Insights into Editorial: Triple talaq and the Constitution
The Supreme Court is all set to begin hearing arguments in Shayara Bano v. Union of India, which has popularly come to be known as the “triple talaq case”. This case, in which the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah halala has been challenged, has created political controversy across the spectrum. The All India Muslim Personal Law Board (AIMPLB) has warned secular authorities against interfering with religious law.
What is triple talaq?
‘Triple Talaq’ is a procedure of divorce under the Sharia Law which is a body of the Islamic law. Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice.
Why triple talaq should be abolished?
- In spite of protests by Muslim women and activists world-wide the procedure is still prevalent in most countries.
- There are several instances where ‘triple talaq’ has enabled husbands to divorce their wives arbitrarily, devoid of any substantiation.
- According to a study, 92% of Muslim women in India want oral triple talaq to go.
- Oral talaq or ‘triple talaq’ delivered through new media platforms like Skype, text messages, email and WhatsApp have become an increasing cause of worry for the community.
- The ‘triple talaq’ has been abolished in 21 countries including Pakistan, but is still prevalent in India.
- The Centre reasons that these practices are against constitutional principles such as gender equality, secularism, international laws etc.
- The government also argues that when these practices are banned in Islamic theocratic countries, the practices could have absolutely no base in religion and are only prevalent to permit the dominance of men over women.
Challenges before the court:
The court cannot decide this case without engaging in a series of complex and difficult choices. In particular, the court will have to decide first whether to adjudicate the case in a narrow manner, which stops at assessing the relationship between triple talaq and Muslim personal law, of whether to undertake a broader approach, and ask whether personal law can be subject to the Constitution at all.
What experts say?
Relying upon the Supreme Court’s own judgments, experts point out that only those features of a religion are constitutionally protected which are “integral” or “essential” parts of it. There is no evidence to show that talaq-i-bidat constitutes an integral part of the Islamic faith and, consequently, it does not deserve constitutional protection.
On this view, the Supreme Court need not go into tangled and messy questions involving personal law and the Constitution; it can decide the question on its own terms. Although this would involve secular judges laying down the law on what Islam does or does not consider an essential religious practice, the Supreme Court has been engaging in such religious inquiry at least since 1966, and it is too late in the day to now say that it cannot, or should not. In fact, the Supreme Court itself, in a number of cases, has either doubted the validity of instantaneous triple talaq, or gone so far as to say that it is not a part of Muslim personal law.
There is no doubt that triple talaq violates women’s rights to equality and freedom, including freedom within the marriage, and should be invalidated by the Supreme Court. The larger question, however, is whether the court will stick to its old, narrow, colonial-influenced jurisprudence, and strike down triple talaq while nonetheless upholding a body of law that answers not the Constitution, but to dominant and powerful voices within separate communities; or will it, in 2017, change course, and hold that no body of law (or rather, no body of prescriptions that carries all the badges and incidents of law) can claim a higher source of authority than the Constitution of India?