Author: Pranjal Pagaria , Student at Symbiosis law school, Nagpur
Legislations are the grounds on which the country is governed to maintain social order. The Legislature is bestowed with the responsibility of formulating laws for the country but in case of any dispute or any contravention with the Constitution the Judiciary is empowered to strike down the legislation, called as “Judicial Review”. It is Article 13 clause 1 and 2 which empowers the Judiciary, clause 1 deals with pre-Constitution era laws with the help of “Doctrine of Eclipse” in Bhikaji v. State of Madhya Pradesh. Clause 2 deals with post-Constitutional era laws, to deal with the issue of severing the valid and invalid portions the Judiciary invoked the “Doctrine of Severability” in RMDC v UOI. Clause 3 of the article defines laws but the question pertinent to this clause is whether Personal laws are included into the scope of clause 3 or not. To answer we look into chain of cases starting with the Narasu Appa Mali’s case where the court articulated that Personal do not fall into the category of laws under clause 3 of Article 13 and cannot be tested on the touchstone of Fundamental Rights. This landmark case still forms the ground for every case that relates to dispute between Fundamental Rights and Personal Laws but in cases of Shayara Bano, Sabarimala, John Vallamattom and various others, we saw that Supreme Court did test the provisions of Personal Laws in respect to Fundamental Rights but remained silent on the billion-dollar question- whether these laws are a part of Article 13(3). Not including them within the definition of clause 3 gives them the unwanted advantage of being discriminatory and unreasonable. The set-back which the country has faced is a major why the Judiciary is silent on this matter.