Petitions challenging triple talaq among Muslims have evoked sharp reactions from those defending the arbitrary practice as also its opponents.
Surprisingly, many Muslim individuals and organisations – on both sides of the divide – have chosen to base their arguments on the Quran, Sunnah or reforms in Muslim law in Islamic countries; and not on the Constitution of India – the supreme law of the land.
Some Muslim women have challenged the validity of age-old practices having gender bias; asserting their fundamental right to equality, right to non-discrimination and right to live with dignity.
Regrettably, All India Muslim Personal Law Board has defended triple talaq in the SC, saying it is better to divorce a woman than kill her and that men were emotionally more stable. In its affidavit, the board has gone to the extent of saying that rights given by religion couldn’t be questioned in courts and the SC could not “rewrite personal laws in the name of social reform”.
The affidavit reflects the regressive mindset of those running the board and their ignorance of constitutional provisions.
Courts decide cases on the basis of law and not religions texts. Right to religion is the weakest of all fundamental right as it’s subject to public order, morality, health and all other fundamental rights. In case of a conflict between right to religion and any other fundamental right, the former must give way to the latter.
So far Parliament and judiciary have adopted ‘bottom up’ approach leaving it to the Muslim community to reform these social practices. But history tells us this approach does not yield desired results in social reforms. It was for this reason that the British adopted ‘top down’ approach to ban Sati way back in 1829. Had it been left to the Hindu community to reform itself, perhaps it would have taken centuries.
While social and religious reformers can carry on with their attempts to convince the Muslim community of Islam’s egalitarian principles, courts must do their job of dispensing justice to those who knock on their doors for realisation of their fundamental rights. They can’t tell the petitioners that it’s for Parliament to take a call on the issue. Shying away would be tantamount to abdication of duty cast on judiciary by the constitution.
Law is a tool in the hands of courts for resolution of conflicts. One good thing which has happened in the past 66 years is that people in general have accepted courts as impartial arbiters and judicial verdicts as the last word on contentious issues. Anti-reservation agitation is the best example.
In the recent years, India has witnessed a spate of litigation involving conflict between law and religion. Be it ensuring the entry of women into Haji Ali mausoleum in Mumbai or their access to the Shani Shingnapur temple in Maharashtra, it is the courts that have helped reform male-dominated social practices and deal with the clergy’s refusal to be guided by logic, reason or law.
The manner in which the SC adjudicates on these conflicts between law and religion would determine the direction in which India would move as a nation.