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.