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

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.”

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Personal law is part of the religion of a community or section of people [who] professes this law. Anything that interferes with personal law will be taken by that community and also by the general public, who will judge this question with some common sense, as a matter of interference with religion. … It is a question of difference of opinion as to what a religion should do or should not. People differ and people holding different views on this matter must tolerate the other view. There are religions which omit altogether to deal with the question of personal law and there are other religions like Hinduism and Islam which deal with personal law. … It is not only Muslims but also Hindus who think that this is a religious question and that it should not be interfered with. The personal law of one community does not affect the other communities. Therefore, sir, what I urge is that the freedom of following the personal law ought to be given to each community and it will not interfere with the rights of any other community.

Mr Munshi stated that Muslim countries like Egypt or Turkey have not any provision of this sort. Sir, I want to remind him that Turkey is under a treaty obligation. Under that treaty it is guaranteed that the non-Muslim minorities are entitled to have questions of family law and personal status regulated in accordance with their usage. That is the obligation under which Turkey has been placed and that is obtaining in Turkey now. With regard to Egypt, no such question of personal law arose in that country. But what is to be noted is that whatever the minorities in that country wanted has been granted to them: in fact more than what they wanted has been granted. And if personal law had also been a matter in which they wanted certain privileges, that would also have been granted.

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Kazi Syed Karimuddin: The people outside and the members of the Constituent Assembly must realize that a Muslim regards the personal law as part of the religion and I really assure you that there is not a single Muslim in the country—at least I have not seen one—who wants a change in the mandatory provision of religious rights and personal laws, and if there is anyone who wants a change in the mandatory principle, or religion as a matter of personal law, then he cannot be a Muslim. Therefore if you really want to protect the minorities—because this is a secular state it does not mean that people should have no religion—if this is the view of the minority Muslims or any other minority that they want to abide by personal law, those laws have to be protected.

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Maulana Hasrat Mohani: I would like to say that any party, political or communal, has no right to interfere in the personal law of any group. More particularly I say this regarding Muslims. There are three fundamentals in their personal law, namely, religion, language, and culture which have not been ordained by human agency. Their personal law regarding divorce, marriage and inheritance has been derived from the Quran and its interpretation is recorded therein. If there is any one, who thinks that he can interfere in the personal law of the Muslims, then I would say to him that the result will be very harmful. … Mussalmans will never submit to any interference in their personal law, and they will have to face an iron wall of Muslim determination to oppose them in every way.

M Ananthasayanam Ayyangar: Amendments have been moved that unless a provision is made in the fundamental rights there is no safety and that the majority community may introduce its own personal law or flagrantly violate the personal law of any community. Let us take the communities. There are three main religions. Let us take Muhammadanism [an archaic term used to refer to Islam]. There is absolutely no provision in the Fundamental Rights that you ought to ride rough-shod over their personal law. The law of the land as it exists today gives sufficient guarantee so far as that is concerned. But our friends who moved the amendments wanted a double guarantee that their personal law ought not to be interfered with.

My submission is that it is impracticable, for, in an advanced society, even the members who belong to a particular community may desire their personal law to be changed. Let us take the Muhammadan law. I would only refer to two or three amendments that have been made to that law as set out in the Shariat. As recently as in 1939, the central legislature passed a law for enabling the dissolution of Muslim marriages under certain circumstances. You will be pleased to note that under the Muslim law, a man has got the unilateral right to declare a marriage void by pronouncing the word talak and there is another form of divorce called kulamp. [A] woman normally has no right to dissolve a marriage. She has to go to a court of law and various matters have to be set out such as impotency and soon. All that has been made easy now.

Another consideration is that a woman who cannot lead a family life with the husband in the same household is entitled under certain conditions to separation. These have hitherto not been envisaged nor provided for in the Dissolution of Muslim Marriages Act. As a member of the Assembly I was a member of one of the committees that considered this question. We left the question entirely for the Muslims members concerned to settle. The Shariat law was introduced in the Assembly and an act was passed bringing into line with the Shariat law the different pieces of legislation in the provinces of India. This was done four years ago. The Wakf Validation Act was passed in 1930.

A time may come when members belonging to the particular community may feel that in the interests of the community progressive legislation has to be enacted. But if we make a provision here that the personal law shall not be interfered with, there will not be any right to the members of that community itself to modify that law. Therefore it is not necessary that we should introduce it as a fundamental right. There is absolutely nothing in this Constitution which allows the majority to override the minority. This is only an enabling provision. Without the consent of the minority that is affected, no such law will be framed. I therefore feel it is unnecessary to include it in the fundamental rights.

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BR Ambedkar: Coming to the question of saving personal law … if such a saving clause was introduced into the Constitution, it would disable the legislatures in India from enacting any social measure whatsoever. 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. In Europe there is Christianity, but Christianity does not mean that the Christians all over the world or in any part of Europe where they live, shall have a uniform system of law of inheritance. No such thing exists.

I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights. It is, therefore, quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the state.

Having said that, I should also like to point out that all that the state is claiming in this matter is a power to legislate. There is no obligation upon the state to do away with personal laws. It is only giving a power. Therefore, no one need be apprehensive of the fact that if the state has the power, the state will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.

We must all remember—including members of the Muslim community who have spoken on this subject, though one can appreciate their feelings very well—that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. No government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad government if it did so. But that is a matter which relates to the exercise of the power and not to the power itself.

This is part of “The Argumentative Indians,” The Caravan’s series of excerpts from the Constituent Assembly Debates that reflect on subjects relevant to public discourse in the present day.