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Constitutionality of ecclesiasticism

Govind Bhattacharjee |

In pronouncing their judgment on triple talaq, which has been universally hailed as a landmark judgment for striking down a 1,400- year old abhorrent practice of Islam prevalent in our country, the Hon’ble judges of the Supreme Court (SC) ought to have carried their inscrutable logic one step further.

The majority judgment in the case has held triple talaq unconstitutional, but majority of the judges on the interfaith bench agreed in their wisdom that the personal laws of a religion were not justiceable and enjoyed the same status as fundamental rights which are integral to the basic structure of our Constitution. Even the majority judgment was based not primarily on questions of constitutional morality and rights to equality or protection against gender discrimination as guaranteed by the Constitution, but on the interpretation of Mulsim Personal Law as understood by the learned judges.

With due respect to their erudition, it must be said that the argument has not been carried to its logical conclusion. Just as the personal laws of all religions have suddenly been elevated almost to the status of fundamental rights, the Hon’ble judges ought to have amended the preamble to our Constitution as well, by deleting the word ‘secular’ from it, for under this judgment, India might be well on its way to ceasing to be one.

The state has finally and formally been merged with religion. Let us sing the dirge of our dear ‘secular’ state, which is already in an advanced state of decay.

The judges had taken nearly three months to decide on a question that frankly required not much debate if it had to be judged by the constitutionality of the practice alone, and after so much pondering had finally sacrificed constitutionalism at the altar of religious bigotry.

The learned CJI, after a 272-page long discourse, had opined that triple talaq was an “essential religious practice” of Islam followed by the Hanafi School of Sunni Muslims for 1,400 years and enjoys the protection of article 25 dealing with freedom of religion, an opinion Justice Nazeer also endorsed. They held that the practice, condemned universally as unjust and awful except by the mullahs and members of the AIMPLB, is lawful and does not violate articles 14, 15 and 21.

In a chilling statement, they affirmed that as part of personal law, the appalling practice of triple talaq has a stature of the fundamental rights not to be interfered with by any court, and then curiously decreed that the Government should bring in a law – “Unfortunately, the Union seeks in our hands, what truly falls in its own.”

They said that reforming personal law was within the domain of the Government, and gave examples of sati, devdasi and polygamy of Hindu personal laws which were abolished by separate acts before codifying personal law for the Hindus.

The logic is rather enigmatic, because if a personal law is given the stature of a fundamental right beyond the jurisdiction of any court, how could then a law be framed to change the fundamental nature of that right? Justice Kurien, who shared the majority view, cited the SC judgment in Shamim Ara Case (2002) in which the SC had ruled that triple talaq lacked legal sanctity unless pronounced in a step-by-step compliance with the true Islamic procedure.

He again used religious laws to test the constitutionality of a practice. Triple talaq has been held unconstitutional by him not on constitutional grounds, but ironically, on ecclesiastical grounds – because the practice in his opinion was not integral to Islam.

It seems that henceforth judicial officers will have to inculcate expertise not only in the Constitution and the civil and criminal laws of the land, but also in scriptures belonging to different religions to test whether a practice in question is ‘integral’ to a religion. Justice Nariman said the practice was arbitrary and violated article 14 on equality before law and hence unconstitutional – a view also endorsed by Justice Lalit, but the arguments used by them again derived heavily from Islamic jurisprudence.

They cited that Islam divides all human action into five groups according to the degree of obedience required: (1) Fard, i.e. whatever is commanded in Koran, Hadis or ijmaa, and Wajib, which are obligatory, (2) Masnun, Mandub or Mustahab, which are recommendatory; (3) Jaiz or Mubah, which are permissible and to which religion is indifferent; (4) Makruh, which are unworthy and undesirable; and finally, (5) Haram, which are forbidden.

Instant triple talaq, they said, falls in the third at best or, but more likely, in the fourth group. Since instant triple talaq is neither obligatory nor recommended, and is rather sinful or undesirable, it cannot meet the test of essentiality of a practice to a religion, and is therefore not protected by Article 25.

Elaborating further, they said, “Given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place… It is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.”

Being arbitrary, it is unconstitutional and ultra vires to article 14 on the right to equality, which includes the right against arbitrariness.

They also referred to the Muslim Personal Law (Shariat) Application Act, 1937 which sanctified the practice, ruling that since all laws that violate the fundamental rights are automatically void under article 13 of the Constitution, Section 2 of the Act is void “insofar as it seeks to recognise and enforce triple talaq”.

The weighty argument ignores the discrimination, ignominy and injustice that Muslim women face on a daily basis, to prove which religious discourse was completely unnecessary – knowledge of the Constitution alone should have been enough.

The Act of 1937 is an obscurantist legacy from the colonial era that surrendered to the mullahs the jurisdiction on marriage, divorce, succession and maintenance, and could have been struck down simply on the ground of discrimination and arbitrariness. It does not require any ecclesiastical scholarship to conclude that triple talaq is abhorrent, discriminatory and unfair to women.

The judgment has indeed set a dangerous precedent that for resolving complex issues emanating from the religious practices of any community, judges now shall have to decipher the meanings of religious and canonical texts and interpret them, the strange nature of which is apparent from the fact that the judges in this case had conducted their own inquiries into essentially theological issues related to Islamic laws and practices, and came up with differing interpretations.