Women, Religion and Personal Law

Route one, construe the personal law. Hold that the practice complained of is not part of the religion at all, so no question of protection arises. This avoids the constitutional question entirely.

Route two, test the statute. Where a statute gives effect to or recognises the practice, the statute is law beyond argument, and it can be tested under article 14. This is how manifest arbitrariness enters the field.

Route three, use article 25's own limits. Article 25(1) is expressly subject to public order, morality and health and to the other provisions of Part III. Those last words are decisive: freedom of religion is subordinated to the other fundamental rights, including equality, within article 25 itself. And article 25(2)(b) permits laws for social welfare and reform.

Route four, the essential religious practices doctrine. Only a practice essential to the religion attracts the protection of article 25. If the practice is not essential, it may be regulated freely. See [Essential Religious Practices].

Triple talaq

Facts. Shayara Bano v. Union of India, decided 22 August 2017 by five judges. The petitioner's husband pronounced talaq three times at once. She sought a declaration that talaq-e-biddat, the instantaneous and irrevocable triple talaq, is void and that the practice is unconstitutional as violating articles 14, 15 and 21. The respondents said it was personal law protected by article 25 and recognised by section 2 of the Muslim Personal Law (Shariat) Application Act 1937.

Held. The order of the Court records: "In view of the different opinions recorded, by a majority of 3:2 the practice of talaq-e-biddat, triple talaq, is set aside."

The three in the majority did not agree on the route. Kurian Joseph J. took route one: the practice is not part of Islamic law at all, being contrary to the Quran, so nothing protected is affected. Nariman and Lalit JJ. took route two: the 1937 Act is a statute, it recognises the practice, and a rule permitting a man to dissolve a marriage instantly and irrevocably at his whim is manifestly arbitrary and void under article 14. Khehar C.J. and Nazeer J. dissented on route four reasoning: the practice is an essential part of the religion, protected by article 25, and the remedy lies with Parliament, which they would have directed to legislate.

Why it matters. It is the leading modern case, and it is a case about method as much as outcome. Cite it precisely: the result is clear, the ratio is not, and a student who attributes "manifest arbitrariness" to the Court rather than to two of its members is overstating.

What followed. Parliament enacted legislation in 2019 declaring the pronouncement void and making it an offence, which raised a separate question about criminalising a civil wrong that the Court had already declared ineffective.

Entry to places of worship

Facts. Indian Young Lawyers Association v. State of Kerala, decided 28 September 2018 by five judges. Women between the ages of ten and fifty were excluded from the Sabarimala temple, an exclusion resting on custom and given effect by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965. The referred questions were whether an exclusion based on a biological factor exclusive to women is discrimination offending articles 14, 15 and 17 and unprotected by "morality" in articles 25 and 26; whether it is an essential religious practice; whether the temple is a religious denomination under article 26; and whether Rule 3(b) is ultra vires the parent Act.

Held. By 4:1 the writ petition was allowed and the exclusion held unconstitutional. Indu Malhotra J. dissented, holding that what constitutes an essential religious practice is for the religious community to decide and that courts should not ordinarily intervene, and that the petitioners, not being devotees, lacked standing.

Its authority is qualified and an answer must say so. A review was entertained, and in November 2019 larger questions about the relationship between articles 25 and 26 and the other fundamental rights were referred to a Bench of nine judges. So the reasoning is under reconsideration, and presenting Sabarimala as settled overstates the position.

Why it matters. It is the clearest modern confrontation between equality and religious practice, and Indu Malhotra J's dissent is the strongest statement of the case for judicial restraint in this field: that a court is not equipped to decide what a religion requires, and that the right in article 25 belongs to the believer rather than to the judge.

The unfinished business

Article 44 directs the State to endeavour to secure a uniform civil code. It is a directive principle, unenforceable, and it is the constitutional answer the framers actually provided to the problem this chapter describes. See [A Uniform Civil Code].

Codification has been the practical route: the Hindu law statutes of 1955 and 1956, the amendment of 2005 making a daughter a coparcener by birth, and the special provision for civil marriage. Codified law is law beyond argument, so equality applies to it directly, which is why reform by codification sidesteps the threshold question altogether.

The point to make in an answer. Every advance in this field has come by avoiding the constitutional question rather than by answering it. That is a defensible judicial strategy and it leaves the largest question in the topic exactly where it was in 1950.

A worked example

A community's personal law provides that a daughter inherits half the share of a son. A daughter challenges the rule as violating articles 14 and 15(1). There is no statute codifying the rule, but the courts of the State apply it as the personal law of the community.

Route one, is it "law" under article 13? Unresolved. If it is, the rule discriminates on the ground of sex and is void. She should plead it, but she cannot rely on it as settled.

Route two, is there a statute to attack? Here there is none, which weakens her considerably. Had a statute recognised or given effect to the rule, she could have attacked the statute as manifestly arbitrary on the Nariman and Lalit reasoning in Shayara Bano, without needing the threshold question answered.

Route three, article 25 and its limits. She may argue that the community's freedom under article 25(1) is expressly subject to the other provisions of Part III, so it cannot be used to defeat article 15(1); and that article 25(2)(b) permits legislation for social welfare and reform, which shows that reform of religious practice was contemplated.

Route four, essential religious practice. She should argue that a rule of inheritance is a secular matter regulated by religion rather than a practice essential to the religion, so it does not attract article 25 at all. This is often the strongest route, and it is the one Kurian Joseph J. used in substance in Shayara Bano.

What the State can do that she cannot. Legislate. Codification would end the argument, and article 44 contemplates it.

Advice. Plead the threshold question, but win on route four if you can.

Quick revision

• The threshold question: is personal law "law" under article 13? Unresolved, and decisive.
• The arguments: article 13(3)(a) does not name it and article 44 provided separately; against, that it is applied by State courts and is given force by statute.
• Four routes used instead: construe the personal law, test the statute, use article 25's own limits, or apply the essential religious practices doctrine.
• Article 25(1) is subject to public order, morality and health AND to the other provisions of Part III. Article 25(2)(b) permits social welfare and reform.
• Shayara Bano: 3:2, triple talaq set aside, but on three different reasons. Nariman and Lalit JJ. used manifest arbitrariness on the 1937 Act.
• Sabarimala: 4:1, exclusion held unconstitutional, Indu Malhotra J. dissenting. Under reconsideration by nine judges since November 2019.
• Every advance has come by avoiding the constitutional question. Codification is the route that sidesteps it entirely.

Test yourself

1. State the threshold question and explain why it is decisive.

2. Give the argument each way on whether personal law is "law" under article 13.

3. Name the four routes courts have used instead, and match each to a judgment or an opinion.

4. Why do the closing words of article 25(1) matter so much in this topic?

5. Set out the three different reasons in the Shayara Bano majority and say why the distinction matters for citation.

6. What is the present authority of Sabarimala, and why must an answer qualify it?