Through the prism of women’s rights

Q. If religious law is recognized in the constitution, does the constitution state that it must respect gender and sex equality and non-discrimination?

Not clear. This question has been the subject of great debate since the entry into force of the Constitution and even before. In India, personal laws deal with marriage and divorce, maintenance, guardianship and inheritance, joint family and division, etc. While India is an otherwise secular country; within the framework of its personal laws, it is essentially pluralist. Thus, while the Constitution of India guarantees equality before the law and equal protection of the law under the fundamental rights mentioned in Part III, the personal laws of India apply differently to individuals as they are enforced in according to that individual’s religion. Article 13 of the Constitution provides that all laws in force in the territory of India immediately before the coming into force of the Constitution, in so far as they are inconsistent with the provisions of Part III, are void. However, in the landmark judgment of State of Bombay v. Narasu Appa Malithe Court held that personal laws are exempt from the application of Article 13 because they are neither “laws” within the meaning of Article 13(3)(a) nor “laws in force” within the meaning of Article 13(3)(b).

By following this approach, the courts have refused to test personal laws against fundamental rights guaranteed by the Constitution. But, in recent years, there has been a tendency for the courts to issue divergent and contradictory judgments, especially in the recent cases of Shayara Bano vs India Union (commonly referred to as the Triple Talaq Verdict) and Indian Young Lawyers Association v. State of Kerala (Sabarimala stop). Although the Court ruled that the triple talaq was unconstitutional by examining it under Part III of the Constitution and that Narasu Appa Mali judgment was to be reconsidered, the main question of whether or not personal laws are immune from the application of Article 13 has not been resolved. Similarly, in the Sabarimala Temple case, the court held that the definition of “laws” in Article 13 was not exhaustive and could include personal laws. Therefore, there are many inconsistencies and confusions regarding this topic and the Narasu Appa Mali case needs to be reconsidered and clarified.