CRITICISING THE practice of triple talaq as “extra-judicious” and “discriminatory”, the Centre told the Supreme Court on Monday that it will come up with a law to deal with any situation that may arise if the court strikes down all forms of talaq as unconstitutional. “The Centre will step in,” Attorney General Mukul Rohatgi told a five-judge Constitution Bench of the Supreme Court which is hearing a batch of petitions challenging the validity of instant triple talaq, polygamy and nikah halala.
The AG’s comments came in response to a query from the bench headed by Chief Justice of India J S Khehar, which sought to know what was the recourse open to Muslim men to seek divorce if it holds all the three forms of talaq as unconstitutional.
“The practice of triple talaq is discriminatory in three ways. It puts Muslim women in a disadvantageous position within the community, vis-a-vis women of the other community and also at the international level… it puts the (Muslim) women in a subservient position when compared to women of other community,” Rohatgi told the apex court.
Stressing that “matters of personal law must conform to the Constitutional goals”, the AG said “as far as Hindus are concerned, various steps were taken to bring personal laws in conformity with Constitution. But for Muslims, there was only the 1937 (The Muslim Personal law (Application) Act, 1937) and 1939 (The Dissolution of Muslim Marriages Act, 1939)… and changes post the judgment in the Shah Bano case”.
While the Centre sought to stress the importance of the Constitution, saying “Constitution is supreme. Nothing else is supreme. Anything that is violative of the Constitution must go”, the court said it had limitations while going into personal laws and interpreting the tenets of any faith. “Tenets of a religion can never be tested in a court,” said CJI Khehar.
The AG agreed that the court was not the proper forum to interpret religious laws, but pointed out that there was no need to do that in this case. “Marriage, divorce and succession are no more personal law after the 1937 Act which made them statutory. The court only needed to see if under Article 13, the law was consistent with the Constitution,” Rohatgi contended.
Justice R F Nariman put this in context: “So you mean to say the question is if personal law is applied by the state by way of statute like the 1937 Act or otherwise, is it valid under Constitution.”
Answering in the affirmative, the AG went on to refer to the “discriminatory nature” of the talaq provisions.
“How do you suggest we remove this inequality,” queried Justice U U Lalit. In reply, the AG said “by exorcising the talaq provision” and added that “it must be struck down without getting into the question whether it is a part of religion.”
The AG pointed out that the “Constitution bench is to examine whether anything infringes the provisions of the Constitution,” but the CJI sought to disagree and added that “not only Constitutional issues, but every important issue that has a bearing on a large majority of the people is dealt with by a Constitution bench… that’s how this issue has come up before the bench.”
The CJI also added that marriage was an integral part of religion, conveying that there were limitations in going into the subject. “If that is so, no practice can be set aside,” said the AG.
Justice Nariman pointed out to the AG that this was the reason why there was the “essential test”. “That’s why the test of essential (whether the practice under challenge is essential to the practice of religion). All practices do not get protection,” he said.
The AG said “the court cannot shut its eyes to what is happening.” On why the Parliament had not made any law to deal with the subject till now, Rohatgi said: “I can’t speak of the past. But for 60 years, Parliament did not make a law because it is a sensitive subject.”
To this Justice Kurien Joseph said, “not because it is politically sensitive, but Constitutionally sensitive”.
Appearing for the All Indian Muslim Personal Law Board, senior counsel Kapil Sibal backed the provisions, saying it was not for the court to decide on the validity of personal laws. “It is highly complex… Parliament should have done something…There was argument after argument in the Constituent Assembly if personal laws should be made fundamental rights, but this was rejected… Constitutional scheme itself is of protection of personal laws,” said Sibal.
Interestingly, he agreed that the practice was discriminatory but added, “the problem lies with patriarchy…all patriarchal societies are discriminatory.”
“Can the court decide what is faith,” Sibal asked.
“The court is only called upon to decide the validity of a provision that is discriminatory to women,” responded Justice Kurien. Sibal added that such discriminatory provisions existed even in the Hindu law and wondered if the court would strike down Hindu law because of that.