NEW DELHI: The Supreme Court recently concluded hearing the challenge to the constitutional validity of Triple Talaq. The Court will now decide whether personal law can be tested on the anvil of fundamental rights guaranteed in the Constitution.However, the essence of the hearing lies beyond the doctrinal arguments made by the parties and is to be found in the distinctively diverse claims on the Indian Constitution.

The narrative of the State- uniformity as equality

The Bharatiya Janata Party’s philosophical conviction on secularism is well documented in contemporary Indian history. The arguments on Triple Talaq therefore must be read as part of a larger claim on secularism as a constitutional principle. The ideology of Hindutva serves as the central tenant to this claim.

Arun Shourie, leading BJP ideologue, in his book A Secular Agenda articulated the Hindutva argument as one that promotes a strict separation between the Church and the State. The defense of minority personal law in this view is a pseudo form of secularism. This interpretation is opposed to the long-held state view that rested on a recognition of India’s plurality. Political theorist Rajeev Bhargava describes this as a policy of principled distance. Herein the state intervenes or abstains from the issue of religious faith depending on which action would better safeguard religious liberty and equality. (See Gary Jeffrey Jacobsohn)

The current Government’s asking the Law Commission to urgently consider the issue of implementing the Uniform Civil Code shows its belief that uniformity implies equality. Here lies the clash of two interpretations on the Indian Constitution: The Nehruvian State’s belief in unity within diversity as against the RSS’s claim of uniformity as equality. There can be no doubt that Article 44 of the Constitution envisions the state to endeavor towards a uniform civil code. (Uniformity-Of-Personal-Law-Offers-Neither-Equality-Nor-Integration) This however cannot be done by majoritarian force independent of collective consensus. The diversity of our identities and their views must be considered.

The Government has also argued that women’s rights in religious communities couldn’t be impervious to legal reform. This is a fair proposition. Question is how does one balance the constitutional right to freely express and manage your religion with the constitutional mandate to reform regressive law? The State today suggests that courts must immediately intervene and adjudicate on issues such as Triple Talaq, as social reforms within the community have failed to eradicate exploitative practices.

And it is because of practices such as Triple Talaq that the status of Muslim women is subservient to that of women of other faith. This serves as an important facet of discrimination and is contrary to the constitutional guarantee of equality. Acts of religious expression must be tested on the touchstone of the constitutional right to equality. Further that the Right to express your religion is not absolute and the State and the Judiciary can restrict acts opposed to public morality.

Finally, it was argued that instantaneous talaq has been sought to be removed as an accepted practice in several countries with Muslim majorities and there is no reason why India should legally sanctify such an act. The Union of India is correct in its view that the act of instantaneous Talaq is antithetical to the very idea of gender equality. However, the important debate is on the means of addressing the issue. Majoritarian strength to impose uniformity might not serve the purpose of reform and national integration.

The Board- Constitutional Hegemony on personal law

In 1952, in the wake of Partition and as the Indian Republic was coming to terms with our new constitutional identity, the High Court of Bombay was petitioned on whether religious personal law was protected from being tested against fundamental rights guaranteed in the Constitution.

Two of the most imminent Judges in Indian judicial history, Justice M.C. Chagla and P.B. Gajendragadkar (who later became Chief justice of India) in the case of State of Bombay vs Narrasu Appa Mali held that personal law couldn’t be judicially tested against the fundamental rights chapter of our Constitution.

However, Justice P.B. Gajendrakar did refer to the Uniform Civil Code and was of the view that the Constituent Assembly had imagined the legislature to eventually reform and abolish certain personal laws. However, the Court made clear that the Constitution did not intend personal law to be tested against the fundamental rights chapter in court.

The Board during the Triple Talaq case argued that this decision in Narrasu Appa Mali remains the correct position and the procedure established for divorce is a matter of Islamic faith and law and therefore cannot be nullified by a judicial decision. The Board claimed constitutional protection under the right to manage religious affairs as provided under Article 26 of the Indian Constitution. It rather bluntly stated that Triple Talaq is a matter of faith for the Hanafis, which as a denomination makes up most of the Muslim population in India. And therefore, no court of law should interfere in this personal choice of faith.

The Boards claim over religious practice is one that is absolute. It further seeks complete autonomy from judicial review and argues that Indian democracy provides this as a constitutional right.

Gender as Secular identity

Indira Jaising representing one of the parties in the matter argued that the practices of marriage and divorce have civil consequences (for example alimony) and should be treated as secular activities. The act of instantaneous Talaq cannot claim protection under the freedom of religious expression as it violates the rights of women under Articles 14 (equality), 15(prohibition of discrimination) and 21 (right to dignity in life) of the Constitution. In fact, this argument for reform in personal law in view of gender justice was raised in the Constituent Assembly by Amrita Kaur and Hansa Mehta. This was met with resistance as members considered such legal interference as curbing religious expression.

Indira Jaising further argued that the decision in Narrasu Appa Mali needs to be relooked and constitutional protection must be extended to women who suffer from exploitative religious practices.

Here the claim was to recognize the right to dignity, gender justice and personal autonomy as essential to the Constitution. That the protection of regressive personal law runs counter to the constitutional promise of equality and therefore cannot stand judicial scrutiny.

Social Movement as change

Amicus curiae
Salman Khurshid was of the view that Triple Talaq cannot be an effective divorce if made through three irrevocable pronouncements in one sitting. He argued that Instantaneous Talaq is an aberration and bypasses the institutional arrangement provided in Muslim personal law. It is the community that should cure this with aid of the legislature. And such a case does not warrant judicial intervention.

Here the claim is that the Constitution recognizes the right to follow personal law and that it is the institutions governing such law that are responsible in bringing desirable change in the community.

Finally, the Supreme Court is to decide whether it will allow Triple Talaq to be tested against fundamental rights or as it often does artfully, shift the onus to the Parliament.

(Abhik Chimni is a lawyer)