Meaning of Law under Article 13 of Indian Constitution
The Indian Constitution isn’t merely a static document containing a group of rules or laws through which the state governs its people, it’s far more . The constitution may be a dynamic phenomenon, ever-evolving in its contours, which was born with a task of protecting individuals who are subordinated by the society in innumerable ways, be it by patriarchy, communalism or classism.
However, the Constitution fails in its objective miserably by isolation personal laws from Judicial Scrutiny. Personal laws govern matters of family affairs and are a serious hindrance when it involves empowerment and upholding the dignity of girls in India. The deepened inequality and discrimination not only lies within religion but also between genders.
Why Are Personal Laws Not Subject to Judicial Scrutiny?
This is the results of the Bombay High Court’s decision in Narasu Appa Mali, which was a turning point in constitutional history. The Court interpreted the inclusion of “law” under Article 13(3), and “laws in force” under Article 13(1), to exclude personal laws, which, in turn, made personal laws immune from review . Article 13 renders all laws inconsistent and derogative of fundamental rights as void.
Hence, if these Personal laws are allowed to be followed without judicial scrutiny, then there’ll not only be sexual inequality between men and ladies of 1 community, but also inequality between women of different religious communities. Furthermore, not subjecting personal laws to judicial scrutiny will make the elemental rights of individuals , especially women, more susceptible to exploitation. Article 13 supports the violation of Article 14, concerned with the “Right to Equality for all” and Article 21, regarding the “Right to Life” of the people of India, by inherently subjecting them to social morality.
The issue of spiritual personal law was frequently debated at various stages within the enactment of the elemental rights and directive principles by the constituent assembly of India. It was decided that, instead of articulating whether these personal laws had to evolve to the constitutional guarantees or any social reform legislation, the Uniform Civil Code under Article 44 was a non-justiciable directive principle of state policy and left the question for future deliberations. However, recently the Law Commission of India reaffirmed that currently, a consistent Civil Code isn’t feasible in India. So, the question remains, are there the other options? Or should women face the wrath of the misogynistic and patriarchal personal laws of India?
“Law” Under Article 13
As per Article 13(3), “law” includes “customs and usages having the force of law”. Justice Chandrachud, while refuting Narasu within the Sabrimala judgment, said that the definition of “law” under Article 13(3) is an inclusive definition and it might be inappropriate to place a restrictive interpretation upon terms of wider denotation. Going by the scriptural texts, he selected the inclusion of private laws in “customs and usages” under Article 13, and the way they need been creating a menace by not being subjected to judicial review for years. This obiter dictum by Justice Chandrachud reduced the relevance of the discussion on personal laws within the Triple Talaq judgment, which said that private laws aren’t included in Article 13.
Now, after knowing that private laws are often included in “customs and usages,” we must check whether personal laws have the “force of law.” consistent with Salmond, the law is the body of principles recognized and applied by the state within the administration of justice. Therefore, any rule of conduct, although not statutory, still has the force of law goodbye because it is enforced by the court.
Moreover, the facility of the courts to use Hindu law to Hindu people springs from and controlled by, imperial and provincial legislations passed during British rule. Unless they’re altered or repealed, those laws still be effective under Article 372 of the Indian Constitution. The same test can automatically apply to non-public law also .
The apex court in Kripal Bhagat v. State of Bihar observed that the facility to use the law is to bring into legal effect sections of an act as if an equivalent had been enacted in its entirety. Furthermore, within the case In re Kahandas Narrandas, it had been observed that the specification of matters associated with succession and contract as matters to be governed by native laws and usages could be construed as a sign of a wider operation of these laws and usages intended to be secured by the statute. In this regard, it’s going to be construed that a Statute gives the facility of enforcement to non-public laws and brings them into legal effect. In fact, Section 2 of the Shariat Act directs that altogether questions regarding marriage, succession and therefore the like, law to be governed are going to be the Muslim personal law, thereby giving personal law a legal effect and fulfilling the standards laid down by Article 13 of the Constitution.
Article 372 may be useful in this regard. For instance, in United Provinces v. Atiqua Begum, it had been observed that the expression “law in force” in Section 292 of the govt of India Act, applies not only to statutory enactments then effective , but to non-public laws, customary laws, and customary laws. By virtue of Article 372(1), the Constituent Assembly was in effect re-enacting the provisions of private laws again appear in Entry 5 of List III of the Constitution of India and making it clear that the state can enact legislation in reference to personal laws and there’s no reason why personal law can’t be subjected to judicial scrutiny under Part III of the Constitution of India.
The Goal and the Failure
C.J. Kania, in A.K. Gopalan v. State of Madras, reasoned that Article 13’s use of the word “law” so often was the utilization of “abundant caution” when drafting and enunciated that even in its absence Courts can strike down unconstitutional enactments.
Hence, Article 13 was added to be extra cautious and ensure fundamental rights review, considering its supreme importance.
It is pertinent to note that Article 13 is not only a barrier when it comes to equal treatment of women but is superfluous as well. This falls in line with the celebrated decision of the US Supreme Court in Marbury v. Madison, which propounded:
With the establishment of a new political character, institution and constitution, all pre-existing laws inconsistent therewith at once stand displaced and cease to be of any obligatory force without any declaration to that effect.
This, in turn, makes Article 13(1) useless and redundant because it refers to pre-constitution laws. If personal laws would have been regarded as laws as enunciated above, Article 13 would not have been necessary in the Indian Constitution. Rather than protecting fundamental rights, Article 13 is becoming a barrier for women in attaining fundamental rights.
On the other hand, Articles 245(1) and 25 make law made by the Indian Parliament subject to the Constitution itself. Thus, post-constitutional laws would backslide regardless of the presence of Article 13(2). Saying that it becomes quite clear that judicial review strings out the entire length and breadth of the Indian Constitution and the void of Article 13 cannot hold back the Courts to nullify a detracting law, but the issue now rests on the inclusion of “law” in Article 13.
In the end, we come to the conclusion that Article 13 is not essential to the Indian Constitution as it poses a lot of problems and fails in its objective. It also undermines the importance and relevance of Article 372 in solving the problem and making the Indian Constitution live up to its objective of equality and dignity for women, especially for Muslim women, in India.
Author: Pragya Sinha,
Symbiosis law college,nagpur . 1st year