The unchallenged 67-year reign of a Bombay High Court judgment that personal law, religious customs, usages and beliefs are outside the ambit of fundamental rights of equality, life and dignity came to an end on Friday.
Justice D.Y. Chandrachud, in his separate opinion, held that the reasoning given in the Narasu Appa Mali judgment of the Bombay High Court in 1951 was based on flawed premises. Immunising customs and usages, like the prohibition of women in Sabarimala, takes away the primacy of the Constitution.
The Bombay High Court in State of Bombay versus Narasu Appa Mali had held that personal law is not ‘law’ or ‘laws in force’ under Article 13. This 1951 judgment was never challenged in the Supreme Court.
“Custom or usage cannot be excluded from ‘laws in force’. The decision in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality,” Justice Chandrachud wrote.
Borrowing the headline — Ghost of Narasu — of an article written by senior advocate Indira Jaising, Justice Chandrachud observed that 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,” Justice Chandrachud held.
The judge wrote how the immunity given to personal law customs deviates from the “vision of social transformation” of the Constitution.
“Narasu, in restricting the definition of the term ‘laws in force’ detracts from the transformative vision of the Constitution,” the judge held.