Title of project

Judicial activism and personal laws; a study

Family law project

Submitted to Submitted by
Dr:- kamaljit kaur Jobanpreet Singh
Associate prof. of law Roll No. – 17183
group no: 33 5th Semester
Contents
1. Introduction:- ............................................................................................................................................ 3
2. Origin of Judicial activism:- ..................................................................................................................... 4
3. Judicial activism in India(origin and development):- ............................................................................... 5
4. Legislation on personal law(Muslim law):- .............................................................................................. 7
5. Case law:-.................................................................................................................................................. 9
6. Conclusion:- ............................................................................................................................................ 12
1. Introduction:-
At the outset, it has to be stated that there is no precise definition of judicial activism accepted by
one and all. However, there is a widely accepted notion that it is related to problems and
processes of political development of a country. In other words, judicial activism deals with the
political role played by the judiciary, like the other two branches of the State viz, the legislature
and the executive. An eminent Indian jurist defines judicial activism in the following words:
(Judicial) Activism is that way of exercising judicial power which seeks fundamental re-
codification of power relations among the dominant institutions of State, manned by members of
the ruling classes. The same authority goes on to add that judicial activism is the use of judicial
power to articulate and enforce counter-ideologies which when effective initiates significant re-
codifications of power relations within the institutions of governance. An analysis of the above
attempt by Upendra Baxi to define judicial activism shows that activism of the judiciary pertains
to the political role played by it, like the other two political branches. The justification for the
judicial activism comes from the near collapse of responsible government and the pressures on
the judiciary to step in aid which forced the judiciary to respond and to make political or policy-
making judgments. Judicial Activism‖ and judicial restraint‘ are the terms used to describe the
assertiveness of judicial power. The user of these terms presumes to locate the relative
assertiveness of particular courts or individual judges between two theoretical extremes. The
extreme model of judicial activism is of a court so intrusive and ubiquitous that it virtually
dominates the institutions of government. The Encyclopedia of the American Constitution146
states that the uses of Judicial restraint‘ are not entirely uniform. Often the terms are employed
non-committally i.e., merely as descriptive short hand to identify some court or judges as more
activist or more restrained than others. In this sense, the usage is neither commendatory nor
condemnatory. These expressions viz., judicial activism and judicial restraint are used from the
angle of the personal or professional view of the right role of the Court. In U.S.A., in more than
two centuries of judicial review, superintended by more than one hundred justices who have
served on the Supreme Court and who have interpreted a constitution highly ambiguous, in much
of its text, consistency has not been institutional but personal. Individual judges have maintained
strongly diverse notions of the proper or right judicial role.1

2. Origin of Judicial activism:-

The concept of judicial activism found its roots in the English concepts of equity‘ and natural
rights‘. On the American soil, these concepts found expression in the concept of judicial
review‘. The first landmark case in this regard was the case of Marbury v. Madison. In this case,
for the first; time the judiciary took an active step and took a step above the legislative actions.
Marbury was appointed Judge under the Judiciary Act of 1789 by the U.S.Federal Government.
Thought the warrant of appointment was signed, it could not be delivered. Marbury brought an
action for issue of a writ of mandamus. By then, Marshall became the Chief Justice of the
Supreme Court having been appointed by the outgoing President, who lost the election. Justice
Marshall faced the imminent prospect of the Government not obeying the judicial fiat if the
claim of Marbury was to be upheld. In a rare display of judicial statesmanship asserting the
power of the Court to review the actions of the Congress and the Executive, Chief Justice
Marshall declined the relief on the ground that Section 13 of the Judiciary Act of 1789, which
was the foundation for the claim made by Marbury, was unconstitutional since it conferred in
violation of the American Constitution, original jurisdiction on the Supreme Court to issue writes
of mandamus. He observed that the Constitution of the United States confirms and strengthens
the principle supposed to be essential to all written Constitutions. That a law repugnant to the
Constitution is void and that the courts as well as other departments are bound by that
instrument. If there was conflict between a law made by the Congress and the provisions in the
Constitution, it was the duty of the court to enforce the Constitution and ignore the law. This
judgment received lots of criticisms from different quarters, but judicial review was here, and it
was here to stay. In the initial stages, only in respect of substantive laws, the doctrine of due
process was applied but later the procedural laws also were brought within its purview. Between
1898 and 1937, the American Supreme Court declared 50 Congressional enactments and 400
State laws as unconstitutional. With the power of judicial review up in its sleeves, the American
judiciary started the modern concept of judicial activism in `1954 with the landmark judgment in
Brown v. Board of Education152. Starting from this judgment and by a series of judgments after

