In 1951, the Bombay High Court delivered what remains independent India’s most intellectually unsatisfying judgment. In State of Bombay v. Narasu Appa Mali, a straightforward question was asked: Can a constitution promising equality permit laws that create legal castes based on religious birth? The court’s answer, a tortured yes wrapped in circular reasoning, has haunted Indian jurisprudence for seventy-five years, creating a grotesque reality where your fundamental rights depend on your parents’ faith.
The facts expose the absurdity. Narasu Appa Mali faced criminal prosecution for bigamy under the Bombay Prevention of Hindu Bigamous Marriages Act. His defense was constitutionally airtight: How can Article 14’s equality guarantee coexist with religious laws allowing Muslim men to lawfully maintain four wives while criminalizing the same conduct for Hindus? Either permit polygamy for all or prohibit it for all, selective application based on religious identity is textbook discrimination.
Chief Justice M.C. Chagla acknowledged the discrimination but performed judicial gymnastics to preserve it. The court ruled that personal laws existed outside Article 13’s scope they were simultaneously laws courts enforced yet magically not “laws in force” subject to fundamental rights scrutiny. This created Schrödinger’s law: existing and not existing depending on which constitutional provision you invoked.
The Intellectual Fraud at Narasu’s Core
The judgment’s central evasion deserves dissection. The court claimed “laws in force” under Article 13 meant only statutory and common law, excluding personal laws. Yet the Muslim Personal Law (Shariat) Application Act of 1937 was precisely that a legislative enactment passed by British India’s Central Legislative Assembly. It wasn’t divine revelation delivered to Parliament; it was statute law, codified and enforceable through judicial machinery.
If courts enforce something as law, it is law. If it’s law, Article 13’s constitutional guillotine applies. The court invented a religious exemption that appears nowhere in constitutional text, confusing legislative restraint with constitutional authorization. Dr. B.R. Ambedkar designed Article 13 to void all discriminatory laws without exception. Narasu neutered it by creating a constitutional escape hatch for discrimination dressed in religious garb.
The timing reveals the calculation. Post-Partition leadership, terrified of alienating minorities, chose political expediency over constitutional coherence. Ambedkar’s Hindu Code Bill imposed constitutional values criminalized polygamy, established divorce rights, guaranteed inheritance equality on Hindu personal law. Muslim personal law, equally patriarchal and polygamous, remained sacrosanct under “minority protection.” Uniform reform would have been secular. Selective reform created constitutional castes.
The Question That Demolishes Everything
Here’s the interrogation that shatters Narasu’s logic: If untouchability could be abolished despite millennia of scriptural sanction, if Sati could be criminalized despite religious tradition, if child marriage could be prohibited despite ancient custom what constitutional principle exempts polygamy, unequal inheritance, or gender discrimination in personal law?
The Constitution abolished untouchability overnight under Article 17. It didn’t ask whether the practice had religious roots; it asked whether discrimination existed. The only difference between abolished practices and protected ones is political will masquerading as judicial reasoning.
Consider the lived inequalities Narasu legitimized: Hindu women gained court protection from unwanted divorce while Muslim women facing Triple Talaq had none until 2017. Hindu daughters inherited equally; Muslim daughters received half. Hindu men faced seven-year imprisonment for bigamy; Muslim men faced nothing. Millions of citizens experienced differential justice based solely on birth religion,exactly what Article 14 was designed to prevent.
Constitutional Courage or Constitutional Cowardice?
Recent judgments have begun dismantling Narasu’s framework. In Shayara Bano (2017), Justice Kurian Joseph declared “what is bad in theology is bad in law,” striking down Triple Talaq. In Sabarimala (2018), Justice Chandrachud called Narasu a “constitutional ghost protecting discrimination.” Yet the precedent survives because confronting it requires answering whether religious freedom under Article 25 includes the freedom to discriminate under Article 14.
Article 13 contains no religious exemption. Personal laws are enforced through legislative acts. Selective reform violates equality. Constitutional morality supersedes religious practice principles established through untouchability abolition, Sati criminalization, and child marriage prohibition. A Constitution Bench must declare that in India’s Republic, no law, no custom, and no faith stands above equal justice for all.
Until then, India remains the world’s only secular democracy where fundamental rights are negotiable at the altar of religious identity. Narasu Appa Mali gave us seventy-five years of constitutional apartheid. Justice deferred is justice denied. The question is whether we possess the courage to admit that equality was always non-negotiable or whether we’ll continue pretending the Constitution doesn’t apply to everyone.
Note : Image is AI generated and for representational purpose only
About The Author
