Matrimonial Laws and the Constitution emerged out of Justice A.M. Bhattacharjee’s Ashutosh Lectures, delivered at the University of Calcutta, in 1996. Justice Bhattacharjee – who served as a judge at the High Courts of Calcutta and Bombay – advances a sustained argument for the unconstitutionality of significant chunks of India’s matrimonial laws. A brief look at the laws governing marriage in India – which are contained in separate statutes governing Hindus, Muslims, Christians, and Parsis, as well as uncodified “personal law” in the case of Muslims – would indicate that this is a fairly straightforward argument. Not only are many of the matrimonial laws skewed against women (with a few exceptions that cut the other way), but also, laws governing different religious communities accord different rights to their constituents. The case for unconstitutional discrimination on the basis of both sex and religion (under Article 15) seems to be unanswerable.
What makes the argument radical, however, is that the post-Constitutional Indian judiciary has often gone out of its way to uphold the validity of these laws. In order to get around their plainly discriminatory character – and I use the word ‘discriminatory’ in its simplest sense – according unequal benefits and burdens to men and women within the marital relationship – the Supreme Court and the High Courts have created various legal devices. First, in State of Bombay vs Narasu Appa Mali, the Bombay High Court held that uncodified “personal law” was not subject to Part III of the Constitution. This was subsequently endorsed by the Supreme Court. Secondly, when faced with discriminatory provisions contained in statute law, the Courts held that the use of the word “only” in Article 15 – “the State shall not discriminate on grounds only of… sex” implied that if a non-sex based justification could be shown for a discriminatory law, it would survive Article 15 scrutiny. Thirdly, when faced with laws that ostensibly discriminated in favour of women – no matter what the justification – the Courts simply invoked Article 15(3) (“Nothing in this article shall prevent the State from making any special provision for women and children…“), without any further reasoning. And fourthly, when faced with discriminatory matrimonial laws across statutes (for instance, abolition of bigamy for Hindus while maintaining it for Muslims), the Court justified this by holding that it was for the legislature to initiate piecemeal, community-wise reform, based upon its own judgment of which religious communities were “ready” for it.
In Matrimonial Laws and the Constitution, Justice Bhattacharjee undertakes a thoroughgoing critique of each of these devices from a legal perspective, arguing that fifty years of sedimented judicial practice (that is, in 1996 – now it is seventy years) is misconceived, and needs to be discarded for a fresh constitutional vision that links matrimonial norms and constitutional law. Once that ground is clear, he can then argue that the fifteen-odd discriminatory pieces of matrimonial legislation (listed on pp. 145 – 146), which form the backbone of the community-differentiated marriage laws, must all be struck down for violating Articles 14 and 15. Some might call it an extreme argument; other might think of it has following an argument to its logical conclusion, and exhibiting the courage of one’s convictions.
The Wrongness of Narasu Appa Mali
Justice Bhattacharjee advances five rebuttals against the five strands of reasoning in Narasu Appa Mali. First, he focuses on the term “laws in force”, used in Article 13 of the Constitution, which defines all that which is subject to fundamental rights. He argues that the Bombay High Court, in holding that “laws in force” could not include personal law, failed to notice the 1941 judgment of the Federal Court in United Provinces vs Atiqua Begum, which, while construing “laws in force” in the Government Of India Act, 1935, had held that it included “all laws, inclduing even personal laws…” Secondly, the Court’s reference to Article 44 – the Directive Principle requiring the State to “endeavour” to legislate a Uniform Civil Code – as an indication that the Constitution “permitted” group-differentiated personal laws was incorrect, because there was already a specific Constitutional article – 372 – that provided for the continuation of pre-constitutional law. Thirdly, Narasu App Mali’s reasoning that if Article 13 was held to include personal laws, constitutional provisions such as Article 17 – which prohibited untouchability – would become redundant, clearly assumed too much; it was just as likely that the framers inserted Article 17 by way of abundant caution, or more simply, as an emphatic restatement of the prohibition of untouchability. In fact, under a strict redundancy analysis, Article 13 itself was probably unnecessary, given that Article 245 only empowered Parliament and the State assemblies to make laws “subject to the provisions of this Constitution.” Fourthly, the Bombay High Court’s reliance upon the Government of India Act, 1915, which had used the term “personal law or custom having the force of law” to reason that “personal law” in itself did not have the “force of law” ignored – once again – the 1935 Government of India Act, which used the phrase “all laws in force“, and had been interpreted by the Federal Court in Atiqua Begum to include personal laws. And lastly, the High Court’s opinion that there was a clear-cut distinction between “personal law” and “custom” was simply historically incorrect. It ignored a number of colonial pieces of legislation that had directed the application of Hindu or Muslim law “as such law has been modified by custom.” Custom was not – as the High Court believed – an occasional departure from personal law, but actually a part of personal law.
To Justice Bhattacharjee’s excellent legal analysis, we can add a broader point. In Narasu Appa Mali, Justices Chagla and Gajendragadkar relied extensively upon colonial sources to draw bright-line distinctions between “custom” and “personal law”, and to understand personal law as emanating from religious communities. Writing in 1954, they did not have the benefit of the extensive critical historiography that we now do in 2017, which establishes clearly that, far from being a pristine expression of religious communities, “personal law” was influenced, modified, and even constituted by the intervention of the colonial State. It was the colonial State that embarked upon codification projects, that designated certain individuals as authoritative expositors of “personal law”, and in whose courts the content of “personal law” was often adjudicated. Consequently, the underlying philosophical justification of Narasu Appa Mali – that State-made law is subject to the Constitution, but community law isn’t – is based upon a historical premise that is simply false.
