian Constitution is marked by a transformative vision and the individual, as the basic unit, is at the heart of the Constitution, Chandrachud J makes his stance clear -  that decision in Narasu, in restricting the definition of the term ‘laws in force’ detracts from the transformative vision of the Constitution. The judgment to the extent it excludes, customs, usages and personal law from Constitutional scrutiny is based on flawed premises.

He concludes his discussion on Narasu by stating that the decision, in immunizing uncodified personal law and construing the same as distinct from custom, deserves detailed reconsideration in an appropriate case in the future.

Justice Rohinton Nariman

Interestingly, the stance of Justice Rohinton Nariman on the issue of Narasu Appa Mali is noteworthy.

In the Sabarimala case, his judgment does not make any mention of the said precedent.

However, the correctness of the case had been brought up by Senior Advocate Indira Jaising during one of the hearings in Sabarimala case.

“There is one Bombay High Court judgment which has been a stumbling block in the realm of personal laws -  Narasu Appa Mali”, Jaising had said.

The response from Nariman J. was quick and curt.

“That is not under consideration here.”

Justice Nariman could be right in that the current case did not go much into the aspects laid down by Narasu.

However, in the famous triple Talaq case, it seemed more in the scheme of things to reconsider Narasu.

But even then, Justice Nariman had while ruling on personal law skirted the issue relating to the correctness of Narasu. He had held that it was “unnecessary…to decide whether the judgment in Narasu Appa (supra) is good law.”

However, Justice Nariman had indeed doubted the correctness of Narasu as he made the following observation in his Triple Talaq judgment:

“However, in a suitable case, it may be necessary to have a relook at this judgment in that the definition of “law and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law.”

Interestingly, Justice Chandrachud in his Sabarimala judgment has adverted to this stance of Justice Nariman in detail.

Conclusion

The Court has ducked the issue relating to the correctness of Narasu in two judgments now. However, today’s judgment by Chandrachud which opines on the correctness of Narasu could very well be the beginning of the end for 67-year-old judgment.

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