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8/6/2017 Judicial Activism Under Article 21 And Personal Laws - Academike (ISSN: 2349-9796)

ACADEMIKE (ISSN: 2349-9796)

NOTE: Articles published on this website are for information only. They do not construe legal advice.


Judicial Activism Under Article 21 And

Personal Laws
January 12, 2015 by kudrat Leave a Comment

By Mounica Kasturi, Symbiosis Law School, Pune

Editors 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:

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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
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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 Honble 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.

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

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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.

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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 judiciarys 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 parents 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
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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, hasnt 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

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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 mothers 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.

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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
womens 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

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

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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.

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[ix] AIR 2007 Del 9.

[x] Judicial Activism Under The Indian Constitution ,Address by Honble Mr. K.G.
Balakrishnan, Chief Justice of India, available at-

[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.

Filed Under: Constitutional & Administrative Law, Family Law

Tagged With: Fundamental Rights, marriage, right to life

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