In this Telegraph piece, I have argued that given the innovations under Article 15 in Naz Foundation, all vulnerable groups now have unprecedented protection under law, and therefore all minorities, including religious minorities, should welcome it. Swapan Dasgupta interestingly argues that
If the criminal ban on homosexuality violates the fundamental rights and dignity of some individuals, it follows that all personal laws must be tested against this principle. If equality becomes the litmus test, can the existing Muslim personal laws relating to divorce and polygamy withstand impartial judicial scrutiny? Can the principle of inclusiveness extend to gays but not to Muslim women? Can the government enact Shah Bano-type legislation if it violates a fundamental right of the Constitution? The Supreme Court will have to consider these questions when it hears Baba Ramdev’s appeal against the high court verdict.
I agree that the reasoning is impeccable, but for a perverse ruling of the Bombay High Court in Narasu Appa Mali, and affirmed by the Supreme Court in Krishna Singh v Mathura Ahir, that personal laws are not ‘law’ under Article 13 and therefore need not satisfy the fundamental rights test. (I have discussed this jurisprudence here). Many aspects of personal laws will not even need this heightened scrutiny under Article 15. They are unconstitutional even under the more deferential Article 14 inquiry of reasonableness. So, Naz may only make a rhetorical (and political) difference to personal laws (though these can make a huge difference too). Legally, the Supreme Court needs to overrule Mali and Singh. How can any law be above the Constitution?
There is another legal aspect to this debate: are only uncodified personal laws barred by Article 13 or all personal laws? Supreme Court has often invoked constitutional guarantees against codified personal laws, but Narasu Appa Mali was also dealing with a codified law. Does it mean that Mali is impliedly overruled? What to make of Krishna Singh then?
Thanks to Sundeep Dougal for pointing this out.
I think. gita hariharan v. Gov. RBi, specifically overruled narsu appa mali on the point of whether personal laws are laws u/a 13.
the concerns of Mr. Dasgupta as you saw are impeccable and surely have to be considered by the court.
just done a quick search in hariharan: can't find any mention of mali. can you please point out the para? it would be fantastic if it has, but i don't think it has.
I stand corrected. It has not expressly stated but personal laws, i.e. the HAMA ; being a personal law was challenged in this case.
As to personal law extending only to custom and not being amenable to challenge, Sant Ram v. Lab singh,AIR 1965 SC 314 stated that even custom and usage as given in Article 13 would be law and amenable to a challenge for violation of part III.
But yes, there has been no express ruling after krishna Singh v. Mathura Ahir.
Just by way of factual clarification. I haven’t studied this closely, but my understanding is that the ratio of Narasu Appa Mali (1951) has in fact been reaffirmed by the Supreme Court since the Krishna Singh decision (1979). In the Ahmedabad Women Action Group case (1997) a three judge bench of the Supreme Court, speaking through Justice Venkataswami, affirmed the decision, quoting extensively from the Bombay High Court’s judgments delivered by Chief Justice Chagla and Justice Gajendragadkar. The decision was again quoted approvingly, albeit in a different context, in Javed and ors. V. State of Haryana (AIR 2003 SC 3057). So, on the issue of constitutionality of personal law, Mali remains good law, and has been affirmed recently.
A friend of mine had pointed my attention to this decision of the Bom HC:
1978 ( 2) E.L.T. (J 624)(Bom.)
COMMISSIONER OF INCOME-TAX VIDRARBHA & MARATHWADA, NAGPUR
Versus
SMT. GODAVARIDEVI SARAF, TUMSAR
I.T. Ref. No. 336 of 1975, decided on 27-9-1977
Para 8 of the decisionis reproduced below:
"8. In view of this clear pronouncement of the Supreme Court, it is not controverted by Mr. Joshi on behalf of the Revenue that an Income-tax Tribunal sitting at Madras is bound to proceed on the footing that Section 140A(3) of the Act is non-existent in view of the pronouncement of the Madras High Court in the case of A.M. Sali Maricar and another, 90 I.T.R. 116. Actually the question of authoritative or persuasive decision does not arise in the present case because a Tribunal constituted under the Act has no jurisdiction to go into the question of constitutionality of the provisions of that statute. It should not be overlooked that the Income-tax Act is an All-India statute and if an Income-tax Tribunal in Madras, in view of the decision of the Madras High Court, has to proceed on the footing that section 140A(3) was non-existent and the order of penalty thereunder cannot be imposed by the authority under the Act, until a contrary decision is given by any other competent High Court, which is binding on a Tribunal in the State of Bombay, it has to proceed on the footing that law declared by the High Court, though of another State, is a final law of the land. When the Tribunal set aside the order of penalty it did not go into the question of intra vires or ultra vires. It did not go into the question of constitutionality of section 140A(3). That section was already declared ultra vires by a competent High Court in the country and an authority like an Incometax Tribunal acting anywhere in the country has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Courts on that question. It is admitted before us that at the time when the Tribunal decided the question, no other High Court in the country had taken a contrary view on the question of constitutionality of section 140A(3). That being the position, it is not possible for us to take the view that the Tribunal in Bombay, when it set aside the order of penalty, went into the question of constitutionality of that section and gave a finding that it is ultra vires following the decision of the Madras High Court. What the Tribunal really did was that in view of the law pronounced by the Madras High Court it proceeded on the footing that section 140A(3) was non-existent and so the order of penalty passed thereunder cannot be sustained."
I have not analysed this decision, but it appears to give support to the view that Delhi HC judgment wil be binding all over India.
Tarunabh & Arun: I have some reservations regarding both Mr.Dasgupta's doubts and the Appa Mali ogre that you have erected. While Appa Mali has been approved in the Ahmedabad case, a close analysis of that judgment shows that it treads the same path as Appa Mali in declining to interfere where Legislatures fear to tread. True, it treats personal law as outside Article 13, but in doing so, I do not think it is being raised to some pedestal above the Constitution – in fact, it is merely being compartmentalised as a 'reasonable classification' for now. Note the fact that the Court states that no Muslim man can claim positively a right to bigamy, but will only be protected from prosecution in so doing (a negative right).
Note also that Mr.Dasgupta does not contemplate the 'reasonable classification' on a religious basis for the purpose of personal law. There is no parallel he can draw with the Section 377 ruling. And the reason for that is simple: Until this judgment, every heterosexual indulging in consensual oral or anal sex was also guilty of an offence. Hence, what is your reasonable classification? Not sexual orientation. And I sincerely hope we will not stoop (pardon the pun) to consider orifices as a basis for classification.
In addition to all this, maybe Mr.Dasgupta can read the subsequent Constitution Bench judgment in Danial Latifi which rejects his equality-based argument.
Renu: This is an irony/paradox here. You have cited a High Court judgment. Will the law laid down by it be binding on the other Courts of India? Though, and I am glad you pointed this out, this would mean that the Delhi High Court judgment on S.377 would bind the Bombay High Court. Now, if we could only find such dicta from the other High Courts….
Dear Tarunabh & Arun,
Both of you suggest that Krishna Singh's judgment affirms Narasu Appa Mali. I haven't even found the case cited there. Some light?
Extract from Krishna Singh:
'In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he could not
introduce his own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of Hindu law, i.e., Smritis
and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute.'
So the case is not cited.
it is cited in ahmedabad women's action group case.
Which is what I said – "While Appa Mali has been approved in the Ahmedabad case".
But not in Krishna Singh.
Sometimes, it's okay to be wrong.