“On grounds only of…”
Some of Justice Bhattacharjee’s most progressive – and evolved – arguments are made in his critique of the Courts’ repeated upholding of discriminatory personal laws on the ground that they do not discriminate only on the basis of sex, but on something else as well (for instance, assumptions about the differential abilities of men and women to manage property) (see here for a chronological account). At its heart, Justice Bhattacharjee’s argument is startlingly simple. All these judgments, he states, are incorrect simply because they follow the wrong legal test for adjudicating when “discrimination” has taken place under Article 15(1). These judgments assume that if the object, or purpose, of a law can be explained without reference only to sex, then it does not constitute discrimination on “grounds only of… sex.” That position, however, is contrary to well-established Indian legal jurisprudence, starting with the judgment of the Privy Council in Punjab Provinces vs Daulat Singh, continuing through the Constitution Bench in State of Bombay vs Bombay Education Society, and culminating in the judgment of the eleven-judge bench in R.C. Cooper vs Union of India, all of which hold that the test is not whether the law aims to violate a fundamental right, but whether that is its effect (and Bombay Education Society is particularly apposite, because the constitutional provision at issue there – Article 29(2) – also uses the form “on grounds only of…“).
Consequently, in Justice Bhattacharjee’s view, the motivations behind discriminatory legislation are simply irrelevant to judging its constitutionality. When, for instance, Justice Gajendragadkar held, in Narasu Appa Mali, that polygamy for men and compulsory monogamy for women did not violate Article 15(1) because polygamy was justified on “social, economic and religious grounds“, and that, more broadly, marriage rules were based on “obvious natural differences between the sexes“, not only was he indulging in ahistorical stereotyping, but he was barking up the wrong tree altogether. Whether or not there are “obvious and natural differences between the sexes” is just not the point: if a law allocates unequal benefits and burdens to men and women, it violates Article 15(1), and must fall (unless saved by 15(3)).
This is a radical argument. Not only does it repudiate legal arguments that justify discrimination based on stereotypes dressed up as “natural differences” between the sexes, but it also closes the door on any kind of argument that attempts to track legal difference to “actual” difference. It is a pure, textual reading of Article 15(1), that takes the commandment “The State shall not discriminate” in the manner that the language suggests: an absolute.
An endorsement of the effects-based test also allows Justice Bhattacharjee to deflect another common legal device based upon the word “only“. Legislation within religious communities is often shielded from constitutional scrutiny on the basis that it is not differentiating only on the basis of sex, but on the basis of sex and religion (or, to put it another way, discriminatory matrimonial laws are saved because they do not discriminate only on the basis of sex, but on the basis of sex and marital status). In this way, the word “only” effectively destroys the possibility of intersectional claims. However, by rigorously applying the effects test, Justice Bhattacharjee is able to get around this linguistic problem. The fact that the Muslim Dissolution of Marriages Act discriminates against Muslim women does not save it because it discriminates against only those women who happen to be Muslim. Thus, although Justice Bhattacharjee never uses the word “intersectionality”, it is effectively what he accomplishes.
This – unfortunately, is the least developed part of the book. Justice Bhattacharjee is – correctly – uncomfortable with how the Courts have used Article 15(3) as a carte blance to justify any law that ostensibly benefits women. He gets to the root of the problem when he observes that despite the seemingly unqualified nature of the phrase “special provisions”, Article 15(3) remains part of the broad Articles 14 – 15 – 16 equality code – and consequently, there must be some relationship between a provision that is sought to be justified under Article 15(3), and equality. However, Justice Bhattacharjee ends by unsatisfactorily concluding that the law must meet the test of reasonableness and non-arbitrariness under Article 14. Unsatisfactory, because as is well-known by now, Article 14 “arbitrariness” is a more or less empty vessel. The last step of the argument – that laws ostensibly benefiting women are justifiable as long as they advance substantive equality and remove structural barriers to women’s participation in the public sphere, but must not be based on the very stereotypes and assumptions that were responsible for gender discrimination all these years, is not spelt out.
The effects-based test that Justice Bhattacharjee uses to great effect in his critique of discriminatory matrimonial laws within religious communities, becomes an equally potent weapon to challenge the constitutionality of the unequal marital rights and liabilities that are spread across communities (e.g., only Muslim men are allowed polygamy and extra-judicial divorce; Christian law allows the husband to divorce his wife only on grounds of adultery, while under Hindu law, there exist “cruelty” and other grounds, etc.). Once again, Justice Bhattacharjee argues that the Courts’ justification for upholding these laws – that the State can decide when and at what pace to “reform” religious communities – is legally misconceived, because – again – it’s based on the incorrect “object of legislation test”. Under the effects-test, the outcome is simple: my belonging to a certain religion affords me different – and often, disadvantageous – rights and remedies in marriage, especially if I’m a woman. This, in effect, is discrimination on grounds of “religion”.
Matrimonial Laws and the Constitution does two things with great skill. First, through a detailed, forensic examination of Hindu, Muslim, Christian and Parsi matrimonial laws – both codified and uncodified – it shows that these laws are strongly discriminatory against women in multiple respects: whether it is conditions of marriage, conditions of divorce, rights to maintenance etc. And secondly – and perhaps even more importantly – it shows that the various legal fictions and devices that the Courts have created to uphold the constitutional validity of these laws simply dissolve on closer scrutiny. Not only is the reasoning unconvincing, but it is actually at odds with well-established constitutional principles, such as the effects test to determine fundamental rights violations.
In normal circumstances, these would be common sense. But in the context of our existing jurisprudence on personal laws and fundamental rights, it is truly radical common sense.