1
M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987).
this, the Supreme Court of America ruled out all the laws which segregated the Negroes from all
the fields of day to day life. The earlier position taken in Plessy v. Ferguson153 that blacks
could be treated as a separate class but must be provided with equal facilities – separate but
equal-founded on racial discrimination was rejected by the Supreme Court at the risk of
disturbing the institutional committee and delicate balance between the three organs of the State.
Not only did the Court abolish the laws which did not ascribe to the prescribed Constitutional
norms, but also encompassed more rights which were not clearly provided for in the
Constitution.2

3. Judicial activism in India(origin and development):-

Since the establishment of Courts as means of administering justice, law is made from two
sources. The prime source is from the legislature and the second is the judge-made law, i.e.
judicial interpretation of already existing legislation. The Constitution of India also recognized
these two modes of law-making. Article 141 of the Constitution of India lays down that the law
as declared by the Supreme Court of India establishes the Law of the State. It thus codifies what
was hitherto an unmodified convention, namely, recognition of judge-made law. The process of
making law by judges is what can be called Judicial Activism. Judicial Activism as distinguished
from Judicial Passivism means an active interpretation of existing legislation by al judge, made
with a view to enhance the utility of that legislation for social betterment. Judicial Passivism, to
put it very loosely and liberally is interpretation of existing legislation without an attempt to
enhance its beneficial aspects, by so interpreting the existing law as top advance and progress the
beneficial extent of that legislation. The phenomenon which is now called Judicial Activism is,
therefore, not one of recent origin. It originated with the firm establishment of Courts as means
of administration of justice. For a very long time, the Indian judiciary had taken an orthodox
approach to the very concept of judicial activism. However, it would be wrong to say that there
have been no incidents of judicial activism in India. Some scattered and stray incidents of
judicial activism took place from time to time. But they did not come to the limelight as the very
concept was unknown to India. However, the history of judicial activism can be traced back to
`1893‘ when Justice Mehmood of the Allahabad High Court delivered a dissenting judgment
which sowed the seed of activism in India. It was a case of an under-trial who could not afford

2
Marbury v. Madison 5 U.S (1 Cranch) 137 (1803)
to engage a lawyer. So the question was whether the court could decide his case by merely
looking at his papers. Justice Mehmood held that the pre-condition of the case being heard‘ (as
opposed to merely being read) would be fulfilled only when somebody speaks. So he has the
widest possible interpretation of the relevant law and laid the foundation stone of judicial
activism in India. The Supreme Court of India started off as a technocratic Court in the 1950‘s
but slowly started acquiring more power through constitutional interpretation. In fact the roots
of judicial activism are to be seen in the Court‘s early assertion regarding the nature of judicial
review. In A.K.Gopalan v.State of Madras180, although the Supreme Court conceived its role in
a narrow manner, it asserted that its power of judicial review was inherent in the very nature of
the written constitution. The Constitution appears to be a matter of abundant caution. Even in
their absence, if any of the fundamental rights was infringed by any legislative enactment, the
Court has always the power to declare the enactment to the extent it transgresses the limits,
invalid‖. The posture of the Supreme Court as a technocratic Court was slowly changed to be
activist Court. In Sakal Newspapers Private Ltd. v. Union of India181, it held that a price and
page schedule that laid down how much a newspaper could charge for a number of pages was
being violative of freedom the press. The Court also conceived a doctrine of giving preferred
position to freedom of speech and expression, which includes freedom of the press, over the
freedom to do business. The Supreme Court held that at a newspaper was not only a business; it
was a vehicle of thought and information and therefore could not be regulated like any other
business. In Balaji v.State of Mysore182, the Supreme Court held that while the backward
classes were entitled to protective discrimination, such protective discrimination should not
negate the right to equality and equal protection of law. It held that backwardness should not be
determined by caste alone but by secular criteria though caste could be one of them, and that the
reserved seats in an educational institution should not exceed fifty per cent of the total number of
seats. In Chitralekha v. State of Mysore183, similar restrictions were imposed on the reservation
of jobs in civil services. These are examples of judicial activism of the early 1960s. In these
early years of the Indian Supreme Court, the inconvenient decisions of the Supreme Court were
overcome through the device of constitutional amendments. The first, the fourth and the
seventeenth constitutional amendments removed various property legislations from the preview
of judicial review. Therefore, a debate on the scope of the Parliament‘s power to amend the
Constitution started. A question was raised before the Court in 1951 in Shankari Prasad v. Union
of India, whether Parliament could use its constituent power under Article 368 so as to take away
or abridge a fundamental right. The court unanimously held that the constituent power was not
subjected to any restriction. That question was again raised in Sajjan Singh v. State of
Rajasthan185, and this time two judges responded favourably, though theirs was a minority
view. In 1967, L.C.Golaknath v. State of Punjab186 that minority view became the majority
view, by a majority of six against five. It was held that Parliament could not amend the
Constitution so as to take away or abridge the fundamental right.3

