A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.

The Role of Mercy in India

There has been such a sustained focus on the right to impose death that it sometimes eclipses its essential corollary, namely the sovereign right to spare life. In India’s modern political system, this power to spare life remains in the form of executive clemency. Executive clemency, enumerated in Article 72 of the Indian Constitution, represents an escape valve where officials unaffiliated with the judiciary can survey the landscape and make decisions on factors beyond the law. Thus, the most logical use of clemency powers is when an individual wrongly convicted, can demonstrate that the system failed or that they are innocent. Critics, however, have argued that this conflicts with the demands of justice and equality, demands a liberal state presumably must heed. Due to mercy’s arbitrary and capricious nature, the state, they argue, should be lawful, not merciful. A study of the mercy petitions rejected by various Presidents in recent history lends some merit to their argument since it reveals a trend of politicization of mercy.

For example, the rejection of Saibanna’s mercy petition came right after the December 16 gang rape; a time when the government needed a facile gesture to show that it was tough on crime against women. He had been sentenced to death for murdering his second wife and daughter after having been convicted for murdering his first wife, however his case was riddled with glaring judicial blunders from start to end. Both the trial court and the High Court convicted and sentenced Saibanna under s. 303 of the Indian Penal Code which provided for mandatory death sentence but had been struck down as unconstitutional some twenty years earlier. The Supreme Court took full notice of the s. 303 issue but then noted that the session’s court faulty finding did not prejudice the cause of the accused since there was no record of any mitigating circumstances.

However what the Court failed to consider was that in cases under s. 303 there is no sentencing hearing, and hence no opportunity to bring on record mitigating circumstances. Moreover, the Court squarely based its death sentence verdict on the erroneous view that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment. Thus in effect, the Supreme Court revived mandatory death sentencing. So glaring were these errors that a campaign had been launched pursuant to which fourteen eminent retired judges of the High Court and the Supreme Court
wrote to the President asking him to commute these death sentences. They said that it would be unconscionable and a blot on the administration of justice to execute Saibanna whose petition had been pending for 25 years. These factors should have necessitated the commutation of the death sentence by a government with even an iota of respect for the rule of law. Continue reading

You Go, ‘Grrl!

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“There are too many men in India today.”  So reads the first line of an an op-ed in today’s New York Times entitled “How to Fix India’s Sex-Selection Problem” penned by IntLawGrrls editor Sital Kalantry (congratulations!).   Most of our readers are familiar with the issue of sex-selective abortion and the resulting imbalance in the ratio of males to females in India.  Sital explains that the statistics suggest a correlation (though not causation) between a large male surplus and violence against women.  Rather than the more commonly-presented solution of banning sex-selective abortion, which she argues is unrealistic, Sital suggests the possibility of sperm sorting, which enables parents who want a girl to select the appropriate chromosomes prior to artificial insemination.  Indian law currently prohibits sperm sorting, and she proposes an amendment to “allow pre-implantation sex selection” for families who want a girl child.  The backstory, data, and details are available in Sital’s new book, Women’s Human Rights and Migration, which was published this month by the University of Pennsylvania Press (another congratulations!).  A longer update on the book, which I am in the middle of reading, will be forthcoming soon, but in the meantime I recommend both the op-ed and the book for those looking for a nuanced and thoughtful exploration of the issue of sex-selective abortion in India. You Go, ‘Grrl!

Write on! Call for Papers: NALSAR International Law Journal

The NALSAR International Law Journal, and the NALSAR International Law Society (affiliated to the ILSA) are located at the NALSAR University of Law, Hyderabad, India. The NALSAR International Law Journal was launched in recognition of an acute lack of International Law scholarship in India. 

The first edition of the Journal received a great response, and the International Law Society at NALSAR has since come a long way. That edition can be accessed here – https://nilj.nalsar.ac.in/Archive.php. This year, we seek to bring out an annual edition of the Journal, and encourage discussion on Public International Law in Indian academic circles. We are keen on publishing articles drawing attention to gender issues within international law.

 

More Information About the Call for Papers Can be Found Here: call-for-papers-nalsar-international-law-journal

Write On! Call for Papers: Socio-Legal Review (deadline 1 November)

The Socio-Legal Review (SLR), a student-edited, peer-reviewed interdisciplinary journal published by the Law and Society Committee of the National Law School of India University, Bangalore, has issued a Call for Submissions for its twelfth volume, to be released in 2016. Submissions are due by November 1, 2015.

SLR aims to be a forum that involves, promotes and engages students and scholars to express and share their ideas and opinions on themes and methodologies relating to the interface of law and society. The Journal thus features guest articles by eminent scholars as well as student essays, providing an interface for the two communities to interact. From 2012, SLR has become a biannual publication from an annual publication.

The Journal subscribes to an expansive view on the interpretation of “law and society” thereby keeping its criteria for contributions simply that of high academic merit, as long as there is a perceivable link. This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/institutions of governance/administration, power structures in social commentary, and so on. Through this effort, the Journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.

