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Triple talaq is an extrajudicial, unilateral act that’s civil death for a Muslim woman: Indira Jaising

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DailyBiteMay 11, 2017 | 21:49

Triple talaq is an extrajudicial, unilateral act that’s civil death for a Muslim woman: Indira Jaising

As the Supreme Court today, on May 11, 2017, began hearing the arguments in what is easily one of the biggest cases in the history of personal and especially Muslim personal law debate, the senior counsel appearing for the Muslim women petitioners, Indira Jaising, dubbed the controversial practice of triple talaq as an “extrajudicial, unilateral act that’s civil death for a Muslim woman”.

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Jaising further argued that personal laws are not religious laws, but that they draw sustenance from religion. She asserted that the Indian Constitution should not stop where family and personal laws, including those from Hindu, Muslim, Parsi, Christian backgrounds, start. Every law in the India should stand scrutiny of the fundamental rights guaranteed by the Constitution.

How SC would hear the triple talaq case

The “Triple Talaq” case, technically known as “Shayara Bano vs. Union of India”, is being heard in the highest court of the country, before a five-judge constitution bench that is unparalleled in its diversity.

It has five judges from five different religions: namely, Chief Justice of India, Jagdish Singh Khehar, who’s a Sikh; Jusice Kurian Joseph, a Catholic Christian; Justice Rohinton Fali Nariman, a Parsi; Justice Uday Umesh Lalit, a Hindu; and Justice S Abdul Nazeer, a Muslim.

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However, the lack of a single woman judge in the bench has also raised eyebrows.

The basic tenet of the case against triple talaq that is being heard before the five-judge constitutional bench is whether triple talaq and related practices such as nikah halala violate Muslim women’s rights to equality and dignit, and are not protected by the right to profess, practice and propagate religion under Constitution’s Article 25(1).

The Supreme Court’s is basically examining whether triple talaq is fundamental to Islam, with CJI Khehar clarifying: “"The matter can be summed up in three points: whether triple talaq is fundamental to Islam; if it is fundamental we have to see if we can interfere. Two, whether it is sacramental or not, and three, whether there is an enforceable fundamental right that is violated."

In other words, whether the constitutionally-guaranteed Right to Religion would be infringed in case triple talaq is struck down, and in case personal laws can be scrutinised to stand the test of fundamental rights.

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Appearing as an amicus curiae, senior lawyer and Congress leader Salman Khurshid told the apex court, "The right and the responsibilities of a man and a woman in marriage under Islam are divided. Quran prescribes a three-month process for divorce giving opportunity for arbitration and reconciliation. We cannot understand the Islamic law by contrasting it to modern day sensibilities.”

The Muslim women petitioners

The Muslim women petitioners include chiefly Shayara Bano, who is also contesting the affiliated practices of nikah halala (that requires a Muslim woman to marry another man and consummate the marriage before she can remarry the man who had divorced her via triple talaq), and polygamy. (However, the constitution bench expressly said that the current hearing would be on the efficacy of triple talaq and would not consider taking up polygamy at present.)

In addition to Shayara Bano, Aafreen Rahman is a second petitioner, who is legally contesting the triple talaq conveyed to her by her husband via speed-post. Further, the non-profit Bharatiya Muslim Mahila Andolan has become an additional party in the Shayara Bano case.

The All India Muslim Personal Law Board (AIMPLB) maintains that striking down triple talaq would infringe right to religion and that the courts should steer clear of what they see as interfering with religious laws. Kapil Sibal is representing AIMPLB in the Supreme Court defending the triple talaq as an something that should be left untouched by the courts and should be approached legislatively.

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Photo: Reuters

It must be mentioned here that PM Narendra Modi as well as the whole of BJP-led Centre have thrown their full weight behind the case against triple talaq, and are using it as a bogey to claim that the government is firmly behind Muslim women in their fight against triple talaq.

The case against triple talaq

As pointed out by legal experts, the triple talaq is essentially a case to determine whether the practice is fundamental to Islam, and/or whether, it’s a personal law not intrinsic to Islam, therefore already invalid under 1937 Muslim Personal Law (Shariat) Application Act. Secondly, whether as a personal law, it can be scrutinised for alleged violation of fundamental rights of Muslim women

The two-pronged approach taken by the counsels for the petitioners is represented by a narrow view, and a broader, more radical view. Senior advocate Anand Grover took the narrow, straight-forward view in the court by saying that it’s not fundamental to Islam, and therefore does not breach right to religion, or right t equality (Article 14), Prohibition of Discrimination (Article 15) and right to life and liberty (Article 21) of the Constitution.

As noted by legal commentators, this view contests AIMPLB’s claim that state has no right to interfere in the personal religious domain, by saying that the religious domain doesn’t allow for triple talaq. 

As this article notes, “only those features of a religion are constitutionally protected which are ‘integral’ or ‘essential’ parts of it.... In fact, the Supreme Court itself, in a number of cases, has either doubted the validity of instantaneous triple talaq, or gone so far to say it’s not a part of Muslim personal law.

On the other hand, Indira Jaising is taking the more radical, broader path, underlining how even as a personal law that’s not “law in force” (Article 13), must stand constitutional scrutiny and cannot violate fundamental rights of a human being. She argued that even if triple talaq were integral to Islam, the court must not allow a practice in the garb of a personal/religious law to violate the fundamental rights guaranteed by the constitution.

 

Jaising, in effect, asked the SC to overrule the 1951 Bombay High Court judgement (State of Bombay versus Narassu Appa Mali), which held that personal laws are not subject to the rights enumerated under part III (rights) of the Constitution. The 1951 Bombay HC judgement held that only a law that’s defined as a law in force under Article 13 can be subjected to the rights under Part III, thereby in effect, exempting the nebulous regions of personal laws that have not yet been properly codified.

 

Yet, this is a highly problematic stance as the years of colonial rule had in fact codified a number of religious practices and the Indian Penal Code of 1860 too was an amalgamation of indigenous religious/folk practices and British legal acumen. Therefore, to relegate all personal laws to the domain of non-Article 13 is rather short-sighted and violative of fundamental rights of those in the receiving end of such sociocultural/communal/religious practices.

Bench rebuts

However, the constitutional bench has rebutted (not unanimously) Jaising’s argument by saying that the Muslim Personal Law has been codified as statute, and therefore the Article 13 is completely applicable to it.

In effect, this leaves enough scope for triple talaq to be debated as under Article 13 of the Constitution (laws in force) and can be challenged under Part III. 

While Jaising has made a stellar case for the practice to be outlawed by bringing it under the wider ambit of fundamental rights, we can only hope for the best for the fearless petitioners who have taken on the might of the AIMPLB and entrenched religious patriarchy as a whole.

Also read - Dear Muslim women: Don't stop at triple talaq. Go beyond divorce

Last updated: May 11, 2017 | 21:49
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