Talaq-E-Biddat and its Implications Under Article 25 of the Constitution

Article 23 of the Constitution of India protects Triple Talaq. This Article provides for a guarantee to religious freedoms. The supremacy and enforceability of personal laws has been upheld by Article 25. Every person is provided with the freedom of propagating and disseminating their religion under Article 25, however subject to public order, health and morality and other provisions of Part III of the Constitution. However, there are inbuilt safeguards provided in the provision as the State can inflict such limitations and restrictions which may be desired or found necessary on the grounds of public order, health and morality.

The right of the State is ensured by Article 25(2) to make laws which provide for social welfare which includes reforms, and the article also ensures any such rights of the State, or of the communities, or classes of society which are necessary for the due regulation in order to harmonize the different rights. Article 17 puts forth the vision of the country‟s founding fathers to get the society rid from any kind of blind and ritualistic devotion and obedience to mere traditional superstitious beliefs which lack any sense of reason or logical basis.

The personal laws have been tested on the litmus paper of Part III of the Constitution by the Supreme Court in Daniel Latifi v. Union of India[3].An attempt was made by the Apex Court to retain a balance, by upholding the rights of the Muslim women without speak upon the constitutional validity of discrimination on the ground of sex and religion in personal laws.

In numerous other cases the Apex Court had the opportunity of deliberating upon the contents of Articles 25 and 26 and following are the main principles which are

underlying the provisions: Firstly, the safeguard which is provided under these articles is not restricted to the matters of doctrine or belief; they are also applicable to the acts which are done in furtherance of religion and, thus, comprise of a guarantee for carrying out rituals and compliances, ceremonies and modes of worship which form an integral part of the religion.

Secondly, the courts determine as to whether any practice constitutes to be a significant part of a religion or not taking into consideration the doctrine of a particular religion and this includes such practices which may be regarded by the community as a part of its religion. There seems to be a clear position, that the judiciary can interfere with „personal

law‟ only in the manner provided under Article 25. The parameters of the issues of faith cannot be breached due to the fact that they have the protective layering of Article 25[4]

Inference of Article 14, 15 and 21

Apart from Article 25, „talaq-e-biddat‟ could be challenged on the ground as to whether the practice of giving divorce by way of triple talaq is violative of Part III of the Constitution (the practice being in alleged violation of Articles 14, 15 and 21 of the Constitution). Dr. Ambedkar had said that : “What we must do is not to be attained with mere political democracy; we must make out political democracy and a social democracy as well. Political democracy cannot last unless there lies at the base of it a social democracy.” A social democracy has been described as “A way of life which recognizes liberty, equality and fraternity as principles of life”[5]. Therefore, it was submitted, that for the purpose of achieving social democracy, and for the purpose of providing social and economic justice (as has been visualized in the Preamble), there is a need to give effects to the aims and objectives which are enunciated in the fundamental rights and directive principles[6].

Apart from equality, gender discrimination is prohibited under Articles 14 and 15. In the Charu Khurana case[7], the conclusion was reached that the “sustenance of gender justice is the cultivated achievement of intrinsic human rights and that there cannot be any discrimination solely on the ground of gender.” The rights of a woman to get equal dignity, social esteem and self-determination are said to be the essential features of the Right to Life that is contained under Article 21. The constitution framers contemplated gender equality to be a basic constitutional goal. Article 51A (e) aptly mentions this goal that proper measures should be taken by the State for renouncing practices which are derogatory to a woman‟s dignity.

Shayara Bano Case

Background

Briefly referring to the facts of the case, Shayara Bano, a woman survivor of domestic violence and dowry harassment had been given a unilateral divorce by way of Talaq-e-biddat. A petition was filed by her before the Supreme Court for the purpose of getting a declaration that the practices of triple talaq, polygamy, and Nikah Halala prevalent in the Muslim personal law were illegal, against the constitutional principles and against Articles 14, 15, 21 and 25. However, it was decided by the Court to solely carry out an examination of the issue of Triple Talaq.

This petiton was supported by the Union of India. Among the others who made an intervention in this case, it was argued by the All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind that the Court was barred by its jurisdiction to entertain a constitutional challenge to the Muslim personal law and it was an issue which was in the realm of the Legislature.

Many commentators have pointed out throughout the duration of the case, that there was no legal backing to triple talaq even before the case was filed, although no court had declared it to be “unconstitutional”. Since 1980s, various High Courts had held that for a pronouncing valid talaq there must a reasonable cause and before the pronouncement of talaq attempts must be made at reconciliation which are facilitated by mediators that represent both the parties.

