Judicial Activism Under Article 21 And Personal Laws

GLA University - B.Com | LLB | B.A.
GLA University | B.Com | LLB | B.A.

By Mounica Kasturi, Symbiosis Law School, Pune

Editor’s Note: India is a nation with diverse communities that are governed by different personal laws according to their religion. These personal laws often come into conflict with the principles enshrined in Part III of the Constitution. The courts have generally been reluctant to strike down these laws on the grounds of violation of Fundamental Rights. This is partly due to the fact that personal laws are generally not considered ‘laws’ under articles 13 and 372, and partly not to interfere with matters like marriage and inheritance. However, some of the personal laws have been interpreted in a manner so as bring them in consonance with Part III. But actions by the judiciary are not enough; what is needed is a pro-active approach by the legislature. A uniform civil code, coupled with judicial activism, has the potential to bring about significant positive changes to the sphere of personal laws.”


Article 21

A bare reading of Article 21 of Constitution of India would be:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The question of interpretation of this paltry worded provision possessing immense importance came before the Supreme Court as early as in 1953 in the case of A.K. Gopalan v. State of Madras.[i]The court restricted itself to the literal interpretation of the article and exhibited judicial positivism. The connotation of life was restricted to the existence of the individual and liberty meant freedom from physical restraints. The procedure established by law was interpreted to mean law as enacted by the legislature or through ordinance and does not include the concept of due process. Also, a joint reading of Art.14, 19 and 21 was not called for and thus the law that abridges the right under Art.21 need not be reasonable. It however, put restraints on unguided executive discretion.

It was experienced later that such a view led to the violation of various principles of natural justice and was grossly misused by the authorities. The judiciary has adopted judicial activism to put fetters to governmental actions by safeguarding public interests through the liberal interpretation of the fundamental rights. Post emergency, the Supreme Court has witnessed the Maneka Gandhi case as an opportunity to sow the seeds of judicial activism.

Maneka Gandhi v. Union of India

In this case, the passport of Mrs. Maneka Gandhi was impounded and she was denied from knowing the grounds on which such an action was taken. The judiciary read Art.21 to mean that procedure established by law implies procedural due process and that principles of natural justice have to be complied with by any law. Law must be fair, just and reasonable and a combined reading of Art.14, 19 and 21 was established. It was observed that the term ‘Liberty’ is of widest amplitude and encompasses within itself all that is needed for the fullest achievement of human life. The Supreme Court in this landmark judgement ignited the fire for activism in India and its dynamo effect can be sensed through the various judgements that followed it. Today, we have an array of rights that have emerged out of Art.21 as a result of such interpretation of the court.

This article focuses on judicial activism in the sphere of personal laws, with respect to recent judgments on right to marriage, right to choose and live-in relationship in India.

Article 21 and personal laws

Right to Marriage

The Indian judiciary has included under the umbrella of Right to life and liberty, Right to free and fair trial, Right to privacy, Right to clean environment, Right to food, sleep and even electricity. The courts have not limited the ambit of life to the above rights but also to a plethora of others. The intervention of judiciary in formulating right to marriage among majors as a part of article 21 first came up in the case of Ravi Kumar v. State,[ii] where the Delhi High Court answered in the positive. The same was reiterated by the Hon’ble Supreme court in the case of Lata Singh v. State of Uttar Pradesh.[iii]

In the case of Lata Singh v. State of Uttar Pradesh, it was held that Right to Marriage is an essential part of the right under Art.21 and that people have the right to choose their partners without any compulsion. In this case, the court came down heavily upon the acts of khap panchayats and honour killings that are prevalent in India. It was stated in this case, “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage.”