4. Legislation on personal law(Muslim law):-

The legislative activity concerning Muslim personal law in India during the British regime was
very little. The attitude of non-interference adopted by the British administrators in the case of
Hindu law reflected much more tenaciously in the case of Muslims law. Changes made in the
Hindu law were far greater than those made in Muslim law. Only a few changes through
legislation were made in Muslim law because of a wrong notion and misleading belief that
Muslim law is totally opposed to changes and is entirely devoid of flexibility and dynamism.
Muslim law as usual with other personal laws is subjected to two forces pulling in opposite
directions. On the one hand there are conservative forces trying to keep Muslim law without any
change strictly in accordance with the Koran and the Hadih, and there are, on the other hand,
forces trying to modify the archaic law in accordance with the changing need of the dynamic
society. There are three Acts which affected Muslim as well are the Caste Disabilities Removal
Act, 1850, the Child Marriage Restraint Act, 1929, and Dowry Prohibition Act, 1961. The three
central statutes passed during the British period are; The Wakf Act, 1913; the Muslim Personal
Law (Shariat) Application, 1937, and the Dissolution of Muslim Marriage Act, 1939. A change
was effectuated in the Muslim law in 1913 when the legislature enacted the Mussalman Wakf
(Validating) Act. This was to undo the effect of the Privy Council ruling in the famous case
Abdul Fata Mohammad Ishak v. Rusomoy Dhur Chowdhary. The Muslims regarded his judicial
dicta as being inconsistant with the true view of the Shariat. However, it went further and
declared such a Wakf void ab initio. This did appear to be invasion. The strong emotional
reaction of the Indian Muslims against this decision finally obtained the enactment of the
Mussalman Waqf Validating Act of the 1913 which nullified the decision of Privy Council in
3
Anonymous website visit by:file:///C:/Users/hp/Desktop/family%20law%20project%20material.pdf
Abul Fata's case. This was a pyrrhic victory for Muslims; it's social consequences were
devastating. It blocked any initiative by the Muslim upper class in the direction of industry. It
perpetuated a pathetic class of pensioners devoid of economic initiative who were in the long
run, bound to become a drag on the community. The communities like Khojas, Vohars, Mensons
had become converts from Hinduism to the Muslim religion. Even though they renounced the
Hindu religion, they did not renounce the Hindu customs completely and in the area of
inheritance and succession, they continued to observe the Hindu law as customary law. The
orthodox Muslim opinion did not relish this situation. Therefore, in 1937, the Muslim Personal
Law (Shari'at) Application Act was passed with a view to abrogate these customs and bring these
communities under the Muslim law. Danial Latifi is of the view that Muslim Personal Law
(Shariat) Application Act was passed primarily to improve the status of Muslim women by
restoring the custom-eroded right due to them under the Muslim Law.4 As the statement of
objects and reasons point out:5

"The status of Muslim women under the so called customary law is simply disgraceful.
All the Muslim women's organisations have therefore commended the customary law as it
adversely affects their rights. They demand that the Muslim personal law (Shariat) be
made applicable to them".

Another legislation enacted in 1939 was the Dissolution of the Muslim Marriage Act
which gave the Muslim wife the right of judicial separation from her husband in certain
circumstances. Such as right had been denied to her earlier, perhaps because the courts followed
mainly the Hanifi School of interpretation of the Muslim law. The Act was based on Islamic law
of the Maliki School which is comparatively more liberal than the Hanifi School as far as the
right of a Muslim women to obtain a divorce is concerned.6 The Act is an important landmark as
a Muslim women was given right to obtain dissolution of marriage on nine grounds. These are
mainly the grounds which a Maliki School recognizes for a Muslim women to claim a divorce.
This is the only legislative measure which has introduced a substantive reform in the Muslim law

4 Danial Latifi , "Change and the Muslim Law," in Tahir Mahmood, ed., Islamic Law in Modern India, (1972) pp.
106-07.
5 Sharifa Hamid Ali and Jahan Ara Shah Nawaz were among the leaders of the Muslim women's movement for
this Bill.
6 Tahir Mahmood, An Indian Civil Code (1976), pp. 59-61, H. A. Gani, Reform of Muslim Personal Law, (1988)
pp. 18-19.
over a long period of time. But the Act does not in any way restrict the arbitrary power of a
Muslim husband to pronounce talaq.7 The Act, though opposed by the followers of Hanifi School
of Muslims, was passed on the representation of other Muslims.

