Reform or Faith? The Constitutional Clash of Belief and Rights

*Akshat Pundir and Dheer Vasani

Introduction

The tussle between personal laws that form part of religious identity and the fundamental rights guaranteed under Articles 14, 15 and 17 has transformed over the decades. In the initial decades of independent India, the courts adopted a non-interventionist approach in matters of personal laws. Over the years, judicial activism has transformed this stance towards active constitutional scrutiny of personal laws. The courts have moved from a literal interpretation of Article 13 towards a purposive interpretation that attempts to support the real intent of the Constitution-makers. This blog examines how Indian courts have moved from shielding personal laws from constitutional review to cautiously testing their limits through interpretation, alternative statutes, and selective judicial scrutiny.

The First Confrontation of Fundamental Rights & Personal Laws in Modern India: Non-Interventionist Approach

State of Bombay v. Narasu Appa Mali was the first post-independence judgement to directly address the aspect of the intersection of the Constitution and personal laws. The court held that personal laws deriving from religious scriptures are immune from scrutiny under the purview of fundamental rights. This conclusion was based on a literal interpretation of  Article 13(3), which treats “customs and usages” separately from “personal laws”. The court justified its reasoning by noting that Articles 17, 25, 26, and 372 would be rendered redundant if Article 13 could invalidate all personal laws.

For a newly independent nation where religion was a sensitive affair, the judiciary, for preserving peace, was compelled to keep itself in abeyance from the domain of personal laws. However, in the later years, while society modernised and adopted practices with new precedents emerging, the domain of personal laws remained untouched from any scope of scrutiny through social and legal reforms.

The courts, whilst dealing with questions of personal laws, have to date avoided a direct confrontation with the doctrine established in Narasu. They derived alternative secular laws, the essential religious practice doctrine (ERP), etc., rather than withdrawing the immunity which personal laws enjoyed from constitutional rights like equality and liberty.

In Ahmedabad Women Action Group v. Union of India, a PIL was filed that challenged discriminatory provisions in Hindu and Muslim personal laws relating to inheritance and polygamy. The Supreme Court reinforced the doctrine of judicial restraint in personal laws established by the State of Bombay v. Narasu Appa Mali. This strengthened the Narasu precedent. Following this, many High Court judgments cited the Ahmedabad case owing to its binding effect and refused to examine the constitutionality of personal laws. The court perceived that any contrary ruling would be deemed an attack on religious identity and chose to keep religious freedom above civil rights. This view has also been supported in the ruling of the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar,  where the Supreme Court introduced the doctrine of “Essential Religious Practices”, holding that "religion" covers all rituals and practices integral to a faith. The state should adopt a non-interventionist approach while handling such matters with respect to Article 26(b) of the Indian Constitution.

First Challenge to the Old Order: Progressive Interpretation of Personal Laws

While the courts maintained the hands-off approach from personal laws for decades after independence, the early 2000s witnessed a shift with the rise of judicial activism. Danial Latifi v. Union of India was among the earliest instances where the Supreme Court interpreted personal laws in light of constitutional values. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was believed to have weakened the rights of divorced Muslim women in the aftermath of the Shah Bano judgement, as an attempt to limit the husband’s responsibility of maintaining the spouse and her children till the iddat period. Further, in Danial Latifi, the court adopted the doctrine of “purposive interpretation” and read the act consistently with constitutional values, holding that although maintenance must be provided within the iddat period, it must be sufficient for the woman to sustain herself beyond that period. The court did not challenge the validity of the Act per se but shaped it in a way that upholds gender justice, marking a unique shift from its non-interference approach.

The solution adopted in Danial Latifi was therefore not a permanent answer, but a careful exercise in judicial creativity. That makes the judgment important, but also limited. While a just result was achieved, the court did not revisit the jurisprudential standing of personal laws, showing that constitutional justice in personal law cases often depends not on a direct recognition of constitutional rights, but on whether the Court can find room to interpret an existing provision in a progressive way. Where no such room exists, the promise of equality becomes much harder to realize.

Shayara Bano: The First Step Towards Direct Scrutiny of a Personal Law

In Shayara Bano v. Union of India, the Supreme Court, in a rare move, directly set aside the personal law practice of triple talaq. The majority did this through two slightly different routes. One strand treated Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 as “law in force” under Article 13 and struck down talaq‑e‑biddat as manifestly arbitrary and therefore violative of Article 14. While another strand of the bench held that talaq‑e‑biddat was itself contrary to Islamic tenets and therefore could not claim protection as an ERP under Article 25. Narasu was not formally overruled, but the fact that the Shariat Act could be treated as a statutory hook for review meant that, for the first time, a core aspect of Muslim personal law was invalidated on constitutional grounds.

This shift has obvious implications beyond triple talaq. If the Shariat Application Act is “law in force” under Article 13, then other codified personal‑law provisions can, in principle, be tested against equality and dignity, even if Narasu still shields uncodified custom and usage. The case also fits into a longer story of courts inching closer to direct scrutiny. Earlier, in T. Sareetha v. T. Venkata Subbaiah, Section 9 of the Hindu Marriage Act was briefly struck down as an unconstitutional intrusion into personal privacy, only for that rights‑based reading to be rolled back in Harvinder Kaur and Saroj Rani. By contrast, Shayara Bano represents a more durable willingness to bring family‑law practices into the frame of arbitrariness, essential religious practice, and subject to Article 13 review. This resembles a pattern that resurfaces in recent fights over gender and religion, such as the hijab‑ban litigation. Yet the “ghost of Narasu” still lingers, such that had triple talaq remained a purely uncodified practice, the Court would likely have found it harder to intervene and overturn.

Sabarimala Temple Entry Case: Can Constitutional Morality Win?

In Indian Young Lawyers Association v. State of Kerala, a constitution bench of the Supreme Court ruled that the prohibition of entry for women undergoing menstruation (belonging to the age group 10-50)  into the Sabarimala Temple violates their constitutional rights under Articles 14 & 25 of the Indian Constitution. This judgment’s significance, specifically Justice DY Chandrachud’s observation, lies in the fact that it treated a religious practice as open to constitutional scrutiny rather than as something automatically protected merely because it’s of a “customary nature” rooted in tradition. 

However, the recent review and reference proceedings before a nine-judge Bench have brought the ruling back into focus, especially because of the resistance it continues to face from sections of society. The debate now turns largely on two questions: whether Sabarimala is a separate religious denomination with autonomy under Article 26(b), and how far the judiciary can intervene in matters claimed to be religious. The purpose of Article 26 was to grant religious institutions autonomy in managing their affairs, but that autonomy cannot extend to categorising which class of devotees is barred from entering the temple premises.

Looking towards this debate from a rights-based perspective, the arguments appear to be floating across the hearing that women are “not perpetually barred” and can enter Sabarimala once they are past menstruating age. As Indira Jaising has argued before the Court, excluding women in this age group effectively deprives them of entry during a significant and active period of their lives, turning a formal right to worship and equality into a largely illusory one.

If equality and dignity are to mean anything in constitutional terms, can a woman’s access to a public place of worship be limited by her menstrual status? And when this restriction is justified through ideas of purity and exclusion, does it begin to resemble a form of gendered untouchability? One line of argument insists that Article 17 is confined to caste untouchability, but the counterview is that the constitutional text prohibits untouchability “in any form”, which makes a broader reading plausible where women are excluded on grounds concerning “purity”.

The Sabrimala Review, therefore, opens several testing questions, not only of whether constitutional morality can “win” over social morality, but of whether the Court is willing to declare openly that such exclusions amount to a gendered form of untouchability that cannot be saved by invoking ERP.

Conclusion

The principle established in Narasu, despite multiple confrontations, has never been formally overruled by the Supreme Court. Developments such as progressive interpretation of personal laws, the provision of secular law alternatives, and the essential religious practices doctrine have formed an integral part of the progression beyond Narasu, but have failed to dismantle the unjust structure it created. Personal laws continue to occupy an uncertain constitutional space, as the status of these laws in relation to Article 13(3) of the Constitution remains ambiguous, leaving their relationship with constitutional protections unsettled. In this clash of the social and the individual, of faith and reform, the former continues to prevail over the latter. The overruling of Narasu is not a mere matter of judicial courage as it requires a changing society, and, in the words of Tagore, “where the mind is without fear and the head is held high; where free minds prevail without narrow domestic walls”. 

*Akshat Pundir is a third- year law student pursuing B.A. LL.B. (Hons.) at Maharashtra National Law University, Mumbai.

*Dheer Vasani is a third- year law student pursuing B.A. LL.B. (Hons.) at Maharashtra National Law University, Mumbai.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.