Legal Pluralism, and Personal Law

And its correctness has been doubted without being decided. In Shayara Bano v. Union of India, (2017) 9 SCC 1; AIR 2017 SC 4609. Facts. A Muslim woman divorced by talaq-e-biddat, the pronouncement of talaq three times at one sitting, challenged the practice as violating articles 14, 15 and 21. Held. By three to two, that talaq-e-biddat is set aside. The majority did not speak with one voice: two judges held the practice not an essential religious practice and manifestly arbitrary and therefore void, while a third held it bad because it was recognised by section 2 of the Shariat Act 1937, which is statutory law and therefore reviewable; the minority of two would have left it to Parliament and directed an injunction meanwhile. Why it matters here is the route: at least one judge avoided Narasu Appa Mali by finding a STATUTE to strike at rather than uncodified personal law, which is how Indian courts have generally reached personal law without overruling the 1951 decision.

What legal pluralism actually costs and buys

It buys accommodation. A community whose most intimate arrangements are governed by its own law has a strong reason to accept a common political order, and that was the calculation in 1950.

It buys continuity. The alternative in 1950 was to legislate a code for a country that had just been partitioned along religious lines, which the Constituent Assembly declined to do.

It costs equality within the group. Where a community's law disadvantages its own members, and most personal law systems disadvantaged women, the member is left with a law the Constitution does not reach.

It costs certainty. Which law governs a person depends on identity, and identity can change: Sarla Mudgal v. Union of India, AIR 1995 SC 1531; (1995) 3 SCC 635. Facts. Hindu husbands converted to Islam solely in order to contract a second marriage while the first subsisted. Held. That a Hindu marriage solemnised under the Hindu Marriage Act 1955 can be dissolved only on a ground in section 13, and does not automatically dissolve on conversion; that a second marriage during the subsistence of the first is void under section 11 and the husband is liable for bigamy; and the Court expressed its opinion that a uniform civil code under article 44 would help the cause of national integration. Why it matters here is that it is the clearest demonstration of the cost: a plural legal order can be gamed by changing which law applies to you.

A worked example

A woman married under Hindu law seeks maintenance; her husband converts to another religion and says the personal law of his new community now governs the marriage and permits him to marry again. Work through the layers.

Which law governed the marriage. The Hindu Marriage Act 1955 applied at the time of the marriage, and Sarla Mudgal holds that conversion does not dissolve it: it can be dissolved only on a ground in section 13.

Whether the second marriage is valid. It is void under section 11 of the Act of 1955, and the husband is liable for bigamy under the general criminal law.

Maintenance. Section 125 of the Code of Criminal Procedure, now section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023, is a secular provision available irrespective of religion, and that secular layer sitting above the personal laws is itself a form of legal pluralism.

And the constitutional layer. If the husband argued that his new personal law permitted the second marriage, the answer is that the FIRST marriage is governed by the statute under which it was solemnised, so the question never reaches the constitutional status of personal law at all.

Note what the example demonstrates. Indian legal pluralism is not a set of sealed systems. A secular criminal and maintenance law runs across all of them, statutes displace uncodified law where they exist, and the choice of law is fixed at the time of the transaction rather than by the parties' later identity.

Distinctions

What it does NOT mean

It does not mean personal law is beyond challenge. Codified personal law is ordinary statute and is fully reviewable, and Shayara Bano shows a court reaching an uncodified practice through the statute that recognised it.

It does not mean a person may choose which personal law applies. Sarla Mudgal holds that conversion does not dissolve a marriage solemnised under another law.

It does not mean legal pluralism is peculiar to India. Nigeria, Israel, Indonesia and Kenya all have versions of it; what is distinctive in India is that a constitutional directive in article 44 sits alongside it.

And it does not mean custom is outside article 13. Article 13(3)(a) expressly includes custom or usage having the force of law, which is why a custom can be struck down where uncodified personal law arguably cannot.

Quick revision

Legal pluralism: more than one legal order in one territory. Four Indian forms: personal law, codified for Hindus in 1955 and 1956 and applied to Muslims by the Shariat Act 1937, with Christian and Parsi statutes, all under Entry 5 of List III; customary law, which article 13(3)(a) brings within the definition of "law"; territorial pluralism under paragraph 3 of the Sixth Schedule, article 371A and paragraph 5 of the Fifth Schedule; and the optional secular code of the Special Marriage Act 1954 with the Indian Succession Act 1925. Narasu Appa Mali: uncodified personal law is not "law in force" under article 13(1), reasoning partly from article 44 itself. Shayara Bano: talaq-e-biddat set aside three to two, one judge reaching it through section 2 of the Shariat Act rather than through personal law directly. Sarla Mudgal: conversion does not dissolve a marriage under the Hindu Marriage Act 1955, and a second marriage is void under section 11.

Test yourself

1. Name the four forms Indian legal pluralism takes. Personal law, codified and uncodified; customary law; territorial legal pluralism under the Fifth and Sixth Schedules and article 371A; and the optional secular alternative of the Special Marriage Act 1954.

2. Why is Narasu Appa Mali the load-bearing wall of the arrangement? Because it holds that uncodified personal law is not "law in force" within article 13(1), so it cannot be tested against Part III. If it were, every rule of every personal law could be struck down for inequality without any legislature acting.

3. What reasoning did the Court draw from article 44 itself? That a directive to the State to endeavour to secure a uniform civil code recognises that separate and distinctive personal laws exist, so the diversity that article 44 addresses cannot already be void.

4. How did a judge in Shayara Bano reach an uncodified practice without overruling Narasu? By treating section 2 of the Muslim Personal Law (Shariat) Application Act 1937 as the statutory recognition of the practice, so that a statute rather than uncodified personal law was the object of review.

5. What does Sarla Mudgal show about the cost of legal pluralism? That a plural legal order can be gamed by changing identity. The Court held that conversion does not dissolve a Hindu marriage, which can be ended only on a ground in section 13, and that a second marriage is void under section 11 with liability for bigamy.

6. Is custom outside article 13? No. Article 13(3)(a) includes custom or usage having in the territory of India the force of law within the definition of "law", which is why a custom may be struck down even where uncodified personal law arguably may not.