PIMR Indore Admission

This judgement was delivered in lieu of the right to life of those thousands of young people who wish to marry according to their choice of partners. Article 21 guarantees right to life and liberty and it can be taken away only by the due procedure established by law. Right to life includes right to live without constant threat to life and right to liberty includes the liberty to choose the partners with whom one wishes to live. While commenting on the honour killings in India, the court noted that, “There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment.” The court also directed the police to institute criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

The Supreme Court recently in 2012, suggested its amicus curiae to devise a strict legal regime to contain honour killings, wherein the focus should be on enforcing prohibitory orders against khap panchayats rather than on securing the arrest of its members that often leads to law and order problems. In another recent landmark judgment by the Additional Sessions Court at Karnal in the Manoj-Babli “honour” killing case, in which five accused were given the death sentence, sent shock waves among caste panchayat leaders, as it reminded them that they were not above the Constitution. The court took serious note of the fact that the policemen deployed for the security of Manoj and Babli actually facilitated the accused in perpetrating the crime.[iv]

The Supreme Court through this decision has tried to protect the interests of a number of youth in India, but it has not had any significant impact on Honour Killings in India. Though judicial activism has been pivotal in codifying many latent rights under Article 21, the implementation of these is the major issue of concern. Through judicial activism, courts have donned upon themselves the role of legislators but this in itself is no panacea. There is a legislative vacuum in curbing the menace caused by the khap panchayats and its orders of honor killings.[v] The balancing act between judicial activism and preservation of constitutional principles is a tight walk.

Live-in Relationships

 The activism at the judicial front has created more confusion than it has solved. The definition of live in relationships is not clear and so is the status of the couples in a live in relationship. There is no specific law on the subject of live in relationships in India. There is no legislation to define the rights and obligations of the parties to a live in relationships, the status of children born to such couples.

The first case in which the Supreme Court of India first recognized the live in relationship as a valid marriage was that of Badri Prasad v. Dy. Director of Consolidation,[vi] in which the Court gave legal validity to a 50-year live in relationship of a couple. The Allahabad High Curt again recognized the concept of live in relationship in the case of Payal Katara v. Superintendent, Nari Niketan and Anr.[vii], wherein it held that live in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal. In the case of S. Khushboo v. Kanniammal & Anr.,[viii] the Supreme Court held that living together is a right to life under article 21. In this case, all the charges against Kushboo, the south Indian actress who endorsed pre-marital sex and live in relationship were dropped.

However in one of its judgment- Alok Kumar v. State of Delhi,[ix] the Delhi High Court held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality.

However, amidst all the confusion, the judiciary has at every step propagated the protection of women in a live-in relationship and laid down conditions wherein the man would be liable to pay alimony to the woman such as if they were married. This way the court has again used activism in protecting the interests of women and ensuring women and children from such relationships right to live with dignity.

However, a judicial action uncoupled by the legislative authority faces a number of difficulties in the process of implementation. In a monograph “Judicial Activism and Constitutional Democracy in India[x] the learned author, while recording appreciation of judicial activism, sounds a note of caution. Firstly, courts lack the facilities to gather detailed data or to make probing enquiries. Recent trends of the judiciary like appointing of amicus curiae in cases, the appointment of ad-hoc probe panels or committees are working their way to remove this hurdle from the judiciary’s way. Secondly, even if courts have to rely on their own knowledge or research, it is bound to be selective and subjective. Thirdly, the courts also have no means for effectively supervising and implementing their orders, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. The courts judgments are more often on a case-to-case basis and a holistic view of the issue might not be taken. Moreover, the judiciary at times could be biased and views reflected by the bench need not necessarily represent the view of the majority. Another impediment is that various high courts have varied opinions as to the interpretation of a law.

Avinash v. State of Karnataka & Others

The Karnataka High Court delivered a judgment that mandated parental consent for girls marrying below the age of 21. The rationale for the judgment was that, girls less than 21 years of age, are hormonally imbalanced and thus, not fit to decide who they choose to marry. The court finally deciding the issue of right to marriage and parent’s consent noted that- [xi],

The parents of the girl are interested in selecting a suitable boy and see that the girl leads a happy married life. Since the Hindu Marriage Act does not deal with love marriages, in our view, it is high time that the Parliament shall take note of sufferings and turmoil of such girls and their parents and amend the law suitably.”

