NEW DELHI: The issue of women’s rights and people’s inherent right to equality, irrespective of any gender bias, has long been a bone of contention particularly with respect to democratic secular states. India often seen as a pillar of democracy and secularism in the midst of religious diversity has faced many a hurdle in trying to uphold its secular stance and provide equal rights to women.

The Supreme Court being burdened with the responsibility of upholding the Constitution of India has delivered many landmark judgements over the years. Albeit some judgements have indeed been criticized, the Supreme Court in no small measure has played a significant role in shaping the constitutional mould of India.

With respect to women’s rights, and upholding the Right to equality guaranteed under Article 14, the Supreme Court delivered its first landmark judgement in the Shah Bano case. The case involved a divorced Muslim woman’s right to maintenance under Section 125 of the Code of Criminal Procedure 1973. The Court deciding in favour of Shah Bano set a long standing precedent.

It laid down in unambiguous terms that all women, including Muslim women have the right to maintenance under Section 125. The judgement was met with widespread criticism from many Islamic organizations including the All India Muslim Personal Law Board disapproving the Court’s practice to interfere with Muslim personal laws. The Court, however, on subsequent cases before it has upheld the validity of the Shah Bano precedent.

The precedent laid down in the Shah Bano case was historic in the sense that it was a giant step towards the protection of women’s rights, and the recognition of the State in empowering the female sex in the country. The absolute right to equality under Article 14 was upheld by the Court in subsequent cases, and required all personal laws to be subject to the Constitutionality test.

The Constitution Bench of the Supreme Court today, heard a bunch of petitions involving the constitutional validity of the issues of Nikah halala, Triple Talaq, and polygamy. The five- judge Constitution bench, all hailing from various religious backgrounds heard the matter involving the Triple Talaq, reserving the other issues for the future.

The Attorney General of India, Mukul Rohatgi appearing on behalf of the Government laid down the scope of the jurisdiction of the Court. “The scope of referring had all the three issues which was divorce, nikah halala, polygamy. All these three issues are before this court by virtue of the reference order of the two- judge bench,” Rohatgi said.

The five-judge Constitution bench headed by Chief Justice J S Khehar said, “It may not be possible to deal with all the three issues in the limited time we have. We will keep them pending for future.”

The AG, proceeding to his arguments asked the Court to set aside the dictum laid down in the Nasaru Appa Mali judgement laid down by the Bombay HC and hold all personal laws subject to the Constitution. “As far as Hindus were concerned, various steps were taken to bring personal laws in conformity with the Constitution”, the AG argued.

The AG further asked the Court not to interpret the Quran as it is not an ecclesiastical Court. “The job of the Court is to see whether the provision of Triple Talaq is unconstitutional”, he added.

With reference to this, the AG further cited the position of law in other countries like Pakistan, Bangladesh, Saudi Arabia and other African countries like Tunisia and Algeria. “Even Islamic states have moved towards reform but we, a secular State is still debating over it”, the AG argued. He further added that the High courts of Kerala, Guwahati, Delhi and Madras have all frowned upon the practice.

The AG argued that the practice of Triple Talaq is separated from religion under the Shariat Act of 1937, and therefore should be struck down.

The AG added that “ The Government will not people high and dry once the Triple Talaq is struck down”. Under Article 13 of the Constitution, all Acts entered into prior to the commencement of the Constitution is void to the extent if its provisions are unconstitutional.

Senior Advocate of the Supreme Court, Kapil Sibal who appeared on behalf of the All India Muslim Personal Law Board argued the validity of the practice on the grounds that denying a person the freedom to practice his religion is violative of Article 25 of the Constitution.

Sibal also argued that the main issue at hand was not Triple Talaq but the inherent influence of patriarchy in every religion, and not just Islam. Sibal further added, “All patriarchal societies are discriminatory. Even many of the Hindu laws are discriminatory”.

The apex court during the last hearing had observed that triple talaq is the “worst” and “not a desirable” form of dissolution of marriage among the Muslims, even though there existed certain schools of thought which considered it “legal”. The day- long hearing regarding the constitutionality of the Triple Talaq also witnessed eminent jurists like Ram Jethmalani, Salman Khurshid, and former Union minister and Islamic scholar, Arif Mohammad Khan all speaking out against the practice.

Jethmalani argued that the practice of Triple Talaq violated the right to Equality guaranteed under Article 14 and termed it “abhorrent”. “The right of triple talaq is available only to the husband and not to the wife and it breaches Article 14(Right to Equality) of the Constitution, ”Jethmalani said.

“Triple talaq is far from being fundamental and very far from being sacramental to Islam. It violates every good thing which Islam prescribes. What we are seeing in the form of triple talaq is similar to the pre-Islamic era practice where female infants were buried alive,” Khan added.

With regards to the latter, the Court will uphold the dictum laid down in the Nasaru Appa Mali case.

The Court, while deciding the case, can rely on previous judicial precedents or even further go into the drafting history of the Constitution. One of the tests to determine the constitutionality of religious practices which is of relevance here is the “Essential Practices” test laid down initially by the Rajasthan High Court, and was subsequently recognized by the Supreme Court regarding the Jain practice of Santhara. The test was with regard to the violation of the fundamental right to practice one’s religion under Article 25.

The Court held that the ritual of “ voluntary and systematic fasting to death” was illegal, and amounted to abetment to suicide. More importantly, the Court held, “ We do not find in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or Moksha”.

With regards to the Court interfering with the personal religious laws of different communities, the Apex Court itself has indeed chosen to take a firm stand and declare certain practices as unconstitutional or not adhering to the “essential practices test”. The Court in the case of Qureshi vs State of Bihar held that cow sacrifice was not an essential part of Islam.

Further, Justice Sinha in his dissenting opinion in the Syedna Saifuddin case held that practices which directly impacted a person’s enjoyment of his civil rights guaranteed by law would not be given constitutionally protected.

Additionally, the Allahabad High Court also struck down the practice of bigamy as unconstitutional in the case of Ram Prasad Seth v State of UP.

Further, reference can also be made to the Constituent Assembly Debate which took place on the 2nd of December, 1948. B.R Ambedkar among other things raised the issue regarding the wordings of Article 25. “There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs as may be connected with ceremonies which are essentially religious,” he observed.

The right to practice one’s religion unhindered under Article 25 in itself starts with the limitations : “ Subject to the public order, morality and health..” This right is therefore not absolute and subject to limitations such as public order and morality. The latter ground was argued by AG Rohatgi during the Court proceedings today.

The Apex Court will have to decide on the constitutionality of the practice of Triple Talaq in the coming days. Since the days of the Courts of Chancery in the United Kingdom, the judicial system across nations has played an all important role in upholding the sacrosanct nature of its Constitutions. For democracy to evolve, and social reform to progress, the judicial system is vested with powers independent of the influence of the Executive and the Legislature.

The power of the Court in this regard is like a double edged sword. Courts can reform regressive religious practices not in accordance with the emerging norms of society or human rights, and re-characterize it in a more progressive light. Concurrently, it can also be argued that the Court does not possess the legitimacy or the competence to decide what constitutes essential practice.

The Constitution Bench in this regard can either set a precedent declaring the practice of Triple Talaq unconstitutional on the aforementioned grounds, or not interfere with the personal laws of specific religions by subjecting it to the Constitutionality test, thereby demarcating its stand between a judicial court and an ecclesiastical one.

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SHOUNAK BANERJEE