Submission Guidelines

  1. All contributions submitted to the Journal should be original and should not be simultaneously considered for publication elsewhere.
  2. The Editorial Board has refrained from imposing a theme. A submission is welcome as long as it fits within the general mandate of the Journal, as outlined above.
    1. Contributions should be mailed only in a soft copy to slr@nls.ac.in and sociolegalreview.nls@gmail.com, the subject of the mail being ‘Submission for 2015 Volume’. Biographical information is to be provided in a removable title page.
    2. The Journal is accepting contributions for Articles and Short Articles. With reference to Articles, contributions should not ordinarily exceed 8000 words. With reference to Short Articles, contributions should not ordinarily exceed 5000 words. The Editorial Board reserves the right to reject without review manuscripts that exceed the word limit substantially.
    3. The Journal also accepts Book Reviews and Notes from the Field. The latter includes shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in, legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. Contributions should not exceed 3000 words.
    4. The last date for submission for the first issue is November 1st, 2015. Submissions may, nevertheless, be made after these dates. They will be considered for publication in the issue to follow.
    5. All submissions are to be made via e-mail as .doc or .docx documents.
    6. SLR follows the Harvard Blue Book – A Uniform System of Citation (20th edn.) style of referencing. Contributors are requested to comply with the same.
  3. For any clarifications, please contact us at slr@nls.ac.in or sociolegalreview.nls@gmail.com.

Child Marriage in India: Loopholes in the Law

By sheer numbers, child marriage in India dwarfs the rest of the world; India has the highest number of child brides of any country.  Although the rate of child marriage is decreasing for children under the age of 15, the rate of marriage for girls aged 15-18 has increased from 26.7% in 1998-99 to 29.2% in 2005-06.  Child marriage is clearly not ending despite laws in place, and is perpetuated in India due to a range of factors, most prominently dowry, poverty and lack of educational opportunity for girls, concerns about the safety and honor of girls, and prevalent gender and social norms.

Child marriage violates international human rights laws and standards, including Article 16(2) of the Universal Declaration of Human Rights, which requires the “free and full consent” of spouses to marriage. It also violates Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires women and girls to have the “right freely to choose a spouse” and to “enter into marriage only with their free and full consent.” CEDAW also states that the “betrothal and the marriage of a child shall have no legal effect.” India is also signatory to the Convention on the Rights of the Child (CRC), and child marriage violates a range of CRC provisions, including the right of children not to be separated from their parents against their will and the right of children to freely express their views on matters that affect them. Further, under the CRC, the state is obligated to take measures to abolish traditional practices prejudicial to the health of children, including marriage.

The social forces at play perpetuating child marriage are difficult to combat, deep-seated and intertwined as they are. But perhaps what is lesser known is that laws in India prohibiting child marriage are flawed, contributing to the problem.

First, the Prohibition of Child Marriage Act, 2006 repealed the Child Marriage Restraint Act, 1929 and attempted to address the previous Act’s shortcomings. This Act defined child marriage as the marriage of boys under age 21 and girls under 18. The Act also made positive changes, including extending the maximum length of punishment to two years of imprisonment and/or a fine of up to one lakh rupees. If the marriage is nullified, the Act requires the return of money, valuables, gifts, and ornaments given by each party to the other, and also allows an order of maintenance for the former wife.  The Act also provides for government-appointed Child Marriage Prohibition Officers to work to prevent child marriages; while good in theory, it is unclear whether they are actually in operation and to what extent.

Continue reading

Write On! Trade, Law and Development Call for Papers – Special Issue on Government Procurement (due Feb. 15)

The journal Trade, Law and Development, ranked as the best law journal in India (2012, 2011) and the tenth best law journal in the field of international trade worldwide (2012), has issued a Call for Submissions for its upcoming Special Issue on Government Procurement. Submissions are due by Feb. 15, 2015.

 The Plurilateral Agreement on Government Procurement (‘GPA’) aims to promote transparency, integrity and competition in the purchase of goods and services by government agencies. Preferential treatment for domestic goods and services are envisaged as trade barriers. Participating governments are also required to put in place domestic procedures by which aggrieved private bidders can challenge procurement decisions and obtain redress in the event of inconsistency with the GPA. However, States have political and economic interests in promoting their own small and medium scale industries. Therefore, the attempt to harmonize these objectives raises issues with reference to market access and the benefits of “good governance” under the GPA. These subjects have not received sufficient analysis from mainstream academia yet. Consequently, existing literature is inadequate to effectively equip policymakers to deal with such issues.

The revised GPA entered into force on April 6, 2014 and enabled parties to realise gains in market access to the tune of billions of dollars annually. This Special Issue, currently scheduled for publication in July, 2015, will provide an ideal platform to deliberate on Government Procurement initiatives at the WTO. Accordingly, the Board of Editors is pleased to invite original and unpublished submissions for the Special Issue on Government Procurement for publication as ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Manuscripts may be submitted via e-mail, ExpressO, or the TL&D website. For further information and submission guidelines, please visit the Journal’s website: www.tradelawdevelopment.com. If you have any questions, please contact the editors at editors[at]tradelawdevelopment[dot]com.