The judgment failed to consider that the discourse in forced marriages has always been related to the caste structures. Arranged marriages do not just mean arranged and approved by the family but also with a partner who is from the same caste/community. So such marriages further infiltrate the concept of casteism to the posterity. However in this case the sole motivation for judges was the incompetence of the women to make their own decisions in light of unstable hormones. This judgment is highly derogatory of woman and is a violation of various constitutional provisions. It is against the rationale of the Lata Singh judgment. The right of a woman to make decisions on her own and to live with dignity have been put at stake. The judges cannot function in isolation completely detached from the realities of the persons who approach them. Otherwise, we would be burdened with pronouncements and judgments that impact the lives of many in an unwarranted manner. These judgments are so intrinsically rooted in a patriarchal and archaic ideology that they end up being dictatorial in a manner that takes away rights which are essential to individual dignity and thus a violation of fundamental rights rather than a saviour.

Personal Laws and Constitutional Validity

Any law in force at the time of coming into force of the Constitution of India or enacted after that which is in conflict with the chapter on fundamental rights will be void to that extent. This is with regard to all the laws in India with the exception of Personal Laws. If the personal laws were also covered by Articles 13 and 372 of the Constitution, they would be void to the extent that they are in contravention of Articles 14, 15 and 21 of the Constitution; however this is not the case. Any personal law which is challenged, if found discriminatory against women should have been struck down by the Courts. Women not being natural guardians, Talaq, polygamy, absence of coparcenary rights for women under Hindu undivided family, etc. should all have been declared as void by now as they all discriminate against women. But this has not happened because personal laws are geberally not ‘laws’ contemplated under articles 13 and 372. Judicial activism has entered every nook and corner and has been taking cognizance of daily matters such as laying of proper quality roads, overcrowding of school buses but however, hasn’t clearly dealt with the personal laws of India.

Over the years, the Supreme Court has taken different views while dealing with personal laws. In a number of cases it has held that personal laws of parties are not susceptible to Part III of the Constitution dealing with fundamental rights. Therefore they cannot be challenged as being in violation of fundamental rights, especially those guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other hand, in a number of other cases the Supreme Court has tested personal laws on the touchstone of fundamental rights and read down these laws or interpreted them so as to make them consistent with fundamental rights. There is however, no uniformity of decisions as to whether personal laws can be challenged on the touchstone of fundamental rights i.e. whether they are “laws” or “laws in force” under Article 13 of the Constitution of India.

The case of Githa Hariharan v. Reserve Bank of India [xii] is an example of how judiciary has interpreted the existing law to ensure the protection of the mother’s interest. A three judge Bench of the Supreme Court was considering the Constitutional validity of S. 6 of the Hindu Minority and Guardianship Act. The challenge was on the basis that the section discriminates against women, as the father is the natural guardian of a minor and not the mother. The Court did not reject the Petition on the ground that it could not go into Constitutional validity of personal law. Instead it read down S.6 so as to bring it in consonance with Articles 14 and 15 and 21. The Court observed,

“Is that the correct way of understanding the section and does the word ‘after’ in the section only mean ‘after the lifetime’? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e. six years after the Constitution. Did the Parliament intend to transgress the Constitutional limits and ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion-No.”

Of course, the decision is not very satisfactory as the Constitutional mandate required the Supreme Court to hold that irrespective of whether the father was unfit or not the mother should also be given equal rights as a natural guardian.

