“Sovereignty is Always Limited”: The Constituent Assembly Discusses the Inclusion of a Fundamental Right on Personal Laws

27 August 2017
The fundamental rights do not currently include a right to practice personal laws. On 2 December 1948, the Constituent Assembly had expressly rejected a motion to include a fundamental right to “follow the personal law” of a religion under Article 19.
Public Domain
The fundamental rights do not currently include a right to practice personal laws. On 2 December 1948, the Constituent Assembly had expressly rejected a motion to include a fundamental right to “follow the personal law” of a religion under Article 19.
Public Domain

On 22 August, three judges of a five-judge bench of the Supreme Court held that the Islamic practice of instant triple talaq, or talaq-i-biddat, was legally invalid. The judgment comprised three opinions—two opinions that formed the majority, and the dissenting opinion, written by JS Khehar, the chief justice, on behalf of Justice Abdul Nazeer and himself. Justices Rohinton Nariman and UU Lalit’s opinion, authored by Nariman, held the practice to be unconstitutional. Justice Kurian Joseph’s opinion did not adjudicate on its constitutionality, but held the practice to be illegal in Islamic personal law.

One reason for the differing opinions was that Indian legal jurisprudence on religious personal laws is guided by a 1951 judgment in the case of State of Bombay v Narasu Appa Mali, which held that codified personal laws are subject to constitutional scrutiny, whereas uncodified laws are not. Nariman and Lalit held that the shariat was codified through the Muslim Personal Law (Shariat) Application Act of 1937, and that the triple talaq practice violated the right to equality under Article 14 of the Constitution. Joseph, in contrast, held that the 1937 Act did not regulate the practice of triple talaq, and that therefore, it could not be challenged on the grounds of constitutionality. However, he noted that the practice was “against the basic tenets of the Holy Quran” and was illegal because “what is bad in theology is bad in law as well.” While some criticised the majority opinions for missing an opportunity to examine the correctness of the Narasu Appa Mali judgment, they did not receive the degree of criticism that was levied against the chief justice’s dissenting opinion. Khehar noted that the triple talaq was an “integral” part of Sunni personal law and added that “personal law has constitutional protection” under Article 25, which grants individuals the freedom and right “freely to practice, profess and propagate religion.” He added that “the stature of ‘personal law’ is that of a fundamental right.”

The fundamental rights do not currently include a right to practice personal laws. On 2 December 1948, the Constituent Assembly had expressly rejected a motion to include a fundamental right to “follow the personal law” of a religion under Article 19, which lists six freedoms that the constitution confers to Indian citizens. In the following extract from that discussion, Muslim members of the assembly discuss their strong desire to include the right to follow personal law under Article 19, while BR Ambedkar and M Ananthasayanam Ayyangar express their opposition.

Mohammad Ismail Khan: Sir, I move that after sub-clause (g) of clause (1) of Article 13 [Article 19 of the present constitution], the following new sub-clause be added: “(h) to follow the personal law of the group or community to which he belongs or professes to belong.”

Keywords: secularism religious minorities Constituent Assembly Debates Muslim personal law Uniform Civil Code freedom of religion
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