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Personal Laws and the Constitution: Why the Tripal Talaq Bench should Overrule State of Bombay vs Narasu Appa Mali

(From this Thursday, a Constitution Bench of the Supreme Court will hear arguments about the constitutionality of the Muslim personal law practices of triple talaq, nikah halala, and polygamy. In this guest post, Praharsh Johorey argues that in doing so, the Court ought to overrule the long-standing precedent of State of Bombay vs Narasu Appa Mali, which exempts personal laws from constitutional scrutiny.)

On the 11th of May, the Supreme Court will begin hearing arguments on the petition concerning – among other things – the constitutionality of the Muslim divorce process commonly known as the ‘Triple Talaq’.

Before the Court, a number of interveners have canvassed a wide range of propositions. In this post, however, I shall focus on the specific issue of “instant Triple Talaq” (where a man can divorce his wife by unilaterally uttering the word “talaq” thrice in succession), and proceed on the assumption that such manner of divorce is illegal and unconstitutional. Now, in order to declare it unconstitutional, the Supreme Court can do one of two things. First, it can adopt a narrow approach in accordance with J. Krishna Iyer’s plea in A. Yousuf Rawther v. Sowramma, and hold that the instant Triple Talaq practice is not part of Muslim Personal Law and therefore excluded from the Muslim Personal Law (Shariat) Application Act, 1937. Second, it can take the broader approach, and subject all personal law to the test of Constitutional validity, and principally determine the constitutional validity of the practice. To take the broad approach, however, it will have to overrule a 1951 Bombay High Court judgement State of Bombay v. Narassu Appa Mali, which held that personal laws are not subject to the rights enumerated under Part III of the Constitution.

In this post, I will be dealing specifically with the Narasu judgement, and the need for the Supreme Court to overrule this deeply problematic constitutional pronouncement.

Narasu Appa Mali

The central question in Narasu related to the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946. The primary contention against the Act was that it was in breach of Articles 14 (Right to Equality) and Article 15 (Prohibition of Discrimination), because the law discriminated between a Hindu and a Muslim male with respect to their respective rights (or lack thereof) to engage in polygamy. Article 25 (Right to Freedom of Religion) was also argued, on grounds that this Act infringed with the right of Hindus to practice polygamy, which was argued as forming part of Hindu custom.

However, under the Constitution only a ‘law’ or a ‘law in force’ as defined in Article 13, which invalidates all laws that are in derogation of fundamental rights, can be subject to the rights under Part III. Therefore prior to examining the aforementioned contentions, the Court undertook to answer the more fundamental question of whether Personal Laws (such as the Act in question) are ‘laws’ or ‘laws in force’ under Article 13.

The Division Bench of C.J. Chagla and J. Ganjendragadkar unanimously answered in the negative, with both judges giving somewhat distinguishable reasoning for their decision. I will examine both separately.

Personal Laws as ‘Laws in Force’

Justice Gajendragadkar’s justification is based on a narrow interpretation of Article 13, stated in paragraphs 19 and 20 of his separate opinion:

‘The expression ‘laws in force’..refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India. 

His argument thus proceeds on two grounds. First, that Article 13(1) only contemplates statutory laws, and second, that personal laws cannot be considered statutory law and are therefore outside the scope of Article 13.

Now, to understand the scope of ‘laws in force’ under Article 13(1), we must first look to Article 13(3)(b), which defines the term:

“… ‘laws in force’ includes laws passed or made by a 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.”

Respectfully, J. Gajendragadkar’s interpretation is in direct conflict with the wording of 13(3)(b), as it employs the term ‘includes’ in the definition of the term ‘laws in force’, thereby broadening its scope. J. Agarwal, in P. Kasilingam v. PSG College of Technology states that the word ‘includes’ enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also the things as the clause says they shall include. More recently, J. Jain in Bharat Cooperative Bank (Mumbai) v. Employees Union agreed with the dictum of Kasilingam, by holding that ‘includes’ makes the definition enumerative, in that the term defined will retain its ordinary meaning but its scope will be extended to bring within it matters, which in its ordinary meaning may or may not comprise.