In the case of N. Adithyan v. Travancore Devaswom Board & Ors.[xiii], the Supreme Court was concerned with the issue whether in respect of certain temple in Kerala only Brahmins could be ordained as priests. Longstanding usage and custom was cited in support of this claim. The Court negatived the plea and observed:

“Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”

However, in the earlier case of Ahmedabad Women Action Group & Ors. v. Union of India[xiv] where different organisations had challenged through various Petitions a number of discriminatory aspects of personal laws – both codified and uncodified across religions, the Court, relying on the earlier decisions held that the matters pertained to legislative action and the Court could not interfere. Again, in this case no independent reasons were given as to why personal laws could not be susceptible to Part 3 of the Constitution Nonetheless, in the case of Daniel Latifi,[xv] the Supreme Court did test the Muslim Women (Protection of Rights on Divorce) Act, 1986 on the touchstone of fundamental rights.

Uniform Civil Code and Activism

India is a unique blend and merger of codified and uncodified personal laws of Hindus, Muslims, Christians, Parsis. However, there exists no uniform family related law in a single statute book for all Indians which is acceptable to all religious communities who co-exist in India. Also, given the fact that a personal law cannot come under the ambit of judicial review makes it more difficult to ensure the fundamental rights of citizens. The question is not of minority protection, or sentiments of people or identity, it is simply one of treating each human person with the dignity that he deserves; something which personal laws have so far failed to do. The principle is to treat each person equally and everyone be protected by just, fair and predictable laws.

For example, Muslim Law provides for Mehr, an amount to be fixed at the time of marriage itself, as a consideration for the performance of marriage. This is because the marriage under Muslim Law is a contract and the condition for registration is fulfilled in the Nikah- Nama itself. Men cannot waive or reduce the Mehr. Only, the wife is allowed. This way the women’s interest in the Mehr is protected. But, other provisions of the Muslim Law discriminate against women. Polygamy is allowed but not polyandry. Muta marriages can be undertaken by the husband. The triple pronouncement of the word “talaq” is enough for a man to give divorce. The woman has to undergo an arduous procedure for the same. This is not the case under Hindu Law. According to Hindu law, marriage is not a contract, but a sacrament. Also, the grounds and procedure for divorce are the same for both husband and wife.

The courts in India have had varied opinions on the fact as to the extent to which activism can be exercised with respect to personal laws. This is one of the major constraints of judicial activism. Every time a court is about to give liberal interpretation, it has to decide whether its act is within the powers. A uniform civil code and judicial activism, can together bring in a drastic change in the Indian Society.

Right to life also includes the right to be treated equally and to be tried equally. Keeping in mind the changing times and the constantly evolving meaning of Article 21, which encompasses the right to live with dignity, it is the duty of legislature as well as the judiciary to make sure that personal biases or prejudices for that matter must not hamper with the realisation of principles of social justice laid down in the constitution. A uniform civil code will clear major doubts as to the extent, scope and application of personal laws. The legislature has to now take a step in enacting a Uniform Civil Code. The uniform civil code has to be clear with respect to marriage, its nature, consent required for marriage, homosexual marriages, live-in relationships, pre-nuptial contracts and applicability of customary practices. The judiciary on the other hand, must adopt certain restraints in further interpretation. Judicial activism has undoubtedly brought about changes in the arena of personal laws. However, it is not sufficient and judicial activism must be used so as to interpret law according to the changing times and as an instrument of helping society understand the changing trends and help in a peaceful transition of the country.

Edited by Kudrat Agrawal

[i] AIR 1953 SC 27.

[ii] 124 (2005) DLT 1.

[iii] (2006) 5 SCC 475.



[vi] 1978 AIR 1557.

[vii]  AIR 2001 All 254.

[viii] AIR 2010 SC 3196.

[ix]  AIR 2007 Del 9.

[x] Judicial Activism Under The Indian Constitution ,Address by Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India, available at- http://supremecourtofindia.nic.in/speeches/speeches_2009/judicial_activism_tcd_dublin_14-10-09.pdf.

[xi] 2011 (4) KarLJ 560 ¶12.

[xii] 1999 2 SCC 228.

[xiii] 2002 8 SCC 106.

[xiv] 1997 3 SCC 573.

[xv] (2001) 7 SCC 740.

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