Even as the Supreme Court Thursday observed that it would examine if triple talaq was an essential religious practice of Islam, the Centre called for an authoritative ruling on whether personal laws — as a facet of freedom to practise religion — would be circumscribed by fundamental rights of equality and to live with dignity. Questioning the validity of triple talaq, the Centre has sought a fresh debate on issues relating to limitations of freedom to profess, practise and propagate religion in the light of fundamental rights that guarantee every person equality and right to life and liberty.
Amid a non-uniform body of Supreme Court decisions on the subject, the government appealed for a decisive ruling on four questions. The questions submitted by the government are:
— Whether the impugned practices of talaq-e-biddat, nikaah halala and polygamy are protected under Article 25(1) of the Constitution of India? Article 25(1) deals with freedom to practise religion.
— Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India? Articles 14 ensures right to equality while Article 21 guarantees right to life and liberty.
— Whether personal law is law under Article 13 of the Constitution? Article 13 lays down that all laws should conform to the fundamental rights.
— Whether the impugned practices of talaq-e-biddat, nikaah halala and polygamy are compatible with India’s obligations under International treaties and covenants to which India is a signatory? During the hearing Thursday, a bench led by Chief Justice of India J S Khehar indicated that it was inclined to form a five-judge Constitution Bench for adjudicating upon issues raised in a clutch of petitions challenging validity of triple talaq, nikah halala and polygamy.
“We have to go by the law. We have to consider whether it is a fundamental trait of the religion, if it is so then we have to view it from another perspective…all the issues raised in the petitions are important and cannot be scuttled,” said the bench. It asked the counsel, representing different parties, to prepare brief submissions and submit to the court by March 30. The bench, also comprising Justices N V Ramana and D Y Chandrachud, sought assistance of the Attorney General in framing the issues on the next date of hearing. It hinted that a Constitution Bench may be formed to take up the matter during the summer vacation. Laws that violate fundamental rights can be struck down by a constitutional court but the Supreme Court has exhibited an inconsistent attitude in testing constitutionality of personal laws.
In a number of cases, it has held that personal laws are not subject to Part III of the Constitution that deals with fundamental rights and hence, they cannot be challenged for violating rights guaranteed under Articles 14, 15 and 21. In Krishna Singh Vs Mathura Ahir, 1980, the top court held that “Part III of the Constitution does not touch upon the personal laws of the parties.” On the other hand, in a line of other judgments, the apex court has tested personal laws on the touchstone of fundamental rights and read down these laws or interpreted them so as to make them consistent with fundamental rights. In Anil Kumar Mhasi Vs Union of India, 1994, the court tested the validity of some sections of the Indian Divorce Act (a personal law for Christians) on the touchstone of fundamental rights.