5. Case law:-
Shayra bano vs Union of India and othr:-

Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-
bidat (triple talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally
effect instant and irrevocable divorce by pronouncing the word ‘talaq’ (Arabic for divorce) three
times at once in oral, written or, more recently, electronic form. Ms Bano argued before the
Supreme Court of India that three practices – triple talaq, polygamy, and nikah halala (the
practice requiring women to marry and divorce another man so that her previous husband can re-
marry her after triple talaq) –were unconstitutional. Specifically, she claimed that they violated
several fundamental rights under the Constitution of India (Constitution) namely, Articles 14
(equality before the law), 15(1) (prohibition of discrimination including on the ground of
gender), 21 (right to life) and 25 (freedom of religion). Her petition underscored how protection
against these practices has profound consequences for ensuring a life of dignity. Further, it
asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination
against women including by non-State actors, either directly or indirectly, violates not only the
most basic human rights of women but also violates their civil, economic, social and cultural
rights as envisaged in international treaties and covenants. In this case, the Court focused solely
on the practice of triple talaq. In August 2017, the Court, by a majority of 3:2, set aside the
practice of triple talaq. Of the justices who voted against the practice, two held it to be
unconstitutional while the third relied on case precedents to reiterate that such practice was
impermissible under Islamic law.The majority judgment held triple talaq to be unconstitutional
under Article 14 read with Article 13(1). In this regard, the Court held that the practice had been
sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act,
1937. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of

7 M.P. Jain, Indian Constitution Law, N.M. Tripathi Pvt. Ltd. Bombay (1987). p. 606.
equality” and determined, as triple talaq provides that “…the marital tie can be broken
capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates
Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and
enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before
the commencement of the present Constitution (which includes the 1937 Act) shall be void in so
far as they are inconsistent with the fundamental rights set out in the Constitution. The Court also
considered whether triple talaq is protected under Article 25 but, following a review of relevant
precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam.

Issues in this case:-

-: Is talaq-e-biddat Islamic in nature?

-: Whether talaq-e-biddat comes under the protection of Article 25?

-: Whether Muslim Personal Law (Shariat) Application Act, 1937 bestows statutory status to the
subjects governed by it or is it still sheltered under “Personal Law” which is not within the
meaning of word “law” under Article 13 of Constitution of India?

Analysis:-

“A distinctive feature of talaq-e-biddat is that it is immediately effective and is

irrevocable.”11Furthermore, it can be only pronounced by a husband against his wife and not
vice versa. According to Ameer Ali, this form of talaq was introduced by the Omeyyade
monarchs because of the inconveniency they felt in the Prophet’s formula of checking. Since
then it was prevalent among the Sunni Muslims. There are four sources of Islamic Law, namely,
Hadith, Quran, Qiyas and Ijma. Quran which is believed to be the word of god, is the most
fundamental and primary source of law, supplementary to which is Hadith, which are the
traditions of Prophet, and the latter two are not of much relevance. There is no mention of talaq-
e-biddat in the holy Quran. It can only be found in the Hadith. “Such talaq is although sinful but
lawful in Hanafi law, but in Ithna Ashari and Fatimi laws it is not permissible.” In words of
Prophet Mohammad, “Talaq is the most detestable before god of all the permitted
things”13Quran only permits talaq under exceptional and justifiable conditions and that too
talaqe-hassan and talaq-e-ahsan, which are revocable. No verse in the Quran validates
instantaneous triple Talaq. Justice Kurien’s judgement hugely relies upon the aforementioned
relationship of Quran and triple talaq. This is specifically interesting as it does not dwell upon
constitutional legitimacy of triple talaq but rather throws light upon its Quranic legitimacy.

