Personal Laws and the Constitution: Revisiting Narasu Appa Mali
15 Pages Posted: 18 Jul 2018
Date Written: June 22, 2018
The Constitution of India Guarantees to its citizen the Freedom of Conscience and free profession, practice and propagation of religion, the freedom to manage its religious affairs under Part III i.e The Fundamental Rights chapter of the Indian Constitution. The same part III of the constitution also guarantees to its citizens the right to equality before the law or equal protection of the laws, the prohibition of discrimination on grounds of religion, caste, sex etc, the right to liberty which includes within itself the right to live with dignity and let alone to mention that even article 25 which grants the freedom of religion is also subjected to the other fundamental rights and thus is not absolute. The question which arises is how then some of personal laws being patriarchal, and on face discriminatory against the women like which moves against the fundamental rights can still exist and manage the scrutiny of fundamental rights?
In this paper after establishing the current position of law, I have tried to examine and scrutinize the legal reasoning and rational behind the Bombay High Court decision in State of Bombay v. Narasu Appa Mali where the court held that the personal laws are outside the ambit of judicial scrutiny under article 13 and because of which even today, after 65 years of developed constitutional jurisprudence, some of the discriminatory personal laws continues to be in practice.
Keywords: Personal Laws, Article 13, Freedom Of Religion, Constitutional Law, Triple Talaq
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