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THE POENA OF NARASU: A CASE FOR CLOSING THE DICHOTOMY BETWEEN CUSTOMARY LAW AND CONSTITUTION

The Constitution is not merely a static document containing a set of rules or laws through which the state governs its people, it is much more. The constitution is a phenomenon, dynamic and ever evolving in its contours. The Constitution was born with a task of radical transformation of the position of an individual as the focal point of a just society, a task of protecting individuals who have been subordinated by the society in innumerable ways, be it by patriarchy, casteism, communalism or classism. It tends to raise them to an equal pedestal so as to ensure an egalitarian society governed by rule of law.  
The constitution when it confers individual autonomy and dignity under Article 21 to the individual, also extends the right to belief and faith under Article 26 for individuals. The fundamental rights of the constitution are central to the constitutional purpose of overseeing a transformation of society based on dignity, liberty and equality of the individual as its primary purpose.
When individual dignity presumes the character of a “shining star in the constellation of fundamental rights”, the place of religion in public places must be determined by India’s unwavering commitment to a constitutional order having its pedestal on human dignity. This is why the freedom of religion and the freedom to manage the affairs of a religious denomination is subject to and must yield to these fundamental ideas of constitutional morality.
Article 13 of the constitution provides for making laws void which are inconsistent with Part III of the constitution and this underscores the importance of Part III in the Constitutional scheme. Article 13(2) provides for invalidating “laws” which are made, post the constitution came into force. The word “laws” under article 13(3)(a) includes legislative and executive enactments as well as custom or usage. Article 13(1) provides for invalidating “laws in force” which were enacted in pre-constitution era, if they are inconsistent with the values of the constitution. The word “laws in force” under article 13(3)(b) includes “laws” passed or made by legislature or other competent authority.
The problematic issue here, which has been exploited excessively is the omission of the words “personal law” or “customs or usage” in the definition of “laws in force” under article 13(3)(b). Consequently in Narasu Appa Mali v. State of Bombay, the apex court held that personal laws do not come under the ambit of article 13 and thus, cannot be overruled, if they violate fundamental rights.
The court in this case had two arguments to reach the aforementioned contention, the court’s first argument is that article 17 which outlaws untouchability owes it origin to customs or usage and Article 25(2)(b) which provides for making laws for throwing open of Hindu religious institutions of a public character would have been unnecessary, if the hindu personal law could be invalidated by the practice of article 13.
This argument is fallacious in it’s core logic as it assumes that each fundamental right is a separate silo in itself, distinct from other fundamental rights but that has been rendered untrue. The dissenting opinion by Justice Fazl Ali in A.K Gopalan case which was subsequently endorsed by the justices in the R.C Cooper case, clearly opined that the scheme of part III of the constitution provided for a certain degree of overlap between fundamental rights and weaved a pattern of guarantees on the texture of basic human rights. In the Puttaswamy judgment, the justices held that at a substantive level, the constitutional values underlying part III animate the meaning of each other as “diverse guarantees of fundamental rights” dealing with human beings and every element together with others contributes in the composition of the human personality which is why no element can be read in a manner as disjunctive from the composite whole.
The court in its second argument contended that article 372(2), which provides the president the power to modify, repeal or adapt “laws in force” before the constitution’s enactment was “clearly intended to apply to statutory law” and not to personal laws, which they assumed to be non-statutory.
The counter to this argument is two-fold.  Firstly, It must be noted that the Indian Christian marriage act, the Hindu law of inheritance, the Parsi marriage and divorce act and the Muslim personal law (Shariat) application act 1937 are obvious examples of statutory personal laws which have been modified and adapted by the president in the adaption of laws orders, by exercising his powers under article 372(2).
Secondly, if “laws in force” was restricted to not include personal laws and “laws in force” which alone have been continued post constitution, then by using the maxim “expressio unius est exclusio alterius” which means expression of one means exclusion of other, it would mean that personal laws were excluded from being continued after the commencement of the constitution and thus would have no validity.
The then Chief Justice Chagla also argued that even if customs or usage comes under article 13, personal law is different from customs or usages.
HM Seervai argues in his book that “there is no difference between the expression “existing law” and “law in force” and consequently, personal law would be “existing law” and “law in force …custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them”.
It must also be stated that in the case of United Provinces v. Atiqua Begum,  the expression “law in force” contained in Section 292, Government of India Act (GOI), 1935 applied not only to statutory enactment then in force, but to all laws, including even personal laws, customary laws and common laws. Consequently, the Constituent Assembly by re-enacting the provisions of Section 292 of the GOI Act, in section 372 of the Indian constitution would have naturally intended to include customary and personal laws under the ambit of “laws in force”
It must be noted that customs, usages and personal law have a significant impact on the civil status of individuals because they are not purely religious but are also secular/civil activities. It may also be wrong to assume that all personal law and customs are justified in their nature because they have religious sanction as religion itself is formed and shaped by the contemporary society of the times. When the society at a point of time itself has practices which are based on prejudices or stereotypes, then the religious sanctions for these practices would also inevitably be based on these notions as well.
Justice DY Chandrachud in Sabrimala has rightly opined that “Irrespective of the source from which a practice claims legitimacy, the principle of anti-exclusion enjoins the Court to deny protection to practices that detract from the constitutional vision of an equal citizenship”.
One of the basic tenets of Historical School of law is that law in its essence is the culmination of the spirit of people or volkgeist, meaning that the legislature does not make new laws out of vacuum but discovers them from or for social realities, which includes customary laws. Sir Henry has opined that in primitive and non-western societies like ours, majority of men were ruled by customary laws, which was so interwoven in people’s lives that it defined and dictated their lifestyle. Customary and personal laws, hence, should at least be regarded as a source of law, which it has been and yet, to alienate it from purview of “higher” positive law or fundamental rights restricts the legal system from embracing the intersection of the old customary law with the new rule of law. If customary laws were to be scrutinized by the minimum standards of constitutional values, it would help in the evolution of society towards a new order while, embracing the full extent of customary laws into positive law as well.
Sir Henry Maine, in his book Ancient Law talked about two forms of societal laws. One is status based and the other is contract based. Status based societal law is characterized by relation of individuals as members of a family group. Contract based societal law, which is seen as more progressive, is characterized by relation of individuals in terms of parity and the ability to form agreements. Customary law, primarily finds its existence in status based societies. As we move towards progressive outlook of society and law, which explains the shift of law from status based to contract based, it is imperative that this transition does not lead to a compartmentalization of customary and positive law but embraces the status based law and modify it to the extent of synchronizing it with primacy of individual liberty, rule of law and contractual parity.
The judgement in Narasu, in restricting the definition of “laws in force” to not include customs or usage have denied the constitution of its prerogative of transforming the society by excessive reliance on legislative intent. The importance accorded to legislative intent is evident from the phrase “procedure established by law” but the journey of adjudication from “procedure established by law” to “due process of law” in Maneka Gandhi reaffirms the proposition that if strict interpretation of legislative intent leads to denial of substantive rights by hampering the constitution in achieving its primary role, then the courts would stand justified in expanding the scope of both “laws in force” and their mandate.
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ABOUT THE AUTHORS: 

Ishan Saxena is currently a third year student at Dr Ram Manohar Lohiya National Law University. His areas of interests include Constitutional Law, International Law and public policy issues. 

 

 

 

Deeksha Sharma is currently a second year student at Dr. Ram Manohar Lohiya National Law University. Her areas of interests include Constitutional Law, Arbitration Law, and Criminal Law.

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