Applying this to the interpretation of the definition of ‘laws in force’ under Article 13(3)(b), the ‘ordinary’ or ‘natural’ import of the term must be given effect to. As per its dictionary meaning, a ‘law in force’ is any principle to which parties are legally bound, and which can be relied upon by a Court to resolve disputes. Interestingly, J. Gajendragadkar’s attributes all of these facets to ‘personal law’ in India, stating:

‘There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview.’ However, the expression ‘ laws in force’ is, in my opinion, used in Article 13(1) not in that general sense.’

It remains unclear what specific import he sought for the term ‘general’ to have in this context, and no clear reasoning as to why he resultantly narrows the scope of Article 13. This interpretation is plainly not supported by the enumerative wording of Article 13(3)(b), and it is his own characterisation of personal laws that places it well within the scope of the ordinary meaning of ‘laws in force’.

Even if one were to accept the contention that Article 13(1) is limited only to statutory pronouncements, for the Narasu dictum to withstand scrutiny, it must be established that there exists a clear distinction between ‘law’ under Article 13 and personal laws. To this end, J. Gajendragadkar states:

It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural texts.

‘…the duty of a Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal. In fact, the different schools and sub-schools of Hindu law which are recognised by our Courts are distinguished solely on the ground of the different texts to which they owe allegiance.’

This argument proceeds on the contention that personal laws are based upon an untrammelled application of the scriptural texts ‘to which they owe their allegiance.’ However, this reasoning ignores the significant role played by the Judiciary and the Legislature in moulding religious texts in light of modern constitutional principles – which have in several instances been accepted by the schools that are responsible for their application. As a result, the High Court’s singular premise for excluding personal laws from Article 13 is unfounded.

The Evolution of Personal Law in India

‘We ought not to be guided by Hindu law, which is a new introduction of our own.’

  • Mountstuart Elphinstone,

This contention can be demonstrated through an examination of how personal law came to be defined by religious practice in the colonial era. The British administration took upon itself the duty of both defining and adjudicating personal law, which required that it determine which practices would constitute law, and which would simply have social force. (Sturman, 2012) For this purpose, Courts, the Privy Council in particular, developed a three-step test to determine what constituted religious custom – that any principle must be ancient, invariable and supported by clear evidence. This made the establishment of any custom invariably difficult, leading to the greater homogenisation and enforcement of Brahmanical law by Courts, irrespective of the diverse religious leanings of parties to a dispute. (Sturman) The British insistence on ‘clarity, certainty and definitiveness’ was alien to Hindu and Islamic traditions, whose traditions and custom were ‘not of a nature to bear the strict criteria imposed by British lawyers.’ (Galanter, 1968) The establishment of the High Courts in India in 1864 also rendered null the position of ‘law officers’, like Shastris and Maulvis, who were responsible for offering textual interpretations and opinions pertaining to personal law.

This process also replaced the idea that socio-religious polities were based on changing beliefs and faith with the authority instead granted to objective experts, like Courts, to identify fixed beliefs determined at the time of the origins of such polity. For example, the Aga Khan case (High Court of Bombay, 1866), treated the Khoja community as Muslim and the Pushtimargis as Hindu instead of them being considered as independent polities within these larger faiths. The consequence of this was clear – polities that previously determined their own idea of the religious traditions in which they engaged were now subjected to the Western conception of Hindu and Islamic law. (Shodan, 2001)

Therefore, the idea that religious/personal law exists as it was written in the Smriti or the Quran ignores the intricate systems of ‘contractual governance’ within religious sects that enabled them to re-interpret text in light of changing societal norms. By taking away the ability of these local collective structures to make decisions for themselves, these structures were compelled to surrender all decision-making, concerning personal law, among other things, to the Imperial government which made decisions in light of international or a collective mode of logic – vastly different from the ones followed at the local level. The movement to bring the local community into the public sphere was thus not an organic one, and was done for the sole purpose of making them more amenable to coexistence with societal and religious norms defined by the British. Thus, J. Gajendragadkar’s notion of a clean and inextricable link between religious texts and personal law is deeply ahistorical and largely a colonial construct, as it denies entirely the crucial role played by customary law at the local level in developing this law, and subsequently shaping its application.

We can now turn to C.J. Chagla’s conception of the scope of law under Article 13, and where personal laws may be placed in this spectrum.

‘Expressio Unius Exclusio Alterius’ under the Constitution

It was argued before the bench that personal law can even be considered as ‘custom or usage having the force of law’ under the definition of law under Article 13(3)(a). J. Chagla dismisses this contention:

‘.Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous.’

Evidence of this difference, J. Chagla argues, can be found in the inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) and Article 372 (Power to Adapt and Modify laws); the implication being that the drafters did not intend to subject personal laws to Constitutional provisions, because otherwise it would be ‘unnecessary to specifically provide for them.’

This reasoning is flawed for a number of reasons. His distinction between custom and personal law is, in my opinion, based on a misguided reading of the Constitution. This can be proven through an examination of the very basis of the argument, the principle of expressio unius exclusio alterius, i.e. the expression of one excludes the other, and its present application.

This principle is used sparingly as a tool of interpretation, being described as a ‘dangerous master’ because the conditions in which it can be conclusively applied remain unclear. Guidance is provided by the Calcutta High Court in Union of India v. BC Nawn, which held that primary purpose of this principle is when a provision in a statute expressly mentions one or more particulars, but does not mention some others, then those others not mentioned are taken to have been excluded from the provision. J. Chagla stretches the application of this principle far beyond this contemplation to encompass all provisions of the Constitution – holding in effect that any Constitutional declaration specifically relating to personal law is further evidence of its exclusion as a ‘law’ under 13(3)(a). This reading cannot be reconciled with the actual wording of Article 13, because it does not define ‘law’ or ‘laws in force’ in an exhaustive manner, with the broad import of the word ‘including’ in the definition of both terms exemplifying the intent of the drafters not to subject them to restrictive tools like the exclusio principle. It should not be said, as a result, that Articles relating to personal law under the Constitution occupy a field independent of Article 13.

This underlying logic of this principle is made weaker in light of its problematic implications. Take for example Article 23, which establishes a right against discrimination on grounds of religion, caste or class. As per J. Chagla’s reasoning, the inclusion of a specific right against caste-discrimination would signify its exclusion from the scope of Article 14, which establishes a right to equality. However, this is apparently untrue, with the Supreme Court holding in a catena of decisions that certain provisions in the Constitution must be read together, due to the broad wording of certain provisions under Part III, and the ‘abundant caution’ of the drafters lead to the inclusion of certain provisions. A relevant example is that of the inclusion of Article 13 itself. C.J. Kania in his decision in A.K Gopalan v. State of Madras wrote that even in the absence of Article 13(1) and (2), Courts would still have the authority to strike down unconstitutional enactments; but the drafters still included Article 13. This inclusion, he argues, demonstrates the exercise of ‘abundant caution’ by the Constitutional drafters to ensure that all prospective laws and laws already in force were immediately invalidated, irrespective of subsequent litigation. Similarly, the inclusion of Article 17, which criminalises untouchability, can be said to have been included on similar grounds, to enable the State to impose adequate sanction upon those engaging in the practice, without having to wait for its declaration as being ultra vires.

Conclusion

Therefore, one would hope that the Supreme Court recognises this, and overrules Narasu, in light of both its incorrect reading of Article 13, as well as the ahistorical understanding of the distinction between personal law and ‘laws in force’ as recognised under the Constitution. Only if the Court undertakes such an exercise can we move beyond the current trend of judicial ‘cherry-picking’ in relation to what religious doctrines are and are not in fact personal law, and principally examine the legal validity of these principles in light of Part III. Here’s to hoping.

 

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Filed under Article 14, Article 15 (general), Equality, Non-discrimination, Personal Law

Preliminary Thoughts on the Triple Talaq Case

The Supreme Court is presently considering the legal validity of triple talaq under Muslim personal law. According to reports, yesterday, the Centre filed its affidavit before the Court, stating that triple talaq violates gender equality and women’s dignity, and also that “no undesirable practice can be elevated to the status of an essential religious practice.”

While I do not have access to the Centre’s affidavit, the phrase “essential religious practice” appears to have been used in response to the Muslim Personal Law Board’s affidavit, which, inter alia, sought protection for triple talaq under Articles 25 and 26 of the Constitution. In my view, this indicates a line of argument which would take the Supreme Court down the wrong path, and ought to be resisted. The use of the phrase “essential religious practice” (as has been discussed many times on this blog) is an integral part of the Supreme Court’s religious freedom jurisprudence under Articles 25 and 26, and acts as a threshold test for according constitutional protection to religious practices. Conceptually, however, triple talaq does not come within the category of practices that fall within the scope of Articles 25 and 26.

There are two reasons for this. The first is based in precedent. In Narasu Appa Mali, the Bombay High Court held that personal laws (which had not been codified under a statute) were not to be tested on the touchstone of Part III of the Constitution. This proposition was affirmed by the Supreme Court in Krishna Singh vs Mathura Ahir. Article 25 of the Constitution expressly states that “subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” If personal laws fell within the scope of Article 25, therefore, they would be “subject to other provisions of [Part III]”. At the same time, as per Narasu Appa Mali and Krishna Singh, personal laws are exempt from Part III scrutiny. In its counter-affidavit, therefore, the Muslim Personal Law Board rests its case upon two legal prongs that are contradictory. It cannot say that personal laws are exempt from Part III scrutiny, and simultaneously argue that they are protected by Articles 25 and 26.

The proposition that personal laws do not fall within the scope of Articles 25 and 26 is further buttressed by the debates during the framing of the religious freedom clauses. As Ambedkar famously argued, in a speech that we have discussed often on this blog:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

I focus on succession, because marriage – like the law of succession – belongs in the domain of personal law (i.e., the law that is based upon the personal status of the parties) which, as Ambedkar pointed out, was never meant to be protected by Articles 25 and 26. This, along with Narasu Appa Mali and Krishna Singh, makes it clear that the issue of whether triple talaq is an “essential religious practice” under Islam is irrelevant to the present enquiry, and the Court should refrain from going into a question that will – yet again – make it the arbiter of religious doctrine (note, in particular, that the Centres affidavit seems to argue that any religious practice that runs counter to constitutional principles cannot, by that reason, be called an “essential religious practice”. This is an interesting legal fiction to press before the Court – and the Court is no stranger to adopting such legal fictions – but it remains a highly problematic one, for reasons that have been extensively discussed before.)

There are, of course, other avenues open to the Court. While issuing notice, the Court called triple talaq a “customary” practice. In Madhu Kishwar vs State of Bihar, the Supreme Court held that customary laws would be subject to Part III (while personal laws remained exempt). However, the distinction is superficial at best, and furthermore, if – as in Narasu Appa Mali – bigamy under Hindu traditions was held to fall within the domain of personal law, then it is unclear how triple talaq will not fall within personal law. Another option would be to import the “essential religious practices” test from Article 25 into the domain of personal law, on the basis that personal law, like claims under Article 25, pertains to religion. This, however, would be a somewhat odd innovation sixty-three years after Narasu Appa Mali, especially in light of the fact that the Bombay High Court, in that case, applied the essential practices test specifically while adjudicating under Articles 25 and 26, and refrained from applying it in holding that personal laws were not subject to Part III.

I would suggest, therefore, that under existing constitutional jurisprudence, a two-judge bench of the Supreme Court, being bound by Krishna Singh, cannot invalidate triple talaq. Of course, that is not dispositive of the issue. The judgment in Narasu Appa Mali was controversial, and there are strong legal and constitutional arguments against its reasoning. Anirudh Krishnan, for instance, persuasively argues that Narasu was incorrectly decided (see, also, the comprehensive debate between Anirudh Krishnan and V. Niranjan, in the comments section of the same post). Perhaps, then, in 2016, it is time a Supreme Court bench of three judges reviewed Narasu and Krishna Singh, and overruled them as incorrectly decided.

In my view, there is no doubt that triple talaq is an unconstitutional practice, and should be judicially invalidated. However, the Supreme Court ought to refrain from the temptation of repeating its mistake in the Make-Up Artists Case, and riding roughshod over existing precedent in order to achieve a progressive outcome. There is a correct and constitutional way of doing this, which is to refer the case to a three-judge bench, which can then re-examine the question of whether personal laws are subject to Part III of the Constitution, and correct its earlier errors on this score.

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Filed under Equality, Sex Equality