Issue 2:- In order to get the most precise answer to this question, the essentiality test needs to be
applied. The test determines if a particular practice is crucial part of a religious faith or not. “In
the case at hand, both the minority and the majority judgments reside on this issue and rely on
different judgments to reach their conclusions.” In the light of Sardar Syedna Taher Saifuddin
Saheb Vs. The State of Bombay16, CJI Khehar recited that essentiality of a religious practice
must be assessed from the belief of members belonging to that community. On the other hand,
Justice Nariman relying upon one of the landmark judgements on Article 25 in Commissioner of
Police Vs. Acharya JagdishwaranandaAvadhuta17, stated that “essential practice is the one on
which core beliefs of the religion are founded; a cornerstone upon which the superstructure of
the religion is built, without which the fundamental character of the religion would change”. If
view of Justice Nariman is taken into consideration, then Triple Talaq is unambiguously outside
the purview of Article 25. However, abiding by the interpretation of essentiality test as laid down
by CJI Khehar, a question arises whether talaq-e-biddat can be regarded as an essential part of
their religion by Muslim community in India. A large population of Muslim community in India
are Hanafi muslims and respondents in the case too were the same and they themselves asserted
that such a practice is considered to be sinful and AIMPLB has issued directions to curb such
practice. Thus, it may be concluded that the operation of talaq-e-biddat is not regarded as an
essential part of their religion by muslim community in India. Further if it is assumed to be a
religious practice, it triple talaq suffered the disqualification from the protection of Article 25 on
the grounds of it being violative of other fundamental rights enshrined in Part III of constitution
and morality. Article 25 of our constitution being basis of secularity of India, it does not
guarantee unrestricted freedom to religion for it could have worst consequences. Such freedom is
subject to public order, morality, health and other provisions of Part III of constitution.19 The
practice of triple talaq in addition to violating other fundamental rights was an eclipse on
morality. Muslim males were using even mobile texts to terminate the sacred bond of marriage
within few seconds without assigning any reason and most of the times for contracting another
marriage. Their impulsive decision ruined the entire life of female, leaving her under the bare
sky and annihilating the future of children born of such marriage, too.
Issue 3:- As per the interpretation of Section 2 of Shariat Act, 1937 given by Justice Nariman,
customs and usages which are erratic with Shariat are invalidated and rest other are valid. Just
literal understanding of the section does not provide much to conclude about it. This is where
opinions of Justice Nariman differ with that of CJI Khehar as Justice Nariman, by his
interpretation puts emphasis on the object of the Act and concludes that Muslim Personal Law
should be made applicable over the whole country while CJI emphasizes legislative debates to
get the true intention of legislature behind the act. Here, it may be concluded that it was
inconsistency between drafting the Objects of the legislation that led to bifurcated and varied
conclusion by the judges. Analyzing the judgement, which Justice Nariman gave, he held 1937
act to be within the meaning of expression “laws in force” under Article 13 of constitution,
thereby void to the extent of inconsistency with provisions of Part III.8

6. Conclusion:-
Many gender discriminatory practice have been prevalent in the Indian society since ancient
times and the major victims of these traditional chains have always been the women. But with
the advancement of time and enhancement of education amongst the population, many of these
unjust norms have been done away with, triple talaq now being the one of them. 22nd day of
August, 2017 was the landmark day in the history of India which saw conclusion of an unjust
patriarchal practice which destroyed the life of thousands of muslim women. Triple Talaq or
talaq-e-biddat wasn’t even permitted by the holy book of Quran but was being exploited by
muslim male to end up their marital tie any time at their whims and caprices without assigning
any reason. This practice was gradually advancing towards its more pathetic state with divorce
being pronounced by mobile texts, letter and anytime even in state of anger or intoxication and it
became binding and effective immediately and wasn’t revocable too. In words of All India
Muslim Personal Law Board (AIMPLB), “Sharia grants right to divorce to husbands because
men have greater power of decision-making.”21It was none other than the victim of the practice
itself, Shah Bano, who initiated the battle and finally led it to the doors of success. The
peculiarity of the 5-judge constitutional bench which heard the controversial case was that each

8
Shayara bano vs U.O.I, file:///C:/Users/hp/Downloads/Case-Comment-on-Shayara-Bano-V.-Union-of-India.pdf
judge was a member of different religion. Triple Talaq being matter of religious belief of Hanafi
muslims, the multi faith bench was constituted to give the verdict a secular protection. Along
with declaring the practice as unconstitutional the bench gave directions to the union government
to draft an appropriate legislation for the same. On 28th December, 2017 The Muslim Women
(Protection of Rights on Marriage) Bill, 2017was passed in Lok Sabha. The bill makes triple
talaq in any form - written, spoken or by electronic means, void and illegal, with up to three
years of imprisonment for husband and includes several other remedial provisions. Although it
faced criticism on various grounds, as every reformatory step since the ancient times has
suffered, but it finally saw its light and is soon going to be ratified by Rajya Sabha to become a
formal law. “The judgment has been widely celebrated throughout the country, as many consider
it the beginning of a long overdue overhaul of archaic and discriminatory personal laws.”22 But
one thing is for sure - This is a minor victory, the fight for gender equality still has a long way to
go. Times of India News Network, Centre seeks apology from AIMPLB for filing 'misogynistic'
affidavit in Supreme