The issue dates back to judgment of the Bombay High Court in, State of Bombay v Narasu Appa Mali (1952), in which a Division Bench of the Court came to the conclusion that personal law was not covered under the scope and ambit of the phrase “laws in force” that has been made use of in Article 13 of the Constitution for the purpose of denoting all those pre-constitutional statutes that were “in force” when the Constitution was adopted and came into being, and which were subject to the Fundamental Rights enshrinded under Part III of the Constitution. As per the Bench the reason behind this was the fact that the source of personal law was religion instead of the state. Eminent legal scholars like H.M. Seervai (2015) and A M Bhattacharjee (2016) have criticized the foundational basis of this judgment. This has also been called for reconsideration by several benches of high courts. It was first affirmed by the Supreme Court in 1980 in the case of Sri Krishna Singh v. Mathura Ahir (1980), but later on it was implicitly overturned in C Masilamani Mudaliar and Others v. The Idol of Swaminathaswaminathaswami Thirukoil (1997) and then again upheld in Ahmedabad Women’s Action Group v. Union of India (1997). Therefore, the case of Shayara Bano was not only significant due to the fact as to how her immediate claims will be decided by the Court, but also due to the reason that an opportunity will be provided to a five-judge bench of the Ape Court for the purpose of clarifying the constitutional status that is given to personal laws.

Religious Backing of Triple Talaq

Diametrically opposite approaches have been taken in the opinion in the Shayara Bano case with regards to the question of constitutional validity. The opinion of Justice Khehar, which was supported by Justice Abdul Nazeer, states that only such portions of the Muslim personal law can be tested on the anvil of Fundamental Rights on which a law has been enacted by the State, like the Dissolution of Muslim Marriage Act, 1939 or the Muslim Women‟s (Protection of Rights on Divorce) Act, 1986, however those portions of the personal law which remain uncodified cannot be made subject to Part III of the Constitution. The foundation of his opinion is on the contention that the Muslim Personal Law (Shariat) Application Act, 1937, that provides that the only law which is made applicable to the Muslims is Shariat and not customary law, had a very restricted purpose. According to Justice Kehar, that restricted, was merely of stating and declaring that there is no applicability of customary law on the Muslims in matters which are concerned with marriage, divorce, inheritance etc. The uncodified portion of Muslim law was not automatically brought into the jurisdiction of the state by the Act of 1937, and therefore, it is not covered under the purview of the phrase “laws in force” enunciated under Article 13.

Hence, the Narasu judgment was affirmed by Justice Khehar. Though it was argued by the Union of India to reconsider that judgment, it was so avoided by Justice Khehar, by making the statement that the bench is barred from doing so due to the reason that it had been upheld earlier by Supreme Court benches which had the same strength. This is an incorrect statement because in both the instances of upholding of Narasu, there were Division Benches. In addition to it, Justice Khehar further gave safeguards to the Muslim personal law by holding that it protection is given to it as a matter of religious freedom under Article 25.

Specifically, on ITT, the judge holds that it had been practised by the Sunni community for centuries, which made it part of their religious faith and was protected from interference by the Court. Curiously, in framing the issue thus, he gives up his earlier distinction between codified and uncodified laws and goes on to hold the entire category of personal law to be immune from constitutional challenge. He concludes that only the state can bring changes in the domain of personal law through legislation within permissible limits of Article 25 and trump the interest of religious freedom. Justices Khehar and Nazeer, therefore, deny the  petition and direct the state to legislate on the issue within six months.

The Arbitrariness of Triple Talaq -

An oppositie point of view was taken up Justice Nariman which was concurred by Justice Lalit. The view of Justice Nariman was that the Act of 1937 not only performed the function of abrogating the application of customary law to Muslims but also it performed a positive function which was to provide for the law that was applicable to the Muslims. According to this view, the entity “Muslim personal law” was created by the State by the state by way of exercising its civil authority, that led to completely bringing it within the scope and ambit of the phrase “laws in force” that is contained in Article 13. Therefore, as per the viewpoint of Jusitce Nariman, the test of Fundamental Rights can even be made applicable on uncodified Muslim personal law.

The rationale laid down in the Narasu judgment was contradicted and the earlier two- judge bench ruling of the Supreme Court which had place relaiance on Narasu was also set aside.

The foundation and basis of the opinion of Justice Nariman was the fact that what is “manifestly arbitrary” is also unreasonable and it can be struck down by making the use of Article 14.

Hence, in the analysis of Justice Nariman‟s viewpoint, the religion-based finding that Triple Talaq was wrong and evil, overlapped with the constitutional reasoning-based finding that there was manifest arbitrariness in Triple Talaq. The Act of 1937 was struck down by Justices Nariman and Lalit to the extent that it gave recognition to Triple Talaq.

Is Triple Talaq Un-Islamic?

Neither of these two positions were fully joined by Justice Joseph and he followed a distinct path. With regards to the nature of the Act of 1937, he was in agreement with Justice Khehar and in disagreement with Justice Nariman. This meant that though he agreed with view of Justice Nariman that arbitrariness forms a suitable test for Article 14, it was observed by him that the Act of 1937 cannot be made subject to it. However, he has some disagreements with Justice Khehar as well. It was held by Justice Khehar that the court cannot determine the validity of Triple Talaq by making a  reference to the Hadiths, due to the reason that as per him it stretched beyond the judicial role and expertise. On the other hand, Justice Joseph opined that the Act of 1937, which made the declaration that Shariat was the law which was applicable to Muslims, had essentially given the judges the power of finding out as to what the Shariat says on any particular matter.