Context
The Centre’s question as to “whether personal law is ‘law’ under Article 13” is significant
What has happened?
Indicating that a Constitution Bench may hear the question whether triple talaq and polygamy violate the fundamental rights of Muslim women, the Supreme Court has said it had to examine if these personal law practices were the “fundamental traits” of the minority religion
Centre’s question: Whether personal law comes under the ambit of Article 13
The Centre asked the Supreme Court to determine whether personal laws can be brought under the ambit of Article 13 (laws inconsistent with or in derogation of the fundamental rights) of the Constitution
All-India Muslim Personal Law Board (AIMPLB)’s stance
The All India Muslim Personal Law Board had submitted that the Supreme Court had no jurisdiction to strike down any provisions of personal law, but organisations and Muslim women from various walks of life across the country urged the court to strike down triple talaq and polygamy as “un-Islamic.”
Significance
This is the first time that aggrieved persons — individual Muslim women — themselves have approached the Supreme Court in person to settle the law on whether religious law is immune from constitutional standards enshrined in the fundamental rights
What happens if petition succeeds in the SC?
If the Supreme Court agrees that personal laws are included in the definition of laws under Article 13, the door will be opened wide for an aggrieved person to challenge in court a particular personal law of a religion as violative of the fundamental rights. In case the challenge succeeds in court, the personal law, to the extent of its inconsistency, shall become void
Conflicting decisions of the court
The courts have made conflicting observations about the immunity enjoyed by personal laws
- The Bombay High Court in State of Bombay versus NarasuAppa Mali had held that personal law is not ‘law’ under Article 13.
- The court had observed that reformation of personal laws is best left to the legislature as “chosen representatives of the people” and not the judiciary. It said the phrase ‘customs and usages’ in Article 13 does not include personal laws of various religions. It held that Article 44 acquiesced the existence of varied personal laws. This 1951 judgment was never challenged in the Supreme Court.
- In Ahmedabad Women Action Group versus Union of India , the Supreme Court was asked to consider whether unilateral divorce by triple talaq and polygamy were violative of Articles 14 and 15. The court rejected the claim, saying it was for